August 3, 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, unless otherwise indicated.
I have received your letter in which you seek an advisory opinion relating to a request made pursuant to the Freedom of Information Law (FOIL) on May 23, 2016 on behalf of the Village Voice. The request involves “all records of communications between Mayor Bill de Blasio” and several named individuals during the period of January 1, 2014 through May 23, 2016. The request specifies that it encompasses “all records of such communications, whether in written, audio, video or electronic form, including those stored on, originating from, and/or received on personal computers and/or other personal electronic devices.”
On June 10, 2016, a “partial response” was received, indicating that a search for the records sought was “continuing”, and that “a further determination regarding whether any additional records exist [would be made] on or before October 18, 2016.” However, based on news articles published on May 16 and July 7 of 2016, you pointed out that it was asserted that the individuals named in the request, “although not employed by the City, are acting as agents of the City and that, therefore, their communications with the Mayor are exempt from disclosure under FOIL.”
As you suggested in your letter, it is your expectation that your request will be denied in part “under a claimed FOIL exemption, such as an exemption concerning inter- and intra-agency communications.” The question, therefore, in your words, is “whether a person who is not employed by, paid by, or retained by the City of New York can be considered an agent of the City such that his or her communications with the Mayor would properly be exempt from disclosure under FOIL.”
In this regard, I have located the phrase “agent of the City” once in a judicial decision; it does not appear in FOIL. That decision will be cited later in this response to bolster my contention that records sought cannot be withheld based on the rationale offered in relation to requests for and questions raised concerning the claim that they are exempt from disclosure. My opinion is based on the ensuing analysis.
First, §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."
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 NY 2d 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).
Based upon the decisions cited above, each of which was rendered by the State's highest court, the documents in question in my view constitute "records" subject to rights conferred by FOIL, because they are "kept...by, with or for an agency," the Office of the Mayor of the City of New York.
Second, FOIL 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.
Often records reflective of predecisional commentary or advice may be withheld, for §87(2)(g) permits an agency to withhold "inter-agency or intra-agency materials," depending upon their contents.
Xerox Corporation v. Town of Webster [65 NY 2d 131 (1985)] dealt with reports prepared "by outside consultants retained by agencies" (id.) 133). In such cases, it was found that the records prepared by consultants should be treated as if they were prepared by agency staff and should, therefore, be considered intra-agency materials. In my opinion, the “agents of the City” cannot be characterized as consultants. As the term "consultant" is ordinarily used and according to an ordinary dictionary definition of that term, a consultant is an expert or a person or firm hired to provide professional advice or services. In the context of the Xerox decision, I believe that a consultant would be person or firm "retained" for compensation by an agency to provide a service. It is my understanding that the so-called agents of the City and the Mayor communicate informally, and that those persons are not paid or “retained” by the City to provide advice, opinions or recommendations.
In another decision rendered by the Court of Appeals, although factually different, the same point was made. In its conclusion that a federal agency, the EPA, could not be considered to be “an outside consultant,” the Court again referred to consultants “retained by agencies,” and that “EPA was not retained by the DEC and does not function as its employee or agent” [Town of Waterford v. New York State Department of Environmental Conservation, 18 NY3d 652, 658 (2012)]. Significantly, the Court added that: “We note that this interpretation is consistent with that of the Committee on Open Government, which has determined both that the EPA cannot be characterized as a consultant ‘retained’ by DEC” and cited an opinion rendered by this office, FOIL-AO-11985 (id.). It is emphasized that the Court also provided emphasis, for it referred to “retained” in quotes. In that opinion, reference was made to Xerox, supra, and my view was that the decision in that case indicated that to be considered a consultant for the purpose of reliance upon §87(2)(g), a person or firm must be “retained,” i.e., monetarily compensated by an agency.
The only judicial decision of which I am aware the refers to an “agent of the City,” Hernandez v. Office of the Mayor of the City of New York [100 AD3d 555 (2012)], involved a request for email messages sent or received in email accounts assigned to the Office of the Mayor transmitted to or from Cathleen Black when she was a nominee for the position of Chancellor of the New York City School system. Both the Supreme Court and the Appellate Division determined that the emails were not inter-agency or intra-agency materials because Black was not an “agent of the City,” for she had not been “retained” as an employee. The Appellate Division found that “Black was not acting simply as an outside consultant on behalf of the City, but was a private citizen…” and cited both Town of Waterford and Xerox, supra.
In sum, for the reasons offered in the preceding commentary, the “agents of the City” cannot, in my opinion, be considered consultants retained by an agency, nor can communications between those persons and the Office of the Mayor or any New York City agency deny access to the communications at on the ground that they constitute inter-agency or intra-agency materials.
In an effort to enhance the intent and understanding of FOIL and encourage a change in the stance taken by the Office of the Mayor, a copy of this opinion will be sent to Henry T. Berger, the Mayor’s attorney and Records Appeals Officer.
I hope that I have been of assistance.
Robert J. Freeman
cc: Henry T. Berger