January 13, 2016
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, except as otherwise indicated.
We are in receipt of your request for an advisory opinion regarding the manner in which the Half Hollow Hills Central School District responded to your Freedom Information Law (FOIL) request.
In response to three of your requests for records, the school district advised that “Any additional information would be contained in the External Auditor’s confidential workpapers which are not foilable.” I contacted the District Clerk for the school district to request clarification of its response. I recently received a response from the school district, advising that:
“the ‘additional information’ contained in the external auditor’s work papers includes documentation of the auditor’s review and testing of sample receipts, disbursements and other transactions from the District’s extraclassroom activity funds, and documentation of the auditor’s analysis of payroll records of certain employees. Such information and work papers are not prepared for or provided to the District. Rather, they are utilized by the external auditor to perform the legally required financial statement audit and render an opinion to the District on the financial statements and identify items to be communicated to governance in the form of a management letter (which was disclosed in response to the FOIL request).”
Section 86(4) of FOIL 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.”
In my opinion, the external auditor’s work papers described above do not constitute school district “records,” for they are not maintained by, nor were they prepared for, the district.
In your e-mail, you also question “[h]ow is it possible that some of this financial information is not available under FOIL.” I have reviewed the school district’s response to your request and note that it has not denied access to any records under §87(2) of FOIL. In response to my request for clarification of its response to your FOIL request, the district also advised that:
“[W]e acknowledge that school records containing any statistical or factual tabulations or data which were provided to the external auditor may be available under FOIL. However, the District data which was utilized by the external auditor to perform his audit are not maintained in a form that is responsive to the three requests in question. For example, the District does not maintain records showing the interest received by individual student clubs, nor does it maintain records containing the specific information requested concerning specified lapses in the financial management of individual student clubs. Further, the District does not maintain records showing incorrect salary steps for the specified employees or indicating how many employees were overpaid. Rather, such information was discerned by the external auditing firm as a result of its audit and analysis of the District’s payroll, accounting and human resources records, which the external auditor accesses directly from the District’s computer accounting and human resources system. The external auditor then notes the results of such audit and analysis in the financial statements and management letter. Other than those documents, the District itself does not maintain any records responsive to these three requests, nor is it obligated to undertake its own analysis in order to generate new records containing the specific information requested.”
With certain exceptions, we agree with the District that FOIL does not require an agency to create records. Section 89(3)(a) of the Law states in relevant part that:
“Nothing in this article [the Freedom of Information Law] shall be construed to require any entity to prepare any record not in possession or maintained by such entity except the records specified in subdivision three of section eighty-seven...”
When a request is made and the record sought cannot be located or is not maintained by the agency, an applicant may seek a certification to that effect. Section 89(3)(a) of FOIL 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.”
I hope that I have been of assistance.
cc: District Clerk
Frazer & Feldman, LLP