July 29, 2014
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
This is in response to your request for an advisory opinion concerning your efforts to obtain a copy of a video/slide show that Chemung County Sheriff Moss presented at the Sheriff’s dinner on March 1. Your request for the guest list was provided; however, both the Public Information Officer and the County Attorney denied your request for the videos pursuant to §87(2)(g) of the Freedom of Information Law (FOIL).
In this regard, we believe that the video constitutes a “record” that must be disclosed to comply with FOIL.
In Capital Newspapers v. Whalen [69 NY2d 246 (1987)], the Court of Appeals noted that: "The Appellate Division held that the Legislature intended to subject to disclosure only those records which revealed the workings of government...(id., 250). In rejecting and reversing the decision of the Appellate Division, the Court of Appeals relied heavily on the specific language of the Freedom of Information Law, particularly the definition of the term "record". FOIL applies to all agency records, and §86(4) defines the term "record" broadly 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."
In Capital Newspapers v Whalen, it was found that:
"They argue that the Legislature intended that only records dealing with the governmental decision-making process should be subject to disclosure under FOIL not papers outside this category such as private papers of governmental employees. It is quite true, as respondents urge, that we are not bound to accord a literal interpretation to a statutory definition if to do so would lead to an unreasonable result or defeat the general purpose and manifest policy intended to be promoted see, Matter of Petterson v. Daystrom Corp., 17 NY2d 32, 38), and that in the interpretation of statutes the 'legislative intent is the great and controlling principle' (People v. Ryan, 274 NY 149, 152)...On the contrary, respondent's narrow construction would be inimical to the public policy underlying FOIL and would conflict with the legislative intent which is apparent in the language of the statute as a whole and in the detailed procedures established in FOIL for designating documents which should properly be exempt. Moreover, the construction, if given effect, could, as a practical matter, frustrate the very purpose of the legislation.
"It is settled that FOIL is based on the overriding policy consideration that 'the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government' (Matter of Fink v. Lefkowitz, 47 NY2d 567, 571). Indeed, in enacting FOIL the Legislature specifically declared: 'that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.' (Public Officers Law §84.) We have held, therefore, that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government (see, Matter of Washington Post Co. v. New York State Ins. Dept., 61 NY2d 557,564, citing Matter of Fink v. Lefkowitz, supra, at p 571). It is evident that the narrow construction respondents urge is contrary to these decisions and antagonistic to the important public policy underlying FOIL”[69 NY2d246, 252 (1987)].
Based on the foregoing, a video and slide show maintained by an agency would constitute "records” subject to rights of access conferred by the Freedom of Information Law.
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 (l) of the Law.
According to Bryan J. Maggs, the County Attorney, based on a conversation with the Sheriff, the purpose of the video/slide show was “to provide some entertainment to the paying attendees, and was not malicious.” The images on the slide show were obtained from public sources, such as the internet, while a separate video was made “to parody a recognizable Art Laurey campaign commercial, all to provide levity to the year in review at the Awards Banquet”.
The provision cited to deny access, §87(2)(g), states that an agency may withhold:
“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.
The Court of Appeals has held that §87(2)(g) is intended to protect the “deliberative process”. In its consideration of the matter, the Court found that:
"... the purpose underlying the intra-agency exemption, 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…” [Gould v. New York City, 89 NY2d 267, 276 (1996)].
We do not believe that a slide show consisting of images obtained from a public source made available to anyone who has access to the internet, or a video described as a parody would fall within the scope of §87(2)(g), because the “records” at issue are unrelated to a deliberative process. Further, having been shown to persons other than agency employees would, in our view, remove the records at issue from §§87(2)(g) of FOIL.
We hope to have been of assistance.
Robert J. Freeman
By: Lucya J. Pak