October 15, 1999
Mr. William Phelps
Lansing Faculty Association
Lansing High School
300 Ridge Road
Lansing, NY 14882
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
Dear Mr. Phelps:
I have received your letter of August 26 in which you wrote that the Lansing Central
School District "has employed the district superintendent's secretary to take notes at all
executive sessions." The District denied access to the notes based on a judicial decision, Wm.
J. Kline & Sons, Inc. v. County of Hamilton [235 AD2d 44 (1997)], a contention that the
notes constitute intra-agency materials that are exempt from disclosure, and its position that
notes are not District records but rather are the personal property of the Superintendent.
In this regard, I offer the following comments.
First, the Freedom of Information Law is applicable to all agency records, and §86(4)
of that statute 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."
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 of a "governmental versus nongovernmental dichotomy"
[see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] 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.).
In another decision rendered by the Court of Appeals, 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 (1987)].
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).
Further, in 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 took 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 NYS 2d 742, 743 (1978)].
In short, I believe that the notes in question are "records" that fall within the coverage
of the Freedom of Information Law.
Second, as a general matter, the Freedom of Information Law 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 §87(2)(a) through (i) of the Law.
I am mindful of the Kline decision, in which it was held that tape recordings of
executive sessions are exempted from disclosure by statute in accordance with §87(2)(a) of
the Freedom of Information Law. The court reasoned that executive sessions, and that,
therefore, a verbatim account of the discussion during executive sessions are confidential.
While I respect the Court's decision, I respectfully disagree. There is nothing in the Open
Meetings Law that specifies that what is said or heard during an executive session is
confidential. Significantly, even when a public body clearly has the authority to enter into an
executive session, there is no obligation to do so; the ability to conduct an executive session
must be preceded by a vote carried by a majority of the total membership of a public body.
If the vote does not carry, a public body may discuss the matter in public. Again, very simply,
while it may not be ethical, wise or in the best interest of the public to divulge what transpired
during an executive session, I do not believe that the information acquired or shared during
an executive session is statutorily exempt from disclosure.
The foregoing is not intended to suggest that the notes would be accessible, even if
the Court in Kline had reached a different conclusion. As indicated in response to your
request, the notes would constitute "intra-agency" materials that fall within §87(2)(g). That
provision permits an agency to withhold records that:
"are inter-agency or intra-agency materials which 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..."
It is noted that the language quoted above contains what in effect is a double negative. While
inter-agency or intra-agency materials may be withheld, portions of such 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 could appropriately be asserted. Concurrently, those portions of inter-agency or
intra-agency materials that are reflective of opinion, advice, recommendation and the like
could in my view be withheld.
Further, there may be other grounds for denial that are pertinent. For instance, a
record of a discussion regarding an employee's health condition would if disclosed constitute
"an unwarranted invasion of personal privacy" and could be withheld under §87(2)(b). A
record of a discussion of the Board's strategy in its negotiations with a union would likely
impair collective bargaining negotiations and be deniable under §87(2)(c).
In sum, I believe that the notes are subject to rights conferred by the Freedom of
Information Law, but that their contents could likely be withheld in great measure even if the
Kline decision had not been rendered.
I hope that I have been of assistance.
Robert J. Freeman
cc: Andrea Price
Thomas J. Jones