February 19, 2013
FROM: Camille S. Jobin-Davis, Assistant Director
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.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information and Open Meetings Laws to tentative budget worksheets requested from the Fairview Fire District. Specifically, you believe that the Board of the Fire District may have received inaccurate advice regarding the posting of material online prior to a meeting at which it is discussed, and the accessibility of tentative budget records.
First, the characterization of a record as “tentative” or “proposed” is not determinative of rights of access. The Freedom of Information Law pertains to all agency records, and that §86(4) of the Law defines the term “record” to mean:
“any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.”
Based on the foregoing, when information is maintained by an agency in some physical form (i.e., drafts, worksheets, computer disks, etc.), we believe that it would constitute a "record" subject to rights of access.
Second, 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 (l) of the Law. In our opinion, two of the grounds for denial would be relevant to an analysis of rights of access to the records sought. Neither, under the circumstances, would in our view have justified a denial of access.
Section 87(2)(g) of the Freedom of Information Law 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.
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, we believe that 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 AD2d 446, aff'd 43 NY2d 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 Ad2d 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 our 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.
We note contrary advice offered by counsel to the Fire District, based on §181(2)(c) of Town Law, which provides in full, as follows:
“(c) Upon adoption of the proposed budget by the board of fire commissioners, the proposed budget shall be filed in the office of the fire district secretary and maintained as a public document available for inspection and copying. The fire district secretary shall also reproduce a sufficient number of copies of the proposed budget for distribution upon request to the public and at no cost to the public. In addition, if the fire district maintains an internet website, the fire district secretary shall cause the proposed budget to be posted and maintained on the fire district's website until the day after the public hearing on the proposed budget.”
In short, this provision requires that once the proposed budget is adopted by the Board of Fire Commissioners, the fire district secretary shall make copies available, free of charge, on demand, at the District Office, and shall post the record online. Significantly different than the requirements of the Freedom of Information Law, this provision prevents the District from collecting $.25 per page, removes the District’s ability to respond to written requests in a timely manner, and requires posting when possible.
Counsel’s contention that these additional requirements with respect to the proposed budget relieve the District from providing access to budget worksheet records is in my view, illogical. The Town Law does not address access to budget worksheet records. Accordingly, the provisions of Freedom of Information Law apply, and it is our opinion, based on the analysis provided above, that there is no basis to deny access.
Further, we note recent amendments to Open Meetings Law §103, effective on February 2, 2012. The goal of a new section (e) is direct: those interested in the work of public bodies should have the ability, within reasonable limitations, to see the records scheduled to be discussed during open meetings prior to the meetings. The entire text of the amendment is as follows:
“(e) Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable as determined by the agency or the department, prior to or at the meeting during which the records will be discussed. Copies of such records may be made available for a reasonable fee, determined in the same manner as provided therefore in article six of this chapter. If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable as determined by the agency or the department, prior to the meeting. An agency may, but shall not be required to, expend additional moneys to implement the provisions of this subdivision.”
In short, when an agency schedules a document for public discussion that is required to be made public pursuant to the Freedom of Information Law, it is required to make the record available to the public, to the extent practicable, online and prior to or at the meeting during which the record is discussed.
We hope that this helpful.