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December 15, 1997

Ms. Marian Dent
President, Delhi Preservation and
Economic Renewal
P.O. Box 341
Delhi, NY 13753

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 Ms. Dent:

I have received your letter of November 10, as well as related
materials. The issue involves "whether the Mayor of Delhi can communicate
as a private citizen with the Rite Aid Corporation, its lawyers and developers
regarding the proposed construction of a Rite Aid superstore in this village."

Among the materials is an article that included the content of a letter
addressed to Rite Aid by the Mayor " just as a private citizen." In the letter,
he referred to a "need to know" certain information "to start toward any type
of working relationship in the future." The information sought " just as a
private citizen" included the number of part time and full time employees, the
amount of the construction budget "so that the real property tax base issue
can be addressed", the basis for "some type of an agreement as to not hold the
village of Delhi responsible for the potential failure of this business in the
future", " a firm offer for the village property", and "some kind of a long term
commitment to stay in Delhi..."

Certainly the Mayor or anyone else has the ability as a private citizen
to communicate with Rite Aid or any other business entity. Many people,
some of whom may be government officers or employees, write to businesses
to offer complaints or to seek information as consumers. In that context, it
would be unlikely that the correspondence would fall within the Freedom of
Information Law. However, based on the content of the letter in question, I
do not believe that a court would find that the Mayor could separate his role
as Mayor from that of a private citizen.

The key provision in an analysis of the matter is §86(4) of the
Freedom of Information Law which defines the term "record" expansively to
mean:

"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 a case cited
earlier concerning 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, supra, 581) 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.).

The point made in the final sentence of the passage quoted above is especially
relevant, for the Mayor's letter reflects "considerable crossover" between his
activities as Mayor and those in which he may be involved as a private citizen.
Again, in view of the content of the letter, I believe that it would be
reasonable to conclude that the letter was written in part because of his status
and stature as Mayor, and I would conjecture that the recipient considered it
as a letter from the Mayor.

Further, in the same decision as that cited earlier, the Court
emphasized that the Freedom of Information Law must be construed broadly
in order to achieve the goal of government accountability, for the court found
that:

Key is the Legislature's own unmistakably
broad declaration that, '[a]s state and local
government services increase and public
problems become more sophisticated and
complex and therefore harder to solve, and
with the resultant increase in revenues and
expenditures, it is incumbent upon the state
and its localities to extend public
accountability wherever and whenever feasible'
(emphasis added; Public Officers Law, §84).

For the successful implementation of the
policies motivating the enactment of the
Freedom of Information Law centers on goals
as broad as the achievement of a more
informed electorate and a more responsible
and responsive officialdom. By their very
nature such objections cannot hope to be
attained unless the measures taken to bring
them about permeate the body politic to a
point where they become the rule rather than
the exception. The phrase 'public
accountability wherever and whenever feasible'
therefore merely punctuates with explicitness
what in any event is implicit" (id. at 579].

In short, based on the considerations referenced in the preceding
commentary, I believe that this letter in question, as well as similar
documentation, would constitute a "record" that falls within the scope of the
Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,


Robert J. Freeman
Executive Director

RJF:tt

cc: Hon. Norman Warden, Mayor