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FOIL-AO-17961

                                                                                                January 19, 2010

E-Mail

TO:                 

FROM:            Camille S. Jobin-Davis, Assistant Director

Dear

            We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Eastchester School District.  Specifically, you requested “results of the Preventive Needs Assessment (PNA) survey administered to Eastchester students two years ago, including the full survey report that presents results specifically for Eastchester Students.”  In response, the Superintendent informed you that the District did not “have access to the survey” and you were directed to contact Mr. Jay Genova, Executive Director of the coalition that conducted the survey.  You indicated that Mr. Genova again denied your request, as he had in the past, and as you had previously informed the Superintendent.  On appeal, the Superintendent provided you with a copy of the report.

            Prior to the release of the report, you contacted this office and requested an advisory opinion, including a copy of correspondence issued to parents and guardians of children in the District regarding the coalition and the biennial survey, indicating as follows:

“In September 2005, the Eastchester School District led the community in organizing a community based substance abuse prevention coalition now known as Eastchester Communities That Care (ECTC).…  As part of the funding requirements, ECTC must survey Eastchester youth every two years to define what young people see as the communities’ strengths and shortcomings as well as to measure the outcomes of the coalition’s initiatives….  Dr. Terranova [the Superintendent], Dr. Capuano and Dr. Moran are active participants in the coalition and they support the administration of the anonymous youth survey.”

            Furthermore, you indicated that Mr. Genova, “Eastchester Middle School Youth Counselor, has the survey results in his possession.  Although his salary may not be paid directly from the district’s budget, his school title, his school office location, his school email, his job responsibilities and his access to our students would all seem to make him a de facto member of the school staff.”  We note that the letter quoted above was sent on District letterhead, under the signatures of Mr. Genova and Noreen Urso, Director Pupil Personnel Services at Eastchester Public Schools, who is a member of the coalition board.

            We are pleased to learn that the Superintendent has now provided you with a copy of the requested survey results, and in this regard, we offer the following comments.

            First, the Freedom of Information Law pertains to all records of an agency, such as the District, and §86(4) of that statute defines the term “record” expansively 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, records in possession of or prepared for the District constitute District records subject to rights conferred by the Freedom of Information Law, irrespective of their origin or function.

            We note that the Court of Appeals, the state’s highest court, has construed the definition of “record” as broadly as its specific language suggests.  The first such decision that dealt squarely with the scope of the term "record" involved documents pertaining to a lottery sponsored by a fire department.  Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found that the documents constituted "records" subject to rights of access granted by law.  In a decision involving records prepared by corporate boards furnished voluntarily to a state agency, the Court of Appeals reversed a finding that the documents were not "records," thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the Court relied upon the definition of "record" and reiterated that the purpose for which a document was prepared, the function to which it relates, or its origin are irrelevant.  Moreover, the decision indicated that "When the plain language of the statute is precise and unambiguous, it is determinative" (id. at 565).

            In consideration of judicial precedent, when documents come into the possession of a District official, such as the Superintendent, or are received by a District employee who serves on a board as an employee of the District, even though they may have been prepared by another entity, we believe that they constitute "records" of the District subject to the Freedom of Information Law.

            Further, we note a judicial decision from 2006 in which it was found that emails sent on the district’s email system were records of the school district.  In Baynes v Fairport Central School District, (Supreme Court, Monroe County, November 1, 2006), the union had permission to send messages through the District email system pursuant to the collective bargaining agreement.  The court held that the emails were clearly “records” in the possession of a covered “agency” and subject to FOIL.  We believe similar logic could be applied here, and if Mr. Genova was in receipt of the records via his District email address, or distributed the records through District email addresses, the emails would be “records” of the District, subject to the Freedom of Information Law. 

            With respect to the Superintendent’s response to your request and to your appeal, we note that Part 1401.7(b) of the regulations adopted by the Committee on Open Government requires that the records access officer and the appeals officer be separate individuals.  It is our observation that proper reliance on the District’s designated staff might have prevented the confusion and delays that were a part of the Superintendent’s responses to your request and appeal, and we agree with your statement that by failing to provide the requested records to you upon receipt of the request you made pursuant to the Freedom of Information Law, the Superintendent constructively denied access to the records.  Accordingly, your appeal was in order.

            On behalf of the Committee on Open Government, we hope that this is helpful.

 

CSJ:jm

cc: Dr. Marilyn C. Terranova, Superintendent
Records Access Officer