March 10, 2009
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 correspondence and hope that you will accept my apologies for the delay in response.
You have sought an advisory opinion concerning rights of access to records maintained by the State Senate. In brief, the records of interest involve “time sheets or time cards submitted” by certain Senate employees, “records which reflect work product performed” by certain employees during a particular time period, and email communications between certain employees and other employees or members of the Senate.
In this regard, first, I point out that §88 of the Freedom of Information Law deals with rights of access to records of the State Legislature. Further, while there have been numerous judicial decisions concerning rights of access to agency records in accordance with provisions applicable to agencies, there are few decisions that have been rendered with respect to access to records of the Legislature.
It is also noted that the structure of the Freedom of Information Law as it pertains to the State Legislature differs from its structure as it pertains to agencies of state and local government subject to §87 of the Law. 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 section 87(2)(a) through (j) 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.
With respect to the first area of records at issue, time sheets or time cards, it has been held that those particular records maintained by the Senate pertaining to its employees may be withheld, for they do not fall within any of the categories of accessible records listed in §88(2) (Greene v. Boggess, Supreme Court, Albany County, October 19, 2005).
With regard to the remaining two areas of your request, the content of the records would, in my view, determine whether or the extent to which they may be accessible. I believe that it is likely that most may be withheld, because they would not fall within the list of accessible records. However, of potential significance is §88(2)(e), which requires the disclosure of "internal or external audits and statistical or factual tabulations of, or with respect to, material otherwise available for inspection and copying pursuant to this section or any other applicable provision of law." Based on that provision, statistical or factual tabulations relating to records that are otherwise available (see e.g., the categories of records accessible under §88(2), such as bills, final reports, etc.) must be disclosed.
I hope that the foregoing serves to clarify your understanding and that I have been of assistance.
Robert J. Freeman
cc: Records Access Officer