On "Adopted 'Children'" and "Birth Records, Pertaining to Adoption"
[FOIL-AO-548]
May 10, 1977
IRIDE
129 W. 15 Street
Deer Park, New York 11729
Dear "IRIDE":
Thank you for your interest in the Freedom of Information Law.
With respect to your inquiry concerning records related to an adopted child, Section 372
of the Social
Service Law states that records relative to adoptive children "shall be deemed
confidential and the board
shall safeguard them from coming into the knowledge of and from inspection or examination
by any person
other than one authorized, by the commissioner or by a justice of the supreme court after
a notice to all
interested persons and a hearing, to receive such knowledge or to make such inspection or
examination.
No person shall divulge the information thus obtained without authorization so to do by
such commissioner
or by such justice." Consequently, the records that you are seeking are deniable.
Nevertheless, it is suggested that the inquiry be directed to the agency in custody of the
records. It is
possible that the information sought may be provided orally without physically providing
access to the
records.
I regret that I cannot be of further assistance. Should any further questions arise,
please feel free to
contact me.
Sincerely,
Robert J. Freeman
Executive Director
RJF:js
[FOIL-AO-707]
February 21, 1978
Mr. John D. Berwick
Brant Lake Arts Center
Brant Lake, New York 12815
Dear Mr. Berwick:
Thank you for your interest in the Freedom of Information Law. As requested, enclosed are
copies of
the new Freedom of Information Law, an explanatory pamphlet on the subject and a pocket
card which
outlines the Law.
The Freedom of Information Law does not alter statutory provisions regarding access to
adoption
records. One of the grounds for denial in the Law pertains to records that are
"specifically exempted from
disclosure by state or federal statute" [Section 87 (2) (a)]. In this regard, Section
114 of the Domestic
Relations Law states:
"No person, including the attorney for the adoptive parents shall disclose the surname of the
child directly or indirectly to the adoptive parents except upon order of the court. No person
shall be allowed access to such sealed records and order and any index thereof except upon
an order of a judge or surrogate of the court in which the order was made or of a justice of
the supreme court. No order for disclosure or access and inspection shall be granted except
on good cause shown and on due notice to the adoptive parents and to such additional
persons as the court may direct."
Since records of adoption are "specifically exempted from
disclosure," they remain confidential,
notwithstanding the provisions of the Freedom of Information Law.
I regret that I cannot be of further assistance. Should any further questions arise,
please feel free to
contact me.
Sincerely,
Robert J. Freeman
Executive Director
RJF:js
[FOIL-AO-1505]
May 2, 1980
Mr. Ralph Clinton Davidson
3005 1/2 Bagley Avenue
Los Angeles, California 90034
Dear Mr. Davidson:
As you are aware, I have received the materials sent to this office concerning your
ability to gain access
to records of birth and your subsequent adoption under the Freedom of Information Law.
In my opinion, the Freedom of Information Law cannot be cited as a vehicle for seeking
disclosure of
the information in which you are interested.
First, adoption records are generally in possession of courts. In this regard, Section 86
(3) of the
Freedom of Information Law, a copy of which is attached, specifically excludes the
"judiciary" from the
scope of the Law.
Second, the Freedom of Information Law states that an agency may withold records or
portions thereof
that "are specifically exempted from disclosure by state or federal statute"
[Section 87 (2) (a)].
Under the circumstances, statutes relative to the birth records and the adoption records
in which you are
interested specifically exempt such records from disclosure. Both Section 114 of the
Domestic Relations
Law concerning adoption records and Section 4138 (3) of the Public Health Law concerning
the birth
records in question require confidentiality unless a court orders disclosure. I have
enclosed copies of both
statutes for your consideration.
I regret that I cannot be of greater assistance. Should any further questions arise,
please feel free to
contact me.
Sincerely,
Robert J. Freeman
Executive Director
RJF/kk
Encs.
[FOIL-AO-7202]
June 19, 1992
Mr. A. F. Logallo
90-B-1210
Box 2000
Pine City, NY 14871
The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing
staff advisory opinion is based solely upon the facts presented in your correspondence.
