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December 7, 1998

 

E-Mail

TO: Hon. Tim Rice, Clerk/Treasurer, Village of Plandome

FROM: Robert J. Freeman, Executive Director

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. Rice:

I have received your letter of November 3 and appreciate your kind words. You
referred to a draft prepared by engineers for the Village of Plandome and asked whether it is
"an available record or can...be withheld because it is only a draft and has not been 'accepted'
by the board."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to agency records, and §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, a draft, in my opinion, clearly would constitute a "record" subject to
rights of access conferred by the Freedom of Information Law, irrespective of its
characterization or absence of acceptance by the Board of Trustees.

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.
If the engineers were hired to carry out certain duties other than consulting services,
it is doubtful in my view that any of the grounds for denial would be applicable. On the other
hand if the engineers were retained as consultants, it is possible that portions of the report
could be withheld.

Of primary significance in the context of your inquiry is §87(2)(g). Although that
provision serves as one of the grounds for denial of access to records, due to its structure, it
often requires substantial disclosure. The cited 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.

In a discussion of the issue of records prepared by consultants for agencies, the Court
of Appeals, the State's highest court, stated 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.

I note that in a recent case that reached the Court of Appeals, one of the contentions
was that certain reports could be withheld because they were not final and because they
related to incidents for which no final determination had been made. The Court 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
§87[2][g][111]). However, under a plain reading of
§87(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 the records are "draft" or "non-final" would not represent an end of an
analysis of rights of access or an agency's obligation to review the entirety of their contents
to determine rights of access..

The Court 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).

"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)."

I would conjecture that at least some elements of the record, in accordance with the
direction offered by the Court of Appeals, would consist of statistical or factual information
that must be disclosed, irrespective of its status as draft or non-final.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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