May 7, 2009
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 concerning requests made to the Town of Rotterdam pursuant to the Freedom of Information Law. Please accept my apologies for the delay in response.
The first request involved “a listing of all emails on the computer located at the John F. Kirvin Government Center, used by the Town attorneys during the years 2007 and 2008.” In response to the request, you indicated the Town Attorney wrote to you asking that you “remit $500 to start the process of filling the request”, stating that the money, in your words, “will be used to pay for his time to delete information in the bodies of the emails that detail attorney work, interagency communication, or any additional information that is privileged.” Based on that response, you offered clarification, specifying that you merely were seeking a “‘listing’ of all e-mails sent to and from said computer”, not the content of the email communications.
In this regard, 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 (j) of the Law.
While the content of the email communications might properly be withheld in whole or in part, it is clear that you did not request them, but rather merely a record indicating that email had been sent or received. Assuming that the Town has the ability to produce such a “listing” with reasonable effort, I believe that it would be accessible under the Freedom of Information Law. Without the content of the communications, in my opinion, issues involving the assertion of the attorney-client privilege or the advice or opinions expressed in intra-agency materials that could be withheld in accordance, respectively, with paragraphs (a) and (g) of the Freedom of Information Law, would be eliminated. In short, I believe that a record that only indicates the names or email addresses of those involved in the email communications at issue, with no additional information or detail, must be disclosed, except in one circumstance. If an email address relates to a private citizen and would identify that person, that item could, in my view, be deleted on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” [Freedom of Information Law, §87(2)(b)]. If that address would not identify the person, I believe that it would be accessible. For instance, “RJGodlewski@aol.com” might properly be withheld, but “FOILrequester@aol.com would be available because it would not identify an individual.
Further, even if the records sought involved the content of the email and the need to review them to determine which portions might properly be withheld, I do not believe that a fee can be imposed for the time needed to engage in such a review. Section 87(1)(b) and (c) of the Freedom of Information Law pertain to the fees that may be assessed, and those fees are limited to the copying or reproduction of records. Unless a different fee is prescribed by statute, and agency may charge a maximum of twenty-five cents per photocopy up to nine by fourteen inches, or the actual cost of reproducing any other record, i.e., records larger than nine by fourteen inches, or those maintained electronically. When records are maintained electronically, agency may charge for the preparation of records and the cost of a storage medium, i.e., a compact disk. Once email communications have been located, the process of reviewing them does not involve the “preparation” of records. As stated in §87(1)(c)(iv), “preparing a copy shall not include search time or administrative costs”. That being so, even if you had requested the email communications themselves, I do not believe that the Town could charge on the basis of the time spent by the attorney, or any other person, to review the records to determine rights of access.
The second request involved “documents to the Town Rotterdam Reassessment completed by Emminger, Hyatt, Newton, Pigeon, Inc.” You wrote that the Town Attorney denied the request, in your words, “because there might be litigation.” You contended that there was no current litigation and that “potential litigation was not an approved reason under FOIL to deny a request.” In this regard, although records might relate to actual or potential litigation, that alone, in my opinion, is not determinative of an agency’s authority to deny access. The initial ground for denial in the Freedom of Information Law, §87(2)(a), pertains to records that are "specifically exempted from disclosure by state or federal statute." One such statute is §3101(d) of the Civil Practice Law and Rules, which exempts material prepared for litigation from disclosure. In the decision cited by the Town Attorney, it was determined that if records are prepared for multiple purposes, one of which includes eventual use in litigation, §3101(d) does not serve as a basis for withholding records; only when records are prepared solely for litigation can §3101(d) be properly asserted to deny access to records [see e.g., Westchester-Rockland Newspapers v. Mosczydlowski, 58 AD 2d 234 (1977)].
Additionally, as stated by the Court of Appeals in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)].
In short, insofar as the records in question were prepared solely for or in anticipation of litigation, I would agree with the Town Attorney’s contention that they would be exempt from disclosure. However, to the extent that the records might have been prepared for multiple purposes, one of which might involve eventual use in litigation, I do not believe that they would be exempt from disclosure in their entirety; rather I believe that they would be accessible or deniable in accordance with the remaining provisions of the Freedom of Information Law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Gerard Parisi
Records Access Officer