NY.gov Portal State Agency Listing

 

June 17, 1997

 

 

 

Ms. Shellie Boucher
Box 2117, Rt. 40
Hartford, NY 12838

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. Boucher:

I have received your letter of May 20 and the materials
attached to it. Please note that your correspondence did not reach
this office until June 3.

In brief, the matter involves rights of access to a report
pertaining to the department in which your husband is employed by
the Hartford Central School District. The District initially
denied access to the report in its entirety; later it indicated
that it would disclose those portions consisting of "statistical or
factual tabulations or data." A critical issue, in my view, is
whether the report in question is an audit, as one of the
attachments to your letter suggests. In a memorandum of September
20 addressed to your husband and another employee by the
Superintendent, reference is made to the approval by the Board of
Education of "the use of a consultant to do an audit of the
department."

From my perspective, if the document in question can be
characterized as an audit, it must be disclosed, including the
auditor's recommendations that may pertain to your husband. If it
cannot be so characterized, I believe that the recommendations may
be withheld. In this regard, I offer the following comments.

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.

Although the provision cited by the District, §87(2)(g), is
one of the grounds for denial of access, due to its structure, it
often requires broad disclosure. The cited provision authorizes 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.

Subparagraph (iv) of specifies that "external audits" cannot
be withheld under §87(2)(g). If the record sought is the audit to
which reference was made in the memorandum of September 20, it
must, in my view, be made available, except to the extent that a
ground for denial other that §87(2)(g) may be asserted [i.e., if
disclosure would constitute "an unwarranted invasion of personal
privacy" regarding persons other than your husband pursuant to
§87(2)(b); he cannot engage in an invasion of his own privacy].

If the record is not the audit prepared in accordance with the
memorandum of September 20, but rather a report of a consultant
that cannot be characterized as an audit, only those portions
consisting of statistical or factual information would be required
to be disclosed. In a discussion of the status of consultant
reports by the State's highest court, it was found that:

"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, 133 (1985)].

Based upon the foregoing, a report prepared by a consultant
for an agency 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, other
than an audit, would be accessible or deniable, in whole or in
part, depending on its contents.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Thomas W. Abraham, Superintendent