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FOIL-AO-13614

August 29, 2002

Dear

I have received your letter in which you requested a variety of information concerning a
complaint made against the Dormitory Authority relative a particular project at the SUNY College
at Old Westbury. The letter was addressed to this office and the State Ethics Commission.

In this regard, it is emphasized that the Committee on Open Government and the State Ethics
Commission are separate entities. This office, in brief, is authorized to provide advice and opinions
pertaining to public access to government records, primarily under the state's Freedom of
Information Law. The Committee on Open Government does not have possession or control of
records generally, and it is not empowered to compel an agency to grant or deny access to records.
In short, the Committee does not maintain any information pertaining to the complaint. The
jurisdiction of the State Ethics Commission involves matters arising under the Ethics in
Government Act.

In an effort to provide clarification in relation to your request and for your future reference,
I offer the following comments.

First, as a general matter, the Freedom of Information Law pertains to existing records, and
§89(3) states in relevant part that an agency is not required to create a record in order to satisfy a
request. In the context of your request, I would conjecture that there is no record that identifies each
person who might have had access to certain documents. If that is so, there would be no obligation
to conduct an inquiry for the purpose of preparing a record that contains the information sought.
Similarly, an agency would not be required to prepare an opinion offering its view of what certain
behavior might be.

Second, 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.

Since your request pertains to the State Ethics Commission, the initial ground for denial,
§87(2)(a), is relevant. That provision authorizes an agency to withhold records that "are specifically
exempted from disclosure by state or federal statute." One such statute deals directly with records
of the State Ethics Commission. Section 94 of the Executive Law deals with the powers and duties
of the Commission, and subdivision (17), paragraph (a), states that:

"Notwithstanding the provisions of article six of the public officers
law, the only records of the commission which shall be available for
public inspection are:

(1) the information set forth in an annual statement of financial
disclosure filed pursuant to section seventy-three-a of the public
officers law except the categories of value or amount, which shall
remain confidential, and any other item of information deleted
pursuant to paragraph (h) of subdivision nine of this section:

(2) notices of delinquency sent under subdivision eleven of this
section;

(3) notice of reasonable cause sent under paragraph (b) of
subdivision twelve of this section; and

(4) notices of civil assessments imposed under this section."

Based on the foregoing, the only records required to be disclosed by the Commission are those
identified in (1) through (4) of paragraph (a).

With respect to your request for the "Complete Public Officers Law", I note that the Public
Officers Law is a volume of statutes that can be reviewed in most public libraries. Additionally, all
New York statutes are accessible via the New York State Assembly website. The address is
<www.assembly.state.ny.us>.

I hope that the foregoing serves to clarify your understanding of the matter and that I have
been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt
cc: Karl J. Sleight, Executive Director