October 13, 1995



Mr. Bernard J. Zolnowski, Jr.
40 Delaware Avenue
Buffalo, NY 14202

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Zolnowski:

I have received your letter of September 12. You referred to the decision rendered in Whitehead v. Morgenthau [552 NYS 2d 518 (1990)] and wrote that "the court ruled that the Court must interpret the NYS FOIL based upon the federal statute." Consequently, you asked that I "explain...just how much the federal statute must be taken into consideration with the state statute."

In this regard, first, I believe that you misinterpreted Whitehead. Nowhere in that decision is a statement to the effect that the interpretation of the state Freedom of Information Law must be based on or consistent with the interpretation of the federal Freedom of Information Act. The court in fact referred to an opinion rendered by this office in which it was advised that nothing in the state statute pertains to or requires that fees be waived and found that the opinion is "entitled to great weight and, if not irrational or unreasonable, should be upheld" (id., 519). While the decision included a discussion of provisions in the federal Act concerning fee waivers and the judicial interpretation of those provisions, the court "conclude[d] that respondent's refusal to waive the copying fees, on the ground that there is no provision for such a waiver in the Public Officers Law, is reasonable and should be upheld" (id., 520-521). In short, the determination was based on the language of the New York Freedom of Information Law, not the federal Freedom of Information Act or the decisions rendered under that statute. Further, the Court of Appeals, the state's highest court, has indicated in a footnote that the state statute is "patterned" after the analogous federal statute and that federal case law is "instructive" [Fink v. Lefkowitz, 47 NY 2d 568, 572 (1979)]; it is not binding.

I point out that the federal Act pertains only to federal agencies; it does not apply to records maintained by entities of state or local government. While the Act might serve as a model for other laws, each state has enacted its own version of an access law, and no two state laws are the same. A review of the New York and federal statutes reveals that they are similar in structure, but that there are crucial differences between the two in terms of their specific language. For example, the federal Act, which clearly deals with access to records, does not define the term "record." In contrast, the New York statute has included a definition of that term since 1978. Because of that critical provision, the interpretation of the state law and the federal Act have been different in significant ways.

In short, although the federal Act and the interpretations of that statute may serve to provide guidance, I do not believe that there is any requirement that they be followed or considered when determining issues under the state statute.

I hope that the foregoing serves to clarify your understanding of the matter.



Robert J. Freeman
Executive Director