June 10, 2009


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.


            We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for a record made to the Holland Patent Central School District.  Specifically, you requested a copy of a letter, written by a Board member and read by that person at a public meeting of the school board.  In the newspaper article that you provided, a reporter characterized the letter as “submitted to the board”, and quoted from it, indicating that the board member criticized your efforts to increase the number of board members from five to seven.  The District denied access to the letter on the ground that the letter “is not a record of the school district or in the possession of the school district.”  You were denied access on appeal, based on the additional ground that the comments made by the board member “were not agenda items nor were they directed to the Board or comments made on behalf of the Board.”  In this regard, we offer the following comments.

            First, the information that you provided indicates that the letter was written in preparation of a meeting and in furtherance of the Board member’s responsibilities.   If that is so, we believe the letter would constitute a “record” subject to rights conferred by the Freedom of Information Law, for it was prepared and likely submitted in the board member’s capacity as a member of an agency, the Board of Education.

            As you maybe aware, §86(4) of the Freedom of Information Law 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."

            The Court of Appeals has construed the definition 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.  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" (id.).

            In another decision rendered by the Court of Appeals, the Court focused on an agency claim that it could "engage in unilateral prescreening of those documents which it deems to be outside of the scope of FOIL" and found that such activity "would be inconsistent with the process set forth in the statute" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)].  The Court determined that:

"...the procedure permitting an unreviewable prescreening of documents - which respondents urge us to engraft on the statute - could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate request.  There  would be no way to prevent a custodian of records from removing a public record from FOIL's reach by simply labeling it 'purely private.'  Such a construction, which would thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected" (id., 254).

            There is also 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)].

            Based upon the foregoing, and again, assuming that a statement was prepared in furtherance of the performance of one's duties as a member of the Board, we believe that it would fall within the coverage of the Freedom of Information Law.

            In short, if a record relates to the Board member’s functions for the District, its contents would constitute an agency record that is subject to rights of access conferred by the Freedom of Information Law.  Based on the case law mentioned above, while the letter may be in the physical possession of the board member, in our opinion, it is also the property of the District.

            Lastly, we believe that the fact that it was read aloud at a public meeting resulted in a waiver of the capacity of the District to deny access to the proposal. In a case in which there was an "inadvertent disclosure" of a record, it was found that the disclosure did not create a right of access on the part of the person who viewed the record [see McGraw-Edison v. Williams, 509 NYS2d 285 (1986)]. Conversely, however, if a disclosure was not inadvertent, but rather purposeful, as in a situation in which a board member reads the record aloud at a public meeting, we believe that the ability to deny access to that record would have been waived.

            On behalf of the Committee on Open Government, we hope that this is helpful to you. 



                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director


cc: Nancy Nowicki
Kathleen M. Davis, Superintendent