February 7, 1996



Mr. John W. Kane
165 West Bush Road
Gloversville, NY 12078

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. Kane:

I have received your letter of January 22. You referred to earlier correspondence pertaining to payments made to the attorney for the Fulton County Industrial Development Agency (FCIDA). At that time, I wrote that it appeared that FCIDA attempted to honor your request and that it could not ascertain what you believed might have been withheld. It was suggested that if you could provide additional information, I might be able to offer guidance.

In this regard, you alleged that the attorney in question "has received fees for legal services for projects not revealed by him or his firm." For instance, you described a transaction in which a firm and FCIDA participated as joint mortgagors, and although the attorney did not bill FCIDA, it is your belief that he was paid by the firm for services rendered to the firm and FCIDA. It is your view that records reflective of any fees paid to FCIDA's attorney concerning projects in which FCIDA is a party are FCIDA records, and you sought my opinion on the matter.

The information that you provided represents an allegation on your part, and I do not have sufficient information to offer unequivocal guidance. However, if it is established that the attorney was paid because of his representation of FCIDA, the records of payment to him would appear to fall within the scope of the Freedom of Information Law.

As you are aware, the Freedom of Information Law pertains to agency records, and §86(4) of that statute defines the term "record" broadly 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."

Based upon the language quoted above, documents need not be in the physical possession of an agency to constitute agency records so long as they are produced, kept or filed for an agency, and the courts have so held.

For instance, in a decision with which you are familiar, it was found that records maintained by an attorney retained by an industrial development agency were subject to the Freedom of Information Law, even though an agency did not possess the records and the attorney fees were paid by applicants before the agency. The Court determined that the fees were generated in his capacity as counsel to the agency, that the agency was his client, that "he comes under the authority of the Industrial Development Agency" and that, therefore, records of payment in his possession were subject to rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County of Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).

Additionally, in a recent decision rendered by the Court of Appeals, the state's highest court, it was found that materials received by a corporation providing services for a branch of the State University that were kept on behalf of the University constituted "records" falling with the coverage of the Freedom of Information Law. I point out that the Court rejected "SUNY's contention that disclosure turns on whether the requested information is in the physical possession of the agency", for such a view "ignores the plain language of the FOIL definition of 'records' as information kept or held 'by, with or for an agency'" (see Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, ___ NY 2d ___, December 27, 1995).

If the situation to which you referred is analogous to those described in the judicial decisions cited above, it would appear that documentation maintained by the attorney would be subject to the Freedom of Information Law.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: J. Paul Kolodziej
Alfred E. Stahl