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July 13, 1993

 

 

Mr. Peter Bujanow
PO Box 123
Valatie, N.Y. 12184-0123

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. Bujanow:

I have received your letter of June 30 in which you seek an
advisory opinion concerning the Freedom of Information Law.

The issue is "whether an unofficial tape recording made by an
individual board member," yourself, "is discoverable under the
Freedom of Information Law." You indicated that a fellow member of
the Ichabod Crane Central School District Board of Education has
requested your tape recording of a meeting held in February. You
denied the request because in your view, you are not an "agency",
and the tape recording was "produced for a personal purpose" and,
therefore, is not a "record" as defined by the Freedom of
Information Law. In addition, you asked whether I am aware of any
other situations in which a member of a public body has sought
documents under the Freedom of Information Law from another member
of the same body, and whether it is "appropriate for an individual
board member, acting and without knowledge of other board members,
to attempt by form of resolution to force another member to make a
tape recording available."

In this regard, I offer the following comments.

First, while I believe that situations have arisen in which a
member of a public body may have sought records from another member
of the same body, I am unaware of any judicial decisions pertaining
to the issue.

Second, I know of no provision that would preclude a member of
a public body from drafting a resolution to be reviewed or
considered later by other members of the body. Certainly the
public body, as a whole, could to choose to accept, reject or
modify such a proposal.

Third, from my perspective, your letter contains conflicting
statements. Despite references to reasons for denying access to
the tape recording, you also wrote that:

"[a]s a member of the Ichabod Crane Central
School Board, [you] have been taping regular,
special and committee board meetings since
December 1992. The taping allowed [you] to
pay closer attention to the business being
transacted without taking notes."

In my opinion, the foregoing clearly suggests that you tape
recorded the meetings due to and in furtherance of the performance
of your duties as a member of the Board. If that is indeed so,
while individually, you are not an agency, I believe that the tape
recording would constitute an "agency record" subject to rights
conferred by the Freedom of Information Law, for it was produced in
your capacity as a member of an agency, the Board of Education.

As you are aware, §86(4) of the Freedom of Information Law
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."

The Court of Appeals 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 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 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.).

Additionally, in another decision rendered by the Court of
Appeals, the Court focused on an agency claim that it could "engage
in unilateral prescreening of those documents which it deems to be
outside of the scope of FOIL" and found that such activity "would
be inconsistent with the process set forth in the statute" [Capital
Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The Court
determined that:

"...the procedure permitting an unreviewable
prescreening of documents - which respondents
urge us to engraft on the statute - could be
used by an uncooperative and obdurate public
official or agency to block an entirely
legitimate request. There would be no way to
prevent a custodian of records from removing a
public record from FOIL's reach by simply
labeling it 'purely private.' Such a
construction, which would thwart the entire
objective of FOIL by creating an easy means of
avoiding compliance, should be rejected" (id.,
254).

Your letter indicates that you are familiar with 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 took 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 NYS 2d 742, 743 (1978)].

Based upon the foregoing, and again, assuming that you
recorded the meetings in furtherance of the performance of your
duties as a member of the Board, I believe that the tape recording
in question falls within the coverage of the Freedom of Information
Law.

Fourth, 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 (i) of the Law. In my view,
a tape recording of an open meeting is accessible, for none of the
grounds for denial would apply. Moreover, there is case law
indicating that a tape recording of an open meeting is accessible
for listening and/or copying under the Freedom of Information Law
[see Zaleski v. Board of Education of Hicksville Union Free School
District, Supreme Court, Nassau County, NYLJ, December 27, 1978].

Lastly, since any person presumably could have been present at
the meeting recorded on tape, and since any person present at that
meeting could have tape recorded the proceedings [see Mitchell v.
Board of Education of the Garden City Union Free School District,
113 AD 2d 924 (1985)], it is difficult to understand why there
would be resistance to a request that would enable a Board member,
or perhaps others, to hear or to obtain a copy of the tape
recording in question.

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:pb

cc: Rosalie J. Johnson
Melvin H. Osterman