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FOI-AO-18898

VIA EMAIL

From: Freeman, Robert (DOS)
Sent: Wednesday, June 06, 2012 1:00 PM
To:
Subject: Notes of Grievance Meeting

Dear:

I have received your letter in which you requested an advisory opinion concerning rights of
access to "notes taken by the assessor during grievance day."

In this regard, based on the language of the Freedom of Information Law and its judicial
interpretation, the notes would, in my opinion, clearly fall within its scope. That statute pertains to
agency records, and §86(4) defines the term "record" expansively to mean "any information kept,
held, filed, produced or reproduced by with or for an agency….in any physical form whatsoever…."

The Court of Appeals, the state's highest court, has construed the definition 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 [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 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" (id.).

Perhaps closest to the situation that is the subject of your inquiry is a case involving notes
taken by the Secretary to the Board of Regents that he characterized as "personal" in conjunction with
a contention that he prepared the notes in part "as a private person making personal notes of
observations…in the course of" meetings. In that decision, the court cited the definition of "record"
and determined that the notes did not consist of personal property, but rather were records subject
to rights conferred by the Freedom of Information Law [Warder v. Board of Regents, 410 NYS2d 742,
743 (1978)].

Notes taken by a public officer or employee taken during a meeting would constitute "intra-
agency materials" that fall within the scope of §87(2)(g), which permits an agency to withhold records
that:

"are inter-agency or intra-agency materials that 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."

I point out 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 those 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 of access may properly
be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective
of opinion, advice, recommendation and the like may be withheld.

As indicated in the decision cited above, insofar as notes taken at a meeting or hearing merely
consist of a factual rendition of what was said or what transpired in public would consist of factual
information available under §87(2)(g)(i), except to the extent that a different ground for denial could
be asserted [i.e., §87(2)(b) concerning the protection of personal privacy]. Insofar as notes might
include expressions of opinion or conjecture on the part of the author, they would fall within the
coverage of the exception.

In sum, the notes are, in my view, "records" that fall within the coverage of the Freedom of
Information Law, and to the extent that they consist of statistical or factual information as described in
the preceding remarks, I believe that they are accessible under the Freedom of Information Law.

I hope that I have been of assistance.`

 

Robert J. Freeman
Executive Director
Committee on Open Government
Department of State
One Commerce Plaza
Suite 650
99 Washington Avenue
Albany, NY 12231
Phone: (518)474-2518
Fax: (518)474-1927
Website: http://www.dos.state.ny.us/coog/