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 FOIL-AO-13226

February 26, 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 February 15 and the materials attached to it. You have requested an advisory opinion concerning the Archival Standards and Processing Plan ("the Plan") of the Rudolph W. Giuliani Center for Urban Affairs, Inc. ("the Center), particularly "as to whether public access is ensured in accordance with law." The Plan was developed pursuant to a contract between the Center and New York City ("the City") signed in December, 2001. You indicated that you received the advisory opinion prepared by this office on February 13 in which it was advised that certain provisions in the contract between the Center and New York City were, in my view, inconsistent with law, and you asked whether the Plan "addresses those irregularities, or whether those still exist."

As you are aware, in an effort to enhance understanding of and compliance with the Freedom of Information Law, a copy of the opinion rendered on February 13 was transmitted to Michael A. Cardozo, Corporation Counsel. Mr. Cardozo also sent a copy of the Plan to me, and in a letter addressed to Betsy Gotbaum, the City's Public Advocate, pertaining to the Plan, Mr. Cardozo stressed that "the City has in no way relinquished its control over any of the records held by the Center", and that the records held by the Center "will be disclosable in accordance with the provisions of the New York State Freedom of Information Law..."

Having reviewed the Plan, it is emphasized that the advisory jurisdiction of this office in the context of the matter presented is limited to issues relating to the Freedom of Information Law. While other provisions of law may be pertinent to or implicated by the Plan, they will not be addressed. From my perspective, two sections of the Plan relate to the operation of the Freedom of Information Law.

Section VII. entitled "Restricted Access or Private Material" states in relevant part that:

"General access to all or some portions of certain record series may be restricted. The Archivist should seek the guidance of the Corporation Counsel for the proper handling of any such materials.

1) Records may deal with matters related to City security or law enforcement.

2) Records may be of a private nature. (See Section IX. Access Policy.)

3) Records may relate to current or anticipated litigation or otherwise be legally privileged." . For reasons to be considered in the ensuing commentary, item 2, the statement that records "may be of a private nature", is, in my view, inconsistent with law.

Perhaps most pertinent is Section IX. entitled "Access Policy." That series of provisions states that:

"The documents which comprise the Center's collection are the property of the City of New York.

"The Agreement between the City and the Center intends to ensure that provision is made for public access to the collection to the fullest extent provided by law. With regard to public access to records contained in the collection, the following therefore applies:

Records held by the Center may consist of both official documents of the City and private documents belonging to former Mayor Giuliani or another individual.

The City shall be the sole determiner of whether a record is an official document of the City or a private document belonging to Mayor Giuliani or another individual. Such determinations shall in each case be made by the Office of the Corporation Counsel.

In the case of a request for access to an official document of the City, the City shall be the sole determiner of whether and to what extent such access shall be granted.

In the case of a request for access to a private document contained in the collection but belonging to former Mayor Giuliani or another individual, (i) in the case of a request made under the Freedom of Information Law, the City shall be the sole determiner of whether and to what extent such access shall be granted. If the City determines pursuant to FOIL that release of a document would constitute an unwarranted invasion of the personal privacy of former Mayor Giuliani or another individual and that FOIL therefore does not require public access to the document, such document shall be released only with the approval of former Mayor Giuliani or such other individual;

(ii) in the case of any other request for public access, (i.e., where the City has determined that a document is a private record and the request is not covered under [i] above), the Center may grant access only with the approval of former Mayor Giuliani or such other individual."

One of the areas of criticism expressed in the earlier opinion involved reference to section M of Article 1, which states 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."

The Plan, as indicated above, states in the provisions regarding "Access Policy" that "the City shall be the sole determiner of whether and to what extent such access shall be granted." Item (ii) above, however, refers to "private" records and the authority to disclose them "only with the approval of Mayor Giuliani or such other individual."

