May 1, 2008
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.
I have received your correspondence and hope that you will accept my apologies for the delay in response. You have sought an opinion concerning certain practices in the Town of Taghkanic.
As I understand the matter, you asked to review records “to be copied by the Town and/or by [your] friends” and were informed, in your words, that “it was and always had been the Town Clerk’s policy that all documents produced in response to [your] FOIL request had to be copied by the Town.” Even though there is no litigation pending between or your clients and the Town, the Clerk told you that the “Town’s copying procedure was the result of the Town’s desire to understand [your] supposed litigation strategy.” Similarly, in a letter addressed to you by the Town Attorney, he wrote that “when dealing with a FOIL request that involves litigation”, he wants the Clerk to provide him “with a copy of any information that was copied.” To accomplish that procedure, he offered those seeking records the ability to use their own copiers for the purpose of “making copies at their own expense and leisure”, but only if they are willing to provide the copies to the Town so they may be duplicated.” Alternatively, records could be inspected and then marked with “sticky notes” to identify those desired to be copied. It is your view that neither of those options is acceptable. You also asked for the Town’s procedures implementing the Freedom of Information Law and were told that none had been adopted.
In this regard, I offer the following comments.
First, it is noted that it was held soon after its enactment that when records are accessible under the Freedom of Information Law, they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals has held that:
"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].
In short, that litigation might ensue or has been initiated by a person seeking records under the Freedom of Information law is irrelevant in considering rights of access.
Second, §87(2) provides the public with the right to inspect and copy accessible records, and §89(3)(a) states that an agency must make copies of records on request. Therefore, members of the public may read records at government offices and take notes or photographs, and when an agency authorizes them to do so, to photocopy records themselves, using either an agency’s photocopy machine or their own photocopiers. In those instances, I do not believe that an agency, such as the Town, may require that records of interest or copied be made available to the Town. In short, people’s notes, photographs or photocopies made by themselves are their property, and I do not believe that an agency may condition the right to take notes or copy records on providing an agency with an indication or copies of records that might have been noted or copied.
On the other hand, when an applicant asks an agency to prepare copies, there is nothing that would preclude the agency from making a second set of copies for its own purposes, whatever those purposes might be. That practice has been implemented in situations in which portions of records are withheld or redacted, so that a person or body designated to determine appeals can be aware of the nature of the denials of access or redactions should an appeal be made.
Lastly, a requirement that agencies adopt procedures for the implementation of the Freedom of Information Law has existed for more than thirty years. By way of background, §89(1)(b)(iii) of that statute requires the Committee on Open Government to promulgate regulations concerning the procedural aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states that:
"the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article."
In this instance, the governing body of a public corporation, the Town Board, was and is required to promulgate appropriate rules and regulations consistent with those adopted by the Committee on Open Government and with the Freedom of Information Law.
The regulations promulgated by the Committee, 21 NYCRR Part 1401, are available on its website. In addition, model regulations have been developed that enable agencies to adopt proper procedures by filling the blanks as appropriate. The model regulations are also available on the website.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board
Hon. Cheryl E. Rogers, Town Clerk
Robert J. Fitzsimmons