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FOIL-AO-15573

October 21, 2005

E-MAIL

TO:

FROM: Camille S. Jobin-Davis, Assistant Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

As you know, we are in receipt of your July 15, 2005 e-mail request for an advisory opinion concerning public access to records of the Office of the State Comptroller’s relating to its "Fill for Fields" audit of the Valhalla Union Free School District, as well as those referencing your request for a full audit. As we understand it, your request for a full audit was based on two concerns, (1) the 2003-2004 contingency budget, and (2) lease of the Columbus Avenue School.

It is our understanding based on the materials you have provided that the Comptroller sent a preliminary audit report to the school in January of 2005, and that the Comptroller released a letter in April of 2005 clearing the school of any wrongdoing concerning the two issues you identified. The final audit report has not yet been released. Your requests were denied on the grounds that the materials were "non-final", intra-agency and inter-agency material.

In this regard, we offer the following comments.

First, the Freedom of Information Law pertains to agency records, and §86(4) of the law defines the term "record" expansively to include:

"...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 view of the breadth of the language quoted above, we believe that the preliminary report in question and the underlying work papers consist of "information...produced...for an agency" and, therefore, constitute "records" subject to rights of access, irrespective of their physical location.

Second, 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. Moreover, it is emphasized that the introductory language of §87(2) refers to the authority of an agency to withhold "records or portions thereof" that fall within one or more of the grounds for denial that follow. The language quoted in the preceding sentence indicates that a single record or report might be both accessible or deniable, in whole or in part. We believe that it also requires that agency officials review requested records in their entirety to determine which portions, if any, may justifiably be withheld.

From our perspective, only one of the grounds for denial would be relevant to rights of access. Due to its structure, however, that provision often requires disclosure. Specifically, §87(2)(g) states that an agency may 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 our view be withheld.

There is no exception for "non-final" records. When the report becomes final, we believe that it could be characterized as an external audit and accessible in its entirety pursuant to §87(2)(g)(iv). In our view, insofar as the preliminary report and the underlying work papers consist of statistical or factual data, they would be accessible under §87(2)(g)(iv) [ see Polansky v. Regan, 81 AD 2d 102 (1981)], and must be provided.

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 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 in Mr. Brook’s words "non-final", does not necessarily signify 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 addition, in a situation in which opinions and factual materials were "intertwined" within intra-agency materials, Ingram v. Axelrod, a decision rendered by the Appellate Division, Third Department, indicated that:

"Respondent, while admitting that the report contains factual data, contends that such data is so intertwined with subject analysis and opinion as to make the entire report exempt. After reviewing the report in camera and applying to it the above statutory and regulatory criteria, we find that Special Term correctly held pages 3-5 ('Chronology of Events' and 'Analysis of the Records') to be disclosable. These pages are clearly a 'collection of statements of objective information logically arranged and reflecting objective reality'. (10 NYCRR 50.2[b]). Additionally, pages 7-11 (ambulance records, list of interviews) should be disclosed as 'factual data'. They also contain factual information upon which the agency relies (Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181 mot for lve to app den 48 NY2d 706). Respondents erroneously claim that an agency record necessarily is exempt if both factual data and opinion are intertwined in it; we have held that '[t]he mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion' (Matter of Polansky v Regan, 81 AD2d 102, 104; emphasis added). Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable" [90 AD 2d 568, 569 (1982)]; see also Miracle Mile Associates v. Yudelson, 68 AD 2d 176, 48 NY 2d 706, motion of leave to appeal denied (1979); Xerox Corporation v. Town of Webster, 65 NY 2d 131, 490 NYS 2d 488 (1985)].

In short, even though statistical or factual information contained within a record may be "intertwined" with opinions, the statistical or factual portions, if any, would in our opinion be available under §87(2)(g)(iv).

I trust this meets with your request. Should you have any further questions, please contact me directly.

CSJD:tt