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September 12, 2000

FOIL-AO-12321

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 August 9 and the materials attached to it. Having reviewed the
memorandum prepared in 1994 reflective of the "Office Policy for Responding to FOIL Requests"
adopted by the Special Commissioner of Investigation for the New York City School District, there
is one area with which I have substantial disagreement.

Specifically, in referring to open cases, the policy is to deny access because "anything in our
files would constitute intra-agency material that does not represent final agency policy or
determinations." As you are likely aware, the Court of Appeals rejected a similar contention, stating
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][iii)]. 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 "does not represent final agency policy or determinations" does not necessarily
enable an agency to withhold inter-agency or intra-agency materials in their entirety. On the
contrary, portions of those materials may be available under subparagraphs (i) through (iv) of
§87(2)(g), unless a different exception applies.

The Court noted further that:

"...the Police Department argues that any witness statements
contained in the reports, in particular, are not 'factual' because there
is no assurance of the statements' accuracy and reliability. We
decline to read such a reliability requirement into the phrase 'factual
data', as the dissent would have us do, and conclude that a witness
statement constitutes factual data insofar as it embodies a factual
account of the witness's observations. Such a statement, moreover,
is far removed from the type of internal government exchange sought
to be protected by the intra-agency exemption (see, Matter of Ingram
v. Axelrod, 90 AD2d 568, 569 [ambulance records, list of interviews,
and reports of interviews available under FOIL as 'factual data']). By
contrast, any impressions, recommendations, or opinions recorded in
the complaint follow-up report would not constitute factual data and
would be exempt from disclosure. The holding herein is only that
these reports are not categorically exempt as intra-agency material.
Indeed, the Police Department is entitled to withhold complaint
follow-up reports, or specific portions thereof, under any other
applicable exemption, such as the law-enforcement exemption or the
public-safety exemption, as long as the requisite particularized
showing is made" (id., 277).

Based on the foregoing, if internal memoranda include expressions of opinion, recommendations and
the like expressed by agency staff, those portions clearly can be withheld. Reference to comments
by others, however, would not, according to the decision, be protected by §87(2)(g).

It is emphasized, however, that the Court was careful to point out that other grounds for
denial of access might apply.

In consideration of the duties of the Special Commissioner, even if §87(2)(g) does not apply,
other grounds for denial could likely be asserted to withhold records relating to open cases. For
instance, §87(2)(b) concerning unwarranted invasions of personal privacy would likely apply as a
basis for withholding records identifiable to witnesses or the subjects of allegations or investigations.
Section 87(2)(e) would apparently be pertinent as well as a basis for withholding those kinds of
records.

I hope that the foregoing serves to clarify your understanding of the Freedom of Information
Law.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Regina A. Loughran
Susanna Chu