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May 5, 1997

 

 

 

Ms. Shirin Parsavand
The Gazette Newspapers
P.O. Box 1090
Schenectady, NY 12301-1090

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 Ms. Parsavand:

I have received your letter of April 14, as well as the
materials attached to it.

As in the case of our recent correspondence, you have sought
an advisory opinion concerning a denial of access to a record by
the Schenectady School District. The record consists of a list of
"proposed budget reductions." According to your letter, the
District's attorney contends that the list is "inherently opinion,
not factual information", and that, therefore, the denial of access
was appropriate.

Having reviewed the opinion addressed to you on April 3, I
believe that there is little that I can add to it. However, for
purposes of clarification, reference is made once again to two
judicial decisions, Dunlea v. Goldmark [380 NYS 2d 496, aff'd 54 AD
2d 446, aff'd 43 NY 2d 754 (1977)] and Professional Standards
Review Council of America, Inc. v. NYS Department of Health [597
NYS 2d 829, 193 AD 2d 937 (1993)]. From my perspective, the
records at issue in those cases also dealt with records that were
"inherently opinion" but which were determined to be available.
The budget worksheets in Dunlea, were, by their nature, preliminary
and subject to change; they were essentially expressions of opinion
appearing in the form of numerical estimates. Nevertheless, due to
the form in which they were prepared, each of the courts that the
reviewed the matter found that they constituted "statistical
tabulations" that must be disclosed. Similarly, the rating sheets
at issue in Professional Standards, by their nature, consisted of
opinions. In that case, the staff of an agency reviewed
submissions to the agency in response to requests for proposals and
prepared ratings of the proposals based on certain criteria.
Although the ratings represented a combination of opinions, because
they were presented in a statistical format, they were found to be
available.

I am not suggesting that a narrative expression of opinion or
recommendation must be disclosed. Nevertheless, when a series of
opinions, recommendations or estimates appears in some sort of
tabular, graphic or numerical format, the courts have consistently
determined that they constitute "statistical tabulations" that must
be disclosed, even though, as stated by the Appellate Division in
Dunlea, they do not reflect facts or "objective reality" (supra, 54
AD2d 446, 448).

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Raymond Colucciello
Shari Greenleaf