April 27, 1998




Mr. Ted Laux
1853 East Shore Drive
Ithaca, NY 14850

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 Mr. Laux:

I have received your letter of April 9 and the materials attached to it.

By way of background, on March 11, you requested "budget data
presented by Tom Jones to BOE at 3/5/98 meeting" of the Board of the
Lansing Central School District. The request was denied, and you appealed.
The appeal was also denied, and it was stated that the "draft budget
proposals" that you requested would not be disclosed" until after the budget
was determined. After the budget was approved, the documentation was
disclosed. You have enclosed it for my review, and you contend that it should
have been made available when you requested it.

I agree. In this regard, I offer the following comments.

First, the characterization of a record as "draft" or "preliminary" is not
determinative of rights of access. I point out that the Freedom of Information
Law pertains to all agency records, and that §86(4) of the Law defines the
term "record" to mean:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based on the foregoing, when information is maintained by an agency in some
physical form (i.e., drafts, worksheets, computer disks, etc.), I believe that it
would constitute a "record" subject to rights of access.

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 opinion, two of the grounds for denial would be relevant to an analysis of
rights of access to the records sought. Neither, under the circumstances,
would in my view have justified a denial of access.

Section 87(2)(g) of the Freedom of Information Law 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 a case involving "budget worksheets", it was held that numerical
figures, including estimates and projections of proposed expenditures, are
accessible, even though they may have been advisory and subject to change.
In that case, I believe that the records at issue contained three columns of
numbers related to certain areas of expenditures. One column consisted of a
breakdown of expenditures for the current fiscal year; the second consisted of
a breakdown of proposed expenditures recommended by a state agency; the
third consisted of a breakdown of proposed expenditures recommended by a
budget examiner for the Division of the Budget. Although the latter two
columns were merely estimates and subject to modification, they were found
to be "statistical tabulations" accessible under the Freedom of Information
Law as originally enacted [see Dunlea v. Goldmark, 380 NYS 2d 496, aff'd
54 AD 2d 446, aff'd 43 NY 2d 754 (1977)]. At that time, the Freedom of
Information Law granted access to "statistical or factual tabulations" [see
original Law, §88(1)(d)]. Currently, §87(2)(g)(i) requires the disclosure of
"statistical or factual tabulations or data". As stated by the Appellate Division
in Dunlea:

"[I]t is readily apparent that the language
statistical or factual tabulation was meant to be
something other than an expression of opinion
or naked argument for or against a certain
position. The present record contains the form
used for work sheets and it apparently was
designed to accomplish a statistical or factual
presentation of data primarily in tabulation
form. In view of the broad policy of public
access expressed in §85 the work sheets have
been shown by the appellants as being not a
record made available in §88" (54 Ad 2d 446,
448)."

The Court was also aware of the fact that the records were used in the
deliberative process, stating that:

"The mere fact that the document is a part of
the deliberative process is irrelevant in New
York State because §88 clearly makes the
back-up factual or statistical information to a
final decision available to the public. This
necessarily means that the deliberative process
is to be a subject of examination although
limited to tabulations. In particular, there is no
statutory requirement that such data be limited
to 'objective' information and there no
apparent necessity for such a limitation" (id. at
449).

Based upon the language of the determination quoted above, which was
affirmed by the state's highest court, it is my view that the records in question,
to the extent that they consist of "statistical or factual tabulations or data", are
accessible, unless a provision other than §87(2)(g) could be asserted as a basis
for denial.

Further, another decision highlighted that the contents of materials
falling within the scope of section 87(2)(g) represent the factors in
determining the extent to which inter-agency or intra-agency materials must
be disclosed or may be withheld. For example, 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 AD2d 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
could properly be asserted. Having reviewed the materials, I believe that they
consist entirely of statistical or factual information that should have been
disclosed pursuant to §87(2)(g)(i).

The remaining provision of possible significance, §87(2)(c), states that
an agency may withhold records to the extent that disclosure "would impair
present or imminent contract awards or collective bargaining negotiations."
If a proposed expenditure refers to services that must be negotiated with
contractors or that are subject to bidding requirements, disclosure of those
figures might enable contractors to tailor their bids accordingly, to the
potential detriment of the District and its taxpayers. To the extent that
disclosure would "impair" the process of awarding contracts or collective
bargaining negotiations, those portions of budget-related records could be
withheld. Since the records were disclosed following the approval of the
budget, §87(2)(c) does not appear to have been pertinent in this instance.

Lastly, §84 of the Freedom of Information Law contains that statute's
statement of intent. That provision states in part that:

"As state and local government services
increase and public problems become more
sophisticated and complex and therefore
harder to solve, and with the resultant increase
in revenues and expenditures, it is incumbent
upon the state and its localities to extend
public accountability wherever and whenever
feasible.

"The people's right to know the process of
governmental decision-making and to review
the documents and statistics leading to
determinations is basic to our society. Access
to such information should not be thwarted by
shrouding it with the cloak of secrecy or
confidentiality."

As you requested, in an effort to enhance compliance with and
understanding of the Freedom of Information Law, copies of this opinion will
be forwarded to District officials.

I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

RJF:jm

cc: Andy LaVigne, President, Board of Education
Andrea Price, Superintendent
Tom Jones, Records Access Officer