January 21, 1998



Ms. Allyson Slater
WFAS Radio
Secor Road
Hartsdale, NY 10530

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 Ms. Slater:

I have received your letter and the accompanying correspondence from the Executive Assistant to the Mayor of the City of Yonkers, Rich Slingerland, Jr.

Having requested "copies of all documents and/or vouchers signed by Jim Surdoval concerning T.B.E. Associates", Mr. Slingerland denied access, citing §87(2)(e)(i) and (ii) of the Freedom of Information Law. Mr. Surdoval, according to your letter, is a former City employee, and Mr. Slingerland wrote that the records in question "are the subject of an ongoing investigation and litigation and they cannot be released at this time."

You have sought an advisory opinion on the matter. In this regard, I offer the following comments.

As a general matter, 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. The provision upon which the denial was based states that an agency may withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication..."

Although the records sought might be used in or relate to a law enforcement investigation, it appears that they were prepared in the ordinary course of business in a context unrelated to the investigation now pending or litigation. If that is so, I do not believe that the records sought could be characterized as having been "compiled for law enforcement purposes."

The Court of Appeals, the State's highest court, has held on several occasions that the exceptions to rights of access appearing in §87(2) "are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption be articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, M. Farbman & Sons v. New York City Health and Hospitals Corp., 62 NY 2d 75, 80 (1984); Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]. While the Court of Appeals has not directly considered the issue that you have raised, based upon the thrust of its decisions, §87(2)(e) should be construed narrowly in order to foster access. Further, there is case law that illustrates why §87(2)(e) should be construed narrowly, and why a broad construction of that provision would give rise to an anomalous result. Specifically, in King v. Dillon (Supreme Court, Nassau County, December 19, 1984), the District Attorney was engaged in an investigation of the petitioner, who had served as a village clerk. In conjunction with the investigation, the District Attorney obtained minutes of meetings of the village board of trustees. Those minutes, which were prepared by the petitioner, were requested from the District Attorney. In granting access to the minutes, the decision indicated that "the party resisting disclosure has the burden of proof in establishing entitlement to the exemption," and the judge wrote that he:

"must note in the first instance that the records sought were not compiled for law enforcement purposes (P.O.L. 87[2]e). Minutes of Village Board meetings serve a different function...These were public records, ostensibly prepared by the petitioner, so there can be little question of the disclosure of confidential material."

Often records prepared in the ordinary course of business, which might already have been disclosed under the Freedom of Information Law, become relevant to or used in a law enforcement investigation or perhaps in litigation. In my view, when that occurs, the records would not be transformed into records compiled for law enforcement purposes. If they would have been available prior to their use in a law enforcement context, I believe that they would remain available, notwithstanding their use in that context for a purpose inconsistent with the reason for which they were prepared.

From my perspective, the kinds of records that you requested, by their nature, indicate that the exception concerning records "compiled for law enforcement purposes" is inapplicable. To contend that records which were generated for purposes wholly unrelated to any law enforcement investigation may now be withheld due to their use in an investigation would, in my opinion, be unreasonable and tend to subvert the purposes of the Freedom of Information Law. In support of this view, I again point to the decision rendered by the Court of Appeals in Capital Newspapers, supra. In its discussion of the intent of the Freedom of Information Law, the court found that the statute:

"affords all citizens the means to obtain information concerning the day-to-day functioning of the state and local government thus providing the electorate with sufficient information to 'make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence or abuse on the part of government officers" (id. at 566).

Assuming that §87(2)(e) of the Freedom of Information Law could not be asserted as a basis for denial, I believe that the records sought, if I have accurately construed their nature, should be disclosed. Vouchers, purchase orders and similar records involving government receipts or expenditures would in my view be available, for none of the remaining grounds for denial could appropriately be asserted.

With respect to a claim that the records may be withheld because they relate to or may be used in litigation, I believe that an analysis of the law leads to a similar conclusion. Of potential significance is §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §3101(d) of the Civil Practice Law and Rules, which exempts material prepared for litigation from disclosure. It is emphasized, however, that it has been determined judicially that if records are prepared for multiple purposes, one of which may include eventual use in litigation, §3101(d) does not serve as a basis for withholding records; only when records are prepared solely for litigation can §3101(d) be properly asserted to deny access to records [see e.g., Westchester-Rockland Newspapers v. Mosczydlowski, 58 AD 2d 234 (1977)]. In short, unless records are prepared solely for litigation, they records would be subject to rights conferred by the Freedom of Information Law.

Moreover, as stated by the Court of Appeals in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. Based upon those decisions, the pendency of litigation would not, in my opinion, affect either the rights of a litigant or a member of the public, such as yourself, under the Freedom of Information Law, unless an exemption, i.e., §3101(d) of the Civil Practice Law and Rules, could properly be asserted.

In an effort to enhance compliance with and understanding of the Freedom of Information Law, a copy of this opinion will be sent to City officials.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Rich Slingerland, Jr., Executive Assistant to the Mayor
Christina Lomolino, Esq.