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November 30, 1998

Mr. Charles B. Smith
135 Marion Avenue
Wynantskill, NY 12198

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. Smith:

I have received your letter of October 28, as well as the materials relating to it. You
have sought an advisory opinion concerning the availability of records that you sought under
the Freedom of Information Law from Rensselaer County.

By way of background, in a request dated June 5 for "surveys" of County residents
relating to economic development issues, you were informed on July 7 that "The County does
not have such survey." Nevertheless, in an article dated July 11, the County Executive
indicated that the County "has a list of answers to a ‘study' -- not a survey -- conducted by
a private company." The article stated further that the County Executive said that "the study
contained answers to questions posed to Schodak residents to gauge their support for a large
economic development project and the benefits at could bring to their Town." In view of the
content of the article, on July 11, you sent a second letter to the County seeking records
based upon the County Executive's description of them as reported. You also sought records
reflective of any payments made by the County relating to the preparation of any such
records. Another request was made on September 2 for "A copy of the ‘study', report,
document, by whatever name prepared by the accounting firm of KPMG Peat Marwick and
commissioned by Rensselaer County Department of Social Services regarding the Van
Rensselaer Manor", as well as records indicating the costs associated with the preparation of
the study. An Assistant County Attorney acknowledged the receipt of that request on
September 10 or 17 ("10" is crossed out on the copy transmitted to this office) and you were
informed that you would be notified of his findings "within the next 30 days." In this regard,
I offer the following comments.

First, the Freedom of Information Law provides direction concerning the time and
manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of
Information Law states in part that:

"Each entity subject to the provisions of this article, within
five business days of the receipt of a written request for a
record reasonably described, shall make such record available
to the person requesting it, deny such request in writing or
furnish a written acknowledgement of the receipt of such
request and a statement of the approximate date when such
request will be granted or denied..."

Based on the foregoing, an agency must grant access to records, deny access or
acknowledge the receipt of a request within five business days of receipt of a request. When
an acknowledgement is given, it must include an approximate date indicating when it can be
anticipated that a request will be granted or denied. The acknowledgement by the records
access officer did not make reference to such a date.

I note that there is no precise time period within which an agency must grant or deny
access to records. The time needed to do so may be dependent upon the volume of a request,
the possibility that other requests have been made, the necessity to conduct legal research, the
search and retrieval techniques used to locate the records and the like. In short, when an
agency acknowledges the receipt of a request because more than five business days may be
needed to grant or deny a request, so long as it provides an approximate date indicating when
the request will be granted or denied, and that date is reasonable in view of the attendant
circumstances, I believe that the agency would be acting in compliance with law.
Notwithstanding the foregoing, in my view, every law must be implemented in a manner that
gives reasonable effect to its intent, and I point out that in its statement of legislative intent,
§84 of the Freedom of Information Law states that "it is incumbent upon the state and its
localities to extend public accountability wherever and whenever feasible." Therefore, if
records are clearly available to the public under the Freedom of Information Law, and if they
are readily retrievable, there may be no basis for a lengthy delay in disclosure.

If neither a response to a request nor an acknowledgement of the receipt of a request
is given within five business days, or if an agency delays responding for an unreasonable time
after it acknowledges that a request has been received, a request may, in my opinion, be
considered to have been constructively denied. In such a circumstance, I believe that the
denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law.
That provision states in relevant part that:

"...any person denied access to a record may within thirty days
appeal in writing such denial to the head, chief executive, or
governing body, who shall within ten business days of the
receipt of such appeal fully explain in writing to the person
requesting the record the reasons for further denial, or provide
access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not
rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of
the Freedom of Information Law, the appellant has exhausted his or her administrative
remedies and may initiate a challenge to a constructive denial of access under Article 78 of
the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774
(1982)].
Second, when an agency indicates that it does not maintain or cannot locate a record,
an applicant for the record may seek a certification to that effect. Section 89(3) of the
Freedom of Information Law provides in part that, in such a situation, on request, an agency
"shall certify that it does not have possession of such record or that such record cannot be
found after diligent search." If you consider it worthwhile to do so, you could seek such a
certification.

I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d 779 (1994)], it was
found that a court could not validly accept conclusory allegations as a substitute for proof that
an agency could not locate a record after having made a "diligent search". However, in
another decision, such an allegation was found to be sufficient when "the employee who
conducted the actual search for the documents in question submitted an affidavit which
provided an adequate basis upon which to conclude that a 'diligent search' for the documents
had been made" [Thomas v. Records Access Officer, 613 NYS 2d 929, 205 AD 2d 786
(1994)].

