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June 4, 1998

Mr. James Bacon, Esq.
10 Little Brittain road
Newburgh, NY 12550

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. Bacon:

I have received your letter of May 12 in which you sought and advisory opinion relating to
a request made under the Freedom of Information Law to the Town of Southeast.

You asked initially whether that statute requires disclosure of "an incomplete draft of a Final
Environmental Impact Statement (FEIS) being reviewed by its consultants and Planning Board
members prior to a Planning Board's final acceptance." You added that the Planning Board secretary
"claims that she has no copy of the draft in the Planning Board office."

As I understand the matter, the document in question was prepared by or for Hoyts Cinema
and, in your words, "is under review by the Town's consultants and certain Planning Board
members." Nevertheless, you wrote that the Board "does not intend to release this document until
formally accepted..."

If my interpretation of the facts is accurate, the document must be disclosed. In this regard
I offer the following comments.

First, as you are aware, the Freedom of Information Law pertains to agency records, and
§86(4) of that statute 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."

Assuming that the document at issue is in the possession of one or more Planning Board members
or the Board consultants, I believe that it would constitute a Town record that falls within the
converge of the Freedom of Information Law. Any of those persons presumably would have acquired
the document due to and in the performance of their duties performed for the Town. The fact that
the document might not have been "accepted" is of no moment; that it is kept or held for the Town
brings it within the scope of the Freedom of Information Law.

In a case in which an agency contended, in essence, that it could choose which documents it
considered to be "records" for purposes of the Freedom of Information Law, the state's highest court
rejected that claim. As stated by the Court of Appeals:

"...respondents' construction -- permitting an agency to engage in a
unilateral prescreening of those documents which it deems to be
outside the scope of FOIL -- would be inconsistent with the process
set forth in the statute. In enacting FOIL, the Legislature devised a
detailed system to insure that although FOIL's scope is broadly
defined to include all governmental records, there is a means by which
an agency may properly withhold from disclosure records found to be
exempt (see, Public Officers Law §87[2]; §89[2],[3]. Thus, FOIL
provides that a request for access may be denied by an agency in
writing pursuant to Public Officers Law §89(3) to prevent an
unwarranted invasion of privacy (see, Public Officers Law §89[2]) or
for one of the other enumerated reasons for exemption (see, Public
Officers Law §87[2]). A party seeking disclosure may challenge the
agency's assertion of an exemption by appealing within the agency
pursuant to Public Officers Law §89(4)(a). In the event that the
denial of access is upheld on the internal appeal, the statute
specifically authorizes a proceeding to obtain judicial review pursuant
to CPLR article 78 (see, Public Officers Law §89[4][b]).
Respondents' construction, if followed, would allow an agency to
bypass this statutory process. An agency could simply remove
documents which, in its opinion, were not within the scope of the
FOIL, thereby obviating the need to articulate a specific exemption
and avoiding review of its action. Thus, respondents' construction
would render much of the statutory exemption and review procedure
ineffective; to adopt this construction would be contrary to the
accepted principle that a statute should be interpreted so as to give
effect to all of its provisions...

"...as a practical matter, 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 FOIL 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 could thwart the entire objective of FOIL
by creating an easy means of avoiding compliance, should be rejected"
[Capital Newspapers v. Whalen, 69 NY 2d 246, 253-254 (1987)].

Again, the record would not come into the possession of a Planning Board member or consultant
except in that person's capacity as a government official or agent acting in the performance of duties
for the Town. That being so, it is my opinion that a record used or acquired in the performance of
those duties is 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. From my perspective, none of the grounds for denial would be pertinent.

That the record may not have been accepted or considered final may be relevant in
determining rights of access to inter-agency or intra-agency materials that fall within §87(2)(g).
However, I believe that the cited provision is irrelevant in this instance, for the record was prepared
for Hoyts Cinemas, a private entity that is not an "agency". Because it is not an agency, the exception
concerning inter-agency and intra-agency materials is inapplicable.

Second, you asked whether a planning board must provide copies of a final FEIS "or whether
the public can be denied copies and forced by a planning board to seek copying an FEIS [sic] at the
local library." In short, assuming that a member of the public is willing to pay the requisite fees for
copying, an agency, in my view, is required to prepare a copy of a record in its possession. I note that
it has been held that an agency is required to comply with a request made under the Freedom of
Information Law and to disclose records, even though the records may be available from another
source [Muniz v. Roth, 620 NYS 2d 700 (1994)]

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

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Town Board
Planning Board
Hon. Ruth Mezzei, Town Clerk