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FOIL-AO-13194

February 13, 2002

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, unless otherwise indicated.

Dear

I have received your letter of January 28, as well as the materials attached to it. You have sought an advisory opinion concerning the propriety of an agreement ("the agreement") between the City of New York and the Rudolph W. Giuliani Center for Urban Affairs Inc. ("the Center"). Attachment A, appended to the agreement describes a variety of records, both paper and other media, formerly maintained by the Office of the Mayor, as well those maintained by his chief of staff, deputy mayors and their chiefs of staff, that have been transferred to the Center by the New York City Department of Records and Information Services ("DORIS"). A news article regarding the agreement indicated that 2,114 boxes of records were transferred to the Center late in December.

You have asked whether, under the agreement, "public access and document preservation is ensured in accordance with state law", whether it is "legal...to give physical control of these records to a private third party", and whether "there is any legal precedent for such an arrangement." If it is my view that "the agreement violates state law", you asked that I "suggest what remedies might exist."

It is emphasized at the outset that the Committee on Open Government is authorized to provide advice and opinions concerning the Freedom of Information Law. That statute does not include direction or requirements pertaining to the preservation or transfer of records. While I cannot offer advice relative to the retention or transfer of records, I note that the law concerning those issues is found in the New York City Charter ("the Charter"), Chapter 72, §§3000 to 3011.

Pursuant to §3000 of the Charter, a mayoral appointee, a commissioner, is the head of DORIS, and subdivision (1) of §3003 states that the commissioner "...shall be the chief archivist of the city and shall advise the mayor...on those matters concerning the preservation of the city's historical documentation." Subdivision (3) provides that the commissioner shall "establish standards for proper records management in any agency or government instrumentality funded in whole or in part from local tax levy monies...", and subdivision (4) states that the commissioner has "the power to exercise or delegate any of the functions and duties vested in such commissioner by law." Subdivision (1) of §3004 states that the municipal archives shall perform the following functions: "a. develop and promulgate standards, procedures and techniques with regard to archives management;

b. make continuing surveys of existing records to determine the most suitable methods to be used for the creating, maintaining, storing and servicing of archival material;

c. preserve and receive all city records of historical, research, cultural or other important value;

d. appraise, accession, classify, arrange and make available for reference all records which come into the possession of the archives; and

e. establish and maintain an archives depository for the storage, conservation, processing and servicing of records."

It is noted that subdivision (3) of §3011 defines the phrase "records management" to mean:

"...the planning, controlling, directing, organizing, training, promoting and other managerial activities involved in records creation, records maintenance and use and records disposition, including but not limited to, the management of correspondence, forms, directives, reports, machine readable records, microfilms information retrieval, files, mail, vital records, equipment and supplies, office copiers , word processing and source data automation techniques, records preservation, records disposal and records centers or other storage facilities..."

Subdivision (2) of that section defines the term "records" for purposes of the Charter to include:

"...any documents, books, papers, photographs, sound recordings, machine readable materials or any other materials, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official city business."

Additionally, §1133(b) of the Charter, formerly §3006, pertains to the disposal of records and the duty to "establish standards for the preparation of schedules for the disposition of records, [and] providing for the retention of records and archives of continuing value..."

In short, the Charter confers a variety of powers and duties upon DORIS and its commissioner relative to the management of City records.

The introductory portion of the agreement indicates that the Center is required to store documents in an appropriate "facility", and Article 1, section G of the agreement states in part that "the City retains ownership of the Documents, and ultimate control of the Documents resides in the City and DORIS"; section H provides that it is the intent of the Center "to provide to the public the substance of the Documents for research and study purposes." Section I states that the Documents "shall be the property of the City for the purposes of Freedom of Information Law....and any request for access pursuant to such statute shall be responded to by the City in the manner provided by law, as if such documents or copies were in the custody and control of the City."

While the provisions of the agreement cited above do not appear to be contrary to law, other aspects of the agreement, in my view, are inconsistent with the Freedom of Information Law and the interpretation of that statute.

