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July 31, 1998

 

 

Hon. Richard A. Dollinger
Member of the Senate
339 East Avenue, Suite 309
Rochester, NY 14604

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, unless otherwise indicated.

Dear Senator Dollinger:

I have received your letter of July 20, as well as the materials attached to it. You have
sought an advisory opinion concerning rights of access to records maintained by the
Department of Environmental Conservation (DEC) and the New York Power Authority (the
Authority).

The records sought consist of minutes of meetings and agendas of the International
St. Lawrence River Board of Control (the Board), as well as records concerning the level of
Lake Ontario. The records are maintained by employees of DEC and the Authority who serve
as members of the Board. As I understand the situation, the Board functions under the aegis
and control of the International Joint Commission (IJC), which has contended that the records
sought are confidential and beyond the coverage of the New York Freedom of Information
Law. The basis for its position is the International Organizations Immunities Act, 22 USC
§288 et seq. and Executive Order 9972, which designated the IJC as an international
organization entitled to the privileges, exemptions and immunities provided by that Act.

Section 288a(c) of the Act states that:

"Property and assets of international organizations, wherever
located and whomsoever held, shall be immune from search,
unless such immunity be expressly waived, and from
confiscation. The archives of international organizations shall
be inviolable."

In a letter addressed to Ms. Helene Goldberger, a DEC Administrative Law Judge, the Acting
Secretary of the United States Section of the IJC, James G. Chandler, wrote that:

"The Commission considers its archives to encompass all of
the official records held by Commissioners, staff, and members
of Commission boards and other official Commission
institutions, whether they are held in Commission offices or
elsewhere."

Secretary Chandler also referred to a memorandum pertaining to the IJC and its Boards,
which states that:

"Members of an IJC board, whether or not employed by
departments or agencies of government, are in no sense
representatives of their employers. The serve in a personal
and professional capacity, under the direction of the
Commission, and their employers or superior officers are not
committed in any way by the actions of the individual
members or of the whole board."

In determining your appeal, DEC found that ten of the seventy-two records falling
within the scope of your request were accessible; of the remainder, nearly all were found to
be exempt from disclosure under the federal Act cited earlier. The primary basis for the
determination is that the records consist of the "archives" of the Board, for they are
"maintained in the office of a New York State employee by reason of that employee's
appointment to membership on the International St. Lawrence River Board of Control."
Reference was made to section 11 of the IJC's rules of procedure, which provide, in essence,
that unless there is a finding to the contrary, all records of the IJC, regardless of their location,
are confidential. Specifically, subdivision (5) of section 11 provides that:

"Except as provided in the preceding paragraphs of this rule,
records of deliberations, and documents, letters, memoranda
and communications of every nature and kind in the official
record of the Commission, whether addressed to or by the
Commission, commissioners, secretaries, advisers or any of
them are privileged and shall become available for public
information only in accordance with a decision of the
Commission to that effect."

DEC's determination stressed that the IJC "strenuously" objected to disclosure, and that a
conclusion contrary to that posited by the IJC would be "antithetical to the State's best
interests in fostering compatible relations" with several Canadian governments.

As of the date of this writing, the Power Authority had not forwarded a copy of its
determination of your appeal to this office.

In this regard, I offer the following comments.

First, I believe that the documents at issue constitute agency records that fall within
the scope of the New York Freedom of Information Law. As you may be aware, 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 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)].

In short, irrespective of their origin or function, the fact that the records are in the
physical possession of agencies subject to the Freedom of Information Law brings the
records, in my view, within the scope of that statute.

From my perspective, based on Secretary Chandler's letter, the IJC seems to want to
have the benefit of the experience and expertise of government employees while negating the
reality that they are government employees. In his letter to Ms. Goldberger, Secretary
Chandler wrote that:

"We concluded early on that for us to have on our boards
representatives of government, agencies or interest groups we
would jeopardize our independent problem solving capacity
and become just another bilateral U.S.-Canadian institution.
At the same time, we recognized that the talent, expertise and
resources that are available in federal, state and provincial
government agencies were absolutely essential to our being
able to do our work well. Accordingly, the Commission
developed the practice that continues to this day of appointing
board members in their personal and professional capacities
and not as representatives of their employers."

