August 28, 2008




FROM: Camille S. Jobin-Davis, Assistant 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.



            I take issue with two of the grounds on which the APA relies to deny access in its August 12, 2008 letter to you.

            The first ground is section 4547 of the CPLR, which sets forth, in total:

Ҥ4547. Compromise and offers to compromise

Evidence of (a) furnishing, or offering or promising to furnish, or (b) accepting, or offering or promising to accept, any valuable consideration in compromising or attempting to compromise a claim which is disputed as to either validity or amount of damages, shall be inadmissible as proof of liability for or invalidity of the claim or the amount of damages. Evidence of any conduct or statement made during compromise negotiations shall also be inadmissible. The provisions of this section shall not require the exclusion of any evidence, which is otherwise discoverable, solely because such evidence was presented during the course of compromise negotiations. Furthermore, the exclusion established by this section shall not limit the admissibility of such evidence when it is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay or proof of an effort to obstruct a criminal investigation or prosecution.”

            This provision of law pertains only to evidence as "admissible" or "inadmissible". Generally speaking, "admissible" and "inadmissible" pertain to whether records or testimony is permitted to be introduced in a court of law. This section of law does not address whether a record is confidential and therefore not permitted to be shared with the public pursuant to a request made under FOIL, but rather only whether evidence of offers to compromise can be admitted in court. In my opinion, therefore, this provision does not apply as a valid basis for denying access.

            My rationale is based on the Court of Appeals affirmance of an Appellate Division decision in Newsday v. State Department of Transportation, 780 NYS2d 402, 10 AD3d 201, affirmed 5 NY3d 84, 800 NYS2d 67(2005). In that case, the Dept. of Transportation denied Newsday’s request for access to records regarding hazardous intersections and highways required to be maintained pursuant to a federal law, which states that those records are not subject to discovery or admitted into evidence "in a federal or state court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists of data." The Appellate Division affirmed the lower court decision holding that the federal statute does not serve as a statute that exempts records from disclosure under section 87(2)(a) of FOIL when sought by an entity “not engaged in a court proceeding involving an accident occurring at a location mentioned in such data.” The Appellate Division also held that there must be “clear legislative intent” to properly assert that a statute renders records exempt from disclosure, and that Congress demonstrated no such intent. The Court of Appeals affirmed, stating that the federal statute restricting use of certain records in litigation “does not render the documents sought… exempt from disclosure under FOIL.” (Id, 5 NY3d at 89, 800 NYS2d at 70).

            The second ground involves the assertion in the last paragraph that "A record that is inspected or examined during a meeting and for which a party has no obligation to provide an agency a copy is not a record held by that agency." The Agency provides no basis for this assertion, and I believe there is none. Further, the Agency does not indicate that such records were not retained, only that the submitting party had no obligation to provide records and that the records were “not necessarily retained, by Agency staff.” In my opinion, which is based on my understanding that multiple mediation sessions have been held over two-day periods, the language of the law and decisions rendered by the Court of Appeals, this response is simply the Agency’s attempt to obfuscate the issue.

            The Freedom of Information Law pertains to all records of an agency, such as the Adirondack Park Agency, and §86(4) of that statute 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."

            Based on the foregoing, records in possession of or “produced by other parties at mediation sessions and ‘handled’ but not necessarily retained, by Agency staff” constitute Agency records subject to rights conferred by the Freedom of Information Law, irrespective of their origin or function.

            The Court of Appeals has construed the definition of “record” 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. In a decision involving records prepared by corporate boards furnished voluntarily to a state agency, the Court of Appeals reversed a finding that the documents were not "records," thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the Court relied upon the definition of "record" and reiterated that the purpose for which a document was prepared, the function to which it relates, or its origin are irrelevant. Moreover, the decision indicated that "When the plain language of the statute is precise and unambiguous, it is determinative" (id. at 565).

            In consideration of judicial precedent, when documents come into the possession of the Agency, even though they may be returned to the submitting entity, I believe that they constitute "records" of the Agency subject to the Freedom of Information Law.

            This is not to suggest that these records must be disclosed to you in their entirety. As you know, 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. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my opinion, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

            The Court of Appeals expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 NY2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

            Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that certain reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception separate from that referenced in response to your requests. The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

" invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

            In the context of your requests, the Agency has engaged in a blanket denial of access in a manner which, in my view, is equally inappropriate. Based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by the Agency for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added). Insofar as provisions of section 87(2)(g) would apply to inter or intra-agency materials, as the Agency indicated, in my opinion, it is under an obligation to provide access to applicable portions of those materials, and complete copies of materials for which no exemptions apply.

            I hope that this is helpful to you. Please call if you have questions.

cc: Brian Ford