July 24, 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.
I have received your letter of July 16 and the materials attached to it. In addition, as you may be aware, the issue raised was also discussed with your daughter, Ms. Ann Gunn.
By way of brief background, at a meeting of the Village of Penn Yan Planning Board on July 1, proposed legislation concerning special use permits "was discussed at length, and one copy of the proposal was circulated to the public present at the meeting." Following the meeting, you requested a copy of the proposal. However, in response to the request, you were informed that the Village Attorney indicated that the document in question is "a 'work in progress' and not ready for public review yet."
In this regard, I offer the following comments.
First, the Freedom of Information Law is applicable to all records maintained by or for an agency, such as a village, and §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 on the foregoing, as soon as a document is prepared for or maintained by an agency, it constitutes a "record" that falls within the coverage of the Freedom of Information Law. That a document is characterized as a "draft" or a "work in progress" is, in my view, not determinative of whether it must be disclosed or may be withheld.
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.
If the proposal had not been discussed "at length" during an open meeting and not circulated by those present at the meeting, I would agree that it could be withheld. Although there is no exception in the Law dealing specifically with drafts or works in progress, §87(2)(g) pertains to internal governmental communications and authorizes an agency to withhold records that:
"are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."
It is noted that the language quoted above contains what in effect is a double negative. While inter- agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
A draft proposal prepared by a government officer or employee reflects a recommendation that may be approved, modified or rejected and, therefore, may ordinarily be withheld. The facts in this instance, however, in my opinion, dictate that the proposal be disclosed. It has been advised on many occasions that insofar as the contents of records are disclosed through discussion at a meeting open to the public, they must be made available in response to a request made under the Freedom of Information Law. In short, public discussion reflective of the contents of the records results in a waiver of the ability to deny access. Viewing the matter from a different vantage point, since tape recordings of open meetings were found to be accessible to the public under the Freedom of Information Law more than twenty years ago (Zaleski v. Hicksville Union Free School District, Supreme Court, Nassau County, NYLJ, December 27, 1978), those portions of records read aloud or otherwise disclosed and captured on tape would be public. Similarly, but in a different context, it has been held that records that ordinarily may be withheld under the Freedom of Information Law but which are introduced during judicial or other public proceedings become accessible to the public, and the grounds for denial appearing in the Freedom of Information Law cannot be asserted [see e.g., Moore v. Santucci, 151 AD2d 677 (1989)].
Considering the issue from another perspective, I believe that the fact that the Planning Board authorized the "circulation" of the proposal to those present at the meeting resulted in a waiver of the capacity of the Village to deny access to the proposal. In a case in which there was an "inadvertent disclosure" of a record, it was found that the disclosure did not create a right of access on the part of the person who viewed the record [see McGraw-Edison v. Williams, 509 NYS2d 285 (1986)]. Conversely, however, if a disclosure was not inadvertent, but rather purposeful, as in a situation in which a board authorizes circulation of or displays a record at meeting during which anyone present could have reviewed it, I believe that a public disclosure would have occurred and that the ability to deny access to that record would have been waived.
In sum, based on the facts as you presented them, I believe that the Village is required to disclose the record in question.
As you requested, copies of this opinion will be forwarded to Village officials.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees