NY.gov Portal State Agency Listing

 

FOIL-AO-13763

December 13, 2002

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

As you are aware, I have received your letter and the materials relating to it. You have
sought assistance concerning a denial of your request for a certain record maintained by the Village
of Sleepy Hollow.

You requested a copy of the "Santos Report", which, according to Village officials, is an
"external audit." Access was denied because the report "reflects opinion, advise [sic], and
recommendations which are not subject to release under the Freedom of Information Act."
Following your appeal of the denial of your request, the Mayor sustained the denial on the same
basis.

From my perspective, the responses by the Village indicate a misunderstanding of the
Freedom of Information Law.

In this regard, that statute 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.

One of the grounds for denial, §87(2)(g), pertains to internal governmental communications
and records prepared for agencies, as in this instance, by a consultant [see Xerox Corp. v. Town of
Webster, 65 NY2d 131 (1985)]. While some aspects of those kinds of records might in some
instances be withheld from the public, due to the structure of that provision, it often requires
disclosure. Specifically, §87(2)(g) authorizes 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..."

While opinions, advice and recommendations may be withheld in many instances when
found within inter-agency or intra-agency materials, that is not so in the case of an external audit.
As indicated by subparagraph (iv) of §87(2)(g), the State Legislature specified that external audits
must be disclosed, even though they typically consist of statistical or factual information, as well as
opinions or recommendations.

In short, in consideration of the clear direction provided by §87(2)(g)(iv), I believe that the
record at issue must be disclosed.

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

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Philip E. Zegarelli
Sonja Goldstein-Suss