July 2, 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, unless otherwise indicated.


            I have received your letter and the materials attached to it, all of which pertain to your efforts in gaining access to records from the Town of Halfmoon pursuant to the Freedom of Information Law.

            In a request made to the Town Clerk on April 24, you requested all Town records relating to a particular parcel of real property that you identified as it appears on the Town’s tax rolls.  You added, “[u]pon information and belief”, that “there may be emails contained within town files” that were not disclosed in response to an earlier request, specifically, “correspondence from Town Councilman Walter Polak and Gregory S. Mills”, and that you were renewing your request for those documents in the request of April 24.  Although some of the records sought were made available to you, others were withheld.  The Town Clerk indicated that “it was discovered that there are memo’s [sic] e-mail messages and handwritten draft notes that are “intra-agency communications in addition to attorney-client work products, which are not being provided.”

            Although the Town Clerk did not inform you of the right to appeal the denial, you did so on June 5.  In a letter dated June 12, your appeal of June 5 was characterized as a “FOIL request.”  In a letter addressed to me by the Town Clerk on June 12, she indicated that a response was sent you to indicting the “determination of the Acting Deputy Town Attorney.”  That determination was not included with her letter.

            You have sought an advisory opinion concerning the Town’s responses and “handling” of your request and appeal, as well as “the town’s apparent determination that an e-mail correspondence from a private citizen, Gregory S. Mills, to a town official (possibly the town attorney), is an ‘inter’ or ‘intra-agency’ document.”  You pointed out that you saw that document printed out in Planning Department files.

            In this regard, I offer the following comments.

            First, the Freedom of Information Law is expansive in its coverage, for it pertains all agency records, such as those of a town, for it defines the term “record” in §86(4) 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 on the foregoing, it is clear in my view that email communications made by or for Town officers or employees, as well as those received by those persons, constitute agency “records” that fall within the framework of the Freedom of Information Law.  Further, in consideration of the breadth of the definition, it has been advised that communications made by agency officers or employees involving the performance of their duties or agency business through use of their home computers are agency records, and it has been held by the Court of Appeals that records kept by or for an agency, irrespective of their physical location, are subject to rights of access granted by the Freedom of Information Law [see Encore College Bookstores v Auxiliary Service Corporation, 87 NY2d 410 (1995)]. Similarly, it was determined more than thirty years ago that handwritten draft notes constitute records subject to rights of access conferred by that statute [see e.g., Warder v. Board of Regents, 410 NYS2d 742 (1978)].

            Second, 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.

            From my perspective, communications in writing, irrespective of their form, between Town officers or employees and private citizens, such as Mr. Mills, would not constitute either “inter-agency” or “intra-agency materials.”  Section 86(3) of the Freedom of Information Law defines the term “agency” to mean:

"...any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

            In short, an agency is an entity of state or local government in New York.  Communications with those outside of government agencies, would be neither inter-agency nor intra-agency materials.  Because that is so, the exception pertaining to those materials, §87(2)(g), could not properly be asserted as a basis for denying access to communications between town officers or employees and Mr. Mills or any other private citizen.  As stated by the Court of Appeals, that exception pertains to an “internal government exchange” reflective of “opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making” [Gould v. New York City Police Department, 89 NY2d 267, 277 (1986)].

            Insofar as the records withheld indeed involve “internal” government communications, their characterization as inter-agency or intra-agency materials, without more, is not determinative of an agency’s ability to deny access.  Section 87(2)(g), when applicable, permits some aspects of those material to be withheld, but it also directs that others must be disclosed.  Specifically, the cited provision authorizes 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.

            The Court in Gould also dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i).  In its consideration of the matter, the Court found that:

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]).  Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][I].  Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182)” (id., 276).

