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March 2, 1998

Mr. Paul J. Nassetta
878 NY Rt. 9G
Hyde Park, NY 12538-2139

Mr. Thomas D. Mahar, Jr.
42 Catherine Street
Poughkeepsie, NY 12601

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 Messrs. Nasetta and Mahar:

I have received your communications, which are respectively dated
February 5 and February 9, both of which pertain to the obligation of the
Town of Hyde Park to disclose a proposed comprehensive plan and draft land
use regulations.

According to Mr. Mahar, the Town "created a master plan committee
consisting of private citizens and retained a professional consultant paid for
by the Town to work with the committee to produce a new Comprehensive
Plan and Land Use Regulation." While my intent is not to be overly technical,
it appears, from my perspective, that the duty to disclose the documentation
in question is largely dependent on the roles of the committee and the
consultant. 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.

If the report was prepared by the committee consisting of private
citizens, one of whom is also a consultant, and if the report is the result of the
committee's work, I believe that it would be available in its entirety, for none
of the grounds for denial would apply. In that circumstance, the exception
referenced in the correspondence, §87(2)(g) of the Freedom of Information
Law pertaining to "inter-agency or intra-agency materials", would not be
applicable, because the committee would not constitute an "agency."

The term "agency" is defined in §86(3) of the Freedom of Information Law
to mean:

"any state or municipal department, board,
bureau, division, commission, committee,
public authority, public corporation, council,
office or other governmental entity performing
a governmental or proprietary function for the
state or any one or more municipalities
thereof, except the judiciary or the state
legislature."

For purposes of analogy, there are several judicial decisions that have
been rendered under the Open Meetings Law in which it was held that
advisory bodies are not "public bodies" subject to that statute [see §102(2)],
because they do not perform a "governmental" function [see e.g., Goodson-Todman v. Town of Milan, 542 NYS 2d 373, 151 AD 2d 642 (1989),
NYPIRG v. Governor's Advisory Commission, 507 NYS 2d 798; 135 AD 2d
1149; 71 NY 2d 964 (1988); Poughkeepsie Newspaper v. Mayor's
Intergovernmental, 145 AD 2d 65 (1989)]. Based on those decisions, the
committee in question would not have performed a governmental function
and, therefore, would not constitute an "agency" as that term is defined by the
Freedom of Information Law. That being so, its report could not be
characterized as inter-agency or intra-agency material, and there would be no
basis, in my view, for a denial of Mr. Nassetta's request.

If the report, on the other hand, is the work product of a paid
consultant and is considered to be the consultant's report, rather than that of
the committee, §87(2)(g) would be pertinent. I note that the State's highest
court, the Court of Appeals, has determined that records prepared for an
agency by a consultant retained by the agency should be considered as if they
were prepared by agency staff, and that those records may be treated as
"intra-agency materials" [see Xerox Corp. v. Town of Webster, 65 NY2d 131
(1985)].

While §87(2)(g) serves as a potential basis for denial of access to
records prepared for an agency by a consultant, due to its structure, it
frequently requires substantial disclosure. That 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 emphasized 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.
If the report is indeed the work of a consultant, it would be available or
deniable, in whole or in part, based on its specific contents.

I note that the initial denial by the Town Clerk referred to the report
as a draft and wrote that it may be withheld because it is not a "final agency
policy or determination." The characterization of a record as a draft is, in my
opinion, irrelevant. Again, the content of the record would determine the
extent to which it may be withheld. I point out that one of the contentions
offered by the New York City Police Department in a recent decision
rendered by the Court of Appeals was that certain reports could be withheld
because they are not final and because they relate 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][iii)].
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 report is in "draft" or is "non-final" would not
represent an end of an analysis of rights of access or an agency's obligation to
review the entirety of its contents.

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)" (id., 276-277).

I hope that the foregoing will serve to resolve the matter and that I
have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

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