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February 21, 1997

 

 

Hon. Shirley Murray
Town Clerk
Town of Wilton
20 Traver Road
Gansevoort, NY 12831-9127

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. Murray:

I have received your letter of January 29. In your capacity as Wilton Town Clerk, you have raised a variety of questions concerning the Freedom of Information Law.

First, you referred to a record created by the Town Attorney in the performance of his duties for the Town, and you asked whether it is a "Town record" or whether the Attorney "has sole jurisdiction over the record."

As you may be aware, the Freedom of Information Law pertains to agency records, and §86(4) of that statute defines the term "record" broadly 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."

Based upon the language quoted above, documents need not be in the physical possession of an agency to constitute agency records so long as they are produced, kept or filed for an agency, and the courts have so held.

For instance, in a decision dealing with a similar issue, it was found that records maintained by an attorney retained by an industrial development agency were subject to the Freedom of Information Law, even though an agency did not possess the records and the attorney fees were paid by applicants before the agency. The Court determined that the fees were generated in his capacity as counsel to the agency, that the agency was his client, that "he comes under the authority of the Industrial Development Agency" and that, therefore, records of payment in his possession were subject to rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County of Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).

Additionally, in a recent decision rendered by the Court of Appeals, the state's highest court, it was found that materials received by a corporation providing services for a branch of the State University that were kept on behalf of the University constituted "records" falling with the coverage of the Freedom of Information Law. I point out that the Court rejected "SUNY's contention that disclosure turns on whether the requested information is in the physical possession of the agency", for such a view "ignores the plain language of the FOIL definition of 'records' as information kept or held 'by, with or for an agency'" (see Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410. 417 (1995).

In the next scenario, the Town Attorney receives a copy of a record generated by a town department head. After receiving a request from another attorney for a copy of the record, you asked "[w]ould it be improper to suggest to the Town Attorney that the request be referred to the Records Access Officer or should he provide the copy as a professional courtesy?" In my opinion, since the request involves a Town record, the Town Attorney, unless given authority to the contrary, should comply with the Town's procedures.

By way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states that:

"the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article."

In this instance, the governing board of a public corporation, the Town of Wilton, is the Town Board, and I believe that the Board is required to promulgate appropriate rules and regulations consistent with those adopted by the Committee on Open Government and with the Freedom of Information Law. The attachments to your letter indicate that the Board has done so.

The initial responsibility to deal with requests is borne by an agency's records access officer, and the Committee's regulations provide direction concerning the designation and duties of a records access officer. Specifically, §1401.2 of the regulations provides in relevant part that:

"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so."

If you are the Town's designated records access officer, you have the duty of coordinating the Town's response to requests for records. Therefore, a request for a record maintained by the Town Attorney should be forwarded to you; alternatively, the Town Attorney could inform you that a request has been made for the purpose of seeking guidance.

Next, you referred to a project presented to the Building Inspector/Code Enforcer for approval. Following a rejection of the application, the applicant was referred to the Zoning Board of Appeals for an interpretation of the zoning ordinance. In relation to the foregoing, the Building Inspector/Code Enforcer prepares a memorandum for the Zoning Board Appeals "outlining his reasons for denying the project based on his interpretation of the Zoning Ordinance and citing those sections of the Zoning Ordinance that he feels are applicable in this case." The memorandum is prepared in draft and revised several times. Further, the Zoning Board of Appeals would not be bound to accept the Building Inspector's recommendation. You asked whether the memorandum is exempt from disclosure.

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.

The provision to which you referred, §87(2)(g), would determine rights of access. 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.

It would appear that the memorandum consists largely of the Building Inspector's opinion. If that is so, those aspects of the memorandum could justifiably be withheld.

Since you alluded to a record existing in "draft form", I note that the characterization of a record as a "draft" may be of little significance. As suggested earlier, a draft would constitute a "record" subject to whatever rights of access might exist. If, for instance, the Building Inspector's drafts include statistical or factual information, those elements of the drafts, as well as the final memorandum, would be available.

The next scenario involves a situation in which a project has received approval. In the request for a variance, the cover page states:

"THE INFORMATION THAT IS CONTAINED WITHIN THIS BOOKLET IS COMPANY PROPRIETARY INFORMATION. THIS INFORMATION IS CONFIDENTIAL AND ALL INFORMATION SHALL BE DISSEMINATED ON A NEED-TO-KNOW BASIS. NO PHOTOCOPIES AND/OR REPRODUCTIONS OF THE INFORMATION IS AUTHORIZED WITHOUT PRIOR APPROVAL FROM (Company Name)."

You asked whether the company can "constrain the Town from releasing the information."

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). In short, when the documentation comes into the possession of the Town, I believe that it becomes an "agency record."

Further, in my opinion, an assertion or claim of confidentiality, unless it is based upon a statute, is likely meaningless. When confidentiality is conferred by a statute, an act of the State Legislature or Congress, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute". If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, supra; Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such, an assertion of confidentiality without more, would not in my view serve to enable an agency to justify withholding a record. In this instance, I am unaware of any statute that would render the record in question exempted from disclosure by statute. It is also noted that it has been held that a rule or regulation promulgated by an agency cannot be cited as a "statute" that would serve to exempt records from disclosure [see Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026 (1982) and Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976)].

In sum, the kind of statement prepared by the company is in my opinion of no legal significance.

Next, if a governing body disagrees with "some or all" of the Freedom of Information Law:

"...and decides to establish policies and guidelines of its own concerning access to certain records and fees charged:

(a) Is the Records Access Officer subject to these policies and guidelines?

(b) If the Records Access Officer is subject to these policies and guidelines, and records are released or withheld accordingly, and litigation results, is the Records Access Officer liable for whatever damages are alleged?"

In this regard, when the State Legislature has enacted a statute, a municipality, its officers and employees in my view are required to comply with that statute. Further, insofar as an agency's policies or rules are more restrictive than the Freedom of Information Law, it is reiterated that they would be invalid (see Morris and Zuckerman, supra). I note, too, that in cases in which agencies have established fees in excess of those permitted by the Freedom of Information Law, the courts found that the agencies' actions were invalid [see Gandin, Schotsky & Rappaport v. Suffolk County, 640 NYS 2d 214, ___ AD2d ___ (1996); Sheehan v. City of Binghamton, 521 NYS 2d 207 (1978)].

Next, when another agency requests copies of records, you asked whether it is appropriate or advisable to require the agency to "complete a Freedom of Information Law form and pay the appropriate charge per copy."

In my opinion, the Freedom of Information Law is generally intended to enable the public to request and obtain accessible records. Further, it has been held that accessible records should be made equally available to any person, without regard to status or interest [see e.g., Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976) and M. Farbman & Sons v. New York City, 62 NY 2d 75 (1984)]. Nevertheless, 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, in the absence of a rule or policy to the contrary, I believe that an agency should attempt to cooperate with another agency to the extent possible. Whether the agency should assess fees would be its choice; however, unless a request is voluminous, it would seem that in the spirit of cooperation, fees ordinarily charged might be waived. Similarly, although many requests by other entities of government might be handled informally, an agency could choose to require that a request be made in writing.

Lastly, you asked whether the Committee has a "publication containing its opinions." While there is no such publication, enclosed is an appendix to its annual report which includes indices to opinions rendered under the Freedom of Information and Open Meetings Laws. If, after reviewing an index there are opinions of particular interest, they can be obtained from this office and from various law libraries throughout the state. In addition, opinions rendered since 1993 will likely become available via the Internet within a year.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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