NY.gov Portal State Agency Listing

 

September 30, 1997

 

 

Mr. Robert Kushner
57 Stirrup Lane
Roslyn Heights, NY 11577

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,
unless otherwise indicated.

Dear Mr. Kushner:

As you are aware, I have received your letter of September 8 in which you sought an advisory
opinion concerning a denial of access to a record by the East Williston Union Free School District.
I note that the matter has been discussed with the attorney for the District, Jay Hellman.

By way of background, you wrote that the District "hired an architect to make
recommendations for the expansion of two school buildings to accommodate increased enrollment."
You added that the architect presented his recommendations, including floor plans and a cost analysis,
at an open meeting. Nevertheless, your request for the documentation was denied on the ground that
it consists of "intra-agency documents which are in draft form and consist solely of opinions and
recommendations of the District's consultant." The response also suggested that the records could
be withheld because "no final determination has been made."

In this regard, I offer the following comments.

First, according to Mr. Hellman, the architect functions as a consultant. That would appear
to be so based upon the information that you provided, that the architect presented recommendations
to the District, and the ensuing paragraphs will be based upon the assumption that the architect is
indeed a consultant.

Second, 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.

Perhaps the provision of primary significance in the context of your inquiry is §87(2)(g).
Although that provision serves as one of the grounds for denial of access to records, due to its
structure, it often requires substantial disclosure. The cited provision 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 discussion of the issue of records prepared by consultants for agencies, the Court of
Appeals, the State's highest court, stated that:

"Opinions and recommendations prepared by agency personnel may
be exempt from disclosure under FOIL as 'predecisional materials,
prepared to assist an agency decision maker***in arriving at his
decision' (McAulay v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY
2d 659). Such material is exempt 'to protect the deliberative process
of government by ensuring that persons in an advisory role would be
able to express their opinions freely to agency decision makers
(Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"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, 132-133 (1985)].

Based upon the foregoing, records 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 would be accessible or deniable, in whole
or in part, depending on its contents.

I note that in a recent case that reached the Court of Appeals, one of the contentions was that
certain reports could be withheld because they were not final and because they related to incidents
for which no final determination had been made. The Court 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, 87 NY2d 267, 276
(1996)].

In short, that the records are "draft" or "non-final" would not represent an end of an analysis
of rights of access or an agency's obligation to review the entirety of their contents to determine rights
of access..

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 (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" (id., 276-277)."

I would conjecture that at least some elements of the records, in accordance with the direction
offered by the Court of Appeals, would consist of statistical or factual information that must be
disclosed, irrespective of their status as draft or non-final.

Additionally, while the extent to which the documentation was constructively disclosed at one
or more open meetings is not clear, from my perspective, any such disclosure would serve as a waiver
of the ability to withhold records containing information imparted to the public.

Lastly, Mr. Hellman suggested that another ground for denial may also be pertinent.
Specifically, he referred to §87(2)(c), which permits an agency to withhold records to the extent that
disclosure would "impair present or imminent contract awards or collective bargaining negotiations."
Without additional knowledge of the facts, I could not conjecture as to the propriety of asserting that
provision as a basis for denial.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: David J. Helme, Superintendent
Jay Hellman, Esq.