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May 4, 2000

FOIL-AO-12086

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. Giordano:

I have received your letter of March 23, as well as a variety of materials relating to it.
The issue, in brief, involves your unsuccessful efforts in obtaining a "Building Committee
Task Force Report" from the Village of Sea Cliff. The Village Clerk indicated in response to
your request that "[n]o such report has ever been filed" with her.

In this regard, first, it is emphasized that §86(4) of the Freedom of Information Law
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 or agency officials 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, if the report in question exists, since it was prepared "for" the Village, it
would constitute a Village record subject to rights conferred by the Freedom of Information
Law. Further, in that circumstance, I believe that the Village would be required to direct the
custodian of the report to disclose it in accordance with the Freedom of Information Law, or
obtain it in order to disclose it to you to the extent required by law.

In a related vein, 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)].

In addition, while I am not suggesting that they are applicable, of potential relevance
are §240.65 of the Penal Law and its companion, §89(8) of the Freedom of Information Law
(which is Article 6 of the Public Officers 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. I do not believe that §240.65 applies when
an agency denies access to a record, even though the basis for the denial may be
inappropriate or erroneous, or when an agency cannot locate a record.

Second, assuming that the report exists, 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.

The only ground for denial of potential significance in my view would be §87 (2)(g),
which enables 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.

One of the contentions offered by the New York City Police Department in a decision
rendered by the Court of Appeals was that certain reports could be withheld because they are
not final and because they relate to incidents for which no final determination had been made.
The Court of Appeals rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-
up reports are exempt from disclosure because they constitute
nonfinal intra-agency material, irrespective of whether the
information contained in the reports is 'factual data' (see,
Matter of Scott v. Chief Medical Examiner, 179 AD2d 443,
444, supra [citing Public Officers Law §87[2][g][111]).
However, under a plain reading of §87(2)(g), the exemption for
intra-agency material does not apply as long as the material
falls within any one of the provision's four enumerated
exceptions. Thus, intra-agency documents that contain
'statistical or factual tabulations or data' are subject to FOIL
disclosure, whether or not embodied in a final agency policy or
determination (see, Matter of Farbman & Sons v. New York
City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of
MacRae v. Dolce, 130 AD2d 577)..." [Gould et al. v. New
York City Police Department, 87 NY2d 267, 276 (1996)].

In short, that a record is "predecisional" or "not final" would not represent an end of
an analysis of rights of access or an agency's obligation to review the contents of a record.

If the Committee that prepared the report consists of residents, volunteers who are not
employed or retained by the Village, tangential to the matter but relevant to the analysis are
several judicial decisions indicate generally that advisory ad hoc entities, other than
committees consisting solely of members of public bodies, having no power to take final
action fall outside the scope of the Open Meetings Law. As stated in those decisions: "it has
long been held that the mere giving of advice, even about governmental matters is not itself a
governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542
NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's
Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest
Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no
opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)]. If the
Committee that prepared the report does not constitute a public body subject to the Open
Meetings Law, it would not perform a "governmental function."

Pertinent to the foregoing is §86(3) of the Freedom of Information Law, which
defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or other governmental entity performing a
governmental or proprietary function for the state or any one or
more municipalities thereof, except the judiciary or the state
legislature."

Based on the definition, an "agency" is a governmental entity performing a governmental
function, such as the Village. If the Committee that prepared the report is not a public body
for purposes of the Open Meetings Law because it does not perform a governmental function,
for the same reason, it would not be an agency for purposes of the Freedom of Information
Law. Therefore, the exception discussed earlier dealing with intra-agency materials,
§87(2)(g), would not be applicable. Again, however, the report would constitute an agency
record, for it was produced for the Village, which is clearly an agency.

Lastly, those involved in preparing the report apparently did so at the direction of the
Village and acted on behalf of the Village. That being so, it is unlikely in my opinion that the
other exception cited by the Village, §87(2)(b), would be pertinent. That provision enables
an agency to withhold records to the extent that disclosure would constitute "an unwarranted
invasion of personal privacy." Based on the information you provided, the report would not
appear to include information of an intimate or personal nature.

Moreover, based on several judicial decisions, an assertion or promise of
confidentiality, unless it is based upon a statute, is generally meaningless. When
confidentiality is conferred by a statute, an act of the State Legislature or Congress, records
fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information
Law, which states that an agency may withhold records that "are specifically exempted from
disclosure by state or federal statute". If there is no statute upon which an agency can rely to
characterize records as "confidential" or "exempted from disclosure", the records are subject
to whatever rights of access exist under the Freedom of Information Law [see Doolan
v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557
(1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415
NYS 2d 780 (1979)]. As such, an assertion or promise of confidentiality, without more,
would not in my view serve to enable an agency to withhold a record.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Claudia Moyne
Nancy Rose