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April 22, 1993

 

 

Mr. Joseph Micklas
5 Raylinsky Lane
Mechanicville, NY 12118

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence.

Dear Mr. Micklas:

I have received your letter of April 12 concerning a denial of
a request under the Freedom of Information Law.

Having requested notes taken and used for the purpose of
preparing minutes of a meeting of the Mechanicville Board of
Education, the Superintendent wrote that the notes do not
constitute minutes and they "are intra-agency materials which are
exempted from disclosure pursuant to §subd. 2(g) of the Freedom of
Information Law."

You have sought an opinion on the matter. In this regard, I
offer the following comments.

First, I agree with the Superintendent's contention that the
notes do not constitute minutes.

Second, I also agree that the notes could be characterized as
intra-agency materials that fall within the scope of §87(2)(g) of
the Freedom of Information Law. However, due to the structure of
that provision, the contents of such materials determine the extent
to which they are accessible or deniable. 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.

I point out that there is a judicial decision that dealt with
facts analogous to the situation that you described. Warder v.
Board of Regents [410 NYS 2d 742 (1978)] involved a request for
notes taken by the Secretary to the Board of Regents at a meeting
for use in preparing minutes. The court found that the notes were
"records" as defined by the Freedom of Information Law [see
§86(4)]. Further, although they consisted of intra-agency
materials, since they were a factual rendition of what transpired
at the meeting, the notes were found to be available.

Based on the foregoing, in my opinion, insofar as the notes
consist of factual information regarding events occurring at open
meetings, I believe that they would be available under the Freedom
of Information Law.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Dr. Frank Greenhall, Superintendent of Schools