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                                                                                                November 27, 2000

FOIL-AO-12388

Dear

I appreciate having received your determination of October 4 of an appeal made under the
Freedom of Information Law by Mr. Gregory Yatzyshyn. It is my understanding the Mr.
Yatzyshyn's request for a draft environmental impact statement (DEIS) was denied because it has
not yet been "accepted" by the Town's Environmental Quality Review Commission "as complete."
From my perspective, if the record sought is in possession of the Town, irrespective of whether it
has been accepted or is complete, it must be disclosed. In this regard, I offer the following
comments.

First, as you may be aware, the Freedom of Information Law pertains to all agency records,
and §86(4) of that statute defines the term "record" 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, once a record is submitted to or in possession of a Town office or officer,
even if it is incomplete or has not been "accepted", it constitutes a "record" subject to rights of
access.

Second, as a general matter, 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. In my view, none of the grounds for denial could properly be asserted to withhold the
record in question.

Although one of the grounds for denial may frequently be cited to withhold records or
portions of records characterized as "draft" or "preliminary", for example, that provision would not
be applicable in the situation in question. Specifically, §87(2)(g) deals with "inter-agency and intra-
agency materials." Section 86(3) of the Freedom of Information Law 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 foregoing, the exception pertains to communications between or among state or local
government officials at two or more agencies ("inter-agency materials"), or communications between
or among officials at one agency ("intra-agency materials"). If the record sought consists of
documentation sent to the Town by a developer, it would not constitute inter-agency or intra-agency
materials. In short, the developer would not be an agency, and its communications with the Town
would be neither inter-agency nor intra-agency materials.

The remaining exceptions to rights of access would not, in my view, be applicable or
pertinent. If that is so, none of the grounds for denial would serve to enable the Town to withhold
the record sought.

I hope that the foregoing enhances your understanding of the Freedom of Information Law
and that I have been of assistance. If you would like to discuss the matter, please feel free to contact
me.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: Gregory Yatzyshyn