Mr. Steven M. Mortman
Associate General Counsel
NYC Department of Citywide Administrative
Municipal Building - 16th Floor - South
New York, NY 10007
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
Dear Mr. Mortman:
I appreciate receiving your letter of March 27 and the determination rendered in
response to a request by Kevin M. Kearney, Esq. From my perspective, the denial of
access to the records sought might have been unduly broad.
Specifically, certain records were apparently withheld in their entirety pursuant to
º87(2)(g) of the Freedom of Information Law because they consist of "pre-decisional
material utilized in the deliberative process." In addition, one memorandum was
characterized as "exempt...by reason of executive privilege."
In this regard, 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 º87(2)(a) through (i) of the Law.
As you are likely aware, º87 (2)(g) enables 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.
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 of Appeals 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 º87[g]). However, under a plain reading of º87(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
In short, that a record is "predecisional" or "non-final" would not represent an end of
an analysis of rights of access or an agency's obligation to review the contents of a record.
The Court also dealt with the issue of what constitutes "factual data" that must be
disclosed under º87(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[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).]
In my view, insofar as the records at issue consist of recommendations, advice or
opinions, for example, they may be withheld; insofar as they consist of statistical or factual
information, I believe that they must be disclosed.
I point out that the Court in Gould repeatedly specified that a categorical denial of
access to records is inconsistent with the requirements of the Freedom of Information
Law. In that case, the agency contended that complaint follow up reports, also known as
"DD5's", could be withheld in their entirety on the ground that they fall within the
exception regarding intra-agency materials, º87(2)(g). The Court, however, wrote that:
"Petitioners contend that because the complaint follow-up reports contain factual data, the
exemption does not justify complete nondisclosure of the reports. We agree" (id., 276).
The Court then stated as a general principle that "blanket exemptions for particular types
of documents are inimical to FOIL's policy of open government" (id., 275). The Court
also offered guidance to agencies and lower courts in determining rights of access and
referred to several decisions it had previously rendered, directing that:
"...to invoke one of the exemptions of section 87(2), the agency must
articulate 'particularized and specific justification' for not disclosing
requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d,
at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to
determine whether withheld documents fall entirely within the scope
of the asserted exemption, it should conduct an in camera inspection
of representative documents and order disclosure of all nonexempt,
appropriately redacted material (see, Matter of Xerox Corp. v. Town
of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74;
Matter of Farbman & Sons v. New York City Health & Hosps. Corp.,
supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).
Lastly, from my perspective, although the official information privilege or its equivalent
might be properly asserted in other contexts, it does not exist with respect to the ability to
withhold records under the Freedom of Information Law. As stated by the Court of
Appeals in 1979: "[T]he common-law interest privilege cannot protect from disclosure
materials which that law requires to be disclosed" [see Doolan v. BOCES, 48 NY 2d 341,
347]. In short, either records or portions thereof fall within the grounds for denial
appearing in º87(2) of the Freedom of Information Law or they do not; if they do not,
there would be no basis for denial, notwithstanding a claim of privilege.
If you would like to discuss the matter, please feel free to contact me. I hope that I
have been of assistance.
Robert J. Freeman
cc: Robert Silberstein
Kevin M. Kearney