February 19, 1998

Ms. Jean M. Baric
166 Superior Road
Rochester, NY 14625

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. Baric:

I have received your letter of January 22. You wrote, in brief, that the
planning board in your community, as a condition of approving "an
industrial/office development", has required that the developer prepare "an
acceptable Health Safety Contingency Plan (the Plan) to deal with the known
soil contamination of the property." You added that the Plan was also
required by other agencies, but that the Planning Board has "final approval

Your concern involves the degree of detail that must be disclosed
regarding the Plan, for you indicated that:

"In its current (and likely final) form, the Plan
is relatively generic in describing how the
developer will handle contamination. Instead,
it mandates that all sub-contractors will be
responsible for having their own separate and
individual Contingency Plans which deal with
the specifics of how contamination will be
handled. The Contingency Plan as it stands,
does not require that the Planning Board
review or even have a copy of the sub-contractor's plans, but merely mandates that
they have one which is in overall accordance
with the approved developer's Contingency

The question is whether the sub-contractors' contingency plans will be subject
to the Freedom of Information Law.

From my perspective, the answer is dependent upon the terms of the
agreement between the Town and the developer that required the preparation
of the Plan. If the agreement merely requires that the developer prepare and
receive approval of the Plan as it exists, it would be unlikely in my view that
the contingency plans would fall within the coverage of the Freedom of
Information Law. On the other hand, if the contingency plans are prepared
as elements of the Plan as a whole, they would appear to fall within the scope
of that statute.

The issue in my opinion involves whether the contingency plans
constitute agency records. In this regard, §86(4) of the Freedom of
Information Law defines the term "record" expansively 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, it has been 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 short, if the agreement in question indicates that the contingency
plans are part of the Plan or are produced for the town, it appears that they
would be agency records.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director