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November 5, 1997


Mr. William Carnfield
Revolutionary Designs, Inc.
263 Verbeck Ave
Schaghticoke, NY 12154

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. Carnfield:

I have received your letter of October 2 in which you described a
series of difficulties in attempting to obtain records from the Town of
Stillwater.

You referred initially to your inability to obtain "information pertaining
to either copies of or a list of the law suits that the Town is involved in at the
present time." In this regard, I believe that the public has the ability to know
of litigation in which a government is a party. In brief, 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.

It is possible that some records pertaining to litigation fall within the
scope of the attorney-client privilege. Here I point out that the first basis for
denial in the Freedom of Information Law, §87(2)(a), pertains to records that
are "specifically exempted from disclosure by state or federal statute." The
courts have found that legal advice given by a municipal attorney to his or her
clients, municipal officials, is privileged when it is prepared in conjunction
with an attorney-client relationship [see e.d., People ex rel. Updyke v. Gilon,
and Pennock v. Lane, supra Bernkrant v. City Rent and Rehabilitation
Administration, 242 NYS 2d 752 (1963), aff'd 17 App. Div. 2d 392]. As
such, I believe that a municipal attorney may engage in a privileged
relationship with his or her client and that records prepared in conjunction
with an attorney-client relationship are considered privileged under §4503 of
the Civil Practice Law and Rules. Further, since the enactment of the
Freedom of Information Law, it has also found that records may be withheld
when the privilege can appropriately be asserted when the attorney-client
privilege is read in conjunction with §87(2)(a) of the Law [see e.g., Mid-Boro
Medical Group v. New York City Department of Finance, Sup. Ct., Bronx
Cty., NYLJ, December 7, 1979; Steele v. NYS Department of Health, 464
NY 2d 925 (1983)]. Similarly, material prepared for litigation may be
confidential under §3101 of the Civil Practice Law and Rules.

Nevertheless, legal papers filed against the Town would not have been
prepared by the Town, its officials or its agents. As such, in my opinion,
those papers would not be subject to the attorney-client privilege. For similar
reasons, the answers prepared by the Town in response to a petition or legal
papers, once served upon a plaintiff or legal adversary, would be outside the
scope of the attorney-client privilege. In general, when those papers are made
available to the Town's adversary, I believe that they become a matter of
public record. Moreover, although the Freedom of Information Law does not
apply to the courts and court records, such records are generally available
under other provisions of law [see e.g., Judiciary Law, §255]. From my
perspective, if the records sought are publicly available from a court, they
would also be available under the Freedom of Information Law from the
Town.

In addition, §50-f of the General Municipal Law provides specific
direction concerning the maintenance of certain records pertaining to
litigation. That provision states in relevant part that:

"Wherever a notice of claim is required by
section fifty-e of this chapter as a condition
precedent to the commencement of an action
or proceeding against a municipal corporation
or any authority or commission heretofore or
hereafter continued or created by the public
authorities law, or any officer, appointee or
employee thereof, every such municipal
corporation and every such authority or
commission shall make and keep a record,
numbered consecutively and indexed
alphabetically according to the name of the
claimant, of each notice of claim filed in
compliance with such requirement and of the
disposition of the claim so noticed...The
record shall be made and kept by an officer or
employee designated for that purpose by the
by the governing body of such municipal
corporation or of such authority or
commission...The record of each claim shall be
preserved for a period of five years after the
date of the final disposition thereof."

Second, you referred to requests for building permits and certificates
of occupancy, and you were informed that those records were not kept at
Town offices, a response that you "found to be very strange." From my
perspective, if the records in question exist, and I believe that they must, they
would be available, irrespective of where they might be kept.

The Freedom of Information Law pertains to agency records, 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."

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 a decision involving records prepared by corporate boards furnished
voluntarily to a state agency, the Court of Appeals reversed a finding that the
documents were not "records," thereby rejecting a claim that the documents
"were the private property of the intervenors, voluntarily put in the
respondents' 'custody' for convenience under a promise of confidentiality"
[Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)].
Once again, the Court relied upon the definition of "record" and reiterated
that the purpose for which a document was prepared or the function to which
it relates are irrelevant. Moreover, the decision indicated that "When the plain
language of the statute is precise and unambiguous, it is determinative" (id. at
565).

Most recently, the Court of Appeals found that materials received by
a corporation providing services for a branch of the State University that were
kept on behalf of the University constituted "records" falling with the
coverage of the Freedom of Information Law. I point out that the Court
rejected "SUNY's contention that disclosure turns on whether the requested
information is in the physical possession of the agency", for such a view
"ignores the plain language of the FOIL definition of 'records' as information
kept or held 'by, with or for an agency'" [see Encore College Bookstores, Inc.
v. Auxiliary Services Corporation of the State University of New York at
Farmingdale, 87 NY 2d 410, 417 (1995)]. Therefore, if a document is kept
for an agency, such as the Town, it constitutes an agency record, even if it is
not in the physical possession of the agency.

Lastly, §89(1)(b)(iii) of the Freedom of Information Law requires the
Committee on Open Government topromulgate regulations concerning the
procedural aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1)(a)
of the Law states that:

"the governing body of each public
corporation shall promulgate uniform rules and
regulations for all agencies in such public
corporation pursuant to such general rules and
regulations as may be promulgated by the
committee on open government in conformity
with the provisions of this article, pertaining to
the administration of this article."

In this instance, the Town Board, and the governing body of a public
corporation is theTown Board, and the Board is required to promulgate
appropriate rules and regulations consistent with those adopted by the
Committee on Open Government and with the Freedom of Information Law.

The initial responsibility to deal with requests is borne by an agency's
records access officer, and the Committee's regulations provide direction
concerning the designation and duties of a records access officer. Specifically,
§1401.2 of the regulations provides in relevant part that:

"(a) The governing body of a public
corporation and the head of an executive
agency or governing body of other agencies
shall be responsible for insuring compliance
with the regulations herein, and shall designate
one or more persons as records access officer
by name or by specific job title and business
address, who shall have the duty of
coordinating agency response to public
requests for access to records. The
designation of one or more records access
officers shall not be construed to prohibit
officials who have in the past been authorized
to make records or information available to the
public from continuing to do so."

More often than not, the records access officer is the town clerk, for
the town clerk is the legal custodian of all town records (see Town Law, §30).

Further, 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 acknowledgment
of the receipt of such request and a statement
of the approximate date when such request
will be granted or denied..."

If neither a response to a request nor an acknowledgment of the receipt of a
request is given within five business days, or if an agency delays responding
for an unreasonable time after it acknowledges that a request has been
received, a request may, in my opinion, be considered to have been
constructively denied. 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 enhance compliance with and understanding of the
Freedom of Information Law, a copy of this opinion will be forwarded to the
Town Board.

I hope that I have been of assistance.

Sincerely,



Robert J. Freeman ExecutiveDirector

RJF:tt

cc: Town Board