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December 1, 2000

FOIL-AO-12395

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

I appreciate receipt of your determination of November 2 concerning an appeal made under
the Freedom of Information Law by Michael Hurewitz, a reporter for the Albany Times Union.
According to your determination, Mr. Hurewitz sought "certain NYSDOT records involving listings
of safety deficient locations (SDLs) and priority investigation locations (PILs) for roadways in the
Capital District..." You denied the appeal, stating that:

"[r]ecords of highway safety studies performed by NYSDOT
engineers in connection with the federal Highway Safety
Improvement Program (HSIP) under 23 USCA Section 152 are
exempt from disclosure under 23 USCA Section 409, a copy of which
is enclosed for your information. Since these records are exempted
from disclosure by a federal statute, 23 USCA §409, they are also
exempted by Public Officers Law §87 (2)(a) from disclosure under
FOIL."

Assuming that Mr. Hurewitz can demonstrate that he does not intend to use the records in
litigation, I respectfully disagree with your determination. In this regard, I offer the following
comments.

As you are aware, 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.
The first ground for denial, §87(2)(a), pertains to records that "are specifically exempted from
disclosure by state or federal statute."

From my perspective, due to its language, 23 USC §409 precludes the use of certain records
in a litigation context; it does not, however, exempt records from disclosure in every instance. That
statute states that:

"Notwithstanding any other provision of law, reports, surveys,
schedules, lists, or data compiled or collected for the purpose of
identifying[,] evaluating, or planning the safety enhancement of
potential accident sites, hazardous roadway conditions, or railway-
highway crossings, pursuant to sections 130,144 and 152 of this title
or for the purpose of developing any highway safety construction
improvement project which may be implemented utilizing Federal-aid
highway funds shall not be subject to discovery or admitted into
evidence in a Federal or State court proceeding or considered for
other purposes in any action for damages arising from any occurrence
at a location mentioned or addressed in such reports, surveys,
schedules, lists, or data."

In my view, if the statute quoted above indicated that the records at issue are exempt from
disclosure or confidential, I would agree with your conclusion. Nevertheless, the language refers to
the use of the records in an action for damages arising from an incident that occurred at a location
mentioned or addressed in the records. Again, the statute provides that the records "shall not be
subject to discovery or admitted into evidence in a Federal or State court proceeding or considered
for other purposes in any action for damages...."

I am mindful that language analogous to that found in 23 USC 409 might be construed to
exempt records from public disclosure, irrespective of the intended use of the records [see e.g., John
P. v. Whalen, 54 NY2d 89 (1981)]. Further, there is no federal court decision of which I am aware
that deals directly with the interpretation of that statute in a situation in which the records might not
be used in litigation. However, there is one state court decision that dealt with the issue, and it was
rendered in New York. In Light v. State, the Court of Claims cited cases in other jurisdictions that
focused on the rules of discovery in which it was found that §409 "does not declare the documents
privileged or require that they be kept confidential" [560 NYS2d 962, 964 (1990)] and reached
following conclusion:

"In our view, the purpose of the statutory protection was merely to
keep the record-keeping required by Federal funding provisions from
providing an additional, virtually no-work tool for direct use in
private litigation. The statute expressly makes the ‘reports, surveys,
schedules, lists, or data compiled' inadmissible as evidence; it does
not, expressly or by implication, make the information contained in
such reports confidential" (id., 965).

Based on the decision rendered in Light, the records in question may not be subject to discovery or
use in litigation, but they may be available for other purposes. If that is so, and if it can be
demonstrated that the applicants does not seek the records for any use precluded by §409, I believe
that the records maintained by or for the Department of Transportation would be subject to rights
conferred by the Freedom of Information Law.

It would appear that the ground for denial of greatest significance would be §87(2)(g), which
deals with "inter-agency and intra-agency materials." In my view, that exception would be
applicable to communications between or among officers or employees of the Department of
Transportation and other state agencies or units of local government in New York.

Insofar as the records prepared by the NYSDOT or involve communications within the
Department or with other entities of state or local government in New York, §87(2)(g) would enable
the Department 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 a case determined
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 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" [Gould v.
New York City Police Department, 89 NY2d, 267, 276 (1996)].

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 sum, if Mr. Hurewitz can demonstrate that the records at issue would not be used for a
purpose prohibited by federal law, I believe rights of access would be determined by the Freedom
of Information Law, and particularly §87(2)(g).

I hope that I have been of assistance. If you would like to discuss the matter, please feel free
to contact me.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Michael Hurewitz