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April 2, 1999

 

Mr. Jack McAndrew
53 Fowler Street
Port Jervis, NY 12771-2019

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. McAndrew:

I have received your letter of March 15. You wrote that you are employed by the
Port Jervis Public School District and that you have been involved in various proceedings
with that agency. Having recently requested a transcript of a hearing in which you were a
party, the request was denied on the ground that the District is "not in possession" of the
record in question. It is your belief that that the transcript and similar or related records are
kept by the District's attorneys.

If your contention is accurate, the materials at issue would, in my view, constitute
District records subject to rights conferred by the Freedom of Information Law. In this
regard, I offer the following comments.

It is emphasized that the Freedom of Information Law pertains to all agency records,
such as those involving school districts, and that §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 sum, insofar as the records sought are maintained for the District, I believe that the
District is 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.

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, copies of this opinion will be sent to District officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Patrick Hamill, Superintendent
Robert B. Witherow, Records Access Officer