Still troubling, therefore, and, in my view, still inconsistent with law, are the references in the Access Policy quoted above to "a private document" or "a private record...belonging to former Mayor Giuliani or another individual." Based on judicial decisions rendered by the state's highest court that were cited in the opinion of February 13, no document or record that had been or is now maintained by any agency of City government may in my opinion be characterized as "private" or "belonging to" the former Mayor or any other person. On the contrary, I believe that every such document or record is the property and in the legal custody of the City and falls within the coverage of the Freedom of Information Law. This is not to suggest that each such document or record must in every instance be disclosed to the public, for it is likely that certain documents or records may be withheld in whole or in part. Rather, my opinion is that all such materials are presumptively available to the public under the Freedom of Information Law, and that access may be denied only in accordance with the grounds for denial of access appearing in §87(2) of that statute.

To reiterate the points offered in the opinion of February 13, first, the Freedom of Information Law includes within its scope any information in any physical form maintained by or for an agency. Therefore, even if a document addressed to an official is marked "personal", or even if a document is exempted from disclosure by statute, it would nonetheless constitute a "record" subject to whatever rights exist under the Freedom of Information Law. Specifically, §86(4) defines the term "record" 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."

The term "agency" is defined in §86(3) to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

More than twenty years ago, the Court of Appeals found that the nature, the function or the origin of records are irrelevant in considering whether the records fall within the framework of the Freedom of Information Law. So long as information in some physical form is kept by or for an agency, it is a "record" subject to rights of access. The question that follows involves the extent, if any, to which an agency may deny access. In Westchester-Rockland Newspapers v. Kimball, the materials sought involved a lottery conducted by a volunteer fire company, which was found to be an "agency", and although that 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. 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" [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 have been "considerable crossover" in the activities of Mr. Giuliani as mayor and as a citizen. That is of no moment in my opinion in considering whether documentary material is subject to the Freedom of Information Law.

The most significant decision in relation to the matter, a decision that focuses directly on the primary issue raised by the Plan in relation to the Freedom of Information Law, Capital Newspapers v. Whalen, is especially relevant in view of its facts and the unanimous rejection by the Court of Appeals of the decision reached by the Appellate Division.

By way of introduction, in the decision rendered by the Appellate Division, it was found that:

"The late Erastus Corning, II, was Mayor of the City of Albany for some 42 years until his death in 1983. During his later years in office he was also Chairman of the Albany County Democratic Committee. Over this historically lengthy tenure as Albany's chief executive, he collected and stored more than 900,000 documents and letters (the Corning papers) at his office in City Hall, including those relating to personal matters and to his activities as Democratic Committee Chairman. It is readily inferable from the record that Corning kept essentially exclusive control of his papers during his lifetime" [113 AD2d 217, 218 (1985)].

I prepared an opinion concerning the matter advising, in the words of the Court, that "all of the Corning papers, including those personal in nature and relating solely to Democratic Party activities, were accessible under FOIL unless covered by a specific statutory exemption", and that [I] "based this opinion on FOIL's definition of 'records'..." (id., 219). While the Supreme Court agreed with my opinion, the Appellate Division reversed, holding that:

"Special Term and the State Committee on Open Government read the statute far too broadly in making Corning's personal and Democratic Party papers publicly accessible under FOIL. There is no basis to infer that any such farreaching public disclosure of non- governmental activities was intended by that legislation. The declared legislative policy underlying FOIL was to fulfill '[t]he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations' by providing 'access to the records of government' (Public Officers Law § 84 [emphasis supplied]). The Governor's message of approval of the original FOIL enactment (L 1974, chs 578-580) similarly states that '[t]hese bills will provide, for the first time in New York State, a structure through which citizens may gain access to the records of government and thereby gain insight into its workings' (Governor's Memorandum, N.Y.Legis.Ann., 1974, at 392 [emphasis supplied]).

"Thus, as radical a departure from governmental secrecy as FOIL represents, the available evidence does not faintly support the proposition that the law was expected to cover the private papers of public officers clearly having no relationship to their conduct as such, except perhaps in the historical sense that every activity or experience of a public figure bears in some way on what he or she does in office" (id., 220-221, emphasis added by the Court).

