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June 1, 1998

Ms. Erika Rosenberg
Democrat & Chronicle
55 Exchange Boulevard
Rochester, NY 14614-2001

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. Rosenberg:

I have received your recent letter and the correspondence attached to it. You have
questioned the propriety of a denial of your request for an audit concerning a high school
in the Rochester City School District.

The correspondence consists of a letter addressed to you and a colleague by Louis N.
Kash, the District's Chief Legal Counsel, offering a rationale for withholding the record at
issue, which is characterized as an "internal audit." While there may be portions of the
audit that may justifiably be withheld, based on Mr. Kash's remarks, I believe that other
aspects of the documentation must be disclosed. 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
º87(2)(a) through (i) of the Law.

The only basis for denial of apparent relevance, and Mr. Kash made reference to it in
his response to you, is º87(2)(g). 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 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.

Mr. Kash wrote that "[a]mong the records that are not required to be disclosed are
'intra-agency materials which are not...external audits", and he concluded that "[g]iven the
legislative history of this subsection, the language clearly references an exemption from
disclosure internal audits." In contending that the document is "exempt from disclosure
pursuant Public Officer's [sic] Law º87(2)(g)(iv)", he added that:

"To the extent that this internal audit contains some æstatistical or
factual tabulations or data' that does not covert [sic] it from an
exempt to a disclosable document. In my view, the fact that the state
Legislature chose to create a specific exemption for internal audits
separate and distinct from the other subdivisions of º87(2)(g), and
particularly from subdivision (i), argues strongly for an interpretation
that the Legislature intended internal audits to be wholly exempt from
disclosure even though they contain statistical or factual tabulations
or data. Otherwise, there would be no need for a separate and distinct
exemption for internal audits, as the statistical and factual information
in such audits would be redactable and disclosable, while the opinions,
recommendations, etc., would not, under already existing decisional
law."

In short, I believe that his contention is erroneous. There is nothing in the language of
the Freedom of Information Law that pertains specifically to internal audits or that
exempts them form disclosure. The fact that external audits must be disclosed does not
suggest other records, such as internal audits, are exempt, in their entirety, from
disclosure. On the contrary, as stated earlier, all records are presumed to be available, and
silence in the law concerning a certain kind of record does not confer confidentiality, but
rather a presumption of access. In this instance, an internal audit constitutes
"intra-agency" material that is accessible or deniable, in whole or in part, based on its
contents.

A recent decision rendered by the Court of Appeals, the State's highest court, dealt
with a similar contention relating to a different aspect of º87(2)(g). In Gould et al. v. New
York City Police Department [89 NY2d 267 (1996)], the agency denied access on the
basis of º87(2)(g)(iii), which grants access to "final agency policy or determinations", on
the ground that the records sought were not final and did not relate to any event whose
outcome had been finally determined. Just as Mr. Kash contended that because external
audits are accessible, internal audits can be withheld in their entirety, the New York City
Police Department argued that because final determinations are public, records other than
final may be withheld in their entirety. The Court of Appeals rejected that argument 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[2][g][111]). 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, 89 NY2d 267, 276
(1996); emphasis added by Court ].

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[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" (id., 276-277).

In brief, insofar as the record sought constitutes statistical or factual information, I believe
that the District is obliged to disclose.

It is emphasized that the introductory language of º87(2) refers to the authority to
withhold "records or portions thereof" that fall within the scope of the exceptions that
follow. In my view, the phrase quoted in the preceding sentence evidences a recognition
on the part of the Legislature that a single record or report, for example, might include
portions that are available under the statute, as well as portions that might justifiably be
withheld. That being so, I believe that it also imposes an obligation on an agency to
review records sought, in their entirety, to determine which portions, if any, might
properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals expressed its general view of the intent of the Freedom of
Information Law in Gould, stating that:

"To ensure maximum access to government records, the 'exemptions
are to be narrowly construed, with the burden resting on the agency
to demonstrate that the requested material indeed qualifies for
exemption' (Matter of Hanig v. State of New York Dept. of Motor
Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750
see, Public Officers Law º 89[4][b]). As this Court has stated, '[o]nly
where the material requested falls squarely within the ambit of one of
these statutory exemptions may disclosure be withheld' (Matter of
Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393
N.E.2d 463)" (id., 275).

Just as significant, 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. 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.).

In the context of your request, Mr. Kash essentially confirmed that portions of the
record sought consist of statistical or factual information. Based on the language of the
law and especially its judicial interpretation, those portions, in my view, must be disclosed.

In an effort to enhance compliance with and understanding of the matter, and to
attempt to avoid litigation, a copy of this opinion will be forwarded to Mr. Kash.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Louis N. Kash