February 19, 1998

Ms. Jean M. Baric
166 Superior Road
Rochester, NY 14625

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

Dear Ms. Baric:

I have received your letter of January 22. You wrote, in brief, that the planning board
in your community, as a condition of approving "an industrial/office development", has
required that the developer prepare "an acceptable Health Safety Contingency Plan (the Plan) to deal with the known soil contamination of the property." You added that the Plan was also required by other agencies, but that the Planning Board has "final approval authority."

Your concern involves the degree of detail that must be disclosed regarding the Plan,
for you indicated that:

"In its current (and likely final) form, the Plan is relatively generic in describing how the developer will handle contamination. Instead, it mandates that all sub-contractors
will be responsible for having their own separate and individual Contingency Plans which deal with the specifics of how contamination will be handled. The Contingency Plan as
it stands, does not require that the Planning Board review or even have a copy of the sub-contractor's plans, but merely mandates that they have one which is in overall accordance
with the approved developer's Contingency Plan."

The question is whether the sub-contractors' contingency plans will be subject to the Freedom of Information Law.

From my perspective, the answer is dependent upon the terms of the agreement between the Town and the developer that required the preparation of the Plan. If the agreement merely requires that the developer prepare and receive approval of the Plan as it exists, it would be unlikely in my view that the contingency plans would fall within the coverage of the Freedom of Information Law. On the other hand, if the contingency plans are prepared as elements of the Plan as a whole, they would appear to fall within the scope of that statute.

The issue in my opinion involves whether the contingency plans constitute agency records. In this regard, º86(4) of the Freedom of Information Law 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."

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, it has been 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, 87 NY 2d 410. 417 (1995).

In short, if the agreement in question indicates that the contingency plans are part of the Plan or are produced for the town, it appears that they would be agency records.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director