June 16, 1995

Hon. Thomas G. Clingan
Office of the Albany County Clerk
Albany County Court House
Albany, NY 12207

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. Clingan:

I have received your letter of May 26 in which you sought my views concerning access to certain records.

You wrote that:

"The County of Albany has contracted with KPMG Peat Marwick to perform reviews of County departments in order to improve the effectiveness and efficiency of County government. As part of Peat's efforts, a survey will be distributed to all County employees asking for their opinions on various matters relating to their jobs.

"Peat has indicated that these surveys are to be returned directly to Peat by mail, and that the responses will be kept confidential. Only statistical tabulations of the responses are to be given back to the County. This confidentiality was a major concern to employee unions, and is essential to assure a frank response."

Because the survey responses will be in the possession of Peat, not the County, you indicated that it is your assumption that they would not be subject to the Freedom of Information Law. You added that if there is a possibility that the records may be disclosed under the Freedom of Information Law, it is your view that you "should not promise confidentiality."

For the following reasons, I believe that the records in question are subject to the Freedom of Information Law and that a promise of confidentiality is essentially meaningless. Concurrently, however, based on your description of the records, it appears that they could be withheld.

First, in my opinion, the physical possession by the County of the records, or the absence thereof, is not necessarily determinative of rights of access. The Freedom of Information Law pertains 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 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).

From my perspective, based upon its specific language, the definition of "record" includes not only documents that are physically maintained by an agency; it refers to documents are that are "kept, held, filed, produced or reproduced by, with or for an agency." While the County may not have physical possession of the survey responses, it has engaged Peat to receive the responses on its behalf. As such, in my view that the responses constitute "records", for they consist of information kept, held or produced for an agency, the County. Consequently, even though they may not physically maintained by the County, I believe that they are County records subject to rights conferred by the Freedom of Information Law.

Second, 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.

It has been held in other circumstances that a promise or assertion of confidentiality cannot be upheld, unless a statute specifically confers confidentiality. In Gannett News Service v. Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)], a state agency guaranteed confidentiality to school districts participating in a statistical survey concerning drug abuse. The court determined that the promise of confidentiality could not be sustained, and that the records were available, for none of the grounds for denial appearing in the Freedom of Information Law could justifiably be asserted. In a decision rendered by the Court of Appeals, it was held that a state agency's:

"long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature's definition of 'record' under FOIL. The definition does not exclude or make any reference to information labeled as 'confidential' by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt..." [Washington Post v. Insurance Department, 61 NY 2d 557, 565 (1984)].

In short, I do not believe that a promise of confidentiality would serve to remove from public rights of access records that would otherwise be available.

Third, it is assumed that Peat is acting as the County's consultant. In this regard, there is case law concerning access to records held by consultants that have been retained by agencies. As you are aware, and perhaps as in this case, when an agency lacks the resources, staff or expertise needed to develop opinions or obtain facts concerning a function to be carried out by government, it might retain a consultant to provide needed expertise. Even though consultants or consulting firms may be private entities rather than governmental entities, it has been found that the records maintained for agencies by consultants should be treated as if they were maintained by an agency. As stated by the Court of Appeals:

"In connection with their deliberative process, agencies may at times require opinions and recommendations from outside consultants. It would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared from the same purpose by outside consultants retained by agencies. Accordingly, we hold that records may be considered 'intra-agency material" even though prepared by an outside consultant at the behest of an agency as part of the agency's deliberative process (see Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD 2d 546, 549, supra; Matter of 124 Ferry St. Realty Corp. v. Hennessy, 82 AD2d 981, 983)" [Xerox Corporation v. Town of Webster, 65 NY 2d 131, 132-133 (1985)]. Based upon the foregoing, records maintained by a consultant for an agency may be withheld or must be disclosed in the same manner as a record prepared by the staff of an agency. I would contend that the survey responses constitute information "produced for" an agency, and that they fall within the scope of the Freedom of Information Law even through they are in the physical possession of a consultant rather than the County. Any other conclusion would, in my opinion, serve to negate the effect of the decision rendered by the Court of Appeals.

Notwithstanding the foregoing, it appears that the records in question could be withheld. As indicated by the Court of Appeals in Xerox, the records may be characterized as intra-agency materials. Records prepared and completed by County employees and then transmitted to a County agency would clearly consist of intra-agency materials, and I believe that the same conclusion can be reached when records prepared and completed by County employees are transmitted to a consultant retained by the County.

The provision that deals with such records, §87(2)(g), states 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. According to your letter, the employees' responses are reflective of "their opinions on various matters relating to their jobs." If that is so, I believe that they could be withheld. The statistical tabulations of the responses prepared by Peat and given to the County will in my view be accessible under §87(2)(g)(i).

I hope that I have been of some assistance. If you would like to discuss the matter, please feel free to contact me.



Robert J. Freeman
Executive Director