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June 5, 2001

FOIL-AO-12707

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 in which you sought an opinion concerning a response by the New
York City School Construction Authority to your appeal under the Freedom of Information Law.
Specifically, you referred to a portion of the response in which it was determined that a certain matter
"is still in the pre-planning stage, and therefore, there are no documents subject to FOIL at this time."

From my perspective, insofar as documents exist, they fall within the scope of the Freedom
of Information Law, irrespective of the stage of a project. In this regard, I offer the following
comments.

First, it is emphasized that the Freedom of Information Law pertains to all agency records
and that §86(4) of the Law defines the term "record" expansively to mean:

"any information kept, held, filed, produced, reproduced by, with or
for an agency or the state legislature, in any physical form whatsoever
including, but not limited to, reports, statements, examinations,
memoranda, opinions, folders, files, books, manuals, pamphlets,
forms, papers, designs, drawings, maps, photos, letters, microfilms,
computer tapes or discs, rules, regulations or codes."

In a case in which an agency claimed, in essence, that it could choose which documents it
considered to be "records" for purposes of the Freedom of Information Law, the state's highest court
rejected that contention. As stated by the Court of Appeals:

"...respondents' construction -- permitting an agency to engage in a
unilateral prescreening of those documents which it deems to be
outside the scope of FOIL -- would be inconsistent with the process
set forth in the statute. In enacting FOIL, the Legislature devised a
detailed system to insure that although FOIL's scope is broadly
defined to include all governmental records, there is a means by
which an agency may properly withhold from disclosure records
found to be exempt (see, Public Officers Law §87[2]; §89[2],[3].
Thus, FOIL provides that a request for access may be denied by an
agency in writing pursuant to Public Officers Law §89(3) to prevent
an unwarranted invasion of privacy (see, Public Officers Law §89[2])
or for one of the other enumerated reasons for exemption (see, Public
Officers Law §87[2]). A party seeking disclosure may challenge the
agency's assertion of an exemption by appealing within the agency
pursuant to Public Officers Law §89(4)(a). In the event that the
denial of access is upheld on the internal appeal, the statute
specifically authorizes a proceeding to obtain judicial review pursuant
to CPLR article 78 (see, Public Officers Law §89[4][b]).
Respondents' construction, if followed, would allow an agency to
bypass this statutory process. An agency could simply remove
documents which, in its opinion, were not within the scope of the
FOIL, thereby obviating the need to articulate a specific exemption
and avoiding review of its action. Thus, respondents' construction
would render much of the statutory exemption and review procedure
ineffective; to adopt this construction would be contrary to the
accepted principle that a statute should be interpreted so as to give
effect to all of its provisions...

"...as a practical matter, the procedure permitting an unreviewable
prescreening of documents -- which respondents urge us to engraft on
the statute -- could be used by an uncooperative and obdurate public
official or agency to block an entirely legitimate FOIL request. There
would be no way to prevent a custodian of records from removing a
public record from FOIL's reach by simply labeling it 'purely private'.
Such a construction, which could thwart the entire objective of FOIL
by creating an easy means of avoiding compliance, should be
rejected" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253-254
(1987)].

In short, insofar as documentation pertaining to the project exists, a claim that the materials
are not records subject to the Freedom of Information Law would in my opinion conflict with the
interpretation of that statute by the State's highest court.

Second, to the extent that the Authority maintains records included within your request, 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.

Perhaps most significant with respect to any such records would be §87 (2)(g), which 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 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 matters 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 (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", "non-final" or that it may relate to a matter that is
in "the pre-planning stage" 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).]

It is possible, too, that other grounds for denial may be applicable. For instance, §87(2)(c)
permits an agency to withhold records insofar as disclosure would "impair present or imminent
contract awards or collective bargaining negotiations..."

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Ross J. Holden
Michael Szabaga