August 1, 1994



Mr. Charles V. Sulc
Asst. Superintendent
Massapequa Public Schools
4925 Merrick Road
Massapequa, NY 11758

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.

Dear Mr. Sulc:

I have received your letter of July 22 in which you sought my views concerning a request made under the Freedom of Information Law.

According to your letter, a resident of the Massapequa School District alleged that a member of the Board of Education made a statement during a public meeting that the resident "considers disparaging." That person has sought a copy of the statement. You wrote, however, that "the Board member utilized his own personal laptop computer to either read a statement or an outline of the statement" and "claims that he never had a written copy of the statement and that the information that was on his laptop computer is no longer available."

In conjunction with the foregoing, you raised the following questions:

"1. Does the resident have a right under FOIL to the electronic information that was on the Board member's personal computer?

2. If the answer to #1 is yes, then what recourse does the resident have if the Board member claims that the computer input no longer exists?"

First, information that you provided indicates that the statement was prepared in preparation of a meeting and in furtherance of the performance of the Board member's duties. If that is indeed so, I believe that a statement would constitute an "agency record" subject to rights conferred by the Freedom of Information Law, for it was produced in one's capacity as a member of an agency, the Board of Education.

As you maybe aware, §86(4) of the Freedom of Information Law 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 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).

There is also a case involving notes taken by the Secretary to the Board of Regents that he characterized as "personal" in conjunction with a contention that he took notes in part "as a private person making personal notes of the course of" meetings. In that decision, the court cited the definition of "record" and determined that the notes did not consist of personal property but rather were records subject to rights conferred by the Freedom of Information Law [Warder v. Board of Regents, 410 NYS 2d 742, 743 (1978)].

Based upon the foregoing, and again, assuming that a statement is prepared in furtherance of the performance of one's duties as a member of the Board, I believe that it would fall within the coverage of the Freedom of Information Law.

Second, the Freedom of Information Law pertains to existing records, and §89(3) of the Law states in part that an agency need not create a record in response to a request. If a statement or outline had been stored in the computer but has been erased or obliterated, the record would no longer exist and the Freedom of Information Law would not be applicable. In that event, the resident may have no recourse, other than relying on the memories of people who were present or attempting to ascertain whether somebody present tape recorded the meeting and is willing to share the recording.

If a statement or outline continues exist and if it is agreed that it constitutes a "record" subject to the Freedom of Information Law, it is noted that the statute 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.

If the information stored in the computer was read aloud at an open meeting, I do not believe that there would be any basis for a denial of access. On the other hand, if the information consists of an outline, notes, reminders, and the like, it would be accessible or deniable in whole or in part, depending upon its content. Of relevance would be §87(2)(g) of the Freedom of Information Law, which provides that an agency may 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. I hope that I have been of some assistance.



Robert J. Freeman
Executive Director