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FOIL-AO-13646

October 15, 2002

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

I appreciate having received a copy of your determination of an appeal made by Stephanie
S. Abrutyn, Newsday's attorney, following a partial denial of access to records sought by Newsday
reporter Michael Rothfeld. In the determination, you sustained a denial of access to certain records
used in the preparation of assessments, including a "final inventory used by CLT for the preliminary
assessments", "new assessments", "estimated market value under the new assessment" and those
indicating "type, category, style or market value of a property." In each instance, the records were
withheld because they are "not in the possession of or under the control of the Department of
Assessment" and are "exempt under the Public Officers Law section 87g [sic] as pre-decisional,
non-final data."

Based on decisions rendered by the Court of Appeals, the state's highest, I believe that the
records in question must be made available in great measure if not in their entirety. In this regard,
I offer the following comments.

First, it is my understanding that the County contracts with CLT (Cole Layer Trumble) to
serve as a consultant and carry out various functions on its behalf in relation to the process of
assessing real property. While the records sought may not be in the physical custody of the
Department, based on the nature of the relationship between the Department and CLT, it appears
that they are Department records that fall within the framework of the Freedom of Information Law.
That statute pertains to agency records, such as those of a county department, and §86(4) defines
the term "record" expansively to mean:

"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."

In consideration of 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,
the courts have held they constitute "agency records", even if they are maintained apart from an
agency's premises.

It has been found, for example, 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's 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).

Perhaps most significant is a decision rendered by the Court of Appeals in which it was
found that materials maintained by a corporation providing services pursuant to a contract 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)].

Insofar as records maintained by CLT are "kept, held, filed, produced or reproduced...for an
agency", such as the Department, i.e., for the purpose of providing services that would otherwise
be carried out by that entity, I believe that they would constitute "agency records" that fall within
the scope of the Freedom of Information Law. This is not to suggest that a relationship of that
nature would transform CLT into an agency required to comply with the Freedom of Information
Law, but rather that some of the records that it maintains are maintained for an agency, and that
those records fall within the coverage of that statute.

In other circumstances in which entities or persons outside of government maintain records
for a government agency, it has been advised that requests for those records be made to the records
access officer of that agency, as Mr. Rothfeld did in this instance. Pursuant to regulations
promulgated by the Committee on Open Government (21 NYCRR Part 1401), the records access
officer has the duty of coordinating an agency's response to requests for records. In the context of
the situation described in the correspondence, insofar as CLT maintains records for the Department,
to comply with the Freedom of Information Law and the implementing regulations, the records
access officer must either direct CLT to disclose the records in a manner consistent with law, or
acquire the records from CLT in order that he can review the records for the purpose of determining
rights of access.

Second, with respect to rights of access, the Freedom of Information Law 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.

Although the provision cited by the Records Access Officer as a basis for denial, §87(2)(g),
potentially serves as one of the grounds for denial of access to records, due to its structure, it often
requires substantial disclosure. The cited provision permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-
agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial could
appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials
that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

The same kind of analysis would apply with respect to records prepared by consultants for
agencies, for the Court of Appeals has held that:

"Opinions and recommendations prepared by agency personnel may
be exempt from disclosure under FOIL as 'predecisional materials,
prepared to assist an agency decision maker***in arriving at his
decision' (McAulay v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY
2d 659). Such material is exempt 'to protect the deliberative process
of government by ensuring that persons in an advisory role would be
able to express their opinions freely to agency decision makers
(Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative process, agencies may at times
require opinions and recommendations from outside consultants. It
would make little sense to protect the deliberative process when such
reports are prepared by agency employees yet deny this protection
when reports are prepared for the same purpose by outside
consultants retained by agencies. Accordingly, we hold that records
may be considered 'intra-agency material' even though prepared by
an outside consultant at the behest of an agency as part of the
agency's deliberative process (see, Matter of Sea Crest Constr. Corp.
v. Stubing, 82 AD 2d 546, 549, supra; Matter of 124 Ferry St.
Realty Corp. v. Hennessy, 82 AD 2d 981, 983)" [Xerox Corporation
v. Town of Webster, 65 NY 2d 131, 132-133 (1985)].

Based upon the foregoing, records prepared by a consultant for an agency, i.e., CLT, may
be withheld or must be disclosed based upon the same standards as in cases in which records are
prepared by the staff of an agency. It is emphasized that the Court in Xerox specified that the
contents of intra-agency materials determine the extent to which they may be available or withheld,
for it was held that:

"While the reports in principle may be exempt from disclosure, on
this record - which contains only the barest description of them - we
cannot determine whether the documents in fact fall wholly within
the scope of FOIL's exemption for 'intra-agency materials,' as claimed
by respondents. To the extent the reports contain 'statistical or
factual tabulations or data' (Public Officers Law section 87[2][g][i],
or other material subject to production, they should be redacted and
made available to the appellant" (id. at 133).

Therefore, a record prepared by a consultant for an agency would be accessible or deniable, in whole
or in part, depending on its contents.

With respect to the contention that the records are "predecisional" or "non-final", I note that
in Gould v. New York City Police Department, one of the contentions was that certain reports could
be withheld because they were not final and because they related to incidents for which no final
determination had been made. The Court rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up
reports are exempt from disclosure because they constitute nonfinal
intra-agency material, irrespective of whether the information
contained in the reports is 'factual data' (see, Matter of Scott v. Chief
Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers
Law §87[2][g][111]). However, under a plain reading of §87(2)(g),
the exemption for intra-agency material does not apply as long as the
material falls within any one of the provision's four enumerated
exceptions. Thus, intra-agency documents that contain 'statistical or
factual tabulations or data' are subject to FOIL disclosure, whether or
not embodied in a final agency policy or determination (see, Matter
of Farbman & Sons v. New York City Health & Hosp. Corp., 62
NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..."
[87 NY2d 267, 276 (1996)].

In short, that the records are "predecisional" or "non-final" would not represent an end of an
analysis of rights of access or an agency's obligation to review the entirety of their contents to
determine rights of access.

In sum, based on the direction offered by the state's highest court, I believe that records
prepared by CLT for the Department constitute Department records that fall within the coverage of
the Freedom of Information Law, even though the records are not in the physical possession of the
Department. Moreover, insofar as the records consist of "statistical or factual tabulations or data",
they must be disclosed, even though they may be predecisional or "non-final." I note, too, that it
has been held that inventory data is accessible under the Freedom of Information Law, unless it is
sought for commercial or fund-raising purposes [see COMPS, Inc. v. Town of Huntington 269
AD2d 446 (2000)]. Since the request was made by a Newsday reporter for news gathering
purposes, I do not believe that the exception to rights of access is applicable or pertinent.

If you would like to discuss the matter, please feel free to contact me. I hope that I have been
of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Stephanie S. Abrutyn
Michael Rothfeld
William K. Long