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June 11, 2001

FOIL-AO-12727

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, unless otherwise indicated.

Dear

I have received your letter, as well as a variety of materials attached to it, in which you sought
an advisory opinion concerning the treatment of your requests for records made to the Empire State
Development Corporation ("ESDC") relating to a plan to construct a new facility for the New York
Stock Exchange. Although some of the documentation that you requested was made available, two
aspects of your request were denied. Further, you complained with respect to the delay in disclosure
of records and the rejection of your request to review records during weekends.

Having reviewed the materials and discussed the matter with representatives of ESDC, I offer
the following comments.

First, 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.

The portions of your request that were denied include "[c]opies of any written representation
or written record of verbal representations by Rockrose Development to the Empire State
Development Corp. regarding any and all proposals or plans for relocation of tenants of 45 Wall
Street", and "[a] copy of any signed contract(s) between Rockrose and the City of New York and/or
the Empire State Development Corp."

The contract, or an analogous document, was the subject of an opinion prepared on March
26 that involved a request for a "letter of intent"signed by the New York Stock Exchange that is in
possession of the New York City Economic Development Corporation ("EDC"). Reference was
made in that opinion to §87(2)(c), which permits an agency to withhold records which, if disclosed,
"would impair present or imminent contract awards or collective bargaining negotiations" and to the
following contention offered by Counsel to the Corporation:

"The letter of intent merely establishes the framework for the NYSE
project and subsequent negotiations, but, with the exception of certain
limited provisions, does not, in and of itself, create any legally
binding obligations or liabilities. Since the agreements for the project
have not been finalized, it is my determination that disclosure of the
letter of intent is premature and would unduly impair and
compromised the City's ability to negotiate the final project
documents with the NYSE. Additionally, to the extent that any terms
of the letter of intent can be construed as a binding obligation,
consideration of the ‘effects of disclosure' on the city's ongoing
negotiations with respect to the project is paramount. Although
negotiation of the letter of intent only involves one private party, as
you point out, the NYSE project, in its entirety, involves negotiations
with multiple parties with various property interests. Disclosure of
the letter of intent could have the effect of undermining the City's
negotiations, causing it to lose leverage in its negotiations with
property owners and tenants on the site of the proposed NYSE
project, and compromising its ability to negotiate the best possible
deal for the City."

Counsel to the Corporation also specified that the Letter of Agreement includes reference to
certain deadlines, which, if disclosed, would, in her view, damage New York City's bargaining
position with any number of those parties. In short, she indicated that if those dates became known
to a party or parties to the negotiations would have the ability to develop a negotiation or bargaining
strategy that would place the City and EDC at a clear disadvantage.

I am mindful of the opinions and the judicial decision involving the contention that records
that are known to both parties to negotiations must be disclosed, for in those situations, there is no
"inequality of knowledge" [see Community Board 7of Borough of Manhattan v. Schaeffer, 570 NYS
2d 769; affirmed, 83 AD 2d 422, reversed on other grounds, 84 NY 2d 148 (1994) ]. Those opinions
and the case law pertained to situations in which there were only two parties involved in a
negotiation process. While the contents of the Letter of Intent are known by and in the possession
of the New York Stock Exchange and the EDC, its contents are not known to the other parties
involved or potentially involved in negotiations regarding the project. That being so, it appears that
disclosure would "impair" present or imminent contract awards" and that the denial of the request
was consistent with law.

If the contract or contracts to which you referred are the same as or analogous to the letter
of intent that was the subject of the earlier opinion dealing with the same development project, my
response would involve a reiteration of those points. If that is the case, the denial with respect to that
aspect of your request would appear to be consistent with law.

With regard to the other records that were withheld, those involving communications from
Rockrose to the ESDC concerning plans for the relocation of tenants, ESDC's representative
indicated that the basis for the denial was §87(2)(g), which deals with "inter-agency" and "intra-
agency materials," and that the communications in question were given by Rockrose acting
essentially as a consultant.

