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July 27, 1999

Mr. Richard A. Brinson
1453 Hicks Street
Bronx, NY 10469

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. Brinson:

I have received your letters of June 25 and June 29, as well as a variety of materials relating
to them. You have sought an opinion concerning a denial of a request by the New York City Board
of Education for a "market appraisal" pertaining to a certain building in the Bronx. It is your view
that the denial is "without merit because a price has already been established", and the "lease rate"
would be "somewhere between the $30 the organization" that you represent has asked "and the $15
[the Board's representative] quotes for the area."

As I understand the facts, it appears that the Board's denial of your request was generally
consistent with law. 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 §87(2)(a) through (i) of the Law. In
my view, two of the grounds for denial are relevant to an analysis of rights of access.

Section 87(2)(c), as you know, permits an agency to withhold records to the extent that
disclosure would "impair present or imminent contract awards or collective bargaining negotiations."
As it relates to the impairment of "contract awards", §87(2)(c) is, in my opinion, generally cited and
applicable in two types of circumstances.

One involves a situation in which an agency is involved in the process of seeking bids or
proposals concerning the purchase of goods and services. If, for example, an agency seeking bids
or proposals has received a number of bids, but the deadline for their submission has not been
reached, premature disclosure for the bids to another possible submitter might provide that person
or firm with an unfair advantage vis a vis those who already submitted bids. Further, disclosure of
the identities of bidders or the number of bidders might enable another potential bidder to tailor his
bid in a manner that provides him with an unfair advantage in the bidding process. In such a
situation, harm or "impairment" would likely be the result, and the records could justifiably be
denied. However, after the deadline for submission of bids or proposals are available after a contract
has been awarded, and that, in view of the requirements of the Freedom of Information Law, "the
successful bidder had no reasonable expectation of not having its bid open to the public"
[Contracting Plumbers Cooperative Restoration Corp. v. Ameruso, 105 Misc. 2d 951, 430 NYS 2d
196, 198 (1980)].

The other situation in which §87(2)(c) has successfully been asserted to withhold records
pertains to real property transactions where appraisals in possession of an agency were requested
prior to the consummation of a transaction. Again, when premature disclosure would have enabled
the public to know the prices the agency sought, thereby potentially precluding the agency from
receiving an optimal price, an agency's denial was upheld [see Murray v. Troy Urban Renewal
Agency, 56 NY 2d 888 (1982)].

In both of the kinds of the situations described above, there is an inequality of knowledge.
More specifically, in the bid situation, the person who seeks bids prior to the deadline for their
submission is presumably unaware of the content of the bids that have already been submitted; in
the appraisal situation, the person seeking that record is unfamiliar with its contents. As suggested
above, premature disclosure of bids would enable a potential bidder to gain knowledge in a manner
unfair to other bidders and possibly to the detriment of an agency and, therefore, the public.
Disclosure of an appraisal would provide knowledge to the recipient that might effectively prevent
an agency from engaging in an agreement that is most beneficial to taxpayers.

When there is no inequality of knowledge between or among the parties to negotiations, or
if records have been shared or exchanged by the parties, it is questionable and difficult to envision
how disclosure would "impair present or imminent contract awards", (see Community Board 7 of
Borough of Manhattan v. Schaffer, Supreme Court, New York County, NYLJ, March 20, 1991).
Further, if an agreement has been reached or a lease or contract has been signed, presumably
negotiations have ended, and any impairment that might have existed prior to the consummation of
an agreement would essentially have disappeared.

In the context of the situation at issue, it appears that a range in acceptable price per square
foot for a lease has been established. However, the range, between fifteen and thirty dollars, is, in
my view, significant. If, for example, you knew that the opinion expressed in the appraisal indicated
a value of twenty-nine dollars per square foot, you probably would not accept an offer of a price
substantially less than that. Similarly, if you knew that the appraiser believes that the property is
worth only sixteen dollars per square foot, you might accept an offer minimally higher. The point
is that you do not know what the appraisal has established as a fair market value; if that information
is disclosed to you, you may gain an unfair advantage at the negotiating table. If the foregoing
represents a reasonably accurate representation of the facts, I believe that §87(2)(c) is pertinent and
that it enables the Board to withhold those aspects of the record in question that would enable you
to know the fair market value in the view of the appraiser..

The other provision of relevance is §87(2)(g), which pertains to the authority to withhold
"inter-agency or intra-agency materials." If an appraisal is prepared by or for agency officials, it
could be characterized as "intra-agency material." I note, too, that the Court of Appeals has held that
appraisals and other reports prepared by consultants retained by agencies may also be considered as
intra-agency materials subject to the provisions of §87(2)(g) [see Xerox Corporation v. Town of
Webster, 65 NY 2d 131 (1985)].

More specifically, §87(2)(g) states that an agency may 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.

It has been held that factual information appearing in narrative form, as well as those portions
appearing in numerical or tabular form, is available under §87(2)(g)(i). For instance, 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 A2d 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 [i.e., §87(2)(c)] could properly be asserted. In the context of
your inquiry, if an appraisal includes reference to comparable properties and their assessed value,
that kind of material would, in my view, consist of statistical or factual information.

I hope that the foregoing serves to clarify your understanding of the Freedom of Information
Law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Patricia Zedalis
Cheri A. Lawson
Ron LeDonni
Chris Wright
Michael Valente