August 14, 1996
Mr. Kalman Finkel Appeals Officer
New York City Housing Authority
New York, NY 10007
Dear Mr. Finkel:
I appreciate receipt of your August 5 determination rendered under the Freedom of Information Law in response to an appeal by Mr. Alphe Campbell. In brief, you upheld an initial denial of access to "a document sent by the New York City Housing Authority ...to the U.S. Department of Labor" on the ground that it consists of "inter-agency materials which are not final agency policy or determinations."
If that is the only basis for withholding the record in question, I respectfully disagree with your determination.
Although §87(2)(g) of the Freedom of Information Law permits the withholding of inter-agency or intra-agency materials, depending upon the contents of those materials, it does not appear that §87(2)(g) could be cited to withhold communications between the Authority and a federal agency. Section 86(3) of the Freedom of Information Law defines "agency" to include:
"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."
The language quoted above indicated that an "agency" is an entity of state or local government in New York. While there is no case law of which I am aware that deals specifically with the status of communications with a federal agency, since the definition of "agency" does not include a federal agency, it does not appear that §87(2)(g) could be cited as a means of withholding records communicated between the Authority and a federal governmental entity, for such an entity would not be an agency for the purpose of the Freedom of Information Law. I note that there is case law involving the assertion of §87(2)(g) in relation to communications between agencies and entities other than New York state or municipal governments. In both instances, it was held that the assertion of §87(2)(g) was erroneous [see Community Board 7 of Borough of Manhattan v. Schaeffer, 570 NYS 2d 769; affirmed, 83 AD2d 422; reversed on other grounds, 84 NY2d 148 (1994); also Leeds v. Burns, 613 NYS 2d 46, 205 AD2d 540 (1994)].
I hope that I have been of assistance. If you would like to discuss the matter, please feel free to contact me.
Robert J. Freeman
cc: Alphe Campbell