            Next, with respect to “attorney-client work products”, relevant is the first ground for denial, §87(2)(a), which pertains to records that “are specifically exempted from disclosure by state or federal statute.”   One such statute is §4503 of the Civil Practice Law and Rules (CPLR), which codifies the attorney-client privilege.  Another is §3101(c) of the CPLR concerning attorney work product.  Section 3101 pertains disclosure in a context related to litigation, and subdivision (a) reflects the general principle that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action..."  It is intended to shield from an adversary records that would result in a strategic advantage or disadvantage, as the case may be.  In a decision in which it was determined that records could justifiably be withheld as attorney work product, the "disputed documents"  were "clearly work product documents which contain the opinions, reflections and thought process of partners and associates" of a law firm "which have not been communicated or shown to individuals outside of that law firm" [Estate of Johnson, 538 NYS 2d 173 (1989)].  It does not appear that the records at issue relate to litigation or that the intent of §3101(c) is pertinent.

            Since it serves as a barrier to disclosure, it is emphasized that the courts have narrowly construed the exemption concerning attorney work product.  It has been held that only the work product that involves the learning and professional skills possessed only by an attorney is exempt from disclosure [see Soper v. Wilkinson Match, 176 Ad2d 1025 (1991); Hoffman v. Ro-San Manor, 73 AD2d 207 (1980)].

            With regard to the assertion of the attorney-client privilege or a claim of confidentiality involving attorney work product, any disclosure made to a person other than a client would constitute a waiver of the authority to rely upon those exceptions to rights of access.  A communication, for example, between the town attorney or an assistant town attorney and a private citizen, such as Mr. Mills, could not in my opinion be withheld under either of those exceptions.

            Lastly, it appears that the Town’s procedure for “handling” requests for records is inconsistent with law.

            By way of background, §89(1) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural implementation of that statute (21 NYCRR Part 1401).  In turn, §87(1) requires the governing body of a public corporation (i.e., a town board in a town) to adopt rules and regulations consistent those promulgated by the Committee and with the Freedom of Information Law.  Further, §1401.2 of the regulations provides in relevant part that:

“(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public form continuing from doing so.”

            Section 1401.2 (b) of the regulations describes the duties of a records access officer and states in part that:

“The records access officer is responsible for assuring that agency personnel...

(4)  upon locating the records, take one of the following actions:   (i) make records promptly available for inspection; or (ii)  deny access to the records in whole or in part and explain in writing the reasons therefor.

(5)   Upon request for copies of records:  (i) make a copy available upon payment or offer to pay established fees, if any; or (ii)  permit the requester to copy those records...”

            When an agency denies access to records, the applicant has the right to appeal pursuant to §89(4)(a) of the Freedom of Information Law, which states in relevant part that:

"any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person thereof designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.  In addition, each agency shall immediately forward to the committee on open government a copy of such appeal and the ensuing determination thereon." 

            Further, the regulations promulgated by the Committee state that:

"(a)  The governing body of a public corporation or the head, chief executive or governing body of other agencies shall determine appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.

(b)  Denial of access shall be in writing   stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body established to hear appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer" (§1401.7).

            It appears that the Town Clerk is essentially acting as records access officer and appeals officer.  The provision in the regulations cited above, which have the force and effect of law, specify that those functions cannot be carried out by the same person.  Further, neither you nor this office has received a determination of your appeal that meets the requirement that a denial of an appeal must “fully explain in writing...the reasons for further denial.”  At this juncture, I do not believe that any rationale for the denial of your appeal has been expressed.

            I note, too, that when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect.  Section 89(3)(a) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search."  In a proper circumstance, you may consider it worthwhile to request such a certification.

            Based on a review of the correspondence that you forwarded, you were not notified of the right to appeal when the Town denied access to certain records, and again, there appears to be confusion concerning the designation of a person or body to whom appeals may be made.  Further, no determination of your appeal has been received by this office.

            In an effort to enhance their knowledge of and compliance with the Freedom of Information Law, copies of this opinion will be sent to Town officials.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director


cc: Town Board
Hon. Mary J. Pearson