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December 28, 1998

 

Mr. Carl Stewart
Construction Manager
Turner Construction Company
100 State Street
Albany, NY 12207

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. Stewart:

I have received your letter of December 4 in which you raised questions concerning
your responsibilities under the Freedom of Information Law when your company is retained
by a government agency as a consultant.

From my perspective, while the records that your firm prepares in its capacity as a
consultant for an agency fall within the coverage of the Freedom of Information Law, the
responsibilities associated with requests for those records should be borne by the agency. In
this regard, I offer the following comments.

First, the Freedom of Information pertains to all agency records, and §86(4) of 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."

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, I believe that records that your company prepares in its capacity as a
consultant for an agency are agency records, even though they may be in your physical
possession.

Second, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on
Open Government to promulgate regulations concerning the procedural aspects of the Law
(see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states that:

"the governing body of each public corporation shall
promulgate uniform rules and regulations for all agencies in
such public corporation pursuant to such general rules and
regulations as may be promulgated by the committee on open
government in conformity with the provisions of this article,
pertaining to the administration of this article."

The initial responsibility to deal with requests is borne by an agency's records access officer,
and the Committee's regulations provide direction concerning the designation and duties of
a records access officer. Specifically, §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, each agency is required to designate one or more persons as
"records access officer." The records access officer has the duty of coordinating an agency's
response to requests. In my view, if your company receives a request for agency records, the
request should immediately be forwarded to the agency's records access officer. I do not
believe that you or your firm would have the responsibility of determining rights of access to
the records. Again, since the records at issue are agency records, the agency has the duty to
deal with a request in a manner consistent with law. Upon receipt of a request for agency
records in possession of your company, the records access officer should either obtain the
records for the purpose of reviewing them and determining rights of access or instruct your
company to disclose the records as required by law.

Lastly, it has been held by the Court of Appeals, the state's highest court, 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.

As you requested, enclosed is a copy of "Your Right to Know", which describes the
Freedom of Information Law and includes the Committee's website address. Additional
detailed information may be acquired via the website.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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