Mr. William S. Hecht
3766 Highland Avenue
Skaneateles, NY 13152-9356
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. Hecht:
I have received your letter of March 4 in which you raised questions relating to both the Freedom of Information and Open Meetings Laws.
First, you asked whether you have the right to gain access to a "draft document", such as a proposed town plan. You compared the situation to that of minutes of meetings, which although unapproved and prepared in draft, must nonetheless be disclosed within two weeks of a meeting. In this regard, I do not believe that the situations are comparable. It was advised that unapproved draft minutes must be disclosed because §106 of the Open Meetings Law requires that minutes of meetings of public bodies be prepared and made available within two weeks of the meetings to which they pertain. There is no analogous requirement that relates generally to drafts. Nevertheless, whether a document is characterized as a draft or internal, for example, I believe that it would fall within the coverage of the Freedom of Information Law. That statute pertains to all agency records, and §86(4) 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, when information exists in some physical form, irrespective of its status or characterization as draft or final, I believe that it constitutes a "record" subject to rights of access conferred by the Freedom of Information Law.
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.
Relevant with respect to drafts is §87(2)(g). That provision permits 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. A draft would usually consist of intra-agency material that could be withheld except to the extent that it contains any of the four categories of available information delineated in subparagraphs (i) through (iv) of §87(2)(g). Therefore, insofar as a draft consists of statistical or factual information, for example, it would be available.
Notwithstanding the preceding remarks, insofar as a draft has been distributed to the public or perhaps disclosed at meetings open to the public, I do not believe that there would be a basis for a denial of access. While it has been held that an erroneous or inadvertent disclosure does not create a right of access on the part of the public [see McGraw-Edison v. Williams, 509 NYS 2d 285 (1986)], if disclosure is intentional rather than inadvertent, I believe that the public would enjoy rights of access.
Second, you asked whether "meetings [can] be held without any notice in the paper." Here I direct your attention to §104 of the Open Meetings Law, which states that:
"1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice."
Based upon the foregoing, it is clear that notice must be posted and given to the news media prior to every meeting. However, §104 does not specify which news media organizations must be given notice. In many instances, there are may be several news media organizations, i.e., newspapers, radio and television stations, that operate in the vicinity of a public body. So long as notice of a meeting is given to at least one news media organization prior to a meeting, I believe that a public body would be acting in compliance with the requirement that notice be given to the news media. I point out that although a public body must give notice to the news media prior to every meeting, there is no requirement that the news media publish or publicize the notice. Therefore, there may be situations in which a public body provides notice to a newspaper, for example, but the newspaper, for whatever the reason, does not publish it.
Third, you asked whether the Town may require you to abide by certain conditions prior to disclosure of records, such as a requirement that you "add a disclaimer at the top of each page" that you receive indicating that the record is "draft or unapproved." In this regard, it has been held that when records are accessible under the Freedom of Information Law, they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held that:
"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].
Therefore, once it is determined that a record is accessible under the law, I believe that it must be made available unconditionally, irrespective of its intended use. Records are disclosed on an ongoing basis to the public and the news media, despite the possibility of misunderstanding, misinterpretation, misquotation or use out of context. In short, I do not believe that you can be required to add a disclaimer, for example, to a record that you receive in response to request made under the Freedom of Information Law.
Lastly, you referred to the possibility of delays in disclosure and expressed the opinion that "digital data should be released on day one of the day environmental review process." While it does not require immediate disclosure, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:
"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."
If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:
"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."
In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board