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April 9, 1998




Mr. Daniel Mundy
56 14th Street
Broad Channel, NY 11693

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 Mundy:

I have received your letter of March 20, as well as the materials
attached to it. You have sought assistance in relation to a request for records
of the New York City Department of Citywide Administrative Services.

The request pertains to the assignment of a lease and a reference to
"certain factual allegations." You wrote that you have "been mentioned in
connection with this allegation within the community" and you sought "the
substance of these allegations together with the source of same." The
Department disclosed certain letters to you, but indicated that "any documents
and records which might be deemed responsive to your request are exempt
from disclosure pursuant to Section 87(2)(g) of the Public Officers Law."

Although I am unfamiliar with records at issue, I offer the following
comments.

First, 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.

Second, the provision cited as the basis for denial deals with "inter-agency and intra-agency materials." In this regard, §86(3) of the Freedom of
Information Law defines the term "agency" 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."

Based on the foregoing, the exception pertains to communications between
or among state or local government officials at two or more agencies ("inter-agency materials"), or communications between or among officials at one
agency ("intra-agency materials"). If the records sought consist of
communications sent to the Department by members of the public, they would
not constitute inter-agency or intra-agency materials, and the exception cited
by the Department, in my view, would not apply.

If, however, §87(2)(g) is applicable, it 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 short, the contents of inter-agency and intra-agency materials
determine the extent to which they may be withheld. Of possible significance
is a decision rendered by the Court of Appeals, the State's highest court, in
which it was 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 v. New
York City Police Department, 89 NY 2d 267,
276 (1996)].

The Court noted further that:

"...the Police Department argues that any
witness statements contained in the reports, in
particular, are not 'factual' because there is no
assurance of the statements' accuracy and
reliability. We decline to read such a reliability
requirement into the phrase 'factual data', as
the dissent would have us do, and conclude
that a witness statement constitutes factual
data insofar as it embodies a factual account of
the witness's observations. Such a statement,
moreover, is far removed from the type of
internal government exchange sought to be
protected by the intra-agency exemption (see,
Matter of Ingram v. Axelrod, 90 AD2d 568,
569 [ambulance records, list of interviews, and
reports of interviews available under FOIL as
'factual data']). By contrast, any impressions,
recommendations, or opinions recorded in the
complaint follow-up report would not
constitute factual data and would be exempt
from disclosure. The holding herein is only
that these reports are not categorically exempt
as intra-agency material. Indeed, the Police
Department is entitled to withhold complaint
follow-up reports, or specific portions thereof,
under any other applicable exemption, such as
the law-enforcement exemption or the public-safety exemption, as long as the requisite
particularized showing is made" (id., 277).

Based on the foregoing, if internal memoranda include expressions of
opinion, recommendations and the like expressed by agency staff, those
portions clearly can be withheld. Reference to comments by others, however,
would not, according to the decision, be protected by §87(2)(g). It is
emphasized, however, that the Court was careful to point out that other
grounds for denial of access might apply. For instance, since you sought the
source of allegations, §87(2)(b) would appear to be pertinent. That provision
permits an agency to withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy." If §87(2)(b) is
applicable, the Department could withhold personally identifiable details
contained within the records.

I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

RJF:jm

cc: Ernest F. Hart
Kenneth M. Leibowitz