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March 9, 2000

FOIL-AO-11985

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 February 4 in which you sought an advisory opinion
concerning a partial denial of a request directed to the Department of Environmental
Conservation (DEC).

By way of background, in February of last year, you submitted a request to DEC for
"the entire agency file with respect to General Electric Company's Ft. Edward facility" in
order to assist General Electric in preparing comments "on DEC's Proposed Remedial Action
Plan (‘PRAP')" for that facility. You wrote that DEC responded approximately three months
later by disclosing certain documents but withholding "approximately 430" others.
Following an appeal, certain of the records initially withheld were disclosed in whole or in
redacted form, and others were withheld in their entirety. You referred specifically to a
denial of access to communications between DEC and the United States Environmental
Protection Agency (EPA) on the ground that they fall within exceptions concerning inter-
agency or intra-agency materials.

In conjunction with the foregoing, you raised the following questions:

"1. Whether a memo regarding EPA's review of a DEC draft
of a proposed remedial action plan for GE's Ft. Edward plant
site is exempt from disclosures as an intra-agency document;

2. Whether a letter from DEC to EPA commenting on an EPA
document regarding the Hudson River PCB Remnant Site is
exempt from disclosure because it is specifically exempt from
disclosure by a federal statute, namely, the federal Freedom of
Information Act, 5 U.S.C. §552(b)(5) (1999), as part of EPA's
pre-decisional and deliberative process; and

3. Whether the ALJ's letter deciding GE's appeal ‘fully
explain[s]' the basis for the denial of the documents specified
in that letter, as required by §89.4(a) of the Public Officers
Law. See N.Y. PUB. OFF. LAW §89.4 (McKinney 1999)."

In this regard, first, 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. 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 most recently in 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.

Second, the provision to which DEC alluded, §87(2)(g), pertains to the ability to
withhold "inter-agency or intra-agency materials" depending on their contents. For purposes
of the Freedom of Information Law, §86(3) defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or other governmental entity performing a
governmental or proprietary function for the state or any one or
more municipalities thereof, except the judiciary or the state
legislature."

The language quoted above indicates that an "agency" is an entity of state or local
government in New York. Since the definition of "agency" does not include a federal
agency, §87(2)(g) could not be cited as a means of withholding communications with or from
a federal entity. I note that there is case law involving the assertion of §87(2)(g) in relation to
communications between agencies and entities other than New York state or municipal
governments. In those instances, it was held that the assertion of §87(2)(g) was erroneous
[see e.g., Community Board 7 of Borough of Manhattan v. Schaeffer, 570 NYS 2d 769;
affirmed, 83 AD2d 422; reversed on other grounds, 84 NY2d 148 (1994); also Leeds v.
Burns, Supreme Court, Queens Cty., NYLJ, July 27, 1992; aff'd 613 NYS 2d 46, 205 AD2d
540 (1994)].

DEC also cited decisions involving records prepared by consultants for agencies in
which it was held that those records should be treated, in essence, as if they were prepared by
agency staff, and that they constitute "intra-agency materials" [see Xerox Corp. v. Town of
Webster, 65 NY2d 131 (1985); SeaCrest v. Stubing, 82 AD2d 546 (1981)]. It is emphasized,
however, that the Court of Appeals referred to "outside consultants retained by agencies"
(Xerox, supra, 133). I do not believe that either DEC or EPA would have been "retained" by
the other or that either could be characterized as a consultant as that term has been used in the
context of judicial decisions.

Again, while the EPA is an agency for purposes of the federal Freedom of
Information Act (5 USC §552) and its exceptions, it falls beyond the definition of "agency"
as that term is defined by the state statute. The reverse would also be so: while DEC is an
agency under the state statute, it is not an agency for purposes of the federal Act (see 5 USC
§551).

The second question, in essence, involves a situation in which a federal agency may
withhold a record under the federal Freedom of Information Act, and whether a state agency
in possession of that record may claim that the records is "specifically exempted from
disclosure by...statute" pursuant to §87(2)(a) of the New York Freedom of Information Law.
In my opinion a claim of that nature cannot be validly be made.

