February 7, 1996



Ms. Caren Halbfinger
Gannett Suburban Newspapers
One Gannett Drive
White Plains, NY 10604

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. Halbfinger:

I have received your letter of January 26 in which you requested an advisory opinion concerning the propriety of a denial of your request for records by the City of New Rochelle.

The record sought, a "Local Waterfront Revitalization Draft", was prepared by a committee of New Rochelle residents appointed by the Mayor. You indicated that the Draft was presented to the Mayor and the City Council in October of 1994, that it has been "under review", and that it has not yet been released to the public. The City's Deputy Corporation Counsel denied your request pursuant to "Public Officers Law §87", which "permits an agency to deny access to records or portions thereof which are inter-agency materials which are not final agency policy or determinations."

Based on the following rationale, I believe that the Draft must be disclosed. In this regard, I offer the following comments.

First, as you may be aware, the Freedom of Information Law pertains to agency records. Section 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).

Most recently, the Court of Appeals 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). Therefore, if a document is produced for an agency, as in the case of the Draft produced by the citizens committee for the City of New Rochelle, it constitutes an agency record, even if it is not in the physical possession of the agency.

Second, tangential to the matter but relevant to the analysis, I note that several judicial decisions indicate generally that advisory ad hoc entities, other than committees consisting solely of members of public bodies, having no power to take final action fall outside the scope of the Open Meetings Law. As stated in those decisions: "it has long been held that the mere giving of advice, even about governmental matters is not itself a governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)]. Therefore, the Committee that prepared the Draft does not constitute a public body subject to the Open Meetings Law because it does not perform a governmental function.

Relevant to the foregoing is §86(3) of the Freedom of Information Law defines the term "agency" to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

Based on the definition, an "agency" is a governmental entity performing a governmental function, such as the City of New Rochelle. The committee that prepared the Draft, however, would not be an agency; if it is not a public body for purposes of the Open Meetings Law because it does not perform a governmental function, for the same reason, it would not be an agency for purposes of the Freedom of Information Law. Again, however, the Draft would constitute an agency record, for it was produced for the City, which, unlike the committee, is an agency.

Third, if the committee is not an agency, the exception to rights of access to which the Deputy Corporation Counsel alluded, §87(2)(g), would not apply. By way of brief background, the Freedom of Information Law is based 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 at issue pertains to inter-agency and intra-agency materials. Based on the definition of "agency", "inter-agency materials would involve written communications between or among officials of two or more agencies; "intra-agency materials" would consist of communications between or among officials within an agency. If my contention is accurate, that the committee is not an agency, the draft could not be characterized as inter-agency or intra-agency material, and neither §87(2)(g) nor any other exception to rights of access could justifiably be asserted to withhold the Draft.

I note that Xerox Corporation v. Town of Webster [65 NY 2d 131 (1985)] dealt with reports prepared "by outside consultants retained by agencies" (id. 133). In such cases, it was found that the records prepared by consultants should be treated as if they were prepared by agency staff and should, therefore, be considered intra-agency materials. However, based on the information provided, the committee could not, in my view, be characterized as a consultant. As the term "consultant" is ordinarily used and according to an ordinary dictionary definition of that term, a consultant is an expert or a person or firm providing professional advice or services. As I understand the composition of the committee, while it may consist of well-respected members of the community who may enjoy expertise in a variety of areas, its members are not in the business of preparing recommendations on the operation of municipal government for gain or livelihood. Further, in the context of the Xerox decision, I believe that a consultant would be person or firm "retained" for compensation by an agency to provide a service. It is my understanding that the committee serves voluntarily and without compensation. For the foregoing reasons, I do not believe that the Draft prepared by the committee could be viewed as a consultant's report or that it would fall within the scope of §87(2)(g) of the Freedom of Information Law.

In an effort to enhance compliance with and understanding of the Freedom of Information Law, a copy of this opinion will be forwarded to the Deputy Corporation Counsel.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Christopher B. Langhart