June 4, 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 facts presented in your correspondence, unless otherwise indicated.
We have received your letter dated February 17 in which you requested an advisory opinion concerning the Freedom of Information Laws.
According to your letter, you made a request pursuant to the Freedom of Information Law for access to the Oswego City Fire Department policy manual, as well as memos from the Oswego Fire Department Chief and his Assistant Chief. The City of Oswego, denied your request but provided a copy of the Fire Department rules and regulations in response to your appeal. However, an intra-departmental memo affecting fire department staff was withheld.
In this regard, 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 (k) of the Law.
Based upon the judicial interpretation of the Freedom of Information Law, internal memoranda and similar records may be treated as "intra-agency" or “inter-agency” materials that fall within the scope of §87(2)(g). 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 our view be withheld.
Typically, agency guidelines, procedures, staff manuals and the like provide direction to an agency's employees regarding the means by which they perform their duties. Some may be "internal", in that they deal solely with the relationship between an agency and its staff. Others may provide direction in terms of the manner in which staff performs its duties in relation to or that affects the public, which would ordinarily be public. To be distinguished would be advice, opinions or recommendations that may be accepted or rejected. An instruction to staff, a policy or a determination each would represent a matter that is mandatory or which represents a final step in the decision making process that would be accessible.
Lastly, when responding to a request made under the Freedom of Information Law, §89(3)(a) offers three options. An agency may indicate that it possesses the record and release it to the applicant, deny the request based on one or more of the exceptions to rights of access appearing in § 87(2), or indicate that the agency does not possess the record or that after a diligent search, that no record can be found.
When an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3)(a) also provides in part that, in such a situation, on request, an agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search." It is emphasized that when a certification is requested, an agency "shall" prepare the certification; it is obliged to do so. Accordingly, because the City has indicated that a policy manual does not exist, it may be worthwhile to request a certification to that effect.
We hope we have been of assistance.
ROBERT J. FREEMAN
BY: James B. Gross
cc: Barbara Sugar, City Clerk
Gay H. Williams, City Attorney