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FOIL-AO-15432

August 16, 2005

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, unless otherwise indicated.

Dear

I have received your letter and the materials relating to it concerning your requests made pursuant to the Freedom of Information Law to the Kingston Public Access Cable Commission (hereafter "the Commission").

In this regard, first, I do not believe that the Commission is an independent governmental agency. Rather, based on regulations promulgated by the State Department of Public Service, it appears that it is under the control of one or more municipalities. Specifically, the regulations, 16 NYCRR §895.4 entitled "Minimum standards for public, educational and governmental (PEG) access", state in subdivision (c) as follows:

"Administration and use. The use of the channel capacity for PEG access shall be administered as follows:

(1) The public access channel shall be operated and administered by the entity designated by the municipality or, until such designation is made, by the cable television franchisee; provided, however, that the municipality may designate such entity at any time throughout the term of a franchise.

(2) The educational and governmental access channel shall be operated and administered by a committee or a commission appointed by local government and shall include appropriate representation of local school districts within the service area of the cable television system and may include for purposes of coordination any employee or representative of the cable television franchisee.**

(3) The entity responsible for administering and operating the public access channel shall provide notice to the general public of the opportunity to use such channel which notice shall include: (i)periodic messages transmitted on such channel; and (ii) written notice to subscribers at least annually. Notices shall include the name, address and telephone number of the entity to be contacted for use of the channel. All PEG access programming shall be identified as such.

(4) Channel time shall be scheduled on the public access channel by the entity responsible for the administration thereof on a first-come, first-served, nondiscriminatory basis..."

Of possible significance is the first asterisk (*) appearing at the end of paragraph (1), which states in relevant part that: "If a single public access channel is shared by more than one municipality, a single entity shall be jointly designated by the local legislative bodies of each franchising municipality in the system."

Based on the foregoing, the members of the Commission are "appointed by local government", and it owes its existence to the action taken by one or more municipalities. If I recall our conversation correctly, despite its name, the Commission is appointed not only by the City of Kingston, but by several other municipalities in the vicinity of Kingston. If that is so, rather than requesting records directly from the Commission, it is suggested that you submit requests to the municipalities that make appointments to the Commission.

I point out that the regulations promulgated by the Committee on Open Government require each agency (i.e., a city or town) to designate one or more persons as "records access officer" (21 NYCRR §1401.2). The records access officer has the duty of coordinating an agency’s response to requests for records. That is pertinent, because the Freedom of Information Law is expansive in its scope. That statute pertains to all agency records, and §86(4) defines the term "record" 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."

In consideration of the authority of municipalities to appoint the members of the Commission, it appears that records maintained by or for one or more municipalities would constitute agency records subject to rights conferred by the Freedom of Information Law, even if they are not in the physical custody of a municipality. In other circumstances in which records are kept for an agency but are not in the physical possession of an agency, it has been suggested that a request be made to the agency’s records access officer. When in receipt of the request, records access officer, in my view, would be required to direct the custodian of the records to disclose them in a manner consistent with the Freedom of Information Law, or obtain the records so that they can be reviewed and disclosed in accordance with law.

Second, it is emphasized that the Freedom of Information Law pertains to existing records and that §89(3) states in relevant part that an agency is not required to create a record in response to a request. Several of your requests involve "lists." If, however, no list exists containing the information sought, an agency would not be required to prepare a list on your behalf. For instance, if there is no "list of all past and present officers and advisors retained on a paid or voluntary basis since its inception", there would be no obligation to create a list containing the items sought. In the future, rather than requesting lists that may not exist, it is suggested that you seek records, i.e., records identifying present and former members of the Commission.

Third, §89(3) also requires that an applicant "reasonably describe" the records sought. Therefore, a request should include sufficient detail to enable agency staff to locate and identify the records of interest. One of your requests involves "all correspondence (files) the KPACC has had since its inception..." While I am unfamiliar with the nature or volume of correspondence maintained by the Commission, or the length of time that it has existed, it is unlikely in my opinion that a request for "all correspondence" would reasonably describe the records.

Lastly, insofar as records exist and can be found with reasonable effort, 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.

Some of the records that you requested might properly be withheld in whole or in part, depending on their content. For example, in one request, you sought "any legal files." There may be portions of those files that fall within the coverage of the attorney-client privilege. In that circumstance, those records would be exempted from disclosure by statute and deniable under §87(2)(a) of the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Dorothy Carbo