October 2, 2014
FROM: Camille S. Jobin-Davis, Assistant Director
The staff of the Committee on Open Government is authorized to issued advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Cherry Valley-Springfield Central School District. Specifically, you requested clarification on access to handwritten notes taken by a school board member during an executive session.
This will confirm that, based on the language of the Freedom of Information Law and its judicial interpretation, the notes would, in our opinion, clearly fall within its scope. That statute pertains to agency records, and §86(4) defines the term “record” expansively to mean “any information kept, held, filed, produced or reproduced by with or for an agency….in any physical form whatsoever….”
The Court of Appeals, the state's highest court, has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term “record” involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim (see Westchester-Rockland Newspapers v. Kimball, 50 NY2d 575, 581) and found that the documents constituted "records" subject to rights of access granted by the Law. Moreover, the court determined that:
“The statutory definition of ‘record’ makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons” (id.).
Also pertinent is another decision rendered by the highest court in which the Court focused on an agency claim that it could “engage in unilateral prescreening of those documents which it deems to be outside of the scope of FOIL” and found that such activity “would be inconsistent with the process set forth in the statute” (Capital Newspapers v. Whalen, 69 NY 2d 246, 253 ). The Court determined that:
"...the procedure permitting an unreviewable prescreening of documents - which respondents urge us to engraft on the statute - could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate request. There would be no way to prevent a custodian of records from removing a public record from FOIL's reach by simply labeling it 'purely private.' Such a construction, which would thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected" (id., 254).
As indicated by counsel, perhaps closest to the situation that is the subject of your inquiry is a case involving notes taken by the Secretary to the Board of Regents that he characterized as “personal” in conjunction with a contention that he prepared the notes in part “as a private person making personal notes of observations…in the course of” meetings. In that decision, the court cited the definition of “record” and determined that the notes did not consist of personal property, but rather were records subject to rights conferred by the Freedom of Information Law (Warder v. Board of Regents, 410 NYS2d 742, 743 ).
Counsel’s attempt to distinguish notes taken by the Secretary to the Board of Regents to notes taken by a school board member is not plausible. The school board member would not be present at executive sessions if she were not a board member; accordingly, she, like the Secretary, is acting in her official capacity.
In another case in which it was claimed that records were "personal", Kerr v. Koch (Supreme Court, New York County, NYLJ, February 1, 1988), the issue involved a request by a reporter for the Daily News for the public and private appointment calendars of then Mayor Koch. Although it was contended by the City that various materials were not subject to the Freedom of Information Law or could be withheld under that statute, the Court disagreed, citing Capital Newspapers and an opinion rendered by this office and stated that:
“...respondents base petitioner's exclusion from certain materials by saying that some of the appointment books contain both personal and business appointments created for the Mayor's convenience. That contention, of course, has little probative meaning here:
‘*** personal or unofficial documents which are intermingled with official government files and are being 'kept' or 'held' by a governmental entity are 'records' maintained by an 'agency' under Public Officers Law §86 (3), (4). Such records are, therefore, subject to disclosure under FOIL absent a specific statutory exemption' (Capital Newspapers v. Whalen, 69 N.Y. 2d 246, 248).
“At the Appellate Division level of Capital Newspapers, it was ruled that papers of a personal nature were protected from disclosure under the FOIL and that the law was intended by the Legislature to subject to disclosure only those records that revealed the workings of government and that disclosure of private papers of a public office holder would not further the purpose of FOIL (113 App. Div. 2d 217, 220). It is that ratio decidendi that the Court of Appeals rejected in
its unanimous ruling.
“The Court then went on to re-state the appellate conclusion that FOIL ‘is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government’ (citing Matter of Washington Post Co. v. New York State Ins. Dept., 61 N.Y. 2d 557, 564). Any narrow construction of FOIL, it was added, 'is contrary to these decisions and
antagonistic to the important policy underlying FOIL' (p. 52 of Capital Newspapers, supra)."
In short, this will confirm that handwritten notes taken by a board member during the course of an executive session would constitute agency records that are subject to rights of access conferred by the Freedom of Information Law. While those records may be in the physical possession of the board member, we believe they are the property and in the legal custody of the School District.
In furtherance of the issue, we emphasize that notes taken by a public officer or employee during a meeting would constitute "intra-agency materials" that fall within the scope of §87(2)(g), which permits an agency to withhold records that:
"are inter-agency or intra-agency materials that 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."
The language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of those 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 of access may properly be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like may be withheld.
Insofar as notes taken at a meeting merely consist of a factual rendition of what was said or what transpired, they would consist of factual information available under §87(2)(g)(i), except to the extent that a different ground for denial could be asserted (i.e., §87[b] concerning the protection of personal privacy §87(2)(c) concerning impairment of collective bargaining negotiations). Insofar as notes might include expressions of opinion or conjecture on the part of the author, they would fall within the coverage of the exception.
In sum, handwritten notes taken by a board member during the course of an executive session are, in our view, "records" that fall within the coverage of the Freedom of Information Law, and to the extent that they consist of statistical or factual information as described in the preceding remarks, we believe that they are accessible under the Freedom of Information Law, again, unless a separate exception may properly be asserted.
We hope this is helpful.