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FOIL-AO-17581

                                                                                                March 13, 2009

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 materials attached to it.  You have I asked that I contact the Village of Brockport to seek unredacted copies of those materials in order that an opinion may be rendered concerning compliance with the Freedom of Information Law by the Village.

            In this regard, the Committee on Open Government is authorized to provide advice and opinions concerning the Freedom of Information Law.  It does not have the authority to obtain records that are the subjects of requests by others, nor does it function as a court.  Because that is so, this office cannot obtain the records.  However, based on a review of the materials and the nature of the redactions, I offer the following comments.

            First, since matter relates to a village budget, I noted that §5-508(3) of the Village Law pertains to a public hearing on a tentative budget and states in relevant part that "[t]he notice of hearing shall state the time when and place where such public hearing will be held, the purpose thereof, and that a copy of the tentative budget is available at the office of the village clerk where it may be inspected by any interested person during office hours."  As such, it is clear that any person may review a tentative budget.

            Second, with specific respect to the records that you attached, I point out that, 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.  One of the exceptions to rights of access, §87(2)(g), is especially relevant.  Although that provision potentially serves as a basis for denying access, due to its structure, it often requires disclosure of substantial portions of records, and I believe that to be so in this instance.

            That provision permits 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.

            In a case involving "budget worksheets", it was held that numerical figures, including estimates and projections of proposed expenditures, are accessible, even though they may have been advisory and subject to change.  In that case, the records at issue contained three columns of numbers related to certain areas of expenditures.  One column consisted of a breakdown of expenditures for the current fiscal year; the second consisted of a breakdown of proposed expenditures recommended by a state agency; the third consisted of a breakdown of proposed expenditures recommended by a budget examiner for the Division of the Budget.  Although the latter two columns were merely estimates and subject to modification, they were found to be "statistical tabulations" accessible under the Freedom of Information Law as originally enacted [see Dunlea v. Goldmark, 380 NYS 2d 496, aff'd 54 AD 2d 446, aff'd 43 NY 2d 754 (1977)].  At that time, the Freedom of Information Law granted access to "statistical or factual tabulations" [see original Law, §88(1)(d)].  Currently, §87(2)(g)(i) requires the disclosure of "statistical or factual tabulations or data".  As stated by the Appellate Division in Dunlea:

"[I]t is readily apparent that the language statistical or factual tabulation was meant to be something other than an expression of opinion or naked argument for or against a certain position.  The present record contains the form used for work sheets and it apparently was designed to accomplish a statistical or factual presentation of data primarily in tabulation form.  In view of the broad policy of public access expressed in §85 the work sheets have been shown by the appellants as being not a record made available in §88" (54 Ad 2d 446, 448)."

          The Court was also aware of the fact that the records were used in the deliberative process, stating that:

"The mere fact that the document is a part of the deliberative process is irrelevant in New York State because §88 clearly makes the back-up factual or statistical information to a final decision available to the public.  This necessarily means that the deliberative process is to be a subject of examination although limited to tabulations.  In particular, there is no statutory requirement that such data be limited to 'objective' information and there no apparent necessity for such a limitation" (id. at 449).

            Based upon the language of the determination quoted above, which was affirmed by the state's highest court, it is my view that the records in question, to the extent that they consist of "statistical or factual tabulations or data", are accessible, unless a provision other than §87(2)(g) could be asserted as a basis for denial.

            Another decision highlighted that the contents of materials falling within the scope of section 87(2)(g) represent the factors in determining the extent to which inter-agency or intra-agency materials must be disclosed or may be withheld.  For example, in Ingram v. Axelrod, the Appellate Division held 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)].

            Similarly, the Court of Appeals has specified that the contents of intra-agency materials determine the extent to which  they may be available or withheld, for it was held that:

"While the reports in principle may be exempt from disclosure, on this record - which contains only the barest description of them - we cannot determine whether the documents in fact fall wholly within the scope of FOIL's exemption for 'intra-agency materials,' as claimed by respondents.  To the extent the reports contain 'statistical or factual tabulations or data' (Public Officers Law section 87[2][g][I], or other material subject to production, they should be redacted and made available to the appellant" (id. at 133).

            In short, even though statistical or factual information may be "intertwined" with opinions, the statistical or factual portions, if any, as well as any policy or determinations, would be available, unless a different ground for denial could properly be asserted.

            In sum, while I believe that portions of the records consisting of narrative expressions of opinion or recommendation may be withheld, others consisting of factual information or numbers, even though the numbers may reflect estimates or projections that are subject to change, must be disclosed.

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

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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cc: Board of Trustees
Leslie Ann Morelli