August 3, 1999
Mr. Jeffrey Shankman
J.M.J. Associates, Inc.
P.O. Box 3338
New York, NY 10163
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 Mr. Shankman:
I have received your letters of June 28 addressed to the Secretary of State and myself.
As indicated above, the staff of the Committee on Open Government is authorized to respond on behalf of the Committee in relation to matters within the advisory jurisdiction of this office.
In your letter to the Secretary of State, you contended that the Public Service
Commission violated the State Administrative Procedure Act. In this regard, neither the
Secretary, nor the Department of State or the Committee on Open Government determines
or advises with respect to the kinds allegations that you offered concerning compliance with
the State Administrative Procedure Act.
You referred in the same letter to a "one-Commissioner ruling" issued on June 16 that
was later confirmed by the Public Service Commission at a regularly scheduled meeting held on June 24. You wrote that no minutes were taken in relation to the earlier event and
contended that "this is a violation of the Open Meetings Law." From my perspective, the
Open Meetings would not have applied and, consequently, there would have been no
violation. That statute pertains to meetings of public bodies, and §102(2) provides that a
"public body" is, in brief, an entity consisting of two or more members that conducts public
business and performs a governmental function. While the Public Service Commission is a
public body required to comply with the Open Meetings Law, when a function is carried out by a single member of the Commission, there is no public body involved, and the Open
Meetings Law is inapplicable.
I point out that the kind of "ruling" or "order" to which you referred is interim in nature and is authorized by §11 of the Public Service Law. That provision states in relevant part that:
"Any investigation, inquiry or hearing which the commission
has power to undertake or to hold may be undertaken or held
by or before the commission... All investigations, inquiries,
hearings and decisions of a commissioner or specially authorized officer or employee shall be and be deemed to be the investigations, inquiries, hearings, and decisions of the
commission and every order made by a commissioner, when approved and confirmed by the commission and ordered filed in its office, shall be and deemed to be the order of the
In the letter addressed to me, you referred to a determination of your appeal rendered
by Chief Administrative Law Judge Judith A. Lee following a partial denial of access to
records under the Freedom of Information Law. Although Judge Lee offered descriptions of the records that were withheld, you contended that you are "entitled to...either a copy of the original document redacted, or if a list is supplied, the dates of the memos and whom those memos were sent." In this regard, under §87(2) of the Freedom of Information Law, an agency may withhold "records or portions thereof" that fall within the grounds for denial that follow. Therefore, unless a record may be withheld in its entirety, I believe that an agency would be required to disclose a copy of the record following the appropriate redactions or deletions and payment of the requisite fee for copies.
You also referred to a claim by Judge Lee that certain documents are subject to "the
attorney work product privilege" and contend that you "are entitled to an Affidavit showing
that the information was generated by an attorney for the purpose of litigation." In short,
there is nothing in the Freedom of Information Law that requires the preparation of such an
affidavit. Further, a claim that records consist of the work product of an attorney may be
asserted in my view concerning matters unrelated to litigation.
Next, you wrote that an exception to rights of access can not be based on an agency's
regulations and that only a statute can exempt records from disclosure. That issue was
considered in the opinion addressed to you on May 17. I do not believe that reiterating the
commentary offered then would serve any useful purpose.
Lastly, you wrote that documentation withheld was earlier "divulged by a Department
employee either in a pleading or a response to a FOIL request." In my opinion, if a disclosure made in a pleading or in response to a request made under the Freedom of Information Law was not inadvertent and was made "intelligently and voluntarily" [McGraw-Edison v. Williams, 509 NYS2d 285, 287 (1986)], an agency would have waived its right to withhold the same material sought later under the Freedom of Information Law. In Williams, among records inspected was a document that an agency believed was exempt from disclosure and should have been withheld, and the court held that an inadvertent disclosure of exempt records did not create a right of access to the records. Based on the foregoing, if indeed records may justifiably be withheld but were inadvertently made available, it appears that an agency may properly deny an ensuing request for the records.
I hope that I have been of assistance.
Robert J. Freeman
Hon. Judith A. Lee