July 6, 1993



Ms. Wreathea E. O'Hara
R.D. #2 Centerport Road
Port Byron, N.Y. 13140

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.

Dear Ms. O'Hara:

I have received your letter of June 22. As in the case of
prior correspondence, your inquiry relates to requests for records
of the Town of Mentz.

Having been involved in a controversy relating to two sites
within the Town, you have made requests for "any new papers" that
may have been added to the files of your interest. You have asked
whether the Town's records access officer "has the right to pick
and choose what [you] receive from these files", irrespective of
whether "it is something that [you] wrote or something that she cut
out from the newspaper as long as it is put in these files who's
[sic] choice is it." You also expressed the view that you should
not "be expected to even begin to know what she might file in these
files, but [you] also feel that no matter what it might be [you]
should be the one to make the choice as to whether or not [you] may
or may not want a copy for [your] files, not the Records Access

In this regard, I offer the following comments.

First, it is emphasized that the Freedom of Information Law
pertains to agency records and that §86(4) of the Law defines the
term "record" expansively to mean:

"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 a case in which an agency claimed, in essence, that it
could choose which documents it considered to be "records" for
purposes of the Freedom of Information Law, the state's highest
court rejected that claim. As stated by the Court of Appeals:

"...respondents' construction -- permitting an
agency to engage in a unilateral prescreening
of those documents which it deems to be
outside the scope of FOIL -- would be
inconsistent with the process set forth in the
statute. In enacting FOIL, the Legislature
devised a detailed system to insure that
although FOIL's scope is broadly defined to
include all governmental records, there is a
means by which an agency may properly withhold
from disclosure records found to be exempt
(see, Public Officers Law §87[2]; §89[2],[3].
Thus, FOIL provides that a request for access
may be denied by an agency in writing pursuant
to Public Officers Law §89(3) to prevent an
unwarranted invasion of privacy (see, Public
Officers Law §89[2]) or for one of the other
enumerated reasons for exemption (see, Public
Officers Law §87[2]). A party seeking
disclosure may challenge the agency's
assertion of an exemption by appealing within
the agency pursuant to Public Officers Law
§89(4)(a). In the event that the denial of
access is upheld on the internal appeal, the
statute specifically authorizes a proceeding
to obtain judicial review pursuant to CPLR
article 78 (see, Public Officers Law
§89[4][b]). Respondents' construction, if
followed, would allow an agency to bypass this
statutory process. An agency could simply
remove documents which, in its opinion, were
not within the scope of the FOIL, thereby
obviating the need to articulate a specific
exemption and avoiding review of its action.
Thus, respondents' construction would render
much of the statutory exemption and review
procedure ineffective; to adopt this
construction would be contrary to the accepted
principle that a statute should be interpreted
so as to give effect to all of its

"...as a practical matter, 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 FOIL
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
could thwart the entire objective of FOIL by
creating an easy means of avoiding compliance,
should be rejected" [Capital Newspapers v.
Whalen, 69 NY 2d 246, 253-254 (1987)].

Lastly, when records are accessible under the Freedom of
Information Law, §87(2) of the Law states that they are available
for inspection and copying. Therefore, you would have the right to
inspect or review those records at no charge and later determine to
request copies of certain of those records. As you are aware, an
agency may ordinarily charge up to twenty-five cents per photocopy.

As you requested, a copy of this opinion will be forwarded to
the Town's records access officer.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Records Access Officer