The Court referred to the contention offered by the newspaper seeking the records, stating that:

"Its argument for access is entirely dependent on the theory that FOIL's broad definition of 'record' mandates disclosure because of the location of the papers at the facility of an 'agency' subject to the act. Again, however, nothing in the legislative history suggests that a governmental official's private or political party documents were to be made subject to disclosure merely because of the happenstance of their storage on public property."

The decision also cited the "omission" from the Freedom of Information Law of "public office holders from the definition of agency", which "necessarily implies that records which are clearly or concededly not produced, held or used in their official capacities are not subject to FOIL disclosure, again wherever their location" (id., 222, emphasis added by the Court).

In its review of the matter, the Court of Appeals framed the question as follows:

"At issue in this appeal by petitioner's newspapers is whether two categories of documents in custody of respondent City of Albany should be held to be 'records' under FOIL: correspondence of a former Mayor of Albany, the late Erastus Corning, II, concerning matters of a personal nature and correspondence concerning the activities of the Albany County Democratic Committee. The narrow question of statutory construction presented arises from respondents' contention that although these papers are literally within the FOIL definitions as 'record[s]' being 'kept' or 'held' by an 'agency' (the City of Albany), they are, nonetheless, outside of the scope of FOIL because of the private nature of their contents. For reasons to be discussed, we disagree with respondents' contention and conclude that there should be a reversal" [69 NY2d 246, 249 (1987)].

In its discussion and unanimous rejection of the holding of the Appellate Division, the Court of Appeals determined that it could:

"...find nothing to suggest that the Legislature intended that the definitions of 'record' and 'agency' should be given anything other than their natural and obvious meanings. On the contrary, respondents' narrow construction would be inimical to the public policy underlying FOIL and would conflict with the legislative intent which is apparent in the language of the statute as a whole and in the detailed procedures established in FOIL for designating documents which should properly be exempt. Moreover, the construction, if given effect, could, as a practical matter, frustrate the very purpose of the legislation.

"It is settled that FOIL is based on the overriding policy consideration that 'the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government' (Matter of Fink v Lefkowitz, 47 NY2d 567, 571). Indeed, in enacting FOIL the Legislature specifically declared: 'that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.' (Public Officers Law § 84.) We have held, therefore, 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 (see, Matter of Washington Post co. v New York State Ins. Dept., 61 NY2d 557, 564, citing Matter of Fink v Lefkowitz, supra at p 571). It is evident that the narrow construction respondents urge is contrary to these decisions and antagonistic to the important public policy underlying FOIL" (id., 252).

The Court also reiterated the principle expressed in Westchester-Rockland, supra, stating that:

"...respondents seek to read into the definitions of 'record' and 'agency' a requirement that, for documents to be within FOIL's scope, their subject matter must evince some governmental purpose. There is, however, no language in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term 'record'. On the contrary, we held in Matter of Westchester Rockland Newspapers v Kimball (50 NY2d 575, 581) that FOIL's scope is not to be limited based on 'the purpose for which the document was produced or the function to which it relates'. Such a limitation would be difficult to define, we explained, because of 'the expanding boundaries of governmental activity' and because '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'" (id., 252-253).

The Plan by its terms appears to attempt to distinguish those documents that are subject to the Freedom of Information Law from those that may be outside its coverage by referring repeatedly to "private documents belonging to former Mayor Giuliani or another individual." As suggested at the outset, none of the documents maintained by the City in my view "belong" to the former Mayor or any other person. In rejecting essentially the same scheme as described in the Plan, the Court of Appeals in Capital Newspapers determined that:

