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January 19, 2000

 

FOIL-AO-11915

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

I have received your letter of December 1 in which you sought advisory opinions
relating to a series of questions precipitated by numerous and somewhat repetitive requests
directed to the City of Oswego by Mr. Mark J. Langlitz, an attorney for Niagara Mohawk.
The requests, in brief, pertain to a project involving the Varick Hydroelectric Plant.

Rather than reiterating your questions in every instance, in the following paragraphs,
an attempt will be made to offer opinions and principles based on the language of the
Freedom of Information Law and its judicial interpretation.

First, it is emphasized that the Freedom of Information Law pertains to existing
records, and that §89(3) of that statute states in part that an agency is not required to create or
prepare a new record in response to a request. Similarly, an agency is not generally required
by the Freedom of Information Law to explain its actions, the contents of records or to
answer questions. Further, I do not believe that an agency is required to agree to a request
that is prospective in nature in which an applicant seeks records that have not yet been
prepared or received, but which will in the future be prepared or received. In short, an
agency's primary responsibility under the Freedom of Information Law involves disclosing
existing records to the extent required by law.

Second, you questioned the obligation of an agency to "continue to respond to
...repeated requests for records for which a determination has been rendered, and the time for
appeal has expired." From my perspective, a request may be renewed, particularly if there
are new records falling within the scope of the request or if circumstances have changed. As
you are aware, many of the grounds for withholding records appearing in §87(2) of the
Freedom of Information Law are based on potentially harmful effects of disclosure, and in
some instances, those harmful effects will diminish or disappear due to changes in
circumstances or the passage of time.

For instance, if an agency is soliciting bids and the deadline for their submission is
January 25, and a potential bidder seeks the bids that have been submitted so far, those bids,
in my view, may be clearly be withheld, for §87(2)(c) permits an agency to withhold records
when disclosure would "impair present or imminent contract awards..." Premature disclosure
would give the person seeking the bids an unfair advantage, and the government agency may
not have the capacity to engage in a contract optimal to the taxpayers. However, when the
deadline for the submission of the bids has passed, all of the bidders would be on an equal
footing, and the government agency may have no choice but to accept the low appropriate
bid.. At that point, disclosure would no longer "impair" the bidding process, and the records
that could properly have been withheld through January 25 may become available thereafter.
In that and other circumstances, records might properly be withheld for a time, but they may
become available in the future. As such, nothing would preclude a person from seeking the
same records twice in that kind of situation.

On the other hand, if a second request made that "constitute[s] nothing more than an
effort to obtain reconsideration of the prior request without any change in circumstances"
[Corbin v. Ward, 554 NYS2d 240, 241, 160 AD2d 596 (1990)], I do not believe that an
agency would be required to reconsider the request. As a general matter, when a request is
denied, the applicant, pursuant to §89(4)(a) of the Freedom of Information Law, has the right
to appeal. If the appeal is denied, the applicant may seek judicial review of the denial by
initiating a proceeding under Article 78 of the CPLR.

Third, with respect to whether the requests have "reasonably described" the records
sought as required by §89(3) of the Freedom of Information Law. I point out that it has been
held by the Court of Appeals that to deny a request on the ground that it fails to reasonably
describe the records, an agency must establish that "the descriptions were insufficient for
purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY
2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the request due to its
breadth and also stated that:

"respondents have failed to supply any proof whatsoever as to
the nature - or even the existence - of their indexing system:
whether the Department's files were indexed in a manner that
would enable the identification and location of documents in
their possession (cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192 [Bazelon, J.]
[plausible claim of nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3), may be presented
where agency's indexing system was such that 'the requested
documents could not be identified by retracing a path already
trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of
the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the
Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an
agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able
to locate the records on the basis of an inmate's name and identification number.

While I am unfamiliar with the recordkeeping systems of the City, to extent that the
records sought can be located with reasonable effort, I believe that the request would have
met the requirement of reasonably describing the records. On the other hand, if the records
are not maintained in a manner that permits their retrieval except by reviewing perhaps
hundreds or even thousands of records individually in an effort to locate those falling within
the scope of the request, to that extent, a request would not in my opinion meet the standard
of reasonably describing the records. It is possible that records falling within the scope of a
request may be maintained in several locations by a variety of units within a municipality,
and that those units maintain their records by means of different filing and retrieval methods.
If an office maintains all of its records regarding a particular facility, since the beginning of
its existence, in a single file, it may be a simple task to locate the records. If, however,
records are not maintained by subject, but rather are kept chronologically, locating the
records might involve a search, in essence, for the needle in the haystack. Based on the
holding by the State's highest court, an agency is not required to engage in that kind of effort.

Fourth, 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..."

While an agency must grant access to records, deny access or acknowledge the receipt
of a request within five business days, when such acknowledgement is given, 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.

Lastly, you asked whether the City "has fully complied with its obligations under
FOIL" relative to Mr. Langlitz' requests. While it appears that there has been substantial
compliance, I have no way of knowing whether there has been "full" compliance. For
instance, as indicated earlier, I am unfamiliar with the means by which the City maintains its
records or, therefore, the extent to which the requests might have met the standard of
reasonably describing the records.

Additionally, while I am unaware of whether the matter continues to be pertinent, one
of the records that was withheld is a "draft Environmental Assessment Form". Although I
agree with the City's contention that the record in question constitutes "intra-agency
material" that falls within the scope of §87(2)(g), a blanket denial of access to that record
may have been inappropriate.

The provision cited above 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 a police department in a decision rendered by the
Court of Appeals 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 §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 a record is predecisional or "draft" 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 §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).]

In my view, insofar as the record at issue or others falling with the coverage of
§87(2)(g) 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: Mark J. Langlitz