Section A of Article 1 states in part that "[i]f the Center determines that any Document delivered to the Facility is not a public document properly included within the Documents, it shall contact the City, and the Parties shall reach a determination as to the proper treatment of such document." And most importantly, section M provides that:

"Whenever Rudolph W. Giuliani has a personal interest or right in a Document separate and apart from the interests and rights of the City, his approval shall be required before any such document may be released or disclosed by the Center to the public. Such approval shall be in addition to, and not in lieu of, the approval of the City."

In this regard, the scope of the Freedom of Information Law is expansive, for it encompasses all government agency records within its coverage. Section 86(4) of that statute defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based upon the language quoted above, the "documents" referenced in the agreement need not be in the physical possession of a City agency to constitute agency records; so long as they are produced, kept or filed for an agency, the law specifies and the courts have held that they constitute "agency records", even if they are maintained apart from an agency's premises.

In a decision rendered by the Court of Appeals, the state's highest court, it was found that materials received by a corporation providing services for a branch of the State University pursuant to a contract were kept on behalf of the University and constituted agency "records" falling within the coverage of the Freedom of Information Law. I point out that the Court rejected "SUNY's contention that disclosure turns on whether the requested information is in the physical possession of the agency", for such a view "ignores the plain language of the FOIL definition of 'records' as information kept or held 'by, with or for an agency'" [see Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410. 417 (1995)].

Also significant is the first decision in which the Court of Appeals dealt squarely with the scope of the term "record", in which the matter involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy" and found that the documents constituted "records" subject to rights of access granted by the Law. Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" [Westchester-Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)].

The point made in the final sentence of the passage quoted above appears to be especially relevant, for there may be "considerable crossover" in the activities of Mr. Giuliani as mayor and as a citizen.

Also pertinent is another decision rendered by the Court of Appeals in which the Court focused on an agency claim that it could "engage in unilateral prescreening of those documents which it deems to be outside of the scope of FOIL" and found that such activity "would be inconsistent with the process set forth in the statute" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The Court determined that:

"...the procedure permitting an unreviewable prescreening of documents - which respondents urge us to engraft on the statute - could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate request. There would be no way to prevent a custodian of records from removing a public record from FOIL's reach by simply labeling it 'purely private.' Such a construction, which would thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected" (id., 254).

The holding in Capital Newspapers is particularly relevant in consideration of Article 1, section A. Again, that provision states in part that "[i]f the Center determines that any Document delivered to the Facility is not a public document....the Parties shall reach a determination as to the proper treatment of such document." From my perspective, any document or any information in some physical form transferred or delivered by a City agency to the Center constitutes a "record" that falls within the scope of the Freedom of the Freedom of Information Law. Any "prescreening" of a document to determine whether the document falls within the coverage of that statute would, in my view, conflict with the clear direction provided by the Court of Appeals and the language of the law itself.

In a case involving notes taken by the Secretary to the Board of Regents that he characterized as "personal" in conjunction with a contention that he took notes in part "as a private person making personal notes of observations...in the course of" meetings. In that decision, the court cited the definition of "record" and determined that the notes did not consist of personal property but rather were records subject to rights conferred by the Freedom of Information Law [Warder v. Board of Regents, 410 NYS 2d 742, 743 (1978)].

Somewhat similar in some respects to the matter at hand is Kerr v. Koch (Supreme Court, New York County, NYLJ, February 1, 1988). Kerr involved a request by a reporter for the Daily News for the public and private appointment calendars of then Mayor Koch. Although it was contended by the City that various materials were not subject to the Freedom of Information Law or could be withheld under that statute, the Court disagreed, citing Capital Newspapers and an opinion rendered by this office and stated that:

"...respondents base petitioner's exclusion from certain materials by saying that some of the appointment books contain both personal and business appointments created for the Mayor's convenience. That contention, of course, has little probative meaning here:

'*** personal or unofficial documents which are intermingled with official government files and are being 'kept' or 'held' by a governmental entity are 'records' maintained by an 'agency' under Public Officers Law §86 (3), (4). Such records are, therefore, subject to disclosure under FOIL absent a specific statutory exemption' (Capital Newspapers v. Whalen, 69 N.Y. 2d 246, 248).

