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March 9, 1998




Hon. Linda Green
Town Clerk
Town of North Hempstead
P.O. Box 3000
Manhasset, NY 11030

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. Green:

As you are aware, I have received your letter of February 10. You
indicated that citizens of the Town of North Hempstead have on occasion
asked for information relating to items appearing on agendas of Town Board
meetings, and that members of the Board receive "back-up material further
describing these items." You added, however, that the Town Attorney has
stated that the public has no right to the materials, citing §87(2)(g) of the
Freedom of Information Law as the basis for his denial of access.

From my perspective, some aspects of the materials may likely be
withheld; others would likely be public. Further, the need to deny access or
delay disclosure of many of the items is, in my view, questionable. In this
regard, I offer the following comments.

As 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 opinion, the contents of the records in question serve as the factors
relevant to an analysis of the extent to which the records may be withheld or
must be disclosed, and several of the grounds for denial may be relevant to
such an analysis in relation to the records in question..

As suggested by the Town Attorney, records prepared by Town staff
and forwarded to members of the Board would constitute intra-agency
materials that fall within the coverage of §87(2)(g) of the Freedom of
Information Law. That provision 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 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.

Moreover, the Court of Appeals, the State's highest court, 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" [Xerox Corp. v.
Town of Webster, 65 NY 2d 131, 133
(1985)].

Therefore, as indicated earlier, intra-agency materials may be accessible or
deniable in whole or in part, depending upon their specific contents.

Also relevant may be §87(2)(b), which enables an agency to withhold
records or portions thereof which if disclosed would result in an unwarranted
invasion of privacy. That provision might be applied with respect to a variety
of matters relating to hiring, evaluation or discipline of staff, for example.

Section 87(2)(c) of the Freedom of Information Law permits an
agency to withhold records to the extent that disclosure "would impair present
or imminent contract awards or collective bargaining negotiations". Items
within an agenda packet might in some instances fall within that exception.

I point out that although records or perhaps portions of records may
be withheld, there is no requirement that they must be withheld. The Court
of Appeals, the state's highest court, has confirmed that the exceptions to
rights of access are permissive, rather than mandatory, stating that:

"while an agency is permitted to restrict access
to those records falling within the statutory
exemptions, the language of the exemption
provision contains permissible rather than
mandatory language, and it is within the
agency's discretion to disclose such records,
with or without identifying details, if it so
chooses" [Capital Newspapers v. Burns, 67
NY 2d 562, 567 (1986)].

Consequently, even if it is determined that a record may be withheld under
§87(2)(g), for example, an agency would have the authority to disclose the
record.

It is also emphasized that the grounds for withholding records under
the Freedom of Information Law and the grounds for entry into executive
session are separate and distinct, and that they are not necessarily consistent.
In some instances, although a record might be withheld under the Freedom of
Information Law, a discussion of that record might be required to be
conducted in public under the Open Meetings Law, and vice versa. For
instance, if an administrator transmits a memorandum to the Board suggesting
a change in policy, that record could be withheld. It would consist of intra-agency material reflective of an opinion or recommendation. Nevertheless,
when the Board discusses the recommendation at a meeting, there would be
no basis for conducting an executive session. Consequently, there may be no
reason for withholding the record even though the Freedom of Information
Law would so permit.

In short, while there may be a valid legal reason for withholding some
elements of the records at issue, frequently their contents are fully discussed
at open meetings, thereby seemingly diminishing the need or rationale for
withholding.

I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

RJF:jm

cc: Howard Miller, Town Attorney and Records Access Officer