August 18, 1995
Mr. Jackson Leeds
142-24 61st Road
Flushing, NY 11367-1202
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 Mr. Leeds:
I have received your letter of August 16 in which you sought an advisory opinion concerning the Freedom of Information Law.
According to your letter, the American Bar Association (ABA) "sent a Site Team to the CUNY School of Law at Queens College in 1995 to discharge its function as an accrediting agency." Thereafter, the ABA transmitted "documents including a report of the Site Team's findings to the president...and Dean of the Law School", thereby providing the Law School with "an opportunity to make factual corrections and comments on the report." You wrote that you and others have requested those records, but that the requests have been denied.
In this regard, I offer the following comments.
First, the Freedom of Information Law pertains to all agency records, and §86(4) of that statute defines the term "record" expansively 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, because they are in possession of the Law School, I believe that the documents in question constitute "records" that fall within the coverage of the Freedom of Information Law, even though they may be preliminary or subject to change.
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. From my perspective, none of the grounds for denial could appropriately be asserted to withhold the records sought. As you are aware, in a case that you initiated concerning similar records, the court rejected a contention that the records fell within the coverage of §87(2)(g) pertaining to "inter-agency" and "intra-materials" [Leeds v. Burns, Supreme Court, Queens County, NYLJ, July 27, 1992]. In brief, §86(3) of the Freedom of Information Law defines the term "agency" to mean an entity of state or municipal government in New York; the ABA is not a governmental entity, but rather, in the words of the decision, is "a private organization." Consequently, records transmitted between CUNY Law School, which is clearly an agency, and the ABA could not be characterized as inter-agency or intra-agency materials.
Based on the language of the Freedom of Information and its judicial interpretation, again, there appears to be no justifiable basis for a denial of access to the records sought.
As you requested and in an effort to enhance compliance with and understanding of the Law, copies of this opinion will be forwarded to Chancellor Reynolds and Special Counsel Fields.
I hope that I have been of assistance.
Robert J. Freeman
cc: W. Ann Reynolds, Chancellor
David Fields, Special Counsel/Records Access Officer