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October 31, 1997

 

 

Ms. Kathy Kelly
Holiday Inn
2 River Street
Cortland, NY 13045

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. Kelly:

I have received your communication of September 26, as well as the related documentation.

You have sought advice concerning rights of access to "petitions regarding the requests for
county occupancy tax allocations." You indicated that the County Budget Officer has released one
petition to you and that when the controversy began, "they renamed the petitions ‘worksheets' and
are refusing to release them." The County Attorney denied access on the basis of §87(2)(g) of the
Freedom of Information Law.

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.

As suggested in the denial, one of the grounds for withholding records clearly relates to the
kind of document that is at issue. 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 case involving "budget worksheets", it was held that numerical figures, including
estimates and projections of proposed expenditures, are accessible, even though they may have been
advisory and subject to change. In that case, I believe that the records at issue contained three
columns of numbers related to certain areas of expenditures. One column consisted of a breakdown
of expenditures for the current fiscal year; the second consisted of a breakdown of proposed
expenditures recommended by a state agency; the third consisted of a breakdown of proposed
expenditures recommended by a budget examiner for the Division of the Budget. Although the latter
two columns were merely estimates and subject to modification, they were found to be "statistical
tabulations" accessible under the Freedom of Information Law as originally enacted [see Dunlea v.
Goldmark, 380 NYS 2d 496, aff'd 54 AD 2d 446, aff'd 43 NY 2d 754 (1977)]. At that time, the
Freedom of Information Law granted access to "statistical or factual tabulations" [see original Law,
§88(1)(d)]. Currently, §87(2)(g)(i) requires the disclosure of "statistical or factual tabulations or
data". As stated by the Appellate Division in Dunlea:

"[I]t is readily apparent that the language statistical or factual
tabulation was meant to be something other than an expression of
opinion or naked argument for or against a certain position. The
present record contains the form used for work sheets and it
apparently was designed to accomplish a statistical or factual
presentation of data primarily in tabulation form. In view of the broad
policy of public access expressed in §85 the work sheets have been
shown by the appellants as being not a record made available in §88"
(54 Ad 2d 446, 448)."

The Court was also aware of the fact that the records were used in the deliberative process, stating
that:

"The mere fact that the document is a part of the deliberative process
is irrelevant in New York State because §88 clearly makes the back-up factual or statistical information to a final decision available to the
public. This necessarily means that the deliberative process is to be a
subject of examination although limited to tabulations. In particular,
there is no statutory requirement that such data be limited to
'objective' information and there no apparent necessity for such a
limitation" (id. at 449).

Based upon the language of the determination quoted above, which was affirmed by the state's
highest court, it is my view that the records in question, to the extent that they consist of "statistical
or factual tabulations or data", are accessible, unless a provision other than §87(2)(g) could be
asserted as a basis for denial.

Another decision highlighted that the contents of materials falling within the scope of section
87(2)(g) represent the factors in determining the extent to which inter-agency or intra-agency
materials must be disclosed or may be withheld. For example, in Ingram v. Axelrod, the Appellate
Division held that:

"Respondent, while admitting that the report contains factual data,
contends that such data is so intertwined with subject analysis and
opinion as to make the entire report exempt. After reviewing the
report in camera and applying to it the above statutory and regulatory
criteria, we find that Special Term correctly held pages 3-5
('Chronology of Events' and 'Analysis of the Records') to be
disclosable. These pages are clearly a 'collection of statements of
objective information logically arranged and reflecting objective
reality'. (10 NYCRR 50.2[b]). Additionally, pages 7-11 (ambulance
records, list of interviews) should be disclosed as 'factual data'. They
also contain factual information upon which the agency relies (Matter
of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181 mot for lve
to app den 48 NY2d 706). Respondents erroneously claim that an
agency record necessarily is exempt if both factual data and opinion
are intertwined in it; we have held that '[t]he mere fact that some of
the data might be an estimate or a recommendation does not convert
it into an expression of opinion' (Matter of Polansky v Regan, 81
AD2d 102, 104; emphasis added). Regardless, in the instant situation,
we find these pages to be strictly factual and thus clearly disclosable"
[90 AD 2d 568, 569 (1982)].

Similarly, the Court of Appeals has 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).

In short, even though statistical or factual information may be "intertwined" with opinions, the
statistical or factual portions, if any, as well as any policy or determinations, would be available,
unless a different ground for denial could properly be asserted.

More recently, a decision involved ratings relating to requests for proposals (RFP's). The
ratings were prepared by staff for the purpose of evaluating criteria used in analyzing the RFP's. Even
though the ratings consisted essentially of numerical figures assigned to opinions, it was held that they
must be disclosed. The Court was careful to point out, however, that "the subjective comments,
opinions and recommendations" prepared by staff need not be disclosed [Professional Standards
Review Council of America, Inc. v. NYS Department of Health, 193 AD 2d 937, 930-940 (1993)].

I am unaware of the contents or structure of the records in question. Insofar as they consist
of narrative expressions of opinion or recommendations, I believe that they may be withheld. On the
other hand, insofar as they consist of statistical or factual information, i.e., numbers and the like,
judicial decisions indicate that those portions of the records must generally be disclosed.

Another provision that might be pertinent is §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." I am unaware of whether the County is currently involved in the award of
contracts or collective bargaining negotiations. If such negotiations are ongoing, it is possible that
some aspects of the records, but in all likelihood not all aspects, could be withheld under §87(2)(c).

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: John T. Ryan, Jr., County Attorney