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FOIL-AO-14055

June 3, 2003

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

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

As you are aware, I have received your letter of May 12.

You wrote that you serve as counsel and a member of the Board of Trustees of the Jervis Public Library in Rome ("the Library"). Because it is an association library, it has been advised that it is not subject to the Freedom of Information Law. You indicated, however, that the City of Rome funds a substantial portion of the Library's budget, and that the Library forwards financial statements to the City. The City has determined and the Committee's Assistant Director has verbally advised that those records are subject to the Freedom of Information Law. In relation to the foregoing, you wrote as follows:

"...what, if any, effect is had by the fact that the Library stamps 'confidential' the envelope in which the statements are sent to City Hall. We thought this stamp would mean the City would have to contact Jervis if a FOIL request were received, for purposes of determining whether answering the request would violate the confidentiality of a particular document or whether Jervis was willing to waive confidentiality in that particular instance.

"If the confidential stamp has no such meaning, is there any way Jervis can ensure it will be contacted when a FOIL request is made at City Hall? Is there any way to protect the information in the financial statements, short of failing to provide it in the first place?"

In this regard, first, I believe that any record maintained by or for the City falls within the coverage of the Freedom of Information Law. 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."

The Court of Appeals has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term "record" involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found that the documents constituted "records" subject to rights of access granted by the Law. Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id.).

In another decision rendered by the Court of Appeals, 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).

Second, based on several judicial decisions, an assertion, a request for or a 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.

Lastly, while the City could agree to inform the Library when a request is made for records transmitted by the Library, I do not believe that the City would be obliged to do so.

I hope that I have been of assistance.

RJF:jm

cc: City Clerk