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FOIL-AO-18052

 

                                                                                                March 24, 2010

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.

Dear:

            This is in response to your request for an advisory opinion regarding application of the Open Meetings Law to certain situations and the Freedom of Information Law to records generated during those situations.  Please accept our apologies for the delay in responding to your request.

            More specifically, you inquired as to the propriety of members of a public body sending and receiving electronic communications during a public meeting, public officials engaging in private communications during meetings, and whether any records of such communications would be required to be disclosed.  We offer the following comments in an effort to provide guidance.

            First, with respect to the capacity to hear what is said at meetings, we direct your attention to §100 of the Open Meetings Law, its legislative declaration. That provision states that:

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it."

            Based upon the foregoing, it is clear in our view that public bodies must conduct meetings in a manner that guarantees the public the ability to "be fully aware of" and "listen to" the deliberative process. Further, we believe that every statute, including the Open Meetings Law, must be implemented in a manner that gives effect to its intent. In this instance, the Board must in our view situate itself and conduct its meetings in a manner in which those in attendance can observe and hear the proceedings.  This would include refraining from whispering or passing notes between or among members.  With perhaps minor exceptions involving the receipt of personal or emergency communications, this would also include refraining from transmitting and receiving electronic messages and phone calls.  If it were necessary to receive or send an electronic communication during the course of the meeting or to communicate by telephone, and if the communication is related to public business, we would recommend full disclosure to those present at the meeting.  Conducting communications regarding public business privately, during a public meeting, in our opinion would be unreasonable and fail to comply with a basic requirement and intent of the Open Meetings Law.

            Second, there is no law that we are aware of that would prohibit a public official or employee from receiving or transmitting information through use of a personal electronic account, including email, instant messaging or texting, for example.  While a publicly assigned account may have automatic logging and archiving capabilities, again, we know of no provision of law that would prohibit use of a private account.  For an analysis of additional issues with respect to electronic communications and the Open Meetings Law, we have enclosed a copy of Advisory Opinion No. 3787.

            Turning now to issues of access to electronic records, most importantly, the scope of the Freedom of Information Law is expansive, for it encompasses all government agency records within its coverage. Section 86(4) of that statute defines the term "record" expansively to include:

"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 upon the language quoted above, documentary materials need not be in the physical possession of an agency, such as a school board, to constitute agency records; so long as they are produced, kept or filed for an agency, the law specifies and the courts have held that they constitute "agency records", even if they are maintained apart from an agency’s premises.

            In a decision rendered by the Court of Appeals, the state's highest court, it was found that materials received by a corporation providing services for a branch of the State University pursuant to a contract were kept on behalf of the University and constituted agency "records" falling within the coverage of the Freedom of Information Law. It is emphasized that the Court rejected "SUNY's contention that disclosure turns on whether the requested information is in the physical possession of the agency", for such a view "ignores the plain language of the FOIL definition of 'records' as information kept or held 'by, with or for an agency'" [see Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410. 417 (1995)].

            Also pertinent is the first decision in which the Court of Appeals dealt squarely with the scope of the term "record", in which the matter 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" and found that the documents constituted "records" subject to rights of access granted by the Law. Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" [Westchester-Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)].

            The point made in the final sentence of the passage quoted above may be especially relevant, for there may be "considerable crossover" in the activities of school board officials. In our view, when those persons communicate with one another in writing in their capacities as school officials or with others, any such communications constitute agency records that fall within the framework of the Freedom of Information Law, even though they may be kept at locations other than school district offices.

            The definition of the term "record" also makes clear that electronic communications made or received by government officers and employees fall within the scope of the Freedom of Information Law.  Based on its specific language, if information is maintained by or for an agency in some physical form, it constitutes a "record" subject to rights of access conferred by the Freedom of Information Law. The definition includes specific reference to computer tapes and discs, and it was held soon after the reenactment of the statute that "[i]nformation is increasingly being stored in computers and access to such data should not be restricted merely because it is not in printed form" [Babigian v. Evans, 427 NYS2d 688, 691 (1980); aff’d 97 AD2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS2d 558 (1981)].  Whether information is stored on paper, on a computer tape, or in a computer, it constitutes a "record."  In short, email and text messages are merely means of transmitting information; presumably they can be captured and retained, and we believe that they must be treated in the same manner as traditional paper records for the purpose of their consideration under the Freedom of Information Law. 

            Insofar as records exist, 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 (k) of the Law.

            Further, the Freedom of Information Law pertains to existing records, and we emphasize that government agencies and their employees cannot destroy records at will. The "Local Government Records Law", Article 57-A of the Arts and Cultural Affairs Law, deals with the management, custody, retention and disposal of records by local governments. For purposes of those provisions, §57.17(4) of the Arts and Cultural Affairs Law defines "record" to mean:

"...any book, paper, map, photograph, or other information-recording device, regardless of physical form or characteristic, that is made, produced, executed, or received by any local government or officer thereof pursuant to law or in connection with the transaction of public business. Record as used herein shall not be deemed to include library materials, extra copies of documents created only for convenience of reference, and stocks of publications."

            With respect to the retention and disposal of records, §57.25 of the Arts and Cultural Affairs Law states in relevant part that:

"1. It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible; to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to cooperate with the local government's records management officer on programs for the orderly and efficient management of records including identification and management of inactive records and identification and preservation of records of enduring value; to dispose of records in accordance with legal requirements; and to pass on to his successor records needed for the continuing conduct of business of the office...

2. No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments retention and disposal schedules establishing minimum retention periods..."

            In view of the foregoing, records cannot be destroyed without the consent of the Commissioner of Education, and school district officials cannot destroy or dispose of records until the minimum period for the retention of the records has been reached. The provisions relating to the retention and disposal of records are carried out by a unit of the State Education Department, the State Archives.

            In light of a municipality’s responsibility to retain records for certain periods, perhaps it would be wise to adopt a policy applicable to those instances in which public officials and employees utilize home or personal accounts to conduct public business, to require that copies of such communications be forwarded to the municipality’s records management officer on a regular basis.  In cases where personal accounts are utilized for public business, perhaps periodic transmissions would alleviate both the public’s concern that records were hidden and the clerk’s responsibility to request copies for retention purposes, as outlined above.

            Finally, in response to your comment regarding the use of a recording device during an executive session, we enclose a copy of a previously issued Advisory Opinion No. 2807 that addressed those issues in great detail.

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

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

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