DEC has contended that certain records prepared by EPA that could be withheld by
that agency pursuant to §552(b)(5), the exemption in the federal Act analogous to §87(2)(g)
of the state statute, the so-called "deliberative process" exemption, may be withheld by DEC
on the ground that they are specifically exempted from disclosure by statute. However,
several decisions indicate that only federal agencies subject to the federal Act may assert an
exemption appearing in the federal Act [see Grand Central Partnership, Inc. v. Cuomo, 166
F.2d 473, 484 (1999); also Philip Morris, Inc. v. Harshbarger, 122 F.3d 58, 83 (1st Cir.1997);
Day v. Shalala, 23 F.3d 1052, 1064 (9th Cir.1994); Brown v. Kelly, No. 93-5222, 1994 WL
36144, at *1 (D.C.Cir. January 27, 1994); St. Michael's Convalescent Hosp. v. State of
California, 643 F.2d 1369, 1373 (9th Cir.1981); Johnson v. Wells, 566 F.2d 1016, 1018 (5th
Cir.1978)].

More importantly, based on judicial decisions involving exceptions to rights of access
in both the state and federal freedom of information statutes, the records at issue would not
be "specifically exempted from disclosure by...statute pursuant to §87(2)(a) of the New York
Freedom of Information Law or pursuant to its counterpart in the federal Act, the "(b)(3)"
exception. Both the Court of Appeals and federal courts in construing access statutes have
determined that the characterization of records as "confidential" or "exempted from
disclosure by statute" must be based on statutory language that specifically confers or
requires confidentiality. As stated by the Court of Appeals:

"Although we have never held that a State statute must
expressly state it is intended to establish a FOIL exemption, we
have required a showing of clear legislative intent to establish
and preserve that confidentiality which one resisting disclosure
claims as protection" [Capital Newspapers v. Burns, 67 NY2d
562, 567 (1986)].

An example of the proper assertion of a claim that records were "specifically exempted from
disclosure by...statute" was offered in an opinion addressed to Frank V. Bifera, then Acting
General Counsel to DEC, in 1997 concerning a provision of the Environmental Conservation
Law stating that the Commissioner of DEC "shall not provide" certain information. In that
situation, there was clear direction in a statute prohibiting the disclosure of certain
information, and it was advised that §87(2)(a) could be cited.

Similarly, in construing the equivalent exception to rights of access in the federal Act,
it has been found that:

"Exemption 3 excludes from its coverage only matters that are:

specifically exempted from disclosure by statute
(other than section 552b of this title), provided
that such statute (A) requires that the matters be
withheld from the public in such a manner as to
leave no discretion on the issue, or (B)
establishes particular criteria for withholding or
refers to particular types of matters to be
withheld.

"5 U.S.C. § 552(b)(3) (1982) (emphasis added). Records
sought to be withheld under authority of another statute thus
escape the release requirements of FOIA if – and only if – that
statute meets the requirements of Exemption 3, including the
threshold requirement that it specifically exempt matters from
disclosure. The Supreme Court has equated ‘specifically' with
‘explicitly.' Baldridge v. Shapiro, 455 U.S. 345, 355, 102 S.
Ct. 1103, 1109, 71 L.Ed.2d 199 (1982). ‘[O]nly explicitly non-
disclosure statutes that evidence a congressional determination
that certain materials ought to be kept in confidence will be
sufficient to qualify under the exemption.' Irons & Sears v.
Dann, 606 F.2d 1215, 1220 (D.C.Cir.1979) (emphasis added).
In other words, a statute that is claimed to qualify as an
Exemption 3 withholding statute must, on its face, exempt
matters from disclosure"[Reporters Committee for Freedom of
the Press v. U.S. Department of Justice, 816 F.2d 730, 735
(1987); modified on other grounds,831 F.2d 1184 (1987);
reversed on other grounds, 489 U.S. 789 (1989); see also
British Airports Authority v. C.A.B., D.C.D.C.1982, 531
F.Supp. 408; Inglesias v. Central Intelligence Agency,
D.C.D.C.1981, 525 F.Supp, 547; Hunt v. Commodity Futures
Trading Commission, D.C.D.C.1979, 484 F.Supp. 47; Florida
Medical Ass'n, Inc. v. Department of Health, Ed. & Welfare,
D.C.Fla.1979, 479 F.Supp. 1291].

In short, to be "exempted from disclosure by statute", both state and federal courts have
determined that a statute must leave no discretion to an agency: it must withhold such
records.

