June 22, 1995
Ms. Michelle A. Wickham
Town of Rotterdam
Dept. of Public Works
Schenectady, NY 12306
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
Dear Ms. Wickham:
I have received your letter of June 6 in which you sought an interpretation concerning the Freedom of Information Law.
According to your letter, you "wrote to Assemblyman Paul D. Tonko requesting certain correspondence from residents of the Town of Rotterdam opposing a proposed subdivision..." The Assembly's Records Access Officer, Sharon Walsh, denied the request, citing the Freedom of Information Law and Assembly rules. In view of the denial, you indicated that you "find it amazing that the legislators who would open and make accessible all local government records would conveniently exempt themselves from the same openness to records."
In this regard, I offer the following comments.
Section 88 of the Freedom of Information Law deals with rights of access to records of the State Legislature. It is noted that the structure of that provision differs from that of §87 of the Freedom of Information Law, which pertains to agencies of state and local government generally. In brief, as the Freedom of Information Law applies to agencies, that statute 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. As the Law applies to the State Legislature, §88(2) and (3) include reference to certain categories of records that must be disclosed. Therefore, unless records of the Legislature fall within one or more of those categories of accessible records, there is no obligation to disclose. From my perspective, the kinds of records that you requested would not fall within the categories of records that must be disclosed by the State Legislature. Consequently, as a matter of law, the denial appears to have been appropriate.
Since reference was made to Rule VIII of the Assembly in the response to your request, I point out that Rule VIII deals with public access to Assembly records and that §1 states that:
"It is the intent of the Assembly that central administrative records maintained by the Assembly be governed by the same presumption of disclosure which governs access to executive agency records, with similar enumerated exceptions."
As such, the Assembly, by rule, has chosen to disclose or withhold its records based on standards similar to those applicable to state and local government agencies.
Section 2(2) of the rules pertains to to the ability to withhold records when disclosure would constitute "an unwarranted invasion of personal privacy". An example of an unwarranted invasion of personal privacy appearing in the ensuing provisions involves the disclosure of "names, addresses, numbers or other personal identifying details of telephone communications or mail correspondence made by or to Members of the Assembly or employees thereof."
Lastly, in my opinion, if the same kinds of records are transmitted to a state or local agency, the result would be the same under provisions of the Freedom of Information Law applicable to those agencies. As suggested earlier, not all agency records are accessible, and one of the grounds for denial, §87(2)(b), pertains to unwarranted invasions of personal privacy. In my view, if members of the public wrote to you, the Town Supervisor or the Town Board to express their sentiments, pro or con, regarding a proposed subdivision, as in the case of the State Legislature, you would have the ability to protect the privacy of your constituents.
I hope that the foregoing serves to enhance your understanding of the Freedom of Information Law and that I have been of assistance.
Robert J. Freeman
cc: Sharon Walsh