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June 24, 1998

 

Mr. Albert Gimein
34-21 78th Street
Jackson Heights, NY 11372

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. Gimein:

I have received your letter of June 1 and a variety of related correspondence. You
have sought assistance in obtaining a memorandum from the New York City Department
of Personnel that was withheld in 1993 on the ground that "it is not final in nature." The
agency cited º87(2)(g)(iii) of the Freedom of Information Law as the basis for the denial of
access.

In this regard, I offer the following comments.

First, based on a review of the materials, I note that a request for records should
ordinarily be directed to the "records access officer" at the agency that you believe
maintains the records. The records access officer has the duty of coordinating an agency's
response to requests.

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 º87(2)(a) through (i) of the Law.

As you may be 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 decision
rendered by the Court of Appeals, the State's highest court, 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[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, 87 NY2d 267, 276
(1996)].

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[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 (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 hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Records Access Officer, Department of Personnel