July 28, 2009
I have received the determination of an appeal rendered under the Freedom of Information Law relating to a request by Mr. David P. Galison. Although I agree with the outcome, I disagree with your statement that §87(2)(g) “exempts from disclosure inter- agency or intra-agency materials, which are not final agency policy or determinations.”
Please be advised that the Court of Appeals rejected a similar contention, stating 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[g][iii)]. 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 “does not represent final agency policy or determinations” does not necessarily enable an agency to withhold inter-agency or intra-agency materials in their entirety. On the contrary, portions of those materials may be available under subparagraphs (i) through (iv) of §87(2)(g), unless a different exception applies.
I hope that the foregoing serves to clarify your understanding and that I have been of assistance. If you would like to discuss the matter, please feel free to contact me.
Robert J. Freeman