June 15, 2018
FOIL AO 19673
RE: Town of Oyster Bay
I must offer a multifaceted response.
The issue of text messages arose during the training session, and I offered several points.
First, in my view, text messaging during a meeting simply reflects bad manners and a lack of respect for the public. I know of no law that prohibits it, but I believe that a public could, by rule, establish a policy regarding decorum and precluding board members from texting during meetings.
Second, FOIL pertains to all government agency records and defines the term “record” expansively to include “any information kept, held, filed, produced or reproduced by, with or for an agency…in any physical form whatsoever….” If a text message has been saved and can be retrieved, I believe that it constitutes a “record” that falls within the coverage of FOIL. If, however, it is deleted and may be recovered only from the phone carrier, there would be no obligation to attempt to recover the message from the carrier, and FOIL, in my opinion, would not apply.
Third, assuming that a text message is a “record” and is retrievable, FOIL provides access to all records, except those records or portions of records that fall within a series of exceptions to rights of access. When communications are transmitted between or among government officers or employees of the Town, they constitute “intra‐agency materials.” Those portions of the materials consisting of advice, opinions, recommendations and the like may be withheld. Other portions consisting of statistical or factual information, instructions to staff that affect the public or that reflect final agency policy or determinations must be disclosed to comply with FOIL.I hope that the foregoing serves to clarify and that I have been of assistance.