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October 17, 2000

FOIL-AO-12341

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 facts presented in your
correspondence.

Dear

As you are aware, I have received your correspondence concerning your efforts in
obtaining certain appraisals of property owned by the Town of Carmel. Please accept my
apologies for the delay in response.

Although you appear to be familiar with opinions rendered by this office relating
involving access to appraisals, for purposes of clarification, I offer the following comments.

As 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) 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)]. From my
perspective, disclosure of an appraisal prior to the consummation of a transaction 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 transaction
has been completed, any impairment that might have existed prior to the consummation of an
agreement would essentially have disappeared. In that event, §87 (2)(c), in my opinion,
would not be applicable as a basis for a denial of access.

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 or survey is prepared by
agency officials, it could be characterized as "intra-agency material." Further, 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.
Therefore, if §87(2)(c) does not apply, insofar as an appraisal includes statistical or factual
information, those portions of the appraisal must, in my view be disclosed.

Lastly, I note that the Freedom of Information Law is permissive; even though an
agency may withhold records or portions thereof based on a ground for denial of access, there
is no obligation to do so, and the agency may choose to disclose [see Capital Newspapers v.
Burns, 67 NY2d, 562, 567 (1986)].

I hope that I have been of assistance.

cc: Hon. Frank J. DelCampo, Supervisor
Hon. Connie Munday, Clerk