From: Jobin-Davis, Camille (DOS)
Sent: Thursday, January 08, 2009 5:14 PM
Cc: Freeman, Robert (DOS)
Subject: RE: FOIL appeal
This will confirm your understanding of our opinion with respect to records that are subject to the Freedom of Information Law. The state’s highest court has rejected the notion that an agency can choose which documents it considers “records” based on where they are received or stored (Capital Newspapers v. Whalen, as described in the following advisory opinion: http://docs.dos.ny.gov/coog/ftext/f15072.htm). Based on the definition of “record” in the Freedom of Information Law it has long been the opinion of the Committee on Open Government that records that come into the possession of an official in his or her capacity as an official are records subject to the Freedom of Information Law.
Records received at an official’s home address can be equated to email records received on an official’s private or home computer. Consistent with the opinion expressed above, it is our opinion that records emailed to a private or home address are records subject to the Freedom of Information Law, as described in the following opinion: http://docs.dos.ny.gov/coog/ftext/f15893.htm.
I hope that this is helpful. Although I will not be in the office tomorrow, if you should have further questions, please call to speak with Bob Freeman, who will be in the office intermittently.
Camille S. Jobin-Davis, Esq.
NYS Committee on Open Government
Department of State