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September 9, 1999

 

Ms. Shawn Schultz
Citizen's Against the Dump
P.O. Box 93
Pattersonville, NY 12137

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 Ms. Schultz:

I have received your undated letter, which reached this office on August 10.

You have sought an advisory opinion concerning a request made to the Town of
Rotterdam on July 12 for the "Draft of the Sterling/Spectra Leachate investigation and
remediation study of the Rotterdam MSW Landfill." You wrote that the request was denied
on July 30 and that you appealed "on that same day." On August 2, you were informed that
the Town Engineer, in your words, "had destroyed the draft since it was a draft and not a
finalized report." You added that "[s]he was well aware this draft was under foil as [you] and
the records access officer had been in touch with her on repeated occasions."

You have raised the following questions in relation to the foregoing:

"a) Did the town have the obligation to provide all or certain
parts of the draft?

b) Is this draft covered by attorney client privilege since a
lawyer hired by the town reviewed it?

c) What document is needed to prove the record no longer
exists?

d) If the record was destroyed what remedies are available to
us?"

In this regard, I offer the following comments.

First, questions (a) and (b) will be considered together, for they both deal essentially
with whether or the extent to which the draft should have been made available.

It is emphasized at the outset that the Freedom of Information Law, as a general
matter, 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.

Further, I point out that the Freedom of Information Law pertains to all agency
records, and that §86(4) defines the term "record" expansively to mean:

"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 on the foregoing, I believe that the draft clearly constituted a town record that fell
within the coverage of the Freedom of Information Law.

With respect to the attorney-client privilege, the fact that an attorney may have been
retained to review a record would not alter the character of the record or transform it into
privileged material. By means of example, if an attorney is hired to review public records,
such as minutes of meetings, a developer's plans to construct a new building, or assessment
records, his or her review of those records would in no way affect the public's right to obtain
them under the Freedom of Information Law; again, the content, the character and the
purpose for which the records were prepared would not change.

As I understand the matter, the draft was not prepared by or at the direction of an
attorney retained by the Town. If that is so, the attorney client privilege would not be
pertinent.

If records are prepared by or for an attorney, as in the case of a report prepared for
litigation by an expert, they may be beyond the scope of rights of access. The first ground
for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by
state or federal statute." When records are subject to the attorney-client privilege, the would
be exempted from disclosure under §4503 of the Civil Practice Law and Rules (CPLR).
Another statute that exempts records from disclosure is §3101(d) of the Civil Practice Law
and Rules, which exempts material prepared for litigation from disclosure. It is emphasized,
however, that it has been determined judicially that if records are prepared for multiple
purposes, one of which includes eventual use in litigation, §3101(d) does not serve as a basis
for withholding records; only when records are prepared solely for litigation can §3101(d) be
properly asserted to deny access to records [see e.g., Westchester-Rockland Newspapers v.
Mosczydlowski, 58 AD 2d 234 (1977)].

Again, as I interpret your comments, the draft was not prepared by or at the direction
of an attorney, nor was it prepared solely for litigation. If that is so, neither §87(2)(a) nor the
attorney-client privilege would in my view have authorized the Town to withhold the draft.

If Sterling/Spectra served as a consultant for the Town, another ground for denial
would be relevant to an analysis of rights of access. Due to its structure, however, that
provision would likely have required substantial disclosure.

Specifically, §87(2)(g) 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, the state's highest court, 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.

In sum, assuming that the draft was prepared by a consultant retained by the Town,
those portions of the draft consisting of statistical or factual information would, in my
opinion, have been available.

If Sterling/Spectra did not serve as a consultant, it does not appear that any ground
for denial would have applied. In that event, I believe that the report would have been
available in its entirety.

Next, when an agency indicates that it does not maintain or cannot locate a record,
an applicant for the record may seek a certification to that effect. Section 89(3) of the
Freedom of Information Law provides in part that, in such a situation, on request, an agency
"shall certify that it does not have possession of such record or that such record cannot be
found after diligent search." If you consider it worthwhile to do so, you could seek such a
certification.

I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d 779 (1994)], it was
found that a court could not validly accept conclusory allegations as a substitute for proof that
an agency could not locate a record after having made a "diligent search". However, in
another decision, such an allegation was found to be sufficient when "the employee who
conducted the actual search for the documents in question submitted an affidavit which
provided an adequate basis upon which to conclude that a 'diligent search' for the documents
had been made" [Thomas v. Records Access Officer, 613 NYS 2d 929, 205 AD 2d 786
(1994)].

It is also suggested that you inquire as to whether Sterling/Spectra maintains a copy
of the draft. As indicated earlier, the definition of "record" includes information produced for
an agency. Therefore, if that firm maintains a copy of the draft or has stored the draft
electronically, I believe that the Town would be required to acquire a copy for the purpose
of reviewing it and disclosing its contents to the extent required by the Freedom of
Information Law.

With respect to the destruction of the draft, pertinent in my view is the "Local
Government Records Law", Article 57-A of the Arts and Cultural Affairs Law, which deals
with the management, custody, retention and disposal of records by local governments. For
purposes of those provisions, §57.17(4) of the Arts and Cultural Affairs Law defines "record"
to mean:

"...any book, paper, map, photograph, or other information-
recording device, regardless of physical form or characteristic,
that is made, produced, executed, or received by any local
government or officer thereof pursuant to law or in connection
with the transaction of public business. Record as used herein
shall not be deemed to include library materials, extra copies
of documents created only for convenience of reference, and
stocks of publications."

With respect to the retention and disposal of records, §57.25 of the Arts and Cultural
Affairs Law states in relevant part that:

"1. It shall be the responsibility of every local officer to
maintain records to adequately document the transaction of
public business and the services and programs for which such
officer is responsible; to retain and have custody of such
records for so long as the records are needed for the conduct
of the business of the office; to adequately protect such
records; to cooperate with the local government's records
management officer on programs for the orderly and efficient
management of records including identification and
management of inactive records and identification and
preservation of records of enduring value; to dispose of
records in accordance with legal requirements; and to pass on
to his successor records needed for the continuing conduct of
business of the office...

2. No local officer shall destroy, sell or otherwise dispose of
any public record without the consent of the commissioner of
education. The commissioner of education shall, after
consultation with other state agencies and with local
government officers, determine the minimum length of time
that records need to be retained. Such commissioner is
authorized to develop, adopt by regulation, issue and
distribute to local governments retention and disposal
schedules establishing minimum retention periods..."

In view of the foregoing, records cannot be destroyed without the consent of the
Commissioner of Education, and local officials cannot destroy or dispose of records until the
minimum period for the retention of the records has been reached. I note that the provisions
relating to the retention and disposal of records are carried out by a unit of the State
Education Department, the State Archives and Records Administration. It is suggested that
you contact that agency to ascertain the applicable retention period concerning the draft.

Finally, §240.65 entitled "Unlawful prevention of public access to records" and §89(8)
of the Freedom of Information Law deal with the destruction of records requested pursuant
to the Freedom of Information Law. The former states that:

"A person is guilty of unlawful prevention of public access to
records when, with intent to prevent the public inspection of
a record pursuant to article six of the public officers law, he
willfully conceals or destroys any such record."

From my perspective, the preceding may be applicable in two circumstances: first, when an
agency employee receives a request for a record and indicates that the agency does not
maintain the record even though he or she knows that the agency does maintain the record;
or second, when an agency employee destroys a record following a request for that record
in order to prevent public disclosure of the record. As in the case of any violation of the
Penal Law, such violation may be prosecuted by a district attorney.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Town Board
Town Clerk
Town Engineer