Dear Mr. Logallo:
I have received your letters of June 10 and June 12, both of which reached this office on
June 15.
In the former, you requested copies of advisory opinions, which are enclosed. In the
latter, you raised
questions concerning the unsealing of adoption records.
It is noted in this regard that the first ground for denial in the Freedom of Information
Law, Section 87
(2) (a), pertains to records that are "specifically exempted from disclosure by state
or federal statute."
One such statute is Section 114 of the Domestic Relations Law, which generally requires
that adoption
records be sealed and confidential. As such, the Freedom of Information Law would not be
applicable to
those records. Section 114 states in part that:
"No person, including the attorney for the adoptive parents shall disclose the surname of the
child directly or indirectly to the adoptive parents except upon order of the court. No person
shall be allowed access to such sealed records and order and any index thereof except upon
an order of a judge or surrogate of the court in which the order was made or of a justice of
the supreme court. No order for disclosure or access and inspection shall be granted except
on good cause shown and on due notice to the adoptive parents and to such additional
persons as the court may direct."
I hope that I have been of some assistance.
Sincerely,
Robert J. Freeman
Executive Director
RJF:jm
Encs.
January 20, 1999
Mr. Christopher K. Philippo
539 Bloomingrove Drive, Apt. 3
Rensselaer, NY 12144-9350
The staff of the Committee on Open Goverment is authorized to issue advisory opinions.
The ensuing staff
advisory opinion is based soley upon the information presented in your correspondence.
Dear Mr. Philippo:
I have received your letter of January 1. In conjunction with your review of opinions
rendered by this office
pertaining to access to adoption records and adoptees' original birth records, you have
raised a series of
questions.
First, you sought my opinion concerning the holding in Malowsky v. D'Elia [160 AD2d 798
(1990)], in
which the court determined that what you characterized as adoption agencies "must
yield to the strong policy
considerations underlying FOIL." In this regard, I note that Malowsky dealt with a
request for records
apparently maintained by a county department of social services, which clearly is an
"agency" as that term is
defined in Section 86(3) of the Freedom of Information Law. Adoption agencies and other
entities subject to
Section 373-a of the Social Services Law are frequently not governmental in nature and,
therefore, not subject to
the Freedom of Information Law.
With respect to the Court's statement that you quoted, I see no inconsistency between the
general thrust of
the Freedom of Information Law and the decision. The former is intended to provide maximum
access to
government records; Section 373-a deals with particular records and creates what
essentially is a special right of
access to medical histories to the subjects of those records, so long as identifying
details pertaining to the
adoptees natural parents are "eliminated." The thrust of Section 373-a is
analogous to both the Freedom of
Information Law and the Personal Privacy Protection Law. Under both of those statutes, in
general, an
individual cannot invade his or her own privacy; however, both statutes include provisions
designed to protect
the privacy of others.
In a related vein, you asked whether the Personal Privacy Protection Law "would
permit an adoptee to
access his or her own birth, foster care, and adoption records." In my view, it would
not. That statute pertains
only to records maintained by state agencies; it does not apply to records of private
entity, a unit of local
government or a court. Further, insofar as the records at issue are maintained by state
agencies, I note that
Section 95(6)(a) specifies that the Personal Privacy Protection Law does not require a
state agency to provide
the subject of a records with "personal information to which he or she is
specifically prohibited by statute from
gaining access." Each of the records to which you referred is confidential by
statute, and each of those statutes
limits the circumstances under which the records may be disclosed. As such, I do not
believe that the Personal
Privacy Protection Law would serve to grant access to those records.
Lastly, you wrote that you "would like to know what guarantees the public has that
the Department of
Family Assistance (AKA Social Services) is accountable to the public." While I cannot
respond in detail due to
my lack of familiarity with the agency in question, I believe that all state agencies
strenuously seek to comply with
law.
I hope that I have been of assistance.
Sincerely,
Robert J. Freeman
Executive Director
RJF:jm
Above Advisory Opinions provided by NYS Department of State -- Committee on Open Government.
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