January 30, 2008




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 information presented in your correspondence.

Dear :

            I have received your letter and hope that you will accept my apologies for the delay in response.

            You indicated that you serve as a member of the Oswego City School District Board of Education and that the Board conducted an executive session to discuss you, stating that the matter was “personal.”  You added that the discussion apparently related to an email you sent to the Board President in which you referred to the Superintendent as “fatboy.”

            You asked whether “this [is] ex-session material” and whether you have “the right to release those emails to anyone [you] would choose...”  In this regard, I offer the following comments.

            First, as a general matter, the Open Meetings Law is based on a presumption of openness.  Stated differently, meetings of public bodies, such as boards of education, must be conducted in public, unless there is a basis for entry into executive session.  Paragraphs (a) through (h) of §105(1) specify and limit the grounds for conducting an executive session.

            Although an issue may be “personal” or involve a “personnel” matter, I point out that those terms do not appear in the Open Meetings Law.  The only ground for entry into executive session that might have related to the matter that you described, §105(1)(f), authorizes a public body to enter into executive session to discuss:

“...the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation...”

            From my perspective, unless the Board discussed the possibility of your removal, §105(1)(f) would not have applied, and the matter should have been discussed in public.

            You also referred to “emails between board members” that include comments such as yours and asked whether you have the right to disclose them.  From my perspective, email kept, transmitted or received by a school district official in relation to the performance of his or her duties is subject to the Freedom of Information Law, even if the official uses his private email address and his own computer.

            The scope of the Freedom of Information Law is expansive, for it encompasses all government agency records within its coverage.  Section 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."

            Based upon the language quoted above, documentary materials need not be in the physical possession of an agency, such as a school district, to constitute agency records; so long as they are produced, kept or filed for an agency, the law specifies and the courts have held that they constitute “agency records”, even if they are maintained apart from an agency’s premises.

            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 pursuant to a contract were kept  on behalf of the University and constituted agency "records" falling within the coverage of the Freedom of Information Law. It is emphasized 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)].

            Also pertinent is the first decision in which the Court of Appeals dealt squarely with the scope of the term "record", in which the matter 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" 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" [Westchester-Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)].

            The point made in the final sentence of the passage quoted above appears to be especially relevant, for there may be “considerable crossover” in the activities of District officials  In my view, when the officials communicate with one another in writing, in their capacities as government officials, any such communications constitute agency records that fall within the framework of the Freedom of Information Law.

            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 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)].

            The definition of the term “record” also makes clear that email communications between or among board members fall within the scope of the Freedom of Information Law.  Based on its specific language, if information is maintained by or for an agency in some physical form, it constitutes a "record" subject to rights of access conferred by the Freedom of Information Law.  The definition includes specific reference to computer tapes and discs, and it was held soon after the reenactment of the statute that "[i]nformation is increasingly being stored in computers and access to such data should not be restricted merely because it is not in printed form" [Babigian v. Evans, 427 NYS2d 688, 691 (1980); aff’d 97 AD2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS2d 558 (1981)]. Whether information is stored on paper, on a computer tape, or in a computer, it constitutes a “record.”  In short, email is merely a means of transmitting information; it can be viewed on a screen and printed, and I believe that the email communications at issue must be treated in the same manner as traditional paper records for the purpose of their consideration under the Freedom of Information Law. 

            Third, the foregoing is not intended to suggest that the email communications to which you referred must be disclosed in their entirety.  Like other records, the content of those communications is the primary factor in ascertaining rights of access.

            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 (j) of the Law.
The records at issue, because they involve communications between or among agency officials, fall with one of the exceptions, §87(2)(g).  Due its structure, however, that provision may require substantial disclosure.  Specifically, §87(2)(g) enables 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.

            Lastly, the Freedom of Information Law is permissive.  Although an agency may withhold records or portions of records, it is generally not required to do so.  The only instances in my opinion in which records cannot be disclosed to the public would involve those in which a statute, an act of Congress or the State Legislature, forbids disclosure.  For instance, the federal Family Educational Rights and Privacy Act (“FERPA”) generally prohibits school officials from disclosing information  that is personally identifiable to a student without the consent of a parent.  In the situation that you described, I know of no law that would prohibit that disclosure of the kinds of email to which you referred.

            I hope that I have been of assistance.