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FOIL-AO-17151

 

                                                                                                May 5, 2008

 

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

            I have received your letter and the correspondence attached to it.  Please accept my apologies for the delay in response. 

            In short, you requested an audit prepared by the State Department of Transportation relating to payments made to a particular company involved in the reconstruction of the West Side Highway in Manhattan.  You were informed that the record at issue was not “completed” and that it is “unlikely that the report will be finalized.”  That being so, substantial portions of the audit were withheld.

            From my perspective, that the audit is not “completed” or “finalized” is irrelevant in analyzing right of access.  In this regard, I 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, it is clear in my view that the document and the underlying documentation relating to it consist of “information...produced...for an agency” and, therefore, constitute “records” subject to rights of access, irrespective of their characterization. 

            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 (j) 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.  I believe that it also requires that agency officials review requested records in their entirety to determine which portions, if any, may justifiably be withheld.

            In my view, only one of the grounds for denial, that cited by the Department, is relevant in determining 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.

            The document at issue appears to be an internal, rather than an external audit.  Nevertheless, there is no exception in the law pertaining to internal audits or records that may be incomplete or other than final.  In this instance, the record clearly constitutes “intra-agency” material, and insofar as it consists of statistical or factual information, I believe that it must be disclosed.

            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 incomplete or other than 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.

            I note, too, it has been specifically held that statistical or factual information found within an internal audit is accessible, “whether or not embodied in a final agency policy or determination” [Gannett Co., Inc. V. Rochester City School District, 684 NYS2d 757, 759; aff’d 267 AD2d 964 (1998)].

Further, the Court of Appeals in Gould 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 cited by the Court of Appeal in Gould:
"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)(iii).

            Lastly, the underlying records used in the preparation of the audit, so-called “audit workpapers”, were found to be accessible to the extent that they consist of statistical or factual information [Polansky v. Regan, 81 AD2d 102 (1981)].

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: Janice A. McLachlan
John B. Dearstyne