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 FOIL-AO-15098

January 5, 2005

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 facts presented in your correspondence.

Dear

I have received your letter and materials relating to it concerning a request made pursuant to the Freedom of Information Law to the Fire Island Union Free School District.

By way of background, in a request made on December 4, you sought six categories of records. Category 1 was granted, and in the case of categories 4 and 6, you were informed that no records existed. The remaining categories and the District’s responses to them are as follows:

Category 2: Copies of all material received from the Fire Island National Seashore or its employees, including any written reports or memos on verbal discussions concerning Louis Dolinar, Linda Maleski, or Ann Dolinar.

Response: This request does not adequately describe the record sought.

Category 3: Copies of all surveillance reports on Louis Dolinar, Linda Maleski, Ann Dolinar, 114 S. Clinton Ave, Bay Shore, and 60 West Walk, aka Scooner Walk, in Fire Island Summer Club.

Response: The request does not adequately describe the records being sought. To the extent records exist which may generally fall within the category or records requested, such records constitute inter- or intra-agency correspondence, which are exempt from disclosure.

Category 5: Copies of all school bus attendance records, e.g. who took the bus when, for the past four years if records exist. Alternately, all records concerning Ann Dolinar’s use of the school, bus, including any notes or memos in which school board employees describe that they indicated to Ms. Maleski that she need not call in on days when her daughter is not being picked up.

Response: The request does not adequately describe the record being sought. To the extent that records exist regarding a particular student, the disclosure of such records would constitute an unwarranted invasion of personal privacy.

You have sought an advisory opinion concerning the propriety of the District’s responses, and in this regard, I offer the following comments.

First, as you are likely aware, the Freedom of Information Law pertains to existing records. Section 89(3) states in part that an agency, such as a school district, is not required to create a record in response to a request. I point out that 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.

It is noted that the Freedom of Information Law includes within its scope not only records in the physical possession of an agency, but also those that may be kept or maintained elsewhere. That statute pertains to all agency records, and §86(4) defines the term "record" expansively 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."

In consideration of the language quoted above, documents need not be in the physical possession of an agency 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.

It has been found, for example, 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).

Perhaps most significant is a decision rendered by the Court of Appeals in which it was found that materials maintained by a corporation providing services pursuant to a contract 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)].

Insofar as records "kept, held, filed, produced or reproduced...for an agency", such as the District, I believe that they would constitute "agency records" that fall within the scope of the Freedom of Information Law.

Second, it is questionable, if not doubtful, in my view, that the requests for existing records do not "adequately describe" the records sought in a district as small as Fire Island. Although the Freedom of Information Law as initially enacted required that an applicant must seek "identifiable" records, since 1978 it has merely required that an applicant "reasonably describe" the records sought. Moreover, it has been held by the Court of Appeals, the state’s highest court, that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the request due to its breadth and also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number.

While I am unfamiliar with the record keeping systems of the District, to extent that the records sought can be located with reasonable effort, I believe that the request would have met the requirement of reasonably describing the records. In Ruberti, Girvin & Ferlazzo v. Division of State Police [218 AD2d 494, 641 NYS2d 411 (1996)], one element of the decision pertained to a request for a certain group of personnel records, and the agency argued that it was not required to search its files those requested "because such records do not exist in a 'central file' and, further, that FOIL does not require that it review every litigation or personnel file in search of such information" (id., 415). Nevertheless, citing Konigsberg, the court determined that:

"Although the record before this court contains conflicting proof regarding the nature of the files actually maintained by respondent in this regard, an agency seeking to avoid disclosure cannot, as respondent essentially has done here, evade the broad disclosure provisions FOIL by merely asserting that compliance could potentially require the review of hundreds of records" (id.).

If the District staff can locate the records of your interest with a reasonable effort analogous to that described above, i.e., by reviewing perhaps hundreds of records, it would be obliged to do so. As indicated in Konigsberg, only if it can be established that the District maintains its records in a manner that renders its staff unable to locate and identify the records would the request have failed to meet the standard of reasonably describing the records.

To the extent that the request does reasonably describe the records, the remaining issues involve rights of access.

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.

Category 3 of your request pertains to surveillance reports, and you wrote that it is your understanding that "surveillance is conducted by a firm under contract to the district." As suggested earlier, records prepared by such a firm for the District would, in my view, constitute District records, irrespective of where they may be kept. The response indicated that any such records would fall within the exception concerning inter-agency and intra-agency materials, §87(2)(g). From my perspective, if the firm was retained as a consultant, that provision would be applicable. If it was retained merely to collect information or make observations, I do not believe that §87(2)(g) would serve as a basis for a denial of access. More importantly, even when that provision is clearly applicable, due to its structure, it often requires substantial disclosure.