"At the Appellate Division level of Capital Newspapers, it was ruled that papers of a personal nature were protected from disclosure under the FOIL and that the law was intended by the Legislature to subject to disclosure only those records that revealed the workings of government and that disclosure of private papers of a public office holder would not further the purpose of FOIL (113 App. Div. 2d 217, 220). It is that ratio decidendi that the Court of Appeals rejected in its unanimous ruling.

"The Court then went on to re-state the appellate conclusion that FOIL 'is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government' (citing Matter of Washington Post Co. v. New York State Ins. Dept., 61 N.Y. 2d 557, 564). Any narrow construction of FOIL, it was added, 'is contrary to these decisions and antagonistic to the important policy underlying FOIL' (p. 52 of Capital Newspapers, supra)."

In short, I reiterate that, in my view, any "document" transferred or delivered to the Center by any City agency would constitute a "record" that falls within the coverage of the Freedom of Information Law.

With respect to section M of Article 1, again, that provision prohibits the Center from disclosing a document to the public absent the approval of former Mayor Giuliani "[w]henever [he] has a personal interest or right in a document separate and apart the interests and rights of the City." From my perspective, since the documents are City records, and since all City records are subject to rights of access conferred upon the public by the Freedom of Information Law, the former mayor has no "right" to determine which documents are accessible to the public. On the contrary, the law serves as the basis for determining rights of access.

As a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 NY 2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

There is nothing in the Freedom of Information Law that authorizes a person or agency to claim, promise or engage in an agreement conferring confidentiality in the context of your inquiry.

In a case in which a law enforcement agency permitted persons reporting incidents to indicate on a form their preference concerning the agency's disclosure of the incident to the news media, the Appellate Division found that, as a matter of law, the agency could not withhold the record based upon the "preference" of the person who reported the offense. Specifically, in Johnson Newspaper Corporation v. Call, Genesee County Sheriff, 115 AD 2d 335 (1985), it was found that:

"There is no question that the 'releasable copies' of reports of offenses prepared and maintained by the Genesee County Sheriff's office on the forms currently in use are governmental records under the provisions of the Freedom of Information Law (Public Officers Law art 6) subject, however, to the provisions establishing exemptions (see, Public Officers Law section 87[2]). We reject the contrary contention of respondents and declare that disclosure of a 'releasable copy' of an offense report may not be denied, as a matter of law, pursuant to Public Officers Law section 87(2)(b) as constituting an 'unwarranted invasion of personal privacy' solely because the person reporting the offense initials a box on the form indicating his preference that 'the incident not be released to the media, except for police investigative purposes or following arrest'."

Similarly, the Court of Appeals has held that a request for or a promise of confidentiality is all but meaningless; unless one or more of the grounds for denial appearing in the Freedom of Information Law may appropriately be asserted, the record sought must be made available. In Washington Post v. Insurance Department [61 NY2d 557 (1984)], the controversy involved a claim of confidentiality with respect to records prepared by corporate boards furnished voluntarily to a state agency. The Court of Appeals reversed a finding that the documents were not "records" subject to the Freedom of Information Law, thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Moreover, it was determined that:

"Respondent's long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature's definition of 'records' under FOIL. The definition does not exclude or make any reference to information labeled as 'confidential' by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt (see Matter of John P. v Whalen, 54 NY2d 89, 96; Matter of Fink v Lefkowitz, 47 NY2d 567, 571-572, supra; Church of Scientology v State of New York, 61 AD2d 942, 942-943, affd 46 NY2d 906; Matter of Belth v Insurance Dept., 95 Misc 2d 18, 19-20). Nor is it relevant that the documents originated outside the government...Such a factor is not mentioned or implied in the statutory definition of records or in the statement of purpose..."

The Court also concluded that "just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption" (id., 567).

