April 27, 1998

Mr. John Keegan
The Gazette Newspapers
P.O. Box 1090
Schenectady, NY 12301-1090

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 Mr. Keegan:

I have received your letter of April 14 in which you sought an opinion
concerning a request made under the Freedom of Information Law.

According to your letter, you requested from the Acting Saratoga
County Attorney "documents in the settlement of Mastropietro vs. Saratoga
County and the Town of Halfmoon." In response, the Acting County
Attorney wrote that he had:

"reviewed the file maintained in our office and
found that it does not retain the requested
documents. This matter was defended by
outside attorneys, and we have received
nothing from them as to any resolution, either
by ruling or by settlement."

From my perspective, if the records sought are maintained by outside
counsel for the County, they are County records subject to the Freedom of
Information Law. In this regard, I offer the following comments.

It is emphasized that §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, the courts have held they constitute
"agency records", even if they are maintained apart from an agency's

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's 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 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 sum, insofar as the records sought are maintained for the County,
I believe that the County would be required to direct the custodian of the
records to disclose them in accordance with the Freedom of Information Law,
or obtain them in order to disclose them to you to the extent required by law.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Mark M. Rider, Acting County Attorney