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July 20, 1998

Ms. Kathleen McGinnis
Village Clerk-Treasurer/FOIL Officer
Incorporated Village of WestHampton Beach
92 Sunset Avenue
WestHampton Beach, NY 11978-2393

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. McGinnis:

I have received your letter of July 8 and the materials attached to it. You have sought
my opinion concerning a matter involving the Freedom of Information Law.

In brief, the correspondence indicates that a resident attended a meeting of the Board
of Trustees and complained that a Village Police officer had been rude and acted
inappropriately. The Chief of Police reported to the Board that "he reviewed a tape recording
of the police officer's dealings with her and that it was the basis for his determination that the
officer was totally professional in his behavior." When the person who made the complaint
requested the tape recording of the exchange between herself and the officer, the Chief wrote
that the "tape is the personal property of Officer Cunneen, is not in the possession of the
Police Department, and cannot be released by me."

From my perspective, the tape recording is clearly subject to the Freedom of
Information Law, and because she was a party to the conversation, it must be made available
to the person requesting it. In this regard, I offer the following comments.

First and most importantly, the Freedom of Information Law pertains to all 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 NY2d 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)].

Most recently, in a decision rendered by the Court of Appeals involving records
similar to the tape recording, the New York City Police Department contended that police
officers' "activity logs", "the leather-bound books in which officers record all their work-related activities", were the officers' personal property and not subject to the Freedom of
Information Law. The Court rejected that contention, stating that "although the officers
generally maintain physical possession of the activity logs, they are nevertheless 'kept [or]
held' by the officers for the Police Department, which places these document squarely within
the statutory definition of 'records'" [Gould v. New York City Police Department, 89 NY2d
267, 278 (1996)].

Like the activity logs, the tape recording would have been prepared in conjunction
with the performance of an officer's duties. Therefore, based on the direction provided by the
state's highest court, I believe that the tape recording would constitute a "record" that falls
within the scope of 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. While I believe that the tape recording could be withheld
from the public at large to protect the privacy of the complainant, since she was a party to the
taped conversation, none of the grounds for denial could in my opinion be asserted to
withhold the tape from her.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Trustees
Chief Conrad W. Teller