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December 29, 1998

Mr. Charles J. Kershner
Executive Editor
Courier Enterprises
P.O. Box 294, 4 Meadow Street
Clinton, NY 13323-0294

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. Kershner:

I have received your letter of December 14 in which you requested an advisory
opinion concerning the Freedom of Information Law.

According to your letter and a news article, William J. Keiser, III, the New Hartford
Town Supervisor, discussed the 1999 Town budget and economic development before the
New Hartford Chamber of Commerce on November 19. You wrote that it is your
understanding that a full time Town employee served "as an official recording secretary for
the Supervisor's remarks, and that those remarks were to be transcribed and made available
on request." In response to a request for a record of his address, the Supervisor denied
access and indicated that it involved "a non-municipal function for which we have no FOIL
obligation."

You have asked whether records of the Supervisor's remarks, "in either rough note
or final transcript form, are a matter of public record..." From my perspective, the materials
falling within the scope of your request, irrespective of their physical form, are subject to the
Freedom of Information Law. In this regard, I offer the following comments.

First and perhaps most importantly, the Freedom of Information Law is applicable 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."

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, materials prepared by or for the
Supervisor in his capacity as a Town official clearly, in my opinion, constitute "records" as
defined by the Freedom of Information Law. That the records were used or prepared in
connection with a function sponsored by an entity outside of government is of no significance;
since they were prepared by or for an agency official brings them within the coverage 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.

If a transcript of the Supervisor's remarks was prepared, I believe that such a
document would be available. The content of the transcript was disclosed orally to members
of the public and, consequently, none of the grounds for denial would be pertinent. If there
is no transcript but rather notes of the Supervisor's remarks taken by the Town employee to
whom reference was made earlier, I believe that they would be available for the same reason.
I point out, however, that if notes are "rough" or unclear, despite the duty to disclose them,
there would be no obligation to explain or add to their contents to clarify their meaning.

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, a copy of this response will be sent to Supervisor Keiser.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Hon. William J. Keiser, III, Supervisor