August 31, 2006
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.
I have received a copy of your letter to the records access officer of the Charlotte Valley Central School in which you requested to review its "Policy and Procedure manual." You wrote that you were informed verbally by the Superintendent on the day prior to the preparation of your written request that access to the manual would be denied.
From my perspective, to comply with law, the manual must be made available. In this regard, 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 (j) of the Law.
Although one of the grounds for denial of access is relevant to an analysis of the issue, due its structure, I believe that it requires disclosure in this instance. Specifically, §87(2)(g) pertains to internal governmental communications and 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..."
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.
I point out, too, that in a letter addressed to me dated July 21, 1977 by the sponsor of the revised Freedom of Information Law, former Assemblyman Mark Siegel indicated that §87(2)(g) is intended to insure that "any so-called ‘secret law’ of an agency be made available", such as the policy "upon which an agency relies" in carrying out its duties. Typically, agency guidelines, procedures, staff manuals and the like provide direction to an agency’s employees regarding the means by which they perform their duties. Some may be internal, in that they deal solely with the relationship between an agency and its staff. Others may provide direction in terms of the manner in which staff performs its duties in relation to or that affects the public, which would ordinarily be public. To be distinguished would be advice, opinions or recommendations that may be accepted or rejected. An instruction to staff, a policy or a determination would represent a matter that is mandatory or which represents a final step in the decision making process.
In short, based on the foregoing, I believe that the School’s policy and procedure manual must be disclosed.
I hope that I have been of assistance.
Robert J. Freeman
cc: Mark Dupra, Superintendent