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February 17, 2000

FOIL-AO-11960

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

I have received your letter of January 7 and the materials attached to it. You have
sought my views concerning the propriety of a request purportedly made under the Freedom
of Information Law.

Among the enclosures is a request for "all records" involving some twenty-six areas.
In most, the applicant sought all records "tending to support" a particular statement, or
"utilized", "used" or "relating to" various activities of the Department of Environmental
Conservation. You have contended that the kinds of requests described would "amount to an
interrogatory" and would, if honored, reveal an agency's "thought-processes" and,
potentially, its strategy in an administrative or judicial proceeding.

From my perspective, a request for records "tending to support" a statement is not a
request for records as envisioned by the Freedom of Information Law, for a response would
involve making a series of judgments based on opinions, some of which would be subjective,
mental impressions, the strength of one's memory, and perhaps legal research. For instance,
in a situation in which an individual sought provisions of law that might have been
"applicable" in governing certain activity, it was advised that the request was inappropriate.
Specifically, the request involved "copies of the applicable provisions and pages of the Civil
Service Law and applicable rules promulgated by the Department of Civil Service which
govern the creation and appointment of management confidential positions" (emphasis
added). In response, it was suggested that:

"...the foregoing is not a request for records. In essence, it is a
request for an interpretation of law requiring a judgment. Any
number of provisions of law might be "applicable", and a
disclosure of some of them, based on one's knowledge, may be
incomplete due to an absence of expertise regarding the content
and interpretation of each such law. Two people, even or
perhaps especially two attorneys, might differ as to the
applicability of a given provision of law. In contrast, if a
request is made, for example, for "section 209 of the Civil
Service Law", no interpretation or judgment is necessary, for
sections of law appear numerically and can readily be
identified. That kind of request, in my opinion, would involve
a portion of a record that must be disclosed. Again, a request
for laws that might be "applicable" is not, in my view, a
request for a record as envisioned by the Freedom of
Information Law."

In like manner, ascertaining which records might "tend to support" a statement would
involve an attempt to render a judgment regarding the use, utility, accuracy or value of
records. As in the case of locating "applicable law", equally reasonable people, even those
within the same agency, may reach different conclusions regarding which records tend to
support a statement.

Further, there may be a variety of records from an array of sources used in and outside
the scope of one's governmental duties that "tend to support" a statement, including
curricular materials used in undergraduate, graduate or post graduate studies, library
materials, magazine articles, documentaries, films (i.e., for training), professional journals
and similar documentation read or seen over the course of years. Those kinds of materials
may contribute to one's breadth of knowledge and may, consciously or otherwise, tend to
support a position on a given subject. However, identifying or recalling those kinds of
materials that may have resulted in the acquisition of knowledge and which even may tend to
support a statement or position would, in my opinion, frequently involve an impossibility.
Moreover, for purposes of the Freedom of Information Law, a request for such materials
would not meet the standard of "reasonably describing" the records sought, for such a request
would not enable the Department to locate and identify the records in the manner envisioned
by that statute [see Konigsberg v. Coughlin, 68 NY2d 245 (1986)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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