June 26, 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 letter in which you requested advisory opinions concerning two matters involving the Freedom of Information Law. You wrote as follows:
“1. Charging fees for FOIL: my policy has been not to charge town employees that request copies of documents when using their office address. If they specify their home address for response, I treat it as a private citizen and, if more than three pages, there is a charge of .25 per page.
2. FOIL Log: I maintain a FOIL log to track receipt of and responses to FOIL requests. In a recent FOIL request, this log was part of the request and I treated it as a ‘FOIL-able’ document and provided copies to the requester. It has been recommended by the Town’s Ethics Board that I not provide copies of this log as it is an ‘internal’ document.”
In this regard, with respect to the first issue, it has been advised on numerous occasions that requests for records by government officers or employees acting in the performance of their duties should not ordinarily be equated to or considered as requests made pursuant to the Freedom of Information Law by members of the public. In those instances, because those requests are not viewed as having been made under that law, the provisions concerning the charging of fees for copies would not apply.
In the context of the situation that you described, in which Town employees seek records using their office addresses, I believe that it is reasonable for you to assume that they are seeking the records in the performance of their duties. That being so, it would be unreasonable, in my view, to charge fees for copies or to treat those requests as having been made by members of the public under the Freedom of Information Law.
Conversely, if those same persons seek records and indicate that responses should be made to their home addresses, I believe that it can be assumed that they are not requesting records in their capacities as Town employees, but rather as members of the public. In those circumstances, the requests may be considered to be made pursuant to the Freedom of Information Law by those persons acting in their capacities as members of the public and, therefore, you may charge the fees that would be assessed when any member of the public requests copies of records.
With respect to the “FOIL log”, as you are likely aware, the Freedom of Information Law includes all records of an agency, such as a town, within its coverage, for the term “record” is defined in §86(4) 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."
Based on the foregoing, the FOIL log that you maintain clearly constitutes a Town record that falls within the scope of that law.
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.
Although one of exceptions to rights of access pertains to “internal” documents, due to its structure, that provision often requires disclosure, and I believe that to be so in this instance. Specifically, §87(2)(g) 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 FOIL log may be characterized as an “internal” document, or in the words of the provision quoted above, “intra-agency material.” However, based on subparagraph (i) of §87(2)(g), those portions of intra-agency materials consisting of “statistical or factual tabulations or data” must be disclosed, unless a different exception may properly be asserted. “Factual data” has been construed by the state’s highest court, the Court of Appeals, to mean factual or objective information, as opposed to opinions or recommendations, for example [see Gould v. New York City, 89 NY2d 267 (1996)].
Assuming that the FOIL log consists merely of entries reflective of factual information summarizing requests made under the Freedom of Information Law that include names of requesters, the dates of the requests, a description of the nature of the requests and or similar information, I believe it is a “FOIL-able” record accessible to the public.
I point out, too, that it has been advised that the actual requests made under the Freedom of Information Law are generally accessible to the public. In my experience, most requests for records of a municipality relate to the functions of government. For instance, if a request is made for records involving a budget or town expenditures, it would include nothing that could be characterized as intimate or personal about the person making the request. In rare situations, those in which a request itself includes intimate or highly personal information, it has been advised that the name or other identifying details may be deleted on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” [see §§87(2)(b) and 89(2)(b)] prior to disclosure of the remainder of the record. By means of example, if an individual seek records from a county agency relating to his/her medical condition, disclosure of that person’s name in conjunction with medical information would result in an unwarranted invasion of personal privacy, and I believe that personally identifying details could be deleted in that circumstance.
To reiterate, however, the FOIL log, as I understand its content, would consist solely of factual information and does not include intimate, personal information. If that is so, I believe that it is accessible to public pursuant to the Freedom of Information Law.
I hope that I have been of assistance.
Robert J. Freeman