In a different context, in Geneva Printing Co. and Donald C. Hadley v. Village of Lyons (Supreme Court, Wayne County, March 25, 1981), a public employee charged with misconduct and in the process of an arbitration hearing engaged in a settlement agreement with a municipality. One aspect of the settlement was an agreement to the effect that its terms would remain confidential. Notwithstanding the agreement of confidentiality, which apparently was based on an assertion that "the public interest is benefited by maintaining harmonious relationships between government and its employees", the court found that no ground for denial could justifiably be cited to withhold the agreement. On the contrary, it was determined that:

"the citizen's right to know that public servants are held accountable when they abuse the public trust outweighs any advantage that would accrue to municipalities were they able to negotiate disciplinary matters with its employee with the power to suppress the terms of any settlement".

In so holding, the court cited a decision rendered by the Court of Appeals and stated that:

"In Board of Education v. Areman, (41 NY2d 527), the Court of Appeals in concluding that a provision in a collective bargaining agreement which bargained away the board of education' s right to inspect personnel files was unenforceable as contrary to statutes and public policy stated: 'Boards of education are but representatives of the public interest and the public interest must, certainly at times, bind these representatives and limit or restrict their power to, in turn, bind the public which they represent. (at p. 531).

"A similar restriction on the power of the representatives for the Village of Lyons to compromise the public right to inspect public records operates in this instance.

"The agreement to conceal the terms of this settlement is contrary to the FOIL unless there is a specific exemption from disclosure. Without one, the agreement is invalid insofar as restricting the right of the public to access."

There are other aspects of the agreement that are troubling as well. For instance, section H of Article 1 states that "[i]t is the intent of the Center that it ultimately be able to provide to the public access to the substance of the Documents for research and study purposes." Aside from the considerations expressed in the preceding commentary, the purpose for which records are sought under the Freedom of Information Law is irrelevant. It has been held that when records are accessible under that statute, they are equally available to any person, regardless of status or interest [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD2d 673, 378 NYS 2d 165 (1976) and M. Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY2d 75 (1984)].

Further, although the "documents" may be in the physical custody of the Center, for reasons expressed earlier, I believe that they are in the legal custody of DORIS. If a request for those records is made under the Freedom of Information Law, DORIS, in my view, would be required to comply with that law, as well as the procedural regulations promulgated pursuant to that law. By way of background, §89(1) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural implementation of that statute (see 21 NYCRR Part 1401). In turn, §87(1) requires each agency to adopt rules and regulations consistent those promulgated by the Committee and with the Freedom of Information Law. Under Mayor Koch, uniform rules and regulations for New York City were adopted and, to my knowledge, remain in effect. One element of the Committee's regulations involves the designation of one or more persons as "records access officer" (see §1401.2). The records access officer has the duty of coordinating an agency's response to requests for records. Part of the duty to "coordinate" in my view would relate to the manner in which the Center responds to requests made under the Freedom of Information Law for records in its possession. When such a request is made, I believe that the Center would be obliged to grant or deny access in accordance with law and the direction given by the records access officer, or transmit the request to the records access officer, who would respond in a manner consistent with law.

One of the few instances in which the Freedom of Information Law requires the maintenance of a record relates to a "subject matter list" of records. Specifically, §87(3)(c) requires that each agency shall maintain:

"...a reasonably detailed current list by subject matter, of all records in the possession of the agency, whether or not available under this article."

The subject matter list is not required to identify every record maintained by an agency. However, it is required to indicate, by category, the kinds of records maintained by (or for, in this instance) an agency in reasonable detail. Whether DORIS maintains such a list separate from that attached to the agreement in a manner that satisfies §87(3)(c) is unknown to me. However, if no such list has yet been prepared, I believe that DORIS is required by that provision to do so.

Lastly, you asked what remedies might exist to rectify deficiencies in the agreement. Section B of Article 2 of the agreement provides in part that "[e]ither party may terminate this Agreement for any reason upon 90 days' written notice." That being so, the City could terminate the agreement or renegotiate to ensure that its terms are fully consistent with law. If neither of those actions is taken, I believe that you or any person could initiate a judicial proceeding to seek to invalidate those portions of the agreement that may be inconsistent with law.

In an effort to resolve the matter, a copy of this opinion will be forwarded to Michael A. Cardozo, Corporation Counsel. I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Michael A. Cardozo