If indeed those who serve on the Board do so in their personal and professional capacities and
in a manner separate from their employment with government agencies, records relating to
their work for the Commission would be removed from the scope of the Freedom of
Information Law only if they are maintained beyond an agency's premises, custody or control.
If there is no way of separating one's personal or professional functions from that of his or
her functions from an agency and the records are kept by or within the confines of an agency,
there would be, as suggested by the Court of Appeals, "considerable crossover" between
one's activities, and the records would, according to that decision, be subject to the Freedom
of Information Law.

Second, if the documents in question are agency records subject to the Freedom of
Information Law, it is questionable in my view whether they could also be characterized as
the "property and assets of international organizations." If they are not the property or assets
of international organizations, the federal Act exempting the records from disclosure would
not be applicable.

In consideration of the terms of §288 of the International Organizations Immunities
Act, even if they can be considered the property and assets of an international organization,
it is equally questionable in my opinion whether a request made under the Freedom of
Information Law for agency records could be viewed as a "search" as that term is used in the
federal Act. According to Black's Law Dictionary, Revised Fourth Edition, the term
"search" in international law involves "the right on the part of ships of war to visit and search
merchant vessels during war, in order to ascertain whether the ship or cargo is liable to
seizure." While it is likely that the term "search" in international law has a broader and
different construction now than when it was initially developed, it does not appear that a
disclosure pursuant to law made during a time when there is no "war" or other hostility would
constitute a search. If disclosure could not be considered a search, again, the federal Act
exempting the records from disclosure would be inapplicable.

As you are aware, in the only judicial decision rendered in New York dealing with the
relationship between a request made under the Freedom of Information Law and the
International Organizations Immunities Act, it was determined that records sought from a
New York City agency that were acquired from an international organization involved
"neither any search of United Nation's premises nor any interference with United Nation's
property or assets." Accordingly, the Court in Burtis v. New York City Police directed that
the agency disclose [659 NYS 2d 875, 876, ___ AD 2d ___ (1997)].

Lastly, it is questionable in my opinion whether the term "archives" can justifiably be
construed as broadly as has been suggested by the IJC and adopted by DEC. Again, the
federal Act states that "The archives of international organizations shall also be inviolable",
and the IJC considers "archives" to include any records held by the IJC, its staff, and members
of Commission boards, irrespective of where the records are kept or located. DEC referred
to a dictionary definition of "archives" to mean "official documents." While that may be one
meaning of the term, it is doubtful in my opinion that a court would find that construction to
be most widely accepted. The dictionary definition to which the determination referred
indicates that the term "archives" is derived from a Greek word meaning official documents,
but that the primary definition is "a place in which public records or historical documents are
preserved." Similarly, Black's Law Dictionary defines the term to mean "any place where
ancient records, charters and evidences are kept" and states further that "The derivative
meaning of the word (now the more common) denotes the writings themselves thus
preserved, thus we say the archives of a college, of a monastery, a public office, etc." As
such, the commonly accepted use of the term "archives" refers to a place in which records are
preserved. If there are board members residing or working in various locations, and each
maintains records in conjunction with duties associated with a board, and if the records are
not kept for the purpose of preserving them for posterity, I do not believe that each location
could be considered an archive as that term is commonly used.

If my contentions are accurate, the International Organizations Immunities Act would
not exempt the records from disclosure; on the contrary, the Freedom of Information Law
would govern rights of access. 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. With the exception of the records
properly withheld under §87(2)(g), it appears that the records must be disclosed.

I note as an aside that I have been informed by a person who is in no way related to
the controversy that substantial disclosures are routinely made with respect to the level of
Lake Ontario by any number of government officers and entities. The person with whom I
spoke referred to disclosures that you have made, as well as those by Senator Maziarz and
Congressman LaFalce. Disclosures on the subject have also been made by municipalities on
or near Lake Ontario, by the Army Corps of Engineers and by state agencies. Very simply,
it does not appear that the substance of the kinds of records you seek are or have been secret.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Gerald E. Galloway
James G. Chandler
G.S. Peter Bergen
David E. Blabey
Anne Wagner-Findeisen