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May 6, 1997

 

 

 

Ms. Cheryl Vaillancourt
24 Second Street
Tupper Lake, NY 12986

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. Vaillancourt:

I have received your letter of April 12, as well as the
correspondence attached to it.

By way of background, in 1995, you alleged that there may have
been fraud or misconduct in relation to the filing of designating
petitions prior to an election in Tupper Lake. Neither the State
Police nor the Franklin County District Attorney investigated, and
it was suggested that you contact the State Board of Elections.
Thereafter, you complained to the Board, which investigated and
concluded that "in the absence of 'reasonable cause to believe that
a violation warranting criminal prosecution has taken place,'
Election Law §3-104(3), the Board will close this matter with a
letter of admonishment to the individuals responsible for the
violation." Following the issuance the determination, you
requested records "pertaining to all written information turned
into you" [the Board] by Senior Investigator Owens" concerning the
case. The Board denied the request, citing §§87(2)(e) and (g) of
the Freedom of Information Law, and you have sought my response
concerning the propriety of the Board's denial of access.

In this regard, I offer the following comments.

First, 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. It is emphasized that the
introductory language of §87(2) refers to the authority to withhold
"records or portions thereof" that fall within the scope of the
exceptions that follow. In my view, the phrase quoted in the
preceding sentence evidences a recognition on the part of the
Legislature that a single record or report, for example, might
include portions that are available under the statute, as well as
portions that might justifiably be withheld. That being so, I
believe that it also imposes an obligation on an agency to review
records sought, in their entirety, to determine which portions, if
any, might properly be withheld or deleted prior to disclosing the
remainder.

Since I am unaware of the contents of the records in which you
are interested, or the effects of their disclosure, I cannot offer
specific guidance. However, one of the grounds for denial cited by
the Board, §87(2)(g), was the subject of a recent decision by the
Court of Appeals, the State's highest court, concerning "complaint
follow up reports" prepared by police officers in which it was held
that a denial of access based on their characterization as intra-agency materials would be inappropriate.

The provision at issue, §87(2)(g) of the Freedom of
Information Law, enables 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.

In its analysis of the matter, the decision states 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)...

"...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 [quoting Matter of Sea Crest
Constr. Corp. v. Stubing, 82 AD2d 546, 549]).
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[2][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, affd on op below, 61 NY2d 958;
Matter of Miracle Mile Assocs. v. Yudelson, 68
AD2d 176, 181-182).

"Against this backdrop, we conclude that the
complaint follow-up reports contain
substantial factual information available
pursuant to the provisions of FOIL. Sections
of the report are devoted to such purely
factual data as: the names, addresses, and
physical descriptions of crime victims,
witnesses, and perpetrators; a checklist that
indicates whether the victims and witnesses
have been interviewed and shown photos,
whether crime scenes have been photographed
and dusted for fingerprints, and whether
neighborhood residents have been canvassed for
information; and a blank space denominated
'details' in which the officer records the
particulars of any action taken in connection
with the investigation.

"However, the Police Department argues that
any witness statements contained in the
reports, in particular, are not 'factual'
because there is no assurance of the
statements' accuracy and reliability. We
decline to read such a reliability requirement
into the phrase 'factual data', as the dissent
would have us do, and conclude that a witness
statement constitutes factual data insofar as
it embodies a factual account of the witness's
observations. Such a statement, moreover, is
far removed from the type of internal
government exchange sought to be protected by
the intra-agency exemption (see, Matter of
Ingram v. Axelrod, 90 AD2d 568, 569 [ambulance
records, list of interviews, and reports of
interviews available under FOIL as 'factual
data']). By contrast, any impressions,
recommendations, or opinions recorded in the
complaint follow-up report would not
constitute factual data and would be exempt
from disclosure. The holding herein is only
that these reports are not categorically
exempt as intra-agency material. Indeed, the
Police Department is entitled to withhold
complaint follow-up reports, or specific
portions thereof, under any other applicable
exemption, such as the law-enforcement
exemption or the public-safety exemption, as
long as the requisite particularized showing
is made" [Gould, Scott and DeFelice v. New York City Police Department, 89 NY2d 267, 276-277 (1996) emphasis added by the Court].

Based on the foregoing, I believe that those portions of the
records that you requested consisting of factual information must
be disclosed, unless a different basis for withholding can
justifiably be asserted.

The other basis for denial offered by the Board, §87(2)(e),
permits an agency to withhold records that:

"are compiled for law enforcement purposes and
which, if disclosed, would:

i. interfere with law enforcement
investigations or judicial proceedings;

ii. deprive a person of a right to a fair
trial or impartial adjudication;

iii. identify a confidential source or
disclose confidential information relating to
a criminal investigation; or

iv. reveal criminal investigative techniques
or procedures, except routine techniques and
procedures."

The foregoing indicates that records compiled for law enforcement
purposes can only be withheld to the extent that disclosure would
result in the harmful effects described in sub- paragraphs (i)
through (iv) of §87(2)(e).

Since the investigation has been completed and the Board has
closed the case, it would appear that disclosure would not at this
juncture interfere with any investigation or judicial proceeding or
deprive any person of a right to a fair trial or impartial
adjudication. Whether disclosure would identify a confidential
source or involve "confidential information relating to a criminal
investigation" that could be withheld under §87(2)(e)(iii) is
unknown to me. However, that would appear to be the only basis for
denying access under §87(2)(e).

I note that the Court of Appeals reiterated its general view
of the intent of the Freedom of Information Law in Gould, 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[4][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).

Just as significant, the Court in Gould repeatedly specified
that a categorical denial of access to records is inconsistent with
the requirements of the Freedom of Information Law and stated as a
general principle that "blanket exemptions for particular types of
documents are inimical to FOIL's policy of open government" (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, stating 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.).

In sum, while I am unfamiliar with the records that have been
requested, it is likely in my view that some aspects of the records
should be disclosed in accordance with the preceding commentary.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Thomas R. Wilkey
Lee Daghlian