Third, assuming that one or more of the studies that you requested exist, I believe that
they would fall within the framework of the Freedom of Information Law. As you are aware,
the Freedom of Information Law pertains to agency records, and §86(4) of that statute
defines the term "record" expansively 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."

In view of the language quoted above, if the County maintains the studies that you are
seeking, or if studies prepared for the County remain in the possession of a consulting firm
that prepared the documentation, I believe that any such materials would constitute agency
records that fall within the coverage of the Law.

In brief, 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. It is emphasized that the introductory language of §87(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 a recent decision, Gould v. New York City Police Department [87 NY
2d 267 (1996)], 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 § 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, §87(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.).

From my perspective, it is likely that one of the grounds for denial is pertinent to an
analysis of rights of access. While that provision potentially authorizes an agency to withhold
records, as suggested above, due to its structure, it often requires substantial disclosure.
Specifically, §87(2)(g) 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 discussion of the issue of records prepared by consultants for agencies, the Court
of Appeals has held that:

"Opinions and recommendations prepared by agency
personnel may be exempt from disclosure under FOIL as
'predecisional materials, prepared to assist an agency decision
maker***in arriving at his decision' (McAulay v. Board of
Educ., 61 AD 2d 1048, aff'd 48 NY 2d 659). Such material
is exempt 'to protect the deliberative process of government
by ensuring that persons in an advisory role would be able to
express their opinions freely to agency decision makers
(Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546,
549).

"In connection with their deliberative process, agencies may
at times require opinions and recommendations from outside
consultants. It would make little sense to protect the
deliberative process when such reports are prepared by agency
employees yet deny this protection when reports are prepared
for the same purpose by outside consultants retained by
agencies. Accordingly, we hold that records may be
considered 'intra-agency material' even though prepared by an
outside consultant at the behest of an agency as part of the
agency's deliberative process (see, Matter of Sea Crest Constr.
Corp. v. Stubing, 82 AD 2d 546, 549, supra; Matter of 124
Ferry St. Realty Corp. v. Hennessy, 82 AD 2d 981, 983)"
[Xerox Corporation v. Town of Webster, 65 NY 2d 131, 132-
133 (1985)].

Based upon the foregoing, records prepared by a consultant for an agency may be
withheld or must be disclosed based upon the same standards as in cases in which records are
prepared by the staff of an agency. It is emphasized that the Court in Xerox 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).

Therefore, a record prepared by a consultant for an agency would be accessible or deniable,
in whole or in part, depending on its contents.

The Court in Gould, supra, also dealt with the issue of what constitutes "factual data"
that must be disclosed under §87(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)..

"Against this backdrop, we conclude that the complaint
follow-up reports contain substantial factual information
available pursuant to the provisions of FOIL. Sections of the
report are devoted to such purely factual data as: the names,
addresses, and physical descriptions of crime victims,
witnesses, and perpetrators; a checklist that indicates whether
the victims and witnesses have been interviewed and shown
photos, whether crime scenes have been photographed and
dusted for fingerprints, and whether neighborhood residents
have been canvassed for information; and a blank space
denominated 'details' in which the officer records the
particulars of any action taken in connection with the
investigation" (id., 276-277).

Insofar as studies or other records prepared by consultants retained by the County
include opinions or recommendations offered by the consultant, I believe that the records
could be withheld. However, other portions of the documentation consisting of statistical or
factual information or responses by members of the public must in my view be disclosed. As
indicated by the State's highest court, the purpose of §87(2)(g) is to enable government
officials and employees, or as in this case, a consultant, to offer opinions freely and without
mandatory disclosure. Opinions offered by members of the public who are not government
officers or employees or retained as consultants, would not fall within the exception. Those
elements of the materials must in my view be disclosed, assuming that they do not include
personally identifiable information. To the extent that the materials do include personally
identifiable information relating to members of the public who responded to the surveys or
studies, I believe that those details could be withheld as "an unwarranted invasion of personal
privacy" [see Freedom of Information Law, §87(2)(b)]; the substance of their responses,
however, must in my view be disclosed.

Lastly, records reflective of payment of public monies to a consultant or other person
or entity retained by an agency must, in my opinion, be disclosed. In short, none of the
grounds for denial could be asserted to withhold that kind of records.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Henry Zwack, County Executive
Stephen J. Pechenick, Assistant County Attorney