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FOIL-AO-18058

                                                                                                 April 5, 2010

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

            You have asked that I review and comment with respect to the breadth of a denial of access to certain records that you requested from the Village of Pelham pursuant to the Freedom of Information Law.  The response to you indicates that you requested “all email messages among members of the Village of Pelham Board of Trustees on the topic of the prohibition of portable signs in the Village Code...”, and the denial is based on §87(2)(g) of the Freedom of Information Law concerning “inter-agency or intra-agency materials.”  As I understand the response, the records sought were withheld in their entirety.

            In this regard, although I agree that the records at issue fall within the scope of §87(2)(g), based on the language of the Freedom of Information Law and its judicial interpretation by the Court of Appeals, the state’s highest court, it is likely that portions of the records in question should be disclosed.

            As a general matter, the Freedom of Information Law 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 (k) of the Law.  It is emphasized that §87(2) refers to the ability to withhold “records or portions thereof” that fall within the exceptions to rights of access that follow.  The phrase quoted in the preceding sentence indicates a recognition on the part of the State Legislature that a single record might include portions that must be disclosed, and others that may be withheld.  It also imposes a responsibility upon an agency in receipt of a request to review records sought, in their entirety, to determine which portions may justifiably be withheld.

            Although the provision cited by the Village potentially serves as a basis for denying access, due to its structure it often requires substantial disclosure.  Specifically, §87 (2)(g) enables 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.

            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 matters for which no final determination had been made.  The Court 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”, "non-final" or that it may relate to a matter that is in a  planning stage would not represent 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).]      

            Often communications among government officers or employees include a combination of material, some of which is deniable, and some of which is accessible under the law.  For instance, when the author of a communication offers a recommendation or a point of view, that portion of the record might properly be withheld.  However, in many instances, the remainder of the communication offered in support might consist wholly of statistical or factual information accessible under §87(2)(g)(i).

            Moreover, I point out that the grounds for withholding records under the Freedom of Information Law and the grounds for entry into executive session appearing in §105(1) of the Open Meetings Law are not necessarily consistent.  For example, a recommendation to prohibit portable signs expressed in writing might be deniable.  However, when the Board of Trustees discusses the issue, there would likely be no basis for conducting an executive session, and public discussion frequently involves the verbal disclosure of the content of a recommendation that may be withheld under §87(2)(g).  Insofar as the content of a record is disclosed during an open meeting, I believe that such disclosure effectively constitutes a waiver of the ability of an agency to deny access to the record.  I note, too, that the Freedom of Information Law is permissive.  While an agency may withhold records or portions of records, it is ordinarily not required to do so.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: Robert A. Yamuder