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  May 22, 1997

 

 

 

Mr. Theodore Feuerstein
188 Daytona Street
Atlantic Beach, NY 11509

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 Mr. Feuerstein:

I have received your letters of May 2 and May 16, as well as
a variety of correspondence relating to them. You have asked for
assistance in your attempts to acquire records from the Village of
Atlantic Beach.

Based upon the correspondence, it appears that the Village has
made available some of the records of your interest and that the
remaining issue pertains to your request for records relating to a
recent audit of the Village. The final audit, which is referenced
as the "Comptroller's report", is not yet in possession of the
Village, and you were informed that it would be made available to
you when it is received and upon payment of the appropriate fees.
With respect to your request for records pertaining to the audit,
you were informed that your request did not involve "documents"
that are "specified" and, therefore, "is too broad." In addition,
reference was made to a decision concerning access to work papers
prepared in conjunction with an audit (Matter of Polansky v. Regan,
81 AD2d 102), and the Village Attorney indicated in that case,
"certain records were found to be exempt from disclosure" and that
"the request was directed to the State Comptroller, the proper
entity."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to agency
records, and §86(4) of that statute defines the term "record"
broadly to include:

"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."

Based on the foregoing, insofar as the Village maintains records,
irrespective of who or what agency might have prepared them, I
believe that they would constitute Village records that fall within
the scope of the Freedom of Information Law and that the Village
must respond accordingly. It has been held that if records were
prepared by one agency and would be available from that agency, a
second agency in possession of those records is required to respond
to a request for the records and to disclose pursuant to the
Freedom of Information Law [Muniz v. Roth, 620 NYS 2d 700 (1994)].
Therefore, insofar as the Village maintains records falling within
the scope of your request, I believe that it is required to
respond, even though the same records might be maintained by the
Office of the State Comptroller.

Second, I believe that the Village Attorney's reference to the
decision involving audit work papers and his description of the
holding is incomplete. The records in question fall within one of
the grounds for denial appearing in the Freedom of Information Law.
Nevertheless, due to the structure of that provision, it may
require substantial disclosure. Specifically, §87(2)(g) 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.

In a recent decision rendered by the Court of Appeals,
although the issue involved records different from those at issue,
so-called "complaint follow-up reports" prepared by New York City
police officers, it is pertinent to your request. One of the
contentions offered by New York City was that the reports could be
withheld because they are not final and because they relate to
incidents for which no final determination had been made. The
Court of Appeals 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)..." [Gould et al. v. New York City
Police Department, 89 NY2d 267, 276 (1996)].

The Court also dealt with the issue of what constitutes
"factual data" that must be disclosed under §87(2)(g)(i). In its
consideration of the matter, the Court found 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 [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" (id., 276-277).

In short, insofar as the records sought that are maintained by the
Village constitute statistical or factual information, I believe
that the Village is obliged to disclose.

Third, because the Village indicated that your request is too
broad, I note by way of background that the Freedom of Information
Law as originally enacted required that an applicant seek
"identifiable" records. However, the current version of the Law,
which became effective in 1978, provides that an applicant must
merely "reasonably describe" the records sought [see Freedom of
Information Law, §89(3)]. I point out that it has been held by the
Court of Appeals that to deny a request on the ground that it fails
to reasonably describe the records, an agency must establish that
"the descriptions were insufficient for purposes of locating and
identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d
245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject
the request due to its breadth and also stated that:

"respondents have failed to supply any proof
whatsoever as to the nature - or even the
existence - of their indexing system: whether
the Department's files were indexed in a
manner that would enable the identification
and location of documents in their possession
(cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192
[Bazelon, J.] [plausible claim of
nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3),
may be presented where agency's indexing
system was such that 'the requested documents
could not be identified by retracing a path
already trodden. It would have required a
wholly new enterprise, potentially requiring a
search of every file in the possession of the
agency'])" (id. at 250).

In my view, whether a request reasonably describes the records
sought, as suggested by the Court of Appeals, may be dependent upon
the terms of a request, as well as the nature of an agency's filing
or record-keeping system. In Konigsberg, it appears that the
agency was able to locate the records on the basis of an inmate's
name and identification number.

While I am unfamiliar with the Village's recordkeeping
systems, to extent that the records sought can be located with
reasonable effort, I believe that the request would have met the
requirement of reasonably describing the records. On the other
hand, if the records are not maintained in a manner that permits
their retrieval except by reviewing perhaps thousands of records
individually in an effort to locate those falling within the scope
of the request, to that extent, the request would not in my opinion
meet the standard of reasonably describing the records.

Lastly, since the fees for copies appears to be an issue, I
point out that §87(1)(b)(iii) of the Freedom of Information Law
permits an agency to charge up to twenty-five cents per photocopy.
Further, an agency may require payment in advance.

Copies of this opinion will be forwarded to Village officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Emily Siniscalchi, Village Clerk
Perry S. Reich, Village Attorney