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August 8,1997

Mr. Steven W. Sbelgio
The Citizen
25 Dill Street
Auburn, NY 13021

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.

Dear Mr. Sbelgio:

I have received your letter of July 8, as well as the
materials attached to it.

According to your letter, on June 12 you directed a request to
the Auburn Enlarged City School District in which you sought a
letter sent to the District by the Auburn Chamber of Commerce
concerning a renovation project being undertaken by the District.
The records access officer, Philip Grajko, Associate
Superintendent, marked boxes on the District's form indicating that
the record was "confidential", that disclosure would result in an
unwarranted invasion of privacy, and that the record is "not
maintained by the school district." Nevertheless, Mr. Grajko had
earlier acknowledged the receipt of the letter, and upon
questioning, said that it was not public because "it was addressed
to him specifically", not to the Board of Education. When you
appealed the denial, Mr. Grajko, acting as appeals officer due to
the illness of the Superintendent, upheld the denial. You have
sought an advisory opinion on the matter.

From my perspective, if the record at issue is maintained by
the District or was addressed to Mr. Grajko due to his association
with the District, it would fall within the coverage of the Freedom
of Information Law. Further, if I understand its contents
accurately, there would be no basis for denying access to it. In
this regard, I offer the following comments.

First, the Freedom of Information Law pertains to agency
records, and §86(4) of the Law 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."

The Court of Appeals, the State's highest court, has construed
the definition as broadly as its specific language suggests. The
first such decision that dealt squarely with the scope of the term
"record" 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" [see Westchester Rockland Newspapers v. Kimball, 50 NY
2d 575, 581 (1980)] 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" (id.).

In another decision rendered by the Court of Appeals, 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).

Further, 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)].

In short, even though the letter might have been addressed to
Mr. Grajko specifically, assuming that it was forwarded to him
because of his position with the District, or if the letter is
merely maintained by the District, it would constitute a "record"
subject to rights 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.

I point out that an assertion or claim of confidentiality,
unless it is based upon a statute, is likely meaningless. When
confidentiality is conferred by a statute, an act of the State
Legislature or Congress, records fall outside the scope of rights
of access pursuant to §87(2)(a) of the Freedom of Information Law,
which states that an agency may withhold records that "are
specifically exempted from disclosure by state or federal statute".
If there is no statute upon which an agency can rely to
characterize records as "confidential" or "exempted from
disclosure", the records are subject to whatever rights of access
exist under the Freedom of Information Law [see Doolan v.BOCES, 48
NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d
557 (1984); Gannett News Service, Inc. v. State Office of
Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such,
an assertion of confidentiality without more, would not in my view
serve to enable an agency to withhold a record.

I know of no statute that would enable the District or Mr.
Grajko to claim that the letter is exempted from disclosure or,
therefore, "confidential."

The other provision to which he alluded is §87(2)(b), which
permits an agency to withhold records to the extent that disclosure
would result in "an unwarranted invasion of personal privacy." If
indeed the letter relates to a renovation project, it is unlikely
that the cited provision would apply. The Chamber of Commerce is
a business entity, not a natural person, and an individual writing
on its behalf would be doing so in a business capacity. As such,
again, the likelihood of withholding any portion of the letter
based on considerations of personal privacy would appear to be
difficult to justify.

Third, when an agency indicates that it does not maintain or
cannot locate a record, an applicant for the record may seek a
certification to that effect. Section 89(3) of the Freedom of
Information Law provides in part that, in such a situation, on
request, an agency "shall certify that it does not have possession
of such record or that such record cannot be found after diligent
search." If you consider it worthwhile to do so, you could seek
such a certification.

I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d
779 (1994)], it was found that a court could not validly accept
conclusory allegations as a substitute for proof that an agency
could not locate a record after having made a "diligent search".
However, in another decision, such an allegation was found to be
sufficient when "the employee who conducted the actual search for
the documents in question submitted an affidavit which provided an
adequate basis upon which to conclude that a 'diligent search' for
the documents had been made" [Thomas v. Records Access Officer, 613
NYS 2d 929, 205 AD 2d 786 (1994)].

Lastly, pursuant to the regulations promulgated by the
Committee on Open Government, which govern the procedural aspects
of the Freedom of Information Law and have the force and effect of
the law, the records access officer and the appeals officer cannot
be the same person [see 21 NYCRR §1401.7(b)]

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this opinion will be
forwarded to the District.


I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:tt
cc: Board of Education
William Miller
Philip Grajko