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May 4, 1999

 

Ms. Marcie Haskell
Chair
Trojans for Troy
131 Euclid Avenue
Troy, NY 12180

Dear Ms. Haskell:

I have received your letter of April 14 in which you wrote that you were "surprised"
to read my comment that a member of the Troy City Council "acting alone, would have no
more authority than a member of the public" when seeking records from the City. You then
referred to Section 2.08.1 of the City Charter, which states that: "Any officer of the city is
required to furnish reports, information or estimates to any councillor or the City of Troy."

In this regard, I must admit to having been unaware of the City Charter provision at
the time my comment was offered. I am also unaware, however, of the intent or legislative
history of that provision, and I do not know how broadly it is intended to be construed.
Further, while it is the duty of the Committee on Government to offer advice and
interpretations relating to the Freedom of Information Law, I do not believe that I can
appropriately interpret Section 2.08 of the City Charter.

I note that if the language of that provision is construed literally, the results would
likely conflict with law or be unreasonable. "Information" maintained by the City of Troy
would include matters involving records that are sealed, others that are confidential by statute,
and others, particularly those pertaining to criminal law enforcement or containing intimate
personal information, that may be protected for a series of valid reasons. For instance,
personnel records relating to employees include their social security numbers; health insurance
records may include reference to medical conditions or diseases. I question whether under
the City Charter provision, any member of the City Council has the right to obtain all social
security numbers or personally identifiable information, perhaps based on curiosity, regarding
medical conditions or diseases of City employees and their family members.

When members of governing bodies have requested records, it has generally been
advised that if the request is reasonable, that person 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 governing body of a public corporation 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 member of a governing body 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. In such a case, a
member seeking records could presumably be treated in the same manner as the public
generally.

I note that Section 15.07 of the City Charter was also marked. That provision states
that: "All books and records of any department in the city shall be public records." In judicial
decisions construing similar local enactments, the courts have chosen not to engage in literal
constructions of those provisions. For instance, §51 of the General Municipal Law states in
general that records of a municipality are available. However, in responding to a contention
that §51 requires that all records of a municipality be made available, regardless of their
contents, the state's highest court, the Court of Appeals, held in 1985 that:

"Such a result would nullify the FOIL exemptions, which the
Legislature - presumably aware of General Municipal Law §51
at the time it enacted FOIL - could not have intended. To
give effect to both statutes, the FOIL exemptions must be read
as having engrafted, as a matter of public policy, certain
limitations on the disclosure of otherwise accessible records"
[Xerox Corporation v. Town of Webster, 65 NY 131, 490
NYS 2d 488, 489 (1985)].

Provisions of the New York City Charter reenacted in 1989, §§1058 and 1059, refer
to public access to any books and records of City agencies and offices of the borough
presidents. Despite the fact that they were enacted following the passage of the Freedom of
Information Law, the Appellate Division unanimously determined, citing Xerox, that the
exceptions appearing in the Freedom of Information Law were deemed to have been
"engrafted" on those provisions [Turner v. Department of Finance of the City of New York,
242 AD2d 146 (1998)].

In short, it is reiterated that I do not believe that I have the authority to interpret the
provision of the City Charter at issue.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Mark Pattison, Mayor