December 12, 1997
Mr Harry Kovsky
Irvington, NY 10533
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. Kovsky:
I have received your letter of November 7 concerning the obligation
of the Irvington Union Free School District to disclose a fact finders' report.
You wrote that the District has contended that the report, in your words,
"must be made public by the fact finder, not them" (emphasis yours).
From my perspective, the if the fact finders' report is public, and if the
District has a copy, it is required to disclose it in response to a request made
under the Freedom of Information Law. In this regard, I offer the following
First, the Freedom of Information Law pertains to all agency records,
and §86(4) of that statute defines the term "record" 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, if the District maintains a copy of the report, the
report constitutes a "record" that falls within the coverage of the Freedom of
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.
Third, Article 14 of the Civil Service Law, commonly known as the
"Taylor Law", pertains specifically to a fact finders' report. Section 209(3)
provides in relevant part that:
"On request of either party or upon its own
motion, as provided in subdivision two of this
section, and in the event the board determines
that an impasse exists in collective negotiations
between such employee organization and a
public employer as to the conditions of
employment of public employees, the board
shall render assistance as follows...
(c) if the dispute is not resolved at least eighty
days prior to the end of the fiscal year of the
public employer or by such other date
determined by the board to be appropriate, the
fact-finding board, acting by a majority of its
members, (i) shall immediately transmit its
findings of fact and recommendations for
resolution of the dispute to the chief executive
officer of the government involved and to the
employee organization involved, (ii) may
thereafter assist the parties to effect a
voluntary resolution of the dispute, and (iii)
shall within five days of such transmission
make public such findings and
As I interpret the language quoted above, the "fact-finding
board...shall make public such findings and recommendations." Once the fact-finding board makes public its report, the District, in my view, would be
required to disclose it on request for the reasons noted earlier: because it
constitutes a District record once it comes into the District's possession, and
because none of the grounds for denial appearing in §87(2) of the Freedom
of Information Law could be asserted to deny access.
As you requested, a copy of this opinion will be forwarded to the
President of the Board of Education.
I hope that I have been of assistance.
Robert J. Freeman
cc: Penny Delaney, President