FROM: Robert J. Freeman
DATE: April 20, 2017
RE: Foil Advisory Opinion
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, except as otherwise indicated.
As you are aware, I have received a variety of material from you relating to the proposed sale of the so-called “Woodbury property” owned by the District to a developer, Basser Kaufman.
You requested records and information concerning that proposed transaction late in 2016 and indicated that you received “generic” responses, delays and minimal disclosures. Following threats of litigation regarding the possible sale of the property, the Board of Education on January 23 voted to terminate the contract of sale. As a consequence, it was disclosed that the Board received notice from the developer that “the Board had breached its obligation to cooperate in connection with the development of the property” and that an agreement negotiated by the District’s legal counsel “provides for the payment of §125,000 to the developer in settlement of its claim of breach and further provides for the termination of the agreement of sale and release of the School District from further liability.”
Following the termination of the contract, you and, according to your comments, “many people in the community felt like we were owed an explanation” of the reason. In response to your efforts in gaining access to information regarding the reason for the claimed breach and the payment to the developer, you were informed that the District “produced the documents it possesses in connection with your FOIL request”, adding that “FOIL does not require a School District to respond to questions and/or to respond to a request which would require the creation of a document which does not exist in response to an inquiry.” You were also informed by the District’s records access officer that “Communication from the developer to the school district were made through counsel. As such, the December 22, 2016 letter provided to you was directed to counsel for the school district. Subsequent to the receipt of this letter, counsel for the developer contacted counsel for the school district by phone to assert its position that the school district breached its agreement. Hence, the settlement agreement refers to this notice by the developer.”
In regard to the foregoing, I offer the following comments.
First, attached is an advisory opinion previously rendered that deals with an agency’s duty to respond to requests for records in a timely manner. (http://docs.dos.ny.gov/coog/ftext/f19305.html)
Second, it is true that the Freedom of Information Law (FOIL) does not require that agency staff or officials provide information in response to questions, offer explanations concerning its actions or activities, or create new records in responding to requests. However, FOIL is expansive in its scope, for it pertains to all agency records, and as you are aware, a school district is an agency [see FOIL, §86(3)]. Perhaps of significance in the context of the material sought is the term “record.” Section 86(4) of FOIL defines “record” to mean “any information kept, held, filed, produced or reproduced by, with or for an agency….in any physical form whatsoever…”
In consideration of the application of FOIL not only to records in the physical possession of District officials, but also to those that may be kept or may have been prepared for the District, it is suggested that you renew your request and emphasize that it includes records kept or prepared for the District by its counsel.
Third, insofar as records are maintained by or for an agency, FOIL is based on a presumption of access and requires disclosure, except to the extent that a ground for denial of rights of access appearing in §87(2) of that statute may properly be asserted.
If there are written communications between the District’s counsel and the developer or the developer’s representative, I do not believe that any exception could validly be cited to deny access. There would be no privilege, for the client of the District’s counsel is the District; the privilege would not extend to communications to or from the developer. A provision that is often relevant in a negotiation process, §87(2)(c), authorizes an agency to withhold records insofar as disclosure “would impair present or imminent contract awards…” Since the matter has been resolved and a settlement reached, that exception is no longer pertinent. Again, if records such as those referenced here exist, they must, in my opinion, be made available.
If, in response to a request for records maintained by the District’s counsel, it is asserted that there are no such records, it is suggested that you seek a certification so indicating as required by §89(3)(a) of FOIL. That provision states in relevant part that, on request, an agency “shall certify that it does not have possession of such record or that such record cannot be found after diligent search.” The term “possession” in the context of §89(3)(a) must, in my view, be construed to mean not only those records that are on the premises or in the physical custody of an agency, but also those that may be kept or produced for an agency.
I hope that I have been of assistance.