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  June 10, 1994

 

 

Ms. Lillian Abbott Pfohl
The Post Standard
Clinton Square
P.O. Box 4818
Syracuse, NY 13221-4818

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 Ms. Pfohl:

I have received your letter of May 16 in which you sought an
advisory opinion concerning the Freedom of Information Law.

According to the materials that you forwarded, you requested
records of the Syracuse Financial Plan Commission (the Commission)
concerning certain time periods. You were informed, however, that
the Commission is not an "agency" subject to the Freedom of
Information Law and that the records would be withheld. In his
response to your appeal, Mayor Bernardi wrote that the functions of
the Commission are solely advisory and offered the following
remarks concerning the matter:

"...I have asked private citizens from a
variety of backgrounds and with a diversity of
experience and expertise to become part of the
Commission. These individuals have agreed to
volunteer their time and effort, and to lend
their considerable knowledge, to offer
recommendations to me on the operation of the
City's government. I want Commission members
to be able to engage in free, candid, and
frank discussions and deliberation on a whole
host of topics. So that this discussion may
take place, I believe that Commission meetings
should not be open to members of the general
public. Certainly, it is my expectation that
any final recommendations issued by the
Commission will be made public for
consideration and comment."

While I agree that the Commission's meetings are not subject
to the Open Meetings Law and that it is not an agency, it clearly
carries out its duties for the City of Syracuse. Consequently,
based on the following analysis, I believe that the records that it
prepares are subject to the Freedom of Information Law.

First, as indicated by the Mayor, several judicial decisions
indicate generally that advisory ad hoc entities, other than
committees consisting solely of members of public bodies, having no
power to take final action fall outside the scope of the Open
Meetings Law. As stated in those decisions: "it has long been
held that the mere giving of advice, even about governmental
matters is not itself a governmental function" [Goodson-Todman
Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151
AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's
Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also
New York Public Interest Research Group v. Governor's Advisory
Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149,
motion for leave to appeal denied, 71 NY 2d 964 (1988)].
Therefore, it appears that the Commission does not constitute a
public body subject to the Open Meetings Law.

Section §86(3) of the Freedom of Information Law defines the
term "agency" to mean:

"any state or municipal department, board,
bureau, division, commission, committee,
public authority, public corporation, council,
office or other governmental entity performing
a governmental or proprietary function for the
state or any one or more municipalities
thereof, except the judiciary or the state
legislature."

Based on the foregoing, if the Commission is not a public body
because, based on judicial decisions, it does not perform a
governmental function, it would not be an agency, for it would not
perform that function. However, a public corporation, such as the
City of Syracuse, is an agency required to comply with the Freedom
of Information Law.

Second, the fact that the Commission may not be a public body
subject to the Open Meetings Law or an agency as defined by the
Freedom of Information Law is not determinative. In my view, the
issue is whether the documentation prepared by the Commission
consists of agency records.

Section 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.).

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, because they were "produced...by, with
or for an agency", the City of Syracuse.

In short, due to the breadth of the definition of "record",
when an entity or person prepares documents for an agency, and the
City of Syracuse is clearly an agency, I believe that those
documents are agency records subject to rights conferred by the
Freedom of Information Law, irrespective of their origin or
authorship.

Assuming that the documents in question are "records", I point
out that 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.

Often records reflective of predecisional commentary or advice
may be withheld, for §87(2)(g) permits an agency to withhold
"inter-agency or intra-agency materials", depending upon their
contents. However, if the Commission is not an agency, the records
prepared for or transmitted to the Mayor would not consist of
either inter-agency or intra-agency material and §87(2)(g) could
not be asserted as a basis for denial.

I note that Xerox Corporation v. Town of Webster [65 NY 2d 131
(1985)] dealt with reports prepared "by outside consultants
retained by agencies" (id. 133). In such cases, it was found that
the records prepared by consultants should be treated as if they
were prepared by agency staff and should, therefore, be considered
intra-agency materials. However, based on the Mayor's remarks, the
Commission could not, in my view, be characterized as a consultant.
As the term "consultant" is ordinarily used and according to an
ordinary dictionary definition of that term, a consultant is an
expert or a person or firm providing professional advice or
services. As I understand the composition of the Commission, while
it consists of well-respected members of the community who may
enjoy expertise in a variety of areas, its members are not in the
business of preparing recommendations on the operation of municipal
government for gain or livelihood. Further, in the context of the
Xerox decision, I believe that a consultant would be person or firm
"retained" for compensation by an agency to provide a service. It
is my understanding that the Commission serves voluntarily and
without compensation. For the foregoing reasons, I do not believe
that the work produced prepared by the Commission could be viewed
as a consultant's report or that it would fall within the scope of
§87(2)(g) of the Freedom of Information Law.

In sum, I believe that records prepared for the City of
Syracuse constitute agency records subject to the Freedom of
Information Law, even though they were prepared by an entity other
than an agency. Further, it does not appear that any of the
grounds for denial would be applicable.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Roy A. Bernardi, Mayor