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 FOIL-AO-13904

February 21, 2003

Dear

I have been contacted by Ms. George Anna Almeter concerning a request for records made
pursuant to the Freedom of Information Law. As you may be aware, the Committee on Open
Government was created by the enactment of that statute, and its primary function involves providing
guidance and opinions in an effort to enhance understanding of and compliance with open
government laws.

In brief, Ms. Almeter some time ago requested a variety of records, some of which were made
available by the Department of State. However, she indicated that she has been unsuccessful in her
efforts in gaining access to a "blue covered file", which has been characterized as your "private file."
Based on the language of the law and its interpretation by the courts, there cannot be a "personal"
or "private" file, for all records relating to the performance of your duties as a village officer fall
within the coverage of the Freedom of Information Law. In this regard, I offer the following
comments.

Most importantly, the scope of the Freedom of Information Law is expansive, for it
encompasses all government agency records within its coverage. Section 86(4) of that statute 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, a file need not be in the physical possession of the Village
to constitute an agency record; so long as it is produced, kept or filed for an agency, the law specifies
and the courts have held that it constitutes an "agency record", even if it is maintained apart from an
agency's premises.

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 pursuant
to a contract were kept on behalf of the University and constituted agency "records" falling within
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)].

Also pertinent is another decision rendered by the Court of Appeals in which the Court
focused on an agency claim that it could "engage in unilateral prescreening of those documents which
it deems to be outside of the scope of FOIL" and found that such activity "would be inconsistent with
the process set forth in the statute" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The
Court determined that:

"...the procedure permitting an unreviewable prescreening of
documents - which respondents urge us to engraft on the statute -
could be used by an uncooperative and obdurate public official or
agency to block an entirely legitimate request. There would be no
way to prevent a custodian of records from removing a public record
from FOIL's reach by simply labeling it 'purely private.' Such a
construction, which would thwart the entire objective of FOIL by
creating an easy means of avoiding compliance, should be rejected"
(id., 254).

In a case involving notes taken by the Secretary to the Board of Regents that he characterized
as "personal" in conjunction with a contention that he took notes in part "as a private person making
personal notes of observations...in the course of" meetings. In that decision, the court cited the
definition of "record" and determined that the notes did not consist of personal property but rather
were records subject to rights conferred by the Freedom of Information Law [Warder v. Board of
Regents, 410 NYS 2d 742, 743 (1978)].

In another case in which it was claimed that records were "personal", Kerr v. Koch (Supreme
Court, New York County, NYLJ, February 1, 1988), the issue involved a request by a reporter for
the Daily News for the public and private appointment calendars of then Mayor Koch. Although it
was contended by the City that various materials were not subject to the Freedom of Information Law
or could be withheld under that statute, the Court disagreed, citing Capital Newspapers and an
opinion rendered by this office and stated that:

"...respondents base petitioner's exclusion from certain materials by
saying that some of the appointment books contain both personal and
business appointments created for the Mayor's convenience. That
contention, of course, has little probative meaning here:

'*** personal or unofficial documents which are intermingled with
official government files and are being 'kept' or 'held' by a
governmental entity are 'records' maintained by an 'agency' under
Public Officers Law §86 (3), (4). Such records are, therefore, subject
to disclosure under FOIL absent a specific statutory exemption'
(Capital Newspapers v. Whalen, 69 N.Y. 2d 246, 248).

"At the Appellate Division level of Capital Newspapers, it was ruled
that papers of a personal nature were protected from disclosure under
the FOIL and that the law was intended by the Legislature to subject
to disclosure only those records that revealed the workings of
government and that disclosure of private papers of a public office
holder would not further the purpose of FOIL (113 App. Div. 2d 217,
220). It is that ratio decidendi that the Court of Appeals rejected in
its unanimous ruling.

"The Court then went on to re-state the appellate conclusion that
FOIL 'is to be liberally construed and its exemptions narrowly
interpreted so that the public is granted maximum access to the
records of government' (citing Matter of Washington Post Co. v. New
York State Ins. Dept., 61 N.Y. 2d 557, 564). Any narrow
construction of FOIL, it was added, 'is contrary to these decisions and
antagonistic to the important policy underlying FOIL' (p. 52 of
Capital Newspapers, supra)."

In short, assuming that the "private file" relates in any way to the performance of your duties
for the Village, its contents would constitute agency records that are subject to rights of access
conferred by the Freedom of Information Law. Further, while the file may be in your physical
possession, I believe that it is the property and in the legal custody of the Village.

Lastly, 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.

I hope that the foregoing serves to clarify your understanding of the Freedom of Information
Law and that I have been of assistance. If you have questions regarding the matter, please feel free
to contact me.

Sincerely,

Robert J. Freeman
Executive Director

RJF:jm

cc: George Anna Almeter
Board of Trustees, Village of Warsaw