October 21, 2003

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, unless otherwise indicated.


I have received your letter in which you referred to requests for records of the Northport-East Northport Union Free School District. Although some of the records that you requested have been found to be available to you, others have been withheld, and you asked what recourse you might have.

It is noted that Warren H. Richmond, the District's attorney, wrote to me in relation to your letter and indicated that "internal memos" transmitted between the Superintendent and the Board of Education would not "voluntarily" be produced. He also advised you that, since you are currently involved in litigation against the District in federal court, your attorney may seek production of those records in that forum.

In this regard, I offer the following comments.

First, with respect to your recourse, when a request for records is denied, the person denied access has the right to appeal pursuant to §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person thereof designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

If an appeal is denied, the person seeking the records may seek judicial review of the denial by initiating a proceeding under Article 78 of the Civil Practice Law and Rules. Section 89(4)(b) specifies that the agency that has denied access has the burden of proving that the records sought fall within one or more of the exceptions to rights of access appearing in §87(2) of the Freedom of Information Law.

Second, based on direction provided by the Court of Appeals, the state's highest court, the pendency of litigation has no effect on your rights as a member of the public when you seek records under the Freedom of Information Law. In a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency, it was held that "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the Civil Practice Law and Rules (CPLR). Specifically, it was found that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.

"CPLR article 31 proceeds under a different premise, and serves quite different concerns. While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL. Access to records under CPLR depends on status and need. With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action'" [see Farbman, supra, at 80].

Based upon the foregoing, again, the pendency of litigation would not, in my opinion, affect either the rights of the public or a litigant under the Freedom of Information Law.

Next, 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.

Pertinent with respect to rights of access to "internal memos" is §87(2)(g), which authorizes an agency 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.

According to the Court of Appeals, §87(2)(g) is intended to enable an agency "to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers" [Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 (1985)] and to "safeguard internal government consultations and deliberations" [Gould v. New York City Police Department, 89 NY2d 267, 276 (1996)].

Lastly, if my recollection is accurate, you indicated that the records sought pertain to your daughter, and that she entered the State University as a student several years ago. If the records involve your daughter after she no longer attended a school in the District, I believe that the preceding analysis would apply in considering rights of access. If, however, they pertain to your daughter when she was in attendance at a school within the District, another statute, the Family Educational Rights and Privacy Act (20 USC §1232g; "FERPA"), would be relevant in determining rights of access.

I note that §89(6) of the Freedom of Information Law states that when records are accessible under a different provision of law, nothing in the Freedom of Information Law can be asserted to deny access to those records. FERPA, as you are aware, relates to education records identifiable to students and generally provides rights of access to those records to parents of students under the age of eighteen or to "eligible students", students who have reached the age of eighteen or are "attending an institution of postsecondary education" (34 CFR §99.3). "Education records" include those records that are "(1)Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution" However, the phrase "education record" excludes "Records that only contain information about an individual after he or she is no longer a student at that agency or institution" (34 CFR §99.3). If the records pertain to your daughter when she was in attendance at a school in the District, it appears that FERPA would grant rights of access to those records. On the other hand, if they pertain to your daughter after she attended a school in the District, FERPA, in my view, would not apply.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Warren H. Richmond
Arlene Munson
William Brosnan