July 10, 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.
As you are aware, I have received your letter in which you raised a variety of questions and issues relating to a request made under the Freedom of Information Law to Oswego County.
By way of background, a request was made on May 17 for the e-mail of two County employees. You were informed on May 21 that one of the employees "deletes and purges" his e- mail daily. A day later, you received a written denial indicating that the records were being withheld under §87(2)(g) pertaining to inter-agency and intra-agency materials. You appealed on the following day, contending that the records sought were "for private organization that operates under the county address, county phone number, and county e-mail address", even though the organization "is not a county agency, has no affiliation with the county, and advertises in the public domain with the county contact information of the particular employee..." As of the date of your letter to this office, you had received no response to the appeal.
In this regard, I offer the following comments.
First, I believe that the e-mail communications that you requested, insofar as they are maintained by the County, constitute agency records that fall within the coverage of the Freedom of Information Law. Section 86(4) 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, if information is maintained by or for an agency in some physical form, it constitutes a "record" subject to rights of access conferred by the Freedom of Information Law. The definition includes specific reference to computer tapes and discs, and it was held soon after the reenactment of the statute that "[i]nformation is increasingly being stored in computers and access to such data should not be restricted merely because it is not in printed form" [Babigian v. Evans, 427 NYS2d 688, 691 (1980); aff'd 97 AD2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS2d 558 (1981)]. Moreover, more than twenty years ago, the state's highest court, 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. 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 persons as County employees and as citizens. That is of no moment in my opinion in considering whether the material in question is subject to the Freedom of Information Law.
Perhaps the most significant decision in relation to the matter, Capital Newspapers v. Whalen, 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 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" (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).
In short, email maintained on the County's computers, based on judicial decisions rendered by the state's highest court, clearly in my view constitute County records subject to rights of access conferred by the Freedom of Information Law.
Second, 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.
The provision cited as the basis for denial in my opinion relates to communications between and among government officials in their capacities as government officials. Section 86(3) of the Freedom of Information Law defines the term "agency" 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."
Based on the foregoing, the exception pertains to communications between or among state or local government officials at two or more agencies ("inter-agency materials"), or communications between or among officials at one agency ("intra-agency materials"). When County officers or employees communicate in writing with persons or entities outside of government, those communications are not made to or from an "agency" and, consequently, the communications would not be "inter-agency or intra-agency materials." That being so, §87(2)(g) would not serve as a basis for a denial of access. In considering the intent of the exception to rights of access pertaining to inter-agency and intra-agency communications, the Court of Appeals found that the purpose "...is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549])..." and to "safeguard internal government consultations and deliberations" [Gould v. New York City Police Department, 87 NY2d 267, 276 (1996)]. If indeed the records in question reflect communications involving County employees that do not relate to their governmental functions, I do not believe that they could be characterized as inter-agency or intra-agency materials or that §87(2)(g) would apply.
Third, §89(4)(a) of the Freedom of Information Law deals with appeals following denials of access and 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 of the entity, or the person thereof designated by such 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, each agency shall immediately forward to the committee on open government a copy of such appeal and the ensuing determination thereon."
When an appeal is made but no determination is rendered within ten business days of its receipt, it has been held that the appeal is deemed to have been denied, and that the person denied access has exhausted his or her administrative remedies and may seek judicial review by initiating a proceeding under Article 78 of the Civil Practice Law and Rules [see Floyd v. McGuire, 87 AD2d 388, appeal dismissed, 57 NY2d 774 (1982)]. It is also noted that in such a proceeding a court may, if certain conditions are present, award costs and attorney's fees to a person denied access who substantially prevails [see Freedom of Information Law, §89(4)(c)].
Lastly, the "Local Government Records Law", Article 57-A of the Arts and Cultural Affairs Law, deals with the management, custody, retention and disposal of records by local governments. For purposes of those provisions, §57.17(4) of the Arts and Cultural Affairs Law defines "record" to mean:
"...any book, paper, map, photograph, or other information-recording device, regardless of physical form or characteristic, that is made, produced, executed, or received by any local government or officer thereof pursuant to law or in connection with the transaction of public business. Record as used herein shall not be deemed to include library materials, extra copies of documents created only for convenience of reference, and stocks of publications."
With respect to the retention and disposal of records, §57.25 of the Arts and Cultural Affairs Law states in relevant part that:
"1. It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible; to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to cooperate with the local government's records management officer on programs for the orderly and efficient management of records including identification and management of inactive records and identification and preservation of records of enduring value; to dispose of records in accordance with legal requirements; and to pass on to his successor records needed for the continuing conduct of business of the office...
2. No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments retention and disposal schedules establishing minimum retention periods..."
As such, records subject to the Local Government Records Law cannot be destroyed without the consent of the Commissioner of Education, and local officials cannot destroy or dispose of records until the minimum period for the retention of the records has been reached.
I hope that I have been of assistance.
Robert J. Freeman
cc: Theodore Jerrett