By way of background, as you may be aware, §86(3) of the Freedom of Information Law
defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation, council,
office or other governmental entity performing a governmental or
proprietary function for the state or any one or more municipalities
thereof, except the judiciary or the state legislature."

Based on the foregoing, the exception pertains to communications between or among state or local
government officials at two or more agencies ("inter-agency materials"), or communications between
or among officials at one agency ("intra-agency materials").

While Rockrose is clearly not an agency, the Court of Appeals, the state's highest court, has
determined that records prepared by a consultants for agencies should be treated as if they were
prepared by agency staff and that, therefore, those records constitute "intra-agency materials" [Xerox
Corporation v. Town of Webster 65 NY2d 131 (1985)]. The relationship between ESDC and
Rockrose is unclear. On the one hand, Rockrose, as I understand the matter, is a developer that is
or has been involved in negotiations with ESDC; on the other, ESDC's representative informed me
that Rockrose, due to its expertise, has functioned as a consultant in relation to the preparation of
relocation plans. In Xerox, the Court referred to consultants "retained" by agencies, and, in general,
it is my view that the term "retained" implies compensation. I am unaware of whether there is any
consideration in the nature of compensation that ESDC has offered or made to Rockrose.

If the relationship between the ESDC and Rockrose in the context of your inquiry is
essentially that of agency and consultant, §87(2)(g) would be applicable in analyzing rights of access.
If, however, a relationship of that nature does not exist, that provision would not be pertinent in
determining rights of access.

Assuming that §87(2)(g) is applicable, I point out that, due to its structure, it may require the
disclosure of portions of records. Specifically, that provision 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 [i.e., §87(2)(c)]. 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.

Next, with regard to delays in responding to requests, the Freedom of Information Law
provides direction concerning the time and manner in which agencies must respond to requests.
Section 89(3) states in part that:

"Each entity subject to the provisions of this article, within five
business days of the receipt of a written request for a record
reasonably described, shall make such record available to the person
requesting it, deny such request in writing or furnish a written
acknowledgement of the receipt of such request and a statement of
the approximate date when such request will be granted or denied..."

Based on the foregoing, an agency must grant access to records, deny access or acknowledge
the receipt of a request within five business days of receipt of a request. When an acknowledgement
is given, it must include an approximate date indicating when it can be anticipated that a request will
be granted or denied. The acknowledgement by the records access officer did not make reference
to such a date.

I note that there is no precise time period within which an agency must grant or deny access
to records. The time needed to do so may be dependent upon the volume of a request, the possibility
that other requests have been made, the necessity to conduct legal research, the search and retrieval
techniques used to locate the records and the like. In short, when an agency acknowledges the
receipt of a request because more than five business days may be needed to grant or deny a request,
so long as it provides an approximate date indicating when the request will be granted or denied, and
that date is reasonable in view of the attendant circumstances, I believe that the agency would be
acting in compliance with law. Notwithstanding the foregoing, in my view, every law must be
implemented in a manner that gives reasonable effect to its intent, and I point out that in its statement
of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the
state and its localities to extend public accountability wherever and whenever feasible." Therefore,
if records are clearly available to the public under the Freedom of Information Law, and if they are
readily retrievable, there may be no basis for a lengthy delay in disclosure.

If neither a response to a request nor an acknowledgement of the receipt of a request is given
within five business days, or if an agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my opinion, be considered to have
been constructively denied. In such a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part
that:

"...any person denied access to a record may within thirty days appeal
in writing such denial to the head, chief executive, or governing body,
who shall within ten business days of the receipt of such appeal fully
explain in writing to the person requesting the record the reasons for
further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered
within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her administrative remedies and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v.
McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

Lastly, the regulations promulgated by the Committee on Open Government (21 NYCRR
Part 1401), which deal with the procedural implementation of the Freedom of Information Law, state
in relevant part that an agency "shall accept requests for public access to records and produce records
during all hours they are regularly open for business." There is no requirement that an agency make
records available on weekends or during times other than regular business hours.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Anita W. Laremont
Joseph Petillo