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October 27, 1993

 

 

Mr. Vincent P. Campion, Trustee
Village of Freeport
46 North Ocean Avenue
Freeport, NY 11520

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 Trustee Champion:

I have received your letter of September 17 in which you
raised questions concerning both the Freedom of Information Law and
the Open Meetings Law.

According to your letter:

"For years, the Board of Trustees received a
monthly budget allocation report from the
Treasurer's Office which basically consisted
of a line by line report on the Village
Budget. It showed each budget line, the
amount budgeted, transfers, expenditures,
outstanding purchase orders, and the remaining
balance of the budgeted amount. This report
is computer generated and requires no special
programming to generate. After taking office,
Mayor Thompson decreed that the Board of
Trustees as well as the public was not
entitled to this information because it is a
'working document' for the benefit of the
Budget Officer (mayor) only."

Nevertheless, it is your view that the Board "cannot responsibly do
its job without knowing what funds are available", and that "the
taxpayers are entitled to have an accounting of how their money is
spent." You added that requests by the public for the information
in question have been denied, that the Mayor has directed the
records access officer to show him any request that may be
"politically sensitive" and that he has withheld records even
though the records access officer has contended that they must be
released.

In conjunction with the foregoing, you have asked whether the
Board and the public are "entitled to view the Budget Allocations
Report or its equivalent" and whether the Mayor, "based on
politically sensitive reasons", may deny access to records.

In this regard, I offer the following comments.

First, whether records are characterized as "working
documents", "politically sensitive", or otherwise, I believe that
they fall within the scope of the Freedom of Information Law. It
is emphasized that §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."

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.).

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 or the function to
which it relates are irrelevant. Moreover, the decision indicated
that "When the plain language of the statute is precise and
unambiguous, it is determinative" (id. at 565).

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).

Based upon the decisions cited above, all of which were
rendered by the State's highest court, the documents in question in
my view constitute "records" subject to rights conferred by the
Freedom of Information Law, irrespective of their characterization
or physical form.

Second, 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. Moreover,
when records are accessible under the Law they must be made equally
available without regard to one's status or interest [see Farbman
v. New York City, 62 NY 2d 75 (1984); Burke v. Yudelson, 51 AD 2d
673 (1976)].

A budget allocation report or its equivalent would in my view
be available. Although one of the grounds for denial is relevant
to an analysis of rights of access to that kind of record, due to
its structure, that provision often requires disclosure.
Specifically, §87(2)(g) of the Freedom of Information Law enables
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. Budget allocation records would constitute
"intra-agency materials"; nevertheless, I believe that they would
consist solely of statistical or factual information that must be
disclosed pursuant to §87(2)(g)(i).

With respect to denials of access on the basis that records or
a request may be "politically sensitive", it is reiterated that the
grounds for withholding records are specified and limited by the
Freedom of Information Law, and being "politically sensitive" is
not among those grounds. Moreover, in my opinion, an assertion or
claim of confidentiality, unless it is based upon a statute, is
likely meaningless. When confidentiality is conferred by a
statute, an act of the State Legislature or Congress, records fall
outside the scope of rights of access pursuant to §87(2)(a) of the
Freedom of Information Law, which states that an agency may
withhold records that "are specifically exempted from disclosure by
state or federal statute". If there is no statute upon which an
agency can rely to characterize records as "confidential" or
"exempted from disclosure", the records are subject to whatever
rights of access exist under the Freedom of Information Law [see
Doolan v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance
Department, supra,; Gannett News Service, Inc. v. State Office of
Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such,
an assertion of confidentiality without more, would not in my view
serve to enable an agency official to withhold a record. In this
instance, I am unaware of any statute that would render the records
sought exempted from disclosure.

The remaining issue that you raised relates to executive
sessions. You wrote that the Village Attorney "maintains that
engaging attorneys is part of discussing litigation." Further, the
minutes that you enclosed refer to hiring a particular firm to
replace another in tax certiorari matters.

As you may be aware, one of the grounds for entry into
executive session is §105(1)(d), which permits a public body to
conduct an executive session to discuss "proposed, pending or
current litigation". In construing the language quoted above, it
has been held that:

"The purpose of paragraph d is 'to enable is
to enable a public body to discuss pending
litigation privately, without baring its
strategy to its adversary through mandatory
public meeting' (Matter of Concerned Citizens
to Review Jefferson Val. Mall v. Town Bd. of
Town of Yorktown, 83 AD 2d 612, 613, 441 NYS
2d 292). The belief of the town's attorney
that a decision adverse to petitioner 'would
almost certainly lead to litigation' does not
justify the conducting of this public business
in an executive session. To accept this
argument would be to accept the view that any
public body could bar the public from its
meetings simply be expressing the fear that
litigation may result from actions taken
therein. Such a view would be contrary to
both the letter and the spirit of the
exception" [Weatherwax v. Town of Stony Point,
97 AD 2d 840 841 (1983)].

Therefore, unless the Board discusses its litigation strategy, it
does not appear that §105(1)(d) could justifiably be cited to
conduct an executive session. Further, as indicated in the passage
quoted above, the possibility that litigation might ensue would not
constitute a valid basis for entry into executive session.

However, a discussion of which attorney or firm should be
retained would likely fall within §105(1)(f). That provision
permits a public body to enter into executive session to discuss:

"the medical, financial, credit or employment
history of a particular person or corporation,
or matters leading to the appointment,
employment, promotion, demotion, discipline,
suspension, dismissal or removal of a
particular person or corporation."

It appears that the issue in question would involve matters leading
to the appointment or employment of a particular attorney or firm.
To that extent, I believe that an executive session could properly
be held.

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: Mayor Thompson
Karen Navin, Records Access Officer