From:   Freeman, Robert (DOS)
Sent:    Friday, February 08, 2008 12:26 PM
Subject:           IDA comments during public comment period

Hi - -

I know of no advisory opinions that deal directly with the issue.  However, if comments are offered by an agency during a public comment period, my opinion is that there is no expectation of privacy or secrecy and that the comments should be disclosed.  The closest decision that comes to mind, which dealt with a completely different subject matter, involved interviews by the NYC Fire Department of its employees who were involved in the 9/11 disaster.  Although the records of the interviews were clearly intra-agency material, the Court of Appeals found, based on the facts, that “the interviews were intended as an ‘historical record’—which implies that the interviews would be disclosed to the public”  [New York Times v. City of New York, 4NY3d 477, 489 (2005)].  In analogous fashion, I believe that when it is known that opinions or positions are being offered during a public comment period, those records are intended to be public and accessible to the public on request.

I hope that I have been of assistance.

Robert J. Freeman
Executive Director
Committee on Open Government
NYS Department of State
One Commerce Plaza
99 Washington Ave., Suite 650
Albany, NY 12231
(518) 474-2518
(518) 474-1927 - fax