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June 6, 2001

FOIL-AO-12711

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 correspondence from Mr. Robert Petrucci relating to a request made under
the Freedom of Information Law. He indicated that you are seeking an advisory opinion concerning
the matter.

As I understand the situation, your request for "golf revenue data" was denied because it was
not "certified." In this regard, I offer the following comments.

First, it is emphasized that the Freedom of Information Law pertains to existing records and
that §89(3) of that statute states in part that an agency, such as the County, is not required to create
a record in response to a request.

Second, assuming that the data in question exists, I note that its characterization as
"uncertified", "draft" or "preliminary" is not determinative of rights of access. I point out that the
Freedom of Information Law pertains to all agency records, and that §86(4) of the Law defines the
term "record" 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."

Based on the foregoing, when information is maintained by an agency in some physical form (i.e.,
drafts, worksheets, computer disks, etc.), I believe that it would constitute a "record" subject to rights
of access.

Second, 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 opinion, two of the grounds for denial would be relevant to an analysis of rights of
access to the records sought. Neither, under the circumstances, would in my view have justified a
denial of access.

Section 87(2)(g) of the Freedom of Information Law permits 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.

In a case involving "budget worksheets", it was held that numerical figures, including
estimates and projections of proposed expenditures, are accessible, even though they may have been
advisory and subject to change. In that case, I believe that the records at issue contained three
columns of numbers related to certain areas of expenditures. One column consisted of a breakdown
of expenditures for the current fiscal year; the second consisted of a breakdown of proposed
expenditures recommended by a state agency; the third consisted of a breakdown of proposed
expenditures recommended by a budget examiner for the Division of the Budget. Although the latter
two columns were merely estimates and subject to modification, they were found to be "statistical
tabulations" accessible under the Freedom of Information Law as originally enacted [see Dunlea v.
Goldmark, 380 NYS 2d 496, aff'd 54 AD 2d 446, aff'd 43 NY 2d 754 (1977)]. At that time, the
Freedom of Information Law granted access to "statistical or factual tabulations" [see original Law,
§88(1)(d)]. Currently, §87(2)(g)(i) requires the disclosure of "statistical or factual tabulations or
data". As stated by the Appellate Division in Dunlea:

"[I]t is readily apparent that the language statistical or factual
tabulation was meant to be something other than an expression of
opinion or naked argument for or against a certain position. The
present record contains the form used for work sheets and it
apparently was designed to accomplish a statistical or factual
presentation of data primarily in tabulation form. In view of the
broad policy of public access expressed in §85 the work sheets have
been shown by the appellants as being not a record made available in
§88" (54 Ad 2d 446, 448)."

The Court was also aware of the fact that the records were used in the deliberative process, stating
that:

"The mere fact that the document is a part of the deliberative process
is irrelevant in New York State because §88 clearly makes the back-
up factual or statistical information to a final decision available to the
public. This necessarily means that the deliberative process is to be
a subject of examination although limited to tabulations. In
particular, there is no statutory requirement that such data be limited
to 'objective' information and there no apparent necessity for such a
limitation" (id. at 449).

Based upon the language of the determination quoted above, which was affirmed by the state's
highest court, it is my view that the records in question, to the extent that they consist of "statistical
or factual tabulations or data", are accessible, unless a provision other than §87(2)(g) could be
asserted as a basis for denial.

Lastly, one of the contentions offered by an agency 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 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][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 the report is in "draft" or is not "certified" would not represent an end of an
analysis of rights of access or an agency's obligation to review the entirety of its contents.
I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Charlene Indelicato
Bob Petrucci