In contrast, when records are not exempted from disclosure by a separate statute, both
the Freedom of Information Law and its federal counterpart are permissive. Although an
agency may withhold records in accordance with the grounds for denial appearing in §87(2),
the Court of Appeals in a decision cited earlier held that the agency is not obliged to do so
and may choose to disclose, stating that:

"...while an agency is permitted to restrict access to those
records falling within the statutory exemptions, the language of
the exemption provision contains permissible rather than
mandatory language, and it is within the agency's discretion to
disclose such records...if is so chooses" (Capital Newspapers,
supra, 567).

The only situations in which an agency cannot disclose would involve those instances in
which a statute other than the Freedom of Information Law prohibits disclosure. The same is
so under the federal Act. While a federal agency may withhold records in accordance with
the grounds for denial, it has discretionary authority to disclose.

Even if DEC or EPA had the authority to withhold records under either §87(2)(g) of
the state statute or the (b)(5) exception in the federal Act, neither would be required to
withhold the records; on the contrary, they would have the discretionary authority to disclose.
That being so, I do not believe that the records at issue could be characterized as being
exempted from disclosure by statute.

In a somewhat related vein, it has been suggested that "executive privilege" or the
common law "governmental privilege" may be asserted to withhold records, notwithstanding
the requirements of the Freedom of Information Law. From my perspective, reliance on a
claim of privilege would be misplaced. Reference to executive privilege and the Freedom of
Information Law was made in a footnote in Cirale v. 80 Pine St. Corp. [35 NY2d 113
(1974)], which was decided after the enactment but before the effective date of the Freedom
of Information Law in 1974. In 1977, the original enactment was repealed and replaced with
the current version of that statute, which became effective in 1978. Soon after the change in
the law, the Court of Appeals appears to have abolished the governmental privilege in the
context of requests made under the Freedom of Information Law. As stated by the Court in
1979: "[T]he common-law interest privilege cannot protect from disclosure materials which
that law requires to be disclosed" [Doolan v. BOCES, 48 NY2d 341, 347]. In short, either
records or portions thereof fall within the grounds for denial appearing in §87(2) or they do
not; if they do not, there would be no basis for denial, notwithstanding a claim based on an
assertion of executive or governmental privilege.

The remaining question is whether DEC's determination of your appeal "fully
explains" the reasons for further denial as required by §89(4)(a) of the Freedom of
Information Law. In this regard, there is no judicial decision of which I am aware that
specifies the degree of detail necessary to satisfy the requirements of that provision. In my
view, a determination sustaining an initial decision to deny access must include sufficient
detail to enable the applicant for the records to ascertain that records or portions thereof were
withheld, at least arguably, with justification.

Even though the DEC prepared such records, I am also unaware of any provision of
the Freedom of Information Law or judicial decisions that would require that a denial at the
agency level identify every record withheld or include a description of the reason for
withholding each documents. Such a requirement has been imposed under the federal
Freedom of Information Act, which may involve the preparation of a so-called "Vaughn
index" [see Vaughn v. Rosen, 484 F.2d 820 (1973)]. Such an index provides an analysis of
documents withheld by an agency as a means of justifying a denial and insuring that he
burden of proof remains on the agency. While a final administrative determination must
"fully explain" the reasons for denial, I note that an agency's burden of justifying a denial in
a judicial challenge is clearly more stringent. As stated by the Court of Appeals in a case in
which it referred to several decisions it had previously rendered:

"...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)" (Gould, supra, 275).

In the context of your request, it appears that several records were withheld in their
entirety on the ground that they reflect "Intra-agency deliberative process" or are "Non-final
agency documents." It is possible that those blanket denials of access may have been
inappropriate.

As you are aware, §87 (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 Gould
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 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" (id., 276).

In short, that a record is reflective of the "deliberative process" 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 §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 intra-agency materials 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, unless a different ground for denial can be
asserted. In short as stated by the Court of Appeals: "blanket exemptions for particular types
of documents are inimical to FOIL's policy of open government" (id., 275).

Lastly, many of the records sought were denied on the ground that they are attorney
work product, material prepared for litigation or are subject to the attorney-client privilege.
Insofar as those claims are accurate, I believe that the records would be exempt from
disclosure pursuant, respectively, to subdivisions (c) and (d) of §3101 and §4503 of the
CPLR and, therefore, §87(2)(a) of the Freedom of Information Law. However, the ability to
withhold records under those provisions is specific and limited.

