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FOIL-AO-18120

 

                                                                                    May 24, 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:

            We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the City of Rye.  Specifically, you requested a copy of “all reports… from JCJ Architecture” on August 22, 2009.  In response, the City informed you that such report was “in draft form and is unavailable to the public.”  On January 20, 2010, you learned that the final version of the report has been available to the public since January of 2009, and you provided a link to the report online.  You seek an advisory opinion regarding the City’s denial of access to the “draft” report.

            First, with respect to rights of access, 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 (k) of the Law.

            Although §87(2)(g) potentially serves as one of the grounds for denial of access to records, due to its structure, it often requires substantial disclosure. This 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 bythe 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.

            We note that Xerox Corporation v. Town of Webster [65 NY2d 131 (1985)] dealt with reports prepared by "outside consultants retained by agencies" (id. 133). In such cases, it was found by the Court of Appeals that the records prepared by consultants should be treated as if they were prepared by agency staff and should, therefore, be considered intra-agency materials
that fall within the scope of §87(2)(g).

            In its discussion of the issue in Xerox, the Court of Appeals stated that:

"Opinions and recommendations prepared by agency personnel may be exempt from disclosure under FOIL as 'predecisional materials, prepared to assist an agency decision maker***in arriving at his decision' (McAulay v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY 2d 659). Such material is exempt 'to protect the deliberative process of government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative process, agencies may at times require opinions and recommendations from outside consultants. It would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies. Accordingly, we hold that records may be considered 'intra-agency material' even though prepared by an outside consultant at the behest of an agency as part of the agency's deliberative process (see, Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD 2d 546, 549, supra; Matter of 124 Ferry St. Realty Corp. v. Hennessy, 82 AD 2d 981, 983)" [Xerox Corporation v. Town of Webster, 65 NY 2d 131, 132-133 (1985)].

            Based upon the foregoing, records prepared by a consultant for an agency may be withheld or must be disclosed based upon the same standards as in cases in which records are prepared by the staff of an agency. It is emphasized that the Court in Xerox 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).

            Therefore, a record prepared by a consultant for an agency would be accessible or deniable, in whole or in part, depending on its contents.

            With respect to the contention that the records are "draft" or "non-final", we note that
in Gould v. New York City Police Department, one of the contentions was that certain reports could be withheld because they were not final and because they related to incidents 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., 62NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130AD2d 577)..."[87 NY2d 267, 276 (1996)].

            In short, that the records are "predecisional", “draft” or "non-final" would not represent an end of an analysis of rights of access or an agency's obligation to review the entirety of their contents to
determine rights of access.  Based on the direction offered by the state's highest court, we believe that insofar as the records prepared by an architect for the City consist of "statistical or factual tabulations or data", they must be disclosed, even though they may be “pre-decisional”, “draft” or "non-final."

            The state's highest court has held that a failure to inform a person denied access to records of the right to appeal enables that person to seek judicial review of a denial. Citing the Committee's regulations and the Freedom of Information Law, the Court of Appeals in Barrett v. Morgenthau held that:

            Finally, although it is unclear from your correspondence whether the record was available online since January 2009, we note the regulations adopted by the Committee on Open Government, which requires as follows:

“(b) When an agency maintains requested records on the internet, a response shall inform a requester that the records are accessible via the internet and in printed form either on paper or other information storage medium.” 21 NYCRR §1401.5.

            On behalf of the Committee on Open Government, we hope that this helps to clarify your understanding of the Freedom of Information Law.

                                                                                                            Sincerely,

 

                                                                                                            Camille S. Jobin-Davis
                                                                                                            Assistant Director

CSJ:jm

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