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August 11, 1997

 

 

 

Mr. Peter W. Sluys
Managing Editor
Community Media, Inc.
25 W. Central Avenue
Box 93
Pearl River, NY 10965

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. Sluys:

I have received your letter of July 11 in which you sought an
advisory opinion concerning the propriety of a denial of access to
records by the Nyack School District.

According to your letter, a custodian employed by the District
was convicted of arson set at a school and was later the subject of
charges under §75 of the Civil Service Law. Following the hearing,
it was determined that the employee would be terminated.
Thereafter, you requested a transcript of the hearing leading to
the determination. In response to your request, the District's
attorney denied access pursuant to §87(2)(g) of the Freedom of
Information Law, citing the decision rendered in Sinicropi v.
County of Nassau [76 AD 2d 832 (1980)].

From my perspective, while Sinicropi represented the
prevailing case law concerning the kind of record at issue for a
time, a recent Court of Appeals decision in my view suggests that
portions of the record should likely be made available; others
could likely be withheld.

Sinicropi also involved records relating to a disciplinary
proceeding, and the records at issue involved intra-agency
memoranda concerning the investigation of a employee, "notes and
communications made in preparation of [a] hearing and the
transcript of the hearing" [id. 833]. The Court determined that
those records consisted of "pre-decisional intra-agency memoranda
that are not reflective of final agency policy or determination
and, as such, are exempt from disclosure" [id.].

In Gould et al. v. New York City Police Department [89 NY 2d
267 (1996)], the Court of Appeals focused on so-called "complaint
follow-up reports" prepared by New York City police officers who
prepared records after arriving at the scene of a complaint. The
Police Department contended that because the reports did not relate
to any final agency determination or action, such as an arrest or
a conviction, they could be withheld in their entirety. The Court,
however, rejected the agency's blanket denial of access.

By way of background, as you are aware, 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 provision at issue in Gould, §87(2)(g), 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].

In short, the Court found that the agency could not claim that
the records sought could be withheld in their entirety under
§87(2)(g) because they might have been predecisional or because
they relate to activities that could not yet be characterized as
"final." In the context of your request, while a transcript of a
hearing is not final, it is likely that it contains some factual
information that must be disclosed, unless a different ground for
denial applies.

I emphasize that the Court of Appeals was careful to point out
that grounds for denial other than §87(2)(g) might apply in
determining rights of access to records. With respect to the
matter at issue, potentially relevant is §87(2)(b), which permits
an agency to withhold records insofar as disclosure would
constitute "an unwarranted invasion of personal privacy." That
provision might be relevant with respect to the subject of the
hearing, depending upon the nature of the information. In
addition, it may be pertinent with respect to others identified in
the record, such as witnesses, fellow employees, and the like.
Even though those persons might have offered factual information,
disclosure might nonetheless result in an unwarranted invasion of
personal privacy.

Finally, §87(2)(g) would apparently apply with respect to the
portions of the materials in question that do not constitute
factual information. For instance, the opinions and
recommendations of a hearing officer that could have been accepted
or rejected could in my view justifiably be withheld. Further, if,
for example, employees of the District who testified at a hearing
offered opinions, i.e., regarding the character, demeanor or
activities of the person charged, they, too, would in my view fall
within the scope of the exception.

In sum, it is likely that significant portions of the records
sought could justifiably be withheld; it is also likely, however,
that some portions of the records constitute factual information
that should be disclosed.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Kevin Plunkett
Superintendent of Schools