Section 3101 pertains disclosure in a context related to litigation, and subdivision (a)
reflects the general principle that "[t]here shall be full disclosure of all matter material and
necessary in the prosecution or defense of an action..." The Advisory Committee Notes
pertaining to §3101 state that the intent is "to facilitate disclosure before trial of the facts
bearing on a case while limiting the possibilities of abuse." The prevention of "abuse" is
considered in the remaining provisions of §3101, which describe narrow limitations on
disclosure. One of those limitations, §3101(c), states that "[t]he work product of an attorney
shall not be obtainable." The other provision at issue pertains to material prepared for
litigation, and §3101(d)(2) states in relevant part that:

"materials otherwise discoverable under subdivision (a) of this
section and prepared in anticipation of litigation or for trial by
or for another party, or by or for the other party's representative
(including an attorney, consultant, surety, indemnitor, insurer
or agent), may be obtained only upon a showing that the party
seeking discovery has substantial need of the materials in the
preparation of the case and is unable without undue hardship to
obtain the substantial equivalent of the materials by other
means. In ordering discovery of the materials when the
required showing has been made, the court shall protect against
disclosure of the mental impressions, conclusions, opinions or
legal theories of an attorney or other representative of a party
concerning the litigation."

Both of those provisions are intended to shield from an adversary records that would
result in a strategic advantage or disadvantage, as the case may be. Reliance on both in the
context of a request made under the Freedom of Information Law is in my view dependent
upon a finding that the records have not been disclosed to others. In a decision in which it
was determined that records could justifiably be withheld as attorney work product, the
"disputed documents" were "clearly work product documents which contain the opinions,
reflections and thought process of partners and associates" of a law firm "which have not
been communicated or shown to individuals outside of that law firm" [Estate of Johnson, 538
NYS 2d 173 (1989)]. In another decision, the relationship between the attorney-privilege and
the ability to withhold the work product of an attorney was discussed, and it was found that:

"The attorney-client privilege requires some showing that the
subject information was disclosed in a confidential
communication to an attorney for the purpose of obtaining
legal advice (Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68-
69, 431 N.Y.S.2d 511, 409 N.E.2d 983). The work-product
privilege requires an attorney affidavit showing that the
information was generated by an attorney for the purpose of
litigation (see, Warren v. New York City Tr. Auth., 34 A.D.2d
749, 310 N.Y.S.2d 277). The burden of satisfying each
element of the privilege falls on the party asserting it (Priest v.
Hennessy, supra, 51 N.Y.2d at 69, 431 N.Y.S. 2d 511, 409
N.E.2d 983), and conclusory assertions will not suffice (Witt v.
Triangle Steel Prods. Corp., 103 A.D.2d 742, 477 N.Y.S.2d
210)" [Coastal Oil New York, Inc. v. Peck, [184 AD 2d 241
(1992)].

In a discussion of the parameters of the attorney-client relationship and the conditions
precedent to its initiation, it has been held that:

"In general, 'the privilege applies only if (1) the asserted holder
of the privilege is or sought to become a client; (2) the person
to whom the communication was made (a) is a member of the
bar of a court, or his subordinate and (b) in connection with this
communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of strangers
(c) for the purpose of securing primarily either (i) an opinion
on law or (ii) legal services (iii) assistance in some legal
proceeding, and not (d) for the purpose of committing a crime
or tort; and (4) the privilege has been (a) claimed and (b) not
waived by the client'" [People v. Belge, 59 AD 2d 307, 399
NYS 2d 539, 540 (1977)].

The thrust of case law concerning material prepared for litigation is consistent with
the preceding analysis, in that §3101(d) may properly be asserted as a means of shielding
such material from an adversary.

It is also noted that it has been determined judicially that if records are prepared for
multiple purposes, one of which includes eventual use in litigation, §3101(d) does not serve
as a basis for withholding records; only when records are prepared solely for litigation can
§3101(d) be properly asserted to deny access to records [see e.g., Westchester-Rockland
Newspapers v. Mosczydlowski, 58 AD 2d 234 (1977)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Susan J. DuBois
Ruth Earl
Harold Iselin
Liz Grisaru