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November 1, 2001

 

Mr. John M. Condon
6 Seymour Lane
Hopewell Junction, 12455-6838

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 Mr. Condon:

I have received your letter of October 10 in which you asked that I "overturn" a denial of
access to a record by the Town of East Fishkill.

According to your letter, you were:

"denied access to the environmental information relative to a parcel
of land currently owned by the IBM Corporation that the Town of
East Fishkill desires to use for park purposes. The Town Supervisor
indicated during a public meeting that the report stated that the area
was not contaminated. This was in spite of the fact that a tanker truck
provides drinking water to the facility and there are signs that read
‘Don't drink the water'.

"The grounds of this denial were listed as ‘interagency' and not
subject to FOIL until such time as negotiations regarding the issue are
complete. I did not ask for any information regarding the
negotiations, only the environmental aspects of the report."

You added that the denial of your request did not advise you of the right to appeal the denial.
Nevertheless, you appealed to the Town Board on September 13. As of the date of your letter to this
office, however, no determination had been made.

In this regard, it is emphasized at the outset that the Committee on Open Government is
authorized to provide advice and opinions concerning the Freedom of Information Law. Neither the
Committee nor myself is empowered to "overturn" an agency's grant or denial of access to records
or otherwise compel an agency to comply with law. However, in an effort to assist you, 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.

As you are aware, §87 (2)(g) 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, the state's highest court, 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 of Appeals 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" 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 my view, insofar as the record at issue consists of recommendations, advice or opinions,
for example, it may be withheld; insofar as it consists of statistical or factual information, I believe
that it must be disclosed.

I point out that the Court in Gould repeatedly specified that a categorical denial of access to
records is inconsistent with the requirements of the Freedom of Information Law. In that case, the
agency contended that complaint follow up reports, also known as "DD5's", could be withheld in
their entirety on the ground that they fall within the exception regarding intra-agency materials,
§87(2)(g). The Court, however, wrote that: "Petitioners contend that because the complaint follow-
up reports contain factual data, the exemption does not justify complete nondisclosure of the reports.
We agree" (id., 276). The Court then stated as a general principle that "blanket exemptions for
particular types of documents are inimical to FOIL's policy of open government" (id., 275).

Second, when a person is denied access to records, that person has the right to appeal.
Section 89(4)(a) of the Freedom of Information Law 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
of the entity, or the person therefor designated by such 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."

Further, the regulations promulgated by the Committee on Open Government (21 NYCRR
Part 1401), which govern the procedural aspects of the Law, state that:

"(a) The governing body of a public corporation or the head, chief
executive or governing body of other agencies shall hear appeals or
shall designate a person or body to hear appeals regarding denial of
access to records under the Freedom of Information Law.

(b) Denial of access shall be in writing stating the reason therefor
and advising the person denied access of his or her right to appeal to
the person or body established to hear appeals, and that person or
body shall be identified by name, title, business address and business
telephone number. The records access officer shall not be the appeals
officer" (§1401.7).

It is noted that the state's highest court has held that a failure to inform a person denied access
to records of the right to appeal enables that person to seek judicial review of a denial. Citing the
Committee's regulations and the Freedom of Information Law, the Court of Appeals in Barrett v.
Morgenthau held that:

"[i]nasmuch as the District Attorney failed to advise petitioner of the
availability of an administrative appeal in the office (see, 21 NYCRR
1401.7[b]) and failed to demonstrate in the proceeding that the
procedures for such an appeal had, in fact, even been established (see,
Public Officers Law [section] 87[1][b], he cannot be heard to
complain that petitioner failed to exhaust his administrative remedies"
[74 NY 2d 907, 909 (1989)].

In sum, an agency's records access officer has the duty individually, or in that person's role
of coordinating the response to a request, to inform a person denied access of the right to appeal as
well as the name and address of the person or body to whom an appeal may be directed.

In an effort to enhance compliance with and understanding of the Freedom of Information
Law, copies of this opinion will be sent to Town officials.

 

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Town Board
Hon. Dorothy Mekeel