FOIL AO 18377


From: Jobin-Davis, Camille (DOS)
Sent: Thursday, January 27, 2011 3:11 PM
Subject:    RE: questions

This will confirm that I understand that the caption of the referenced lawsuit indicated that the two town board members, the petitioners, were acting in their capacity as board members.  The town clerk made that clear.  That is the reason for my response to you and to her.

The difference between a recording generated by a town board member, and records regarding a lawsuit brought by a town board member lies in the definition of “records” in the Freedom of Information Law.  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."

The Court of Appeals, the State's highest court, 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 ompliance,
should be rejected" (id., 254).

Further, 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)].

As I previously indicated and restate now in the positive, it is my opinion that if the two town board members had the authority of the Town to sue the Town, records generated with respect to the Town’s payment for such representation would be records “produced… for an agency”, i.e., produced for the Town, and therefore subject to the Freedom of Information Law.  Without more, it is not determinative, in my opinion, that the caption of a lawsuit indicated that the petitioners were “acting
in their official capacity.” 

A recording made by a board member during the course of a public meeting is different than records related to such a lawsuit, because it is made by a public official during the course of a public meeting in which she is a participating in the course of her official duties, and it pertains to the business of the Town.  Similarly, it is my opinion that notes made by a public official during a public meeting are “records”, subject to the Law. 

Records of payments made by a person to an attorney that are not subject to the Freedom of Information Law would be available, I believe, through formal legal processes, including subpoenas, court orders, and perhaps what is known as “discovery” in the litigation context.

As previously advised, any and all records of payments made by the Town to an attorney would be “records” subject to the Freedom of Information Law.  Further analysis regarding access to such records can be found in our online FOIL advisory opinions regarding “Attorney, compensation of”.

Finally, the ethical and moral issues raised in your correspondence are outside the scope of the expertise and authority of this office.  Legal advice rendered by this office herein pertains only to the Freedom of Information Law and access to records that are subject to that Law. 




Camille S. Jobin-Davis, Esq.
Assistant Director
NYS Committee on Open Government
Department of State
99 Washington Ave, Suite 650
Albany NY 12231

Tel: 518-474-2518
Fax: 518-474-1927