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December 22, 1998

Councilman Peter J. Barton
Town of Beekman
4 Main Street
Poughquag, NY 12570-9601

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 Councilman Barton:

I have received your letter of November 20 and the correspondence relating to it.
You wrote that the Town of Beekman has retained an environmental consulting firm to
engage in studies and prepare reports concerning a hazardous waste site owned by the Town.
When you requested records from the firm, it denied access and informed the Town
Supervisor of your request, who also denied your request. You have raised a series of
questions pertaining to the matter, and in this regard, I offer the following comments.

First, in general, the Freedom of Information Law is intended to enable the public to
request and obtain accessible records. Further, it has been held that accessible records should
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 2d 673, 378 NYS 2d 165 (1976) and M. Farbman
& Sons v. New York City, 62 NY 2d 75 (1984)]. Nevertheless, if it is clear that records are
requested in the performance of one's official duties, the request might not be viewed as
having been made under the Freedom of Information Law. In such a situation, if a request
is reasonable, and in the absence of a Board rule or policy to the contrary, I believe that a
member of the Board should not generally be required to resort to the Freedom of
Information Law in order to seek or obtain records.

However, viewing the matter from a more technical perspective, one of the functions
of a public body involves acting collectively, as an entity. A town board, as the governing
body of a public corporation, generally acts by means of motions carried by an affirmative
vote of a majority of its total membership (see General Construction Law, §41). In my view,
in most instances, a board member acting unilaterally, without the consent or approval of a
majority of the total membership of the board, has the same rights as those accorded to a
member of the public, unless there is some right conferred upon a board member by means
of law or rule. In such a case, a member seeking records could presumably be treated in the
same manner as the public generally.


Second, in a similar vein, I do not believe that the Supervisor, acting unilaterally, has
the authority to determine rights of access or the extent to which another Board member can
view the records at issue. From my perspective, under §§63 and 64 of the Town Law, the
Town Board, rather than a single member thereof, would have such authority. Section 63
states in part that a town board carries out its functions by means of a majority vote of its
total membership; §64(3) provides a town board, as an entity, with "management, custody
and control of town property."

Third, I believe that the records prepared by the consulting firm are Town property
and that they fall within the coverage of the Freedom of Information Law. It is emphasized
that §86(4) of the Freedom of Information 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."

Based upon the language quoted above, documents need not be in the physical possession of
an agency to constitute agency records; so long as they are produced, kept or filed for an
agency, the courts have held they constitute "agency records", even if they are maintained
apart from an agency's premises..

For instance, it has been found that records maintained by an attorney retained by an
industrial development agency were subject to the Freedom of Information Law, even though
an agency did not possess the records and the attorney's fees were paid by applicants before
the agency. The Court determined that the fees were generated in his capacity as counsel to
the agency, that the agency was his client, that "he comes under the authority of the Industrial
Development Agency" and that, therefore, records of payment in his possession were subject
to rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County
of Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).

Additionally, in a decision rendered by the Court of Appeals, the state's highest court,
it was found that materials received by a corporation providing services for a branch of the
State University that were kept on behalf of the University constituted "records" falling with
the coverage of the Freedom of Information Law. I point out that the Court rejected
"SUNY's contention that disclosure turns on whether the requested information is in the
physical possession of the agency", for such a view "ignores the plain language of the FOIL
definition of 'records' as information kept or held 'by, with or for an agency'" [see Encore
College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New
York at Farmingdale, 87 NY 2d 410. 417 (1995)].

In short, insofar as the records are maintained for the Town, I believe that the Town
would be required to direct the custodian of the records to disclose them in accordance with
the Freedom of Information Law, or obtain them in order to disclose them to you to the
extent required by law.

Lastly, it has been held by the the Court of Appeals that records prepared for an
agency by a consultant are agency records that should be treated as if they were prepared by
agency staff.

In brief, 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. Records prepared by agency staff for internal agency use would constitute "intra-
agency materials" that fall within the scope of §87(2)(g). That provision 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.

In a discussion of the issue of records prepared by consultants for agencies, the Court
of Appeals stated that:

"Opinions and recommendations prepared by agency
personnel may be exempt from disclosure under FOIL as
'predecisional materials, prepared to assist an agency decision
maker***in arriving at his decision' (McAulay v. Board of
Educ., 61 AD 2d 1048, aff'd 48 NY 2d 659). Such material
is exempt 'to protect the deliberative process of government
by ensuring that persons in an advisory role would be able to
express their opinions freely to agency decision makers
(Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546,
549).

"In connection with their deliberative process, agencies may
at times require opinions and recommendations from outside
consultants. It would make little sense to protect the
deliberative process when such reports are prepared by agency
employees yet deny this protection when reports are prepared
for the same purpose by outside consultants retained by
agencies. Accordingly, we hold that records may be
considered 'intra-agency material' even though prepared by an
outside consultant at the behest of an agency as part of the
agency's deliberative process (see, Matter of Sea Crest Constr.
Corp. v. Stubing, 82 AD 2d 546, 549, supra; Matter of 124
Ferry St. Realty Corp. v. Hennessy, 82 AD 2d 981, 983)"
[Xerox Corporation v. Town of Webster, 65 NY 2d 131, 132-
133 (1985)].

Based upon the foregoing, records prepared by a consultant for an agency may be
withheld or must be disclosed based upon the same standards as in cases in which records are
prepared by the staff of an agency. It is emphasized that the Court in Xerox specified that the
contents of intra-agency materials determine the extent to which they may be available or
withheld, for it was held that:

"While the reports in principle may be exempt from disclosure,
on this record - which contains only the barest description of
them - we cannot determine whether the documents in fact fall
wholly within the scope of FOIL's exemption for 'intra-agency
materials,' as claimed by respondents. To the extent the
reports contain 'statistical or factual tabulations or data'
(Public Officers Law section 87[2][g][i], or other material
subject to production, they should be redacted and made
available to the appellant" (id. at 133).

Therefore, a record prepared by a consultant for an agency would be accessible or deniable,
in whole or in part, depending on its contents.

I would conjecture that substantial portions of the records, in accordance with the
direction offered by the Court of Appeals, would consist of statistical or factual information
that must be disclosed not only to you, a member of the Town Board, but to any member of
the public.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Town Board
Town Supervisor