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November 7, 1997


Ms. Claudia Cinquanti
277 Cherry Lane
Dryden, NY 13053

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. Cinquanti:

I have received your letter of September 30, as well as the materials
attached to it. You have questioned whether Tompkins County properly
denied access to an appraisal that was later disclosed to you.

Having reviewed the correspondence, it appears that many aspects of
the appraisal could justifiably have been withheld. In this regard, I offer the
following comments.

First, the title of the Freedom of Information Law may be somewhat
misleading, for it is not a vehicle that requires agencies to provide information
per se; rather it is a statute that may require agencies to disclose existing
records. Similarly, §89(3) of the Freedom of Information Law provides in
part that an agency is not required to create a record in response to a request.
In several elements of your requests, you sought information by asking
questions. In short, an agency is not required to answer questions. Again, an
agency's obligation is to disclose existing records.

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. In
my view, two of the grounds for denial are relevant to an analysis of rights of
access.

Section 87(2)(c) permits an agency to withhold records to the extent
that disclosure would "impair present or imminent contract awards or
collective bargaining negotiations." As it relates to the impairment of
"contract awards", §87(2)(c) is, in my opinion, generally cited and applicable
in two types of circumstances.

One involves a situation in which an agency is involved in the process
of seeking bids or proposals concerning the purchase of goods and services.
If, for example, an agency seeking bids or proposals has received a number of
bids, but the deadline for their submission has not been reached, premature
disclosure for the bids to another possible submitter might provide that person
or firm with an unfair advantage vis a vis those who already submitted bids.
Further, disclosure of the identities of bidders or the number of bidders might
enable another potential bidder to tailor his bid in a manner that provides him
with an unfair advantage in the bidding process. In such a situation, harm or
"impairment" would likely be the result, and the records could justifiably be
denied. However, after the deadline for submission of bids or proposals are
available after a contract has been awarded, and that, in view of the
requirements of the Freedom of Information Law, "the successful bidder had
no reasonable expectation of not having its bid open to the public"
[Contracting Plumbers Cooperative Restoration Corp. v. Ameruso, 105 Misc.
2d 951, 430 NYS 2d 196, 198 (1980)].

The other situation in which §87(2)(c) has successfully been asserted
to withhold records pertains to real property transactions where appraisals in
possession of an agency were requested prior to the consummation of a
transaction. Again, when premature disclosure would have enabled the public
to know the prices the agency sought, thereby potentially precluding the
agency from receiving an optimal price, an agency's denial was upheld [see
Murray v. Troy Urban Renewal Agency, 56 NY 2d 888 (1982)].

In both of the kinds of the situations described above, there is an
inequality of knowledge. More specifically, in the bid situation, the person
who seeks bids prior to the deadline for their submission is presumably
unaware of the content of the bids that have already been submitted; in the
appraisal situation, the person seeking that record is unfamiliar with its
contents. As suggested above, premature disclosure of bids would enable a
potential bidder to gain knowledge in a manner unfair to other bidders and
possibly to the detriment of an agency and, therefore, the public. Disclosure
of an appraisal would provide knowledge to the recipient that might
effectively prevent an agency from engaging in an agreement that is most
beneficial to taxpayers.

When there is no inequality of knowledge between or among the
parties to negotiations, or if records have been shared or exchanged by the
parties, it is questionable and difficult to envision how disclosure would
"impair present or imminent contract awards", (see Community Board 7 of
Borough of Manhattan v. Schaffer, Supreme Court, New York County,
NYLJ, March 20, 1991). Further, if an agreement has been reached or a
lease or contract has been signed, presumably negotiations have ended, and
any impairment that might have existed prior to the consummation of an
agreement would essentially have disappeared.

The other provision of relevance is §87(2)(g), which pertains to the
authority to withhold "inter-agency or intra-agency materials." If an appraisal
or survey is prepared by agency officials, it could be characterized as "intra-agency material." Further, the Court of Appeals has held that appraisals and
other reports prepared by consultants retained by agencies may also be
considered as intra-agency materials subject to the provisions of §87(2)(g)
[see Xerox Corporation v. Town of Webster, 65 NY 2d 131 (1985)].

More specifically, §87(2)(g) states that an agency may 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.

It has been held that factual information appearing in narrative form,
as well as those portions appearing in numerical or tabular form, is available
under §87(2)(g)(i). For instance, 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 A2d 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
[i.e., §87(2)(c)] could properly be asserted. In the context of your inquiry, if
an appraisal includes reference to comparable properties and their assessed
value, that kind of material would, in my view, consist of statistical or factual
information.

I hope that the foregoing serves to clarify your understanding of the
Freedom of Information Law and that I have been of assistance.

Sincerely,


Robert J. Freeman
Executive Director

RJF:tt

cc: Scott Heyman, County Administrator

Stuart Stein, Board of Representatives