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January 20, 1998

 

 

Mr. Clinton Jackson, Jr.
36 Summit Street
Nyack, NY 10960-3726

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. Jackson:

I have received your letter of April 14, which reached this
office on April 19.

It is your contention that "Records achieved during the term
of office of a member of an official family of local government
(Mayors, Trustees, Planning Board Members, Zoning Board of Appeals
Members, Urban Renewal and Community Development Members etc.) are
still available to them free of charge after their term of office
expires."

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

First, the Freedom of Information Law is applicable to agency
records, and §86(4) of the Law defines the term "record" to mean:

"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 on the foregoing, I believe that documents kept, filed or
produced during one's term of public office are agency records. In
my view, they are the property of the agency, not the person who
might have prepared, received or used them.

Second, when records are available under the Freedom of
Information Law, it has been held that they must be made equally
available to any person, without regard to one's status or interest
[see M. Farbman & Sons v. New York City Health & Hosps. Corp., 62
NY 2d 75 (1984); Burke v. Yudelson, 51 AD 2d 673 (1976)]. The Law
does not generally distinguish among applicants, and if an agency
charges a fee when a member of the public requests a record, the
same fee should be charged if a former official seeks a copy of the
record.

Even when an individual is serving as a public official, there
may be instances in which that person's request should in my
opinion be treated in the same manner as requests made by people
having no connection with the agency. If it is clear that records
are requested in the performance of one's official duties, the
request might not be viewed as having been made under the Freedom
of Information Law. In such a situation, if a request is
reasonable, and in the absence of a rule or policy to the contrary,
I believe that a member of a public body should not generally be
required to resort to the Freedom of Information Law in order to
seek or obtain records.

However, viewing the matter from a more technical perspective,
one of the functions of a public body involves acting collectively,
as an entity. A public body generally acts by means of motions
carried by an affirmative vote of a majority of its total
membership (see General Construction Law, §41). In my view, in
most instances, a member acting unilaterally, without the consent
or approval of a majority of the total membership of the public
body, has the same rights as those accorded to a member of the
public, unless there is some right conferred upon a member by means
of law or rule. In such a case, a member seeking records could
presumably be treated in the same manner as the public generally.
When that is so, a request by a member of a public body could, in
my opinion, be considered as a request made under the Freedom of
Information Law by a member of the public, and that person could be
assessed fees at the same rate as any member of the public.

In sum, after leaving public office, I do not believe that an
individual has any greater rights of access to government records
than any other person. Further, such an individual in my opinion
could be charged the same amount of fees for copies as the public
generally.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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