June 23, 1994



Mr. David W. Kubissa
Star Gazette
P.O. Box 285
Elmira, NY 14902-9976

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 Mr. Kubissa:

I have received your letter of June 6 in which you requested an advisory opinion that you could "distribute to agencies that might be considering removing documents from files." You referred specifically to a member of an industrial development agency (IDA) who informed one of your reporters "that he would no longer write letters that go into the public file."

In conjunction with the foregoing, you asked that I:

"-- Clarify what an agency must do if it does not put a document in a public file that may belong there.

-- Clarify what an agency must do if it removes a document from a public file.

-- Describe under what circumstances an intra-agency document that is normally not public becomes public." In this regard, I do not believe that there are statutes that directly apply in every instance to the issues that you raised. Nevertheless, in an effort to provide guidance, I offer the following commentary.

First, I know of relatively few situations in which the law specifies where particular records must be kept or what may belong in a "public file". Further, the use of the phrase "public file" is misleading, for the Freedom of Information Law pertains to all government files, whether they are characterized as "public" or otherwise.

By way of background, the Freedom of Information Law is applicable to agency records, and §86(4) of that statute 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 NY2d 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 a decision involving records prepared by corporate boards furnished voluntarily to a state agency, the Court of Appeals reversed a finding that the documents were not "records," thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the Court relied upon the definition of "record" and reiterated that the purpose for which a document was prepared or the function to which it relates are irrelevant. Moreover, the decision indicated that "When the plain language of the statute is precise and unambiguous, it is determinative" (id. at 565).

Perhaps more importantly, 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, all of which were rendered by the State's highest court, the contents of files "kept, held, filed, produced [or] reproduced by, with or for an agency" in my view constitute "records" subject to rights conferred by the Freedom of Information Law, irrespective of where they are located, whether they are characterized as official or unofficial, or whether they are found files denominated as "public" or otherwise.

In a related vein, an assertion or claim of confidentiality, unless it is based upon a statute, is likely meaningless. When confidentiality is conferred by a statute, an act of the State Legislature or Congress, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute". If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, supra,; Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such, an assertion of confidentiality without more, would not in my view serve to preclude an agency from disclosing a record. With respect to the removal of a document from a public file, §89(8) of the Freedom of Information Law deals with what I view as a "bad faith" response to a request. That provision states that:

"Any person who, with intent to prevent public inspection of a record pursuant to this article, willfully conceals or destroys any such record shall be guilty of a violation."

The provision quoted above pertains to a situation in which a request is made and an agency officer or employee conceals the existence of a record or in which a person destroys a record as a means of precluding disclosure. A companion provision appears in §240.65 of the Penal law.

Statutes other than Freedom of Information Law provide direction concerning the custody, security, retention and disposal of records. Specifically, §57.25 of the Arts and Cultural Affairs Law, which is part of the "Local Government Records Law", states in relevant part that:

"1. It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible; to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to cooperate with the local government's records management officer on programs for the orderly and efficient management of records including identification and management of inactive records and identification and preservation of records of enduring value; to dispose of records in accordance with legal requirements; and to pass on to his successor records needed for the continuing conduct of business of the office...

2. No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments retention and disposal schedules establishing minimum retention periods..."

As such, local officers must in my view "adequately protect" records. Further, records cannot be destroyed without the consent of the Commissioner of Education, and local officials cannot destroy or dispose of records until the minimum period for the retention of the records has been reached.

It is noted that the Local Government Records Law, like the Freedom of Information Law, includes a broad definition of the term "record". Specifically, §57.17(4) of the Arts and Cultural Affairs Law states that:

"'Record' means any book, paper, map, photograph or other information-recording device, regardless of physical form or characteristic, that is made, produced, executed, or received by any local government or officer thereof pursuant to law or in connection with the transaction of public business. Record as used herein shall not be deemed to include library materials, extra copies of documents created only for convenience of reference, and stocks of publications."

Additionally, §57.17(1) defines "local government" to mean:

"any county, city, town, village, school district, board of cooperative educational services, district corporation, public benefit corporation, or other government created under state law that is not a state department, division, board, bureau, commission or other agency, heretofore or hereafter established by law."

Having contacted the State Archives and Records Administration, the agency that oversees and implements the Local Government Records Law, confirmed that an IDA is a "local government" for purposes of that law, for it would be a public benefit corporation [see General Municipal Law, §856(2)] that is not a state agency.

Lastly, you asked that I describe the circumstances in which "an intra-agency document that is normally not public becomes public." While I am not sure of exactly what you mean, I point out that the contents of intra-agency materials serve as the basis for ascertaining the extent to which those materials must be disclosed or may be withheld.

In brief, 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 (i) of the Law. One of the grounds for denial, §87(2)(g), permits an agency to withhold records that:

"are 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. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

Again, not every aspect of inter-agency or intra-agency materials may be withheld, and the Court of Appeals has specified that the contents of intra-agency materials determine the extent to which they may be available or withheld, for it was held that:

"While the reports in principle may be exempt from disclosure, on this record - which contains only the barest description of them - we cannot determine whether the documents in fact fall wholly within the scope of FOIL's exemption for 'intra-agency materials,' as claimed by respondents. To the extent the reports contain 'statistical or factual tabulations or data' (Public Officers Law section 87[2][g][i], or other material subject to production, they should be redacted and made available to the appellant" [Xerox Corporation v. Town of Webster, 65 NY 2d 131, 133 (1985)].

Although records or perhaps portions of records may be withheld, there is no requirement that they must be withheld. The Court of Appeals has found that the exceptions to rights of access are permissive, rather than mandatory, stating that:

"while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY 2d 562, 567 (1986)].

Consequently, even if it is determined that a record may be withheld under §87(2)(g), for example, an agency would have the authority to disclose the record.

Finally, the grounds for withholding records under the Freedom of Information Law and the grounds for entry into executive session under the Open Meetings Law are separate and distinct, and they are not necessarily consistent. In some instances, although a record might be withheld under the Freedom of Information Law, a discussion of that record might be required to be conducted in public under the Open Meetings Law, and vice versa. For example, if a superintendent of schools sends a memorandum to the board of education recommending a charge in the curriculum, insofar as the memorandum consists of his or her advice, opinion or recommendation, it may be withheld under §87(2)(g). However, when the board discusses the matter at a meeting, there would be no basis for entry into executive session. In that kind of situation, the content of the memorandum would effectively be disclosed during an open meeting, and public discussion of the issue would likely negate the ability, the desire or the need to withhold the record.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director