April 25, 1997
Ms. Patricia A. Pancoe
Assistant Corporation Counsel
City of Buffalo
Department of Law
1100 City Hall - 65 Niagara Square
Buffalo, NY 14202-3379
Mr. Joseph M. Finnerty
Stenger & Finnerty
1800 Main Place Tower
Buffalo, NY 14202
Dear Ms. Pancoe and Mr. Finnerty:
I have received the materials that you have forwarded to enable me to review and determine the extent to which the contents may be withheld under the Freedom of Information Law.
As we discussed during our initial conversation on the matter, it is emphasized that the function of the Committee on Open Government is advisory in nature. Rarely do I engage in an in camera inspection of records for the purpose of either offering an opinion or rendering a determination concerning rights of access to the records. Nevertheless, due to the nature of the records at issue and in an effort to resolve the matter without resort to litigation, I believe that it was appropriate, with your consent and encouragement, to engage in the process that you mutually suggested.
I am grateful for your confidence in the Committee on Open Government and our reputation for impartiality.
In terms of the process of review, in an effort to be as impartial as possible, I read the unredacted materials first, independent of consideration of the redactions made by the City. In some instances, portions of the documentation are unclear. In several passages, for example, whether a statement is a reflection of policy or an opinion is conjectural. Based on my discussions with Ms. Pancoe, the authorship of several of the documents is unknown. Consequently, there was no method of ascertaining what may have been the actual meaning or intent of various aspects of the documentation. In a manner that I believe would be consistent with the thrust of judicial decisions, where it could not be established whether a statement reflected opinion as opposed to fact or policy, it was determined that the statement should be disclosed. That reasoning is based not only upon the thrust of judicial decisions, but on the reality that an agency bears the burden of proof when a proceeding is brought under Article 78 of the Civil Practice Law and Rules to review an agency's determination to deny access to records[see Freedom of Information Law, §89(4)(b)]. In short, if the author of a document cannot be identified and there is no proof that a statement represents advice or an opinion, rather than a fact or a policy, a court, would, in my view, require disclosure.
With respect to rights of access, as a general matter, 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.
The only ground for denial of significance under the circumstances is §87(2)(g), for all of the documentation consists of intra-agency material. Nevertheless, due to the structure of that provision, it frequently requires substantial disclosure. Specifically, 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..."
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.
Pertinent in my view is a recent decision rendered by the Court of Appeals in which the Court focused on what constitutes "factual data", stating that:
"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132, 490 N.Y.S. 2d 488, 480 N.E.2d 74 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549, 442 N.Y.S.2d 130]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[g][i]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, 463 N.Y.S.2d 122, mod on other grounds, 61 NY2d 958, 475 N.Y.S.2d 272, 463 N.E. 2d 613; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182. 417 N.Y.S.2d 142)" [Gould v. New York City Police Department, 89 NY2d 267, 276, 277 (1996)].
From my perspective, the specific language of §87(2)(g), coupled with the direction offered by the Court of Appeals, provide the basis for reviewing and determining the extent to which the records in question might justifiably be withheld. Reference was made earlier to the thrust of the Freedom of Information Law, and the Court in Gould reiterated its stance taken in previous decisions, stating that:
"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).
The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered and held that:
"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink vl. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).
With regard to most of the deletions, the basis for withholding was obvious, for the language was clearly reflective of expressions of opinion, advice or recommendation. I note that in the set of materials that I marked, there are frequent brief notations, particularly where it might have been unclear whether a statement or phrase represented fact or opinion. There are other instances in which the contents of a document might have been bracketed or marked similarly. In those cases, my feeling was that the material could have been withheld because it consists of opinions. Nevertheless, for whatever the reason, in comparing the unmarked material with that redacted by the City, the City chose to disclose.
Lastly, without knowledge of the context in which the materials were prepared, I cannot conjecture as to their significance. However, some of the deletions, although they might consist purely of opinion, appear to be innocuous. Irrespective of my feelings regarding the effects of disclosure, it is my belief that a deletion could justifiably be made when the nature of the material unquestionably fell within the scope of the exception.
Enclosed for each of you is a set of the materials with redactions. To ensure that my use of the magic marker achieved its intended purpose, the materials consist of photocopies of my redacted set. As such, there is no possibility that deleted material could be seen through the markings.
I hope that I have been of assistance. If there are any questions concerning the process or the content of the material, please free to contact me.
Once again, I appreciate your confidence in the Committee on Open Government.
Robert J. Freeman