Specifically, cited provision permits 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.

The same kind of analysis would apply with respect to records prepared by consultants for agencies, for the Court of Appeals has held that:

"Opinions and recommendations prepared by agency personnel may be exempt from disclosure under FOIL as 'predecisional materials, prepared to assist an agency decision maker***in arriving at his decision' (McAulay v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY 2d 659). Such material is exempt 'to protect the deliberative process of government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative process, agencies may at times require opinions and recommendations from outside consultants. It would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies. Accordingly, we hold that records may be considered 'intra-agency material' even though prepared by an outside consultant at the behest of an agency as part of the agency's deliberative process (see, Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD 2d 546, 549, supra; Matter of 124 Ferry St. Realty Corp. v. Hennessy, 82 AD 2d 981, 983)" [Xerox Corporation v. Town of Webster, 65 NY 2d 131, 132-133 (1985)].

Based upon the foregoing, records prepared by a consultant for an agency, may be withheld or must be disclosed based upon the same standards as in cases in which records are prepared by the staff of an agency. Again, if the surveillance firm did not perform as a consultant, §87(2)(g) would not serve as a basis for a denial of access.

It is emphasized that the Court in Xerox specified that the contents of intra-agency materials determine the extent to which they may be available or withheld, for it was held that:

"While the reports in principle may be exempt from disclosure, on this record - which contains only the barest description of them - we cannot determine whether the documents in fact fall wholly within the scope of FOIL's exemption for 'intra-agency materials,' as claimed by respondents. To the extent the reports contain 'statistical or factual tabulations or data' (Public Officers Law section 87[2][g][I], or other material subject to production, they should be redacted and made available to the appellant" (id. at 133).

Therefore, records communicated between or among District officials or those prepared by a consultant for the District would be accessible or deniable, in whole or in part, depending on its contents.

In another, more recent decision, the Court of Appeals dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i). In its consideration of the matter, the Court found that:

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][I]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182)"[Gould v. New York City Police Department, 89 NY 2d 267, 276-277].

Based on the language of the law and the direction provided by the state’s highest court, even if records can be characterized as "inter-agency or intra-agency materials", that does not signify the end of the analysis of rights of access. Rather, I believe that an agency must review the entirety of the content of those materials to determine which portions, if any, may justifiably be withheld.

Lastly, while I believe that the District must withhold records identifiable to students other than your daughter, based on a federal statute, it is required to disclose to you those records or portions of records identifiable to your daughter. Pertinent is the Family Education Rights and Privacy Act (20 U.S.C. §1232g), which is commonly known as "FERPA". In brief, FERPA applies to all educational agencies or institutions that participate in funding, loan or grant programs administered by the United States Department of Education. As such, FERPA includes within its scope virtually all public educational institutions and many private educational institutions. The focal point of the Act is the protection of privacy of students. It provides, in general, that any "education record," a term that is broadly defined, that is personally identifiable to a particular student or students is confidential, unless the parents of students under the age of eighteen waive their right to confidentiality, or unless a student eighteen years or over similarly waives his or her right to confidentiality. The federal regulations promulgated under FERPA define the phrase "personally identifiable information" to include:

"(a)The student's name;
(b)The name of the student's parents or other family
member;
(c)The address of the student or student's family;
(d)A personal identifier, such as the student's social security number or student number;
(e)A list of personal characteristics that would make the student's identity easily traceable; or
(f)Other information that would make the student's identity easily traceable" (34 CFR § 99.3).

Based upon the foregoing, references to students’ names or other aspects of records that would make a student’s identity easily traceable must in my view be withheld from the public in order to comply with federal law.

Concurrently, however, if a parent of a student requests records pertaining to his or her child, FERPA provides rights of access to the parent of the child to those portions of records that are personally identifiable to their child.

In sum, from my perspective, it is doubtful that the District can validly contend that no element of the three categories of records considered herein involves records that cannot be located with reasonable effort or that the requirement that records be reasonably described has not been met. To the extent that they can be found with reasonable effort, blanket denials of access would be inconsistent with law, for it would be the District’s responsibility to review the records to ascertain which portions must be disclosed, and which others may properly be withheld.

 

I hope that I have been of assistance.

RJF:tt
cc: Wendell Chu
Nicholas J. Agro