March 27, 2007
FROM: Robert J. Freeman, Executive Director
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, unless otherwise indicated.
As you aware, I have received your letter as well as documentation relating to it. The materials indicate that Prime Vendor, Inc., a company based in North Carolina, requested bid documents from Oneida County that are accessible through the County’s website. The records, however, are maintained for the County by BidNet and are available only by registering and agreeing to terms developed by BidNet. One of the conditions that must be met prior to gaining access is that the information at issue “cannot be resold to a third party.” Additionally, the “Vendor Registration Agreement” that appears on the County’s website but which is “Powered by BidNet’s E-Procurement System” states that: “If your company is a reseller of bid information, you may not register on this system.”
In this regard, I offer the following comments.
First, while the records at issue may not be in the physical custody of the County, based on the nature of the relationship between the County and BidNet, I believe that they are County records that fall within the framework of the Freedom of Information Law. That statute pertains to agency records, such as those of a county, and §86(4) defines the term “record” expansively to mean:
"...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."
In consideration of 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 premises.
It has been found, for example, 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).
Perhaps most significant is a decision rendered by the Court of Appeals in which it was found that materials maintained by a corporation providing services pursuant to a contract 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)].
Insofar as records maintained by BidNet are “kept, held, filed, produced or reproduced...for an agency”, such as the County, i.e., for the purpose of providing services that would otherwise be carried out by the County, I believe that they constitute “agency records” that fall within the scope of the Freedom of Information Law. This is not to suggest that a relationship of that nature would transform BidNet into an agency required to comply with the Freedom of Information Law, but rather that the records that it maintains for the County are County records.
Second, I believe that the conditions imposed by BidNet are inconsistent with law and unenforceable.
From my perspective, a person seeking records under the Freedom of Information Law from an agency, cannot be compelled, as a condition precedent to disclosure, to indicate the purpose of a request or the intended use of the records, or to promise or agree that the records will not be duplicated, disseminated, or perhaps placed on the internet. As a general matter, when records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals has held 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 government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 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" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].
Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under the Freedom of Information Law. In brief, it was found that one's status as a litigant had no effect upon that person's right as a member of the public when using the Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), the use of the records, including the potential for commercial use or the status of the applicant, is in my opinion irrelevant.
In sum, it is my view that the records maintained by BidNet for the County that are accessible under the Freedom of Information Law must be made unconditionally available to any person.
I hope that I have been of assistance.