May 14, 2008
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.
I have received your letter in which you raised the following question: “when an auditor produces a management letter as part of the annual audit, is that management letter subject to FOIL...”?
In this regard, §30 of the General Municipal Law requires that every municipal corporation and school district is required to make an annual report of its financial condition to the State Comptroller. Section 35 of the General Municipal Law states in subdivision (1) that:
"A report of such examination shall be made and shall be filed in the office of the state comptroller...An additional copy thereof shall be filed with the chief fiscal officer, except that in the case of a school district, such additional copy shall be filed in the office of the chairman of the board of trustees, the president of the board of education or the sole trustee, as the case may be. When so filed, each such report and copy thereof shall be a public record open to inspection by any interested person."
Subdivision (2)(a) of §35 makes specific reference to management letters and states in relevant part that:
"Within ten days after the filing of a report of examination performed by the office of the state comptroller, a report of an external audit performed by an independent public accountant or any management letter prepared in conjunction with such an external audit with the clerk of the municipal corporation, industrial development agency, district, agency or activity, or with the secretary if there is no clerk, he shall give public notice thereof...and that the (report of examination performed by the office of the state comptroller or report of, or management letter prepared in conjunction with, the external audit by the independent public accountant) has been filed in my office [sic] where it is available as a public record for inspection by all interested persons."
Based on the foregoing, it is clear that a management letter must be made available to the public.
In an effort to enhance their understanding of the matter, copies of this response will be forwarded to Mayor Snow and Mr. Manzanero, the auditor.
I hope that I have been of assistance.
Robert J. Freeman
cc: Hon. Edward Snow, Mayor
Mr. Manzanero, Auditor