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FOIL-AO-15049

December 16, 2004

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 in which you sought an opinion relating to the Freedom of Information Law.

By way of background, you wrote as follows:

"Recently a village trustee removed documents from the desk in the office at the streets department. Two village employees witnessed him removing these documents but they were not aware of the contents. When confronted by the police about this he claimed that he had removed a park file. At a later meeting of the village board he claimed that he had removed the personal files of the former working streets supervisor and that he had the permission of this former employee to remove these records. I asked our records management officer/village clerk if she had given anyone permission to remove any records from the streets garage and her answer was she had not."

You wrote that it is your belief that:

"...all village records are under the control of the records management officer and that no one may remove any files or records from any village building without first receiving permission from the records management officer."

If that is so, you asked whether you are:

"...correct in assuming that this trustee illegally removed these records and if so could you tell me what the ramifications are of this action."

In this regard, first, I note that the Committee on Open Government is authorized to provide advice and opinions concerning the Freedom of Information Law. While it is clear that the Village Clerk is the custodian of Village records and its records management officer (see Arts and Cultural Affairs Law, §57.19), I cannot offer advice or an opinion concerning the legality of the trustee’s action.

Second, however, in my view, the documents at issue clearly constitute Village records that fall within the scope of the Freedom of Information Law, despite their characterization as "personal."

The Freedom of Information Law pertains to all government agency records, and §86(4) 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, the State's highest court, 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).

Further, 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, 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 short, irrespective of their origin, function, or their characterization as "personal", I believe that the documents in question constitute Village records that fall within the coverage of the Freedom of Information Law and are subject to public rights of access conferred by that statute.

I hope that I have been of assistance.

RJF:jm