"...respondents' construction permitting an agency to engage in a unilateral prescreening of those documents which it deems to be outside the scope of FOIL would be inconsistent with the process set forth in the statute. In enacting FOIL, the Legislature devised a detailed system to insure that although FOIL's scope is broadly defined to include all governmental records, there is a means by which an agency may properly withhold from disclosure records found to be exempt (see, Public Officers Law § 87 [2]; § 89 [2], [3]). Thus, FOIL provides that a request for access may be denied by an agency in writing pursuant to Public Officers Law § 89 (3) to prevent an unwarranted invasion of privacy (see, Public Officers Law § 89 [2]) or for one of the other enumerated reasons for exemption (see, Public Officers Law § 87 [2]). A party seeking disclosure may challenge the agency's assertion of an exemption by appealing within the agency pursuant to Public Officers Law § 89 (4) (a). In the event that the denial of access is upheld on the internal appeal, the statute specifically authorizes a proceeding to obtain judicial review pursuant to CPLR article 78 (see, Public Officers Law § 89 [4] [b]). Respondents' construction, if followed, would allow an agency to bypass this statutory process. An agency could simply remove documents which, in its opinion, were not within the scope of FOIL, thereby, obviating the need to articulate a specific exemption and avoiding review of its action...

"...as a practical matter, 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 FOIL 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 could thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected" (id., 253, 254).

In short, based on the foregoing, I believe that all records and documents that are or have been maintained by an agency of City government are subject to rights of access conferred by the Freedom of Information Law.

As a general matter, that statute 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. I note that the introductory language of §87(2) refers to the authority of an agency to withhold "records or portions thereof" that fall within the grounds for denial that follow. The phrase quoted in the preceding sentence indicates that a single record may include both accessible and deniable information, and that an agency is obliged to review the record sought in its entirety to determine the extent, if any, to which one or more of the grounds for denial may properly be asserted.

By means of example, that a record may be characterized as "personal" or contain personal information does not remove it from the coverage of the Freedom of Information Law. Rather, in that kind of situation, the record might be withheld in toto or perhaps with personal details redacted on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" [see §87(2)(b)].

Lastly, the Plan includes details concerning the appraisal and processing of records that are transferred to the Center. In this regard, the last paragraph of section IX. of the Plan, the Access Policy, states in part that: "[i]f a member of the public requests records of the Center with regard to which processing has been completed, the Center will transport the records in question to the offices of DORIS [the Department of Records and Information Services], where space will be made available for them to be viewed" (emphasis mine). In my opinion, a request made under the Freedom of Information Law by a member of the public must be answered in a manner consistent with that statute, irrespective of whether the records sought have been "processed."

Section 89(3) of the Freedom of Information Law requires that an applicant must "reasonably describe" the records sought. I point out that it has been held by the Court of Appeals that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the request due to its breadth and also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number. Based on that decision, if records maintained by the Center can be located with reasonable effort, i.e., if they have been "reasonably described", the Center and DORIS would be required to retrieve the records for the purpose of making them available to the extent required by law, even if "processing" has not been completed.

I note in a related vein that the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."

Based on the foregoing, an agency must grant access to records, deny access or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date indicating when it can be anticipated that a request will be granted or denied.

There is no precise time period within which an agency must grant or deny access to records. The time needed to do so may be dependent upon the volume of a request, the possibility that other requests have been made, the necessity to conduct legal research, the search and retrieval techniques used to locate the records and the like. In short, when an agency acknowledges the receipt of a request because more than five business days may be needed to grant or deny a request, so long as it provides an approximate date indicating when the request will be granted or denied, and that date is reasonable in view of the attendant circumstances, I believe that the agency would be acting in compliance with law.

A recent judicial decision cited and confirmed the advice rendered by this office. In Linz v. The Police Department of the City of New York (Supreme Court, New York County, NYLJ, December 17, 2001), it was held that:

"In the absence of a specific statutory period, this Court concludes that respondents should be given a 'reasonable' period to comply with a FOIL request. The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, or if the acknowledgement of the receipt of a request fails to include an estimated date for granting or denying access, a request may, in my opinion, be considered to have been constructively denied [see DeCorse v. City of Buffalo, 239 AD2d 949, 950 (1997)]. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

In an effort to offer guidance and to bring about a resolution of the issues, copies of this opinion will be forwarded to Mr. Cardozo and to City officials and others who may be interested in the matter.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Michael A. Cardozo
Brian Andersson
Saul S. Cohen
Hon. Alan Gerson
Hon.Betsy Gotbaum
Hon. Bill Perkins
Donna Lieberman
Janet Linde