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August 4, 1998

Mr. A. Z.
Orangetown Plaza, Inc.
125 Oak Tree Road
Tappan, NY 10983

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. Z_____:

I have received of July 24. Please excuse my inability to determine your last name.

Enclosed with your letter is a news article indicating that the superintendents of
schools in the Pearl River and South Orangetown School Districts received "a memorandum
from Orangetown Assessor Brian Denny, who told the school superintendents that the base
proportions used to figure out tax rates had shifted."

Having requested a copy of the memorandum, you were informed by a clerk in the
Assessor's office that you "must file a FOIL request and await the return of the assessor from
a Seminar." You added that a staff person for the Town Supervisor offered the same advice
and that a secretary at one of the school districts stated that "the parties who could release
the memorandum were not in." It is your view that if the memorandum is available to the
news media, it should be available to anyone.

In this regard, I offer the following comments.

First, assuming that any of the agencies to which you referred purposefully disclosed
the record in question to the news media, I would agree that it should be available to any
person. I note that the news media has no special rights under the Freedom of Information
Law, and that it has been held that records accessible under that statute must be made
"equally available to any person, without regard to status or interest" [see e.g., Burke v.
Yudelson, 368 NYS 2d 779, aff'd 51 AD 673, 378 NYS 2d 165 (1976)].

Second, pursuant to §89(3) of the Freedom of Information Law, an agency may
require that a request for records be made in writing. Nevertheless, there is no requirement
that an agency must seek a written request, and an agency may waive that requirement.

Third, the absence of the assessor or perhaps others should not serve as a basis for
delaying or denying access, particularly if it has been established that a record is accessible
under the law. I note by way of background that §89(1) of the Freedom of Information Law
requires the Committee on Open Government to promulgate regulations concerning the
procedural implementation of that statute (21 NYCRR Part 1401). In turn, §87(1) requires
the governing body of a public corporation to adopt rules and regulations consistent those
promulgated by the Committee and with the Freedom of Information Law. Further, §1401.2
of the regulations provides in relevant part that:

"(a) The governing body of a public corporation and the head
of an executive agency or governing body of other agencies
shall be responsible for insuring compliance with the
regulations herein, and shall designate one or more persons as
records access officer by name or by specific job title and
business address, who shall have the duty of coordinating
agency response to public requests for access to records. The
designation of one or more records access officers shall not be
construed to prohibit officials who have in the past been
authorized to make records or information available to the
public from continuing to do so."

Based on the foregoing, I believe that the records access officer has the duty of coordinating
responses to requests.

Section 1401.2(b) of the regulations describes the duties of a records access officer
and states in part that:

"The records access Officer is responsible for assuring that
agency personnel...

(3) Upon locating the records, take one of the following
actions:
(i) make records promptly available for inspection; or
(ii) deny access to the records in whole or in part and explain
in writing the reasons therefor.
(4) Upon request for copies of records:
(i) make a copy available upon payment or offer to pay
established fees, if any; or
(ii) permit the requester to copy those records..."

Based on the foregoing, the records access officer must "coordinate" an agency's
response to requests. Therefore, I believe that requests may be made to town or school
district officials generally. However, when an official receives a request, he or she, in
accordance with the direction provided by the records access officer, must respond in a
manner consistent with the Freedom of Information Law or forward the request to the
records access officer. For example, in the case of a request made to the Town Assessor who
was absent from his office, I believe that the request should have been forwarded to the
records access officer, who is likely the Town Clerk.

Lastly, 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.

If the record was not purposefully disclosed and your request is being treated as an
initial effort to gain access, I believe that the provision pertinent to an analysis of rights of
access would be §87(2)(g). Although that provision serves potentially as a ground for denial
of access, due to its structure, it often requires disclosure. Specifically, §87 (2)(g) permits
an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits
performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While
inter-agency or intra-agency materials may be withheld, portions of such materials consisting
of statistical or factual information, instructions to staff that affect the public, final agency
policy or determinations or external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those portions of inter-agency or
intra-agency materials that are reflective of opinion, advice, recommendation and the like
could in my view be withheld. Based on the news article, it appears that the memorandum
would consist largely of statistical or factual information that would be accessible.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Records Access Officer, Town of Orangetown
Records Access Officer, Pearl River School District
Records Access Officer, South Orangetown School District