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FOIL-AO-19016

 

                                                                                    February 21, 2013

E-Mail

TO:                 

FROM:            Robert J. Freeman, Executive 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.

Dear:

I have received your correspondence and hope that you will accept my apologies for the delay in response to your request for an advisory opinion.

According your letter, a student at the CUNY Graduate School of Journalism submitted a request for records of the Bronx Borough President in February of last year.  A supplemental request was made by a member of the faculty, David Lewis, in May.  The request involves communications of the office of the Bronx Borough President concerning “the agreement to move FreshDirect to the Bronx”, including correspondence with the following:

Although some records were disclosed months after submission of the requests, you indicated that they generally involved press releases, petitions from activist groups and the like.
In this regard, first, the Freedom of Information Law (FOIL) pertains to existing records maintained by or for an agency, and the term “record” is defined in section 86(4) of FOIL to include “any information kept, held, filed, produced or reproduced by, with or for an agency…in any physical form whatsoever…”  Consequently, any written communications falling within the scope of the requests, whether extant on paper or made or transmitted electronically, constitute “records” falling with the coverage of FOIL.

Second, as a general matter, FOIL is based on a presumption of access.  Stated differently, all agency records are accessible, unless records or portions of records fall within one or more exceptions to rights of access appearing in section 87(2) of that statute.

From my perspective, in consideration of the grounds for denial, section 87(2)(g) concerning “inter-agency or intra-agency materials” is critical to an analysis of rights of access to the records sought. 

In my view, communications in writing, irrespective of their form, between the office of the Borough President and persons or entities outside of government would not constitute either inter-agency or intra-agency materials. Section 86(3) of FOIL defines the term “agency” to mean:

“...any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature.”

In short, an agency is an entity of state or local government in New York.  Communications with those outside of government agencies in this state would be neither inter-agency nor intra-agency materials.  Because that is so, the exception pertaining to those materials, §87(2)(g), could not properly be asserted as a basis for denying access to communications between the Board or its employees and a person or entity, i.e., a campaign, that is not governmental in nature.  As stated by the Court of Appeals, that exception pertains to an “internal government exchange” reflective of “opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making” [Gould v. New York City Police Department, 89  NY2d 267, 277 (1986)].

In another decision rendered by the state’s highest court dealing more directly with the scope of section 87(2)(g), based on the definition of “agency”, it was determined that communications between  a state agency and a federal agency did not constitute inter-agency materials, for the federal entity was not included within the definition of that term [Town of Waterford v. NYS Department of Environmental Conservation, 15 NY3d 906(2010)].

Based on the language of FOIL and its judicial construction, therefore, communications between the Office of the Borough President and FreshDirect, UFT Trucking or their agents or representatives would appear to be accessible, for they would involve entities or persons outside of the definition of “agency.”  Similarly, communications with the Office of New Jersey Governor Christie or any other government officers or employees outside of New York would fall beyond the scope of section 87(2)(g) and would, therefore, be accessible under FOIL.

Several areas of the communications falling within the scope of the request involve governmental entities that are “agencies”, including the offices of Governor Cuomo, Mayor Bloomberg, the  New York City Industrial Development Agency, members of the New York City Council and officials or members of community boards.  Correspondence between the Office of the Borough President and those persons or entities would constitute “inter-agency materials” that fall within the coverage of section 87(2)(g).

Two of the entities identified, the Bronx Overall Development Corporation and the New York City Economic Development Corporation, are not-for-profit corporations.  Most not-for-profit corporations are beyond the coverage of FOIL.  Some, however, are creations of government, under substantial government control or are affiliated with government.  In those instances, they have been found to constitute “agencies”, despite their corporate status.

Pertinent in ascertaining the status of the two corporations are provisions of the Public Authorities Law.  Section 6, enacted in 2009, describes the powers and duties of the Authorities Budget Office (ABO), which, according to that statute as well as judicial precedent, is empowered to determine whether an entity is a “local authority.”  If it is such an authority, it is subject to FOIL.  Section 2(b) of the Public Authorities Law defines the phrase “local authority” to mean “a not-for-profit corporation affiliated with, sponsored by, or created by a county, city, town or village government…”

The New York City Economic Development Corporation is clearly an extension of City government, and it has been advised for years that it is an “agency” subject to FOIL.  I had no familiarity with the Bronx Overall Development Corporation prior to the receipt of your letter, but found that its annual filing with the Charities Bureau at the Department of Law states that:

“The Corporation serves as an economic development arm of the Bronx Borough President’s office.   The Bronx Borough President’s office also provides funding to the Corporation and can recommend up to a third of the members of the Board of Directors.   The Corporation occupies office space in a building owned by the City of New York without any charge for rent and utilities….In addition, the Bronx Borough President’s office also pays salaries and benefits for employees assigned to the Corporation.”

Based on the characteristics described above, the ABO has determined that the Bronx Overall Development Corporation is a “local authority.”   Because both of the not-for-profit corporations are local authorities and, therefore, “agencies”, the communications between the Office of the Bronx Borough President’s office and those entities in my view fall within the coverage of section 87(2)g).

Although that provision potentially serves as a basis for a denial of access, due to its structure, it often requires substantial disclosure.  Specifically, section 87(2)(g) authorizes 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.

The Court in Gould, a decision cited earlier, 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).

One of the contentions offered in Gould 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 of Appeals 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)...” (id.).  

In short, that a record is “non-final” would not represent an end of an analysis of rights of access or an agency’s obligation to review the contents of a record.  In the context of your request, those portions of a draft or preliminary suspected intermediary report that consist of statistical or factual information must, in my opinion, be disclosed, except to the extent that a different exception may properly be asserted. 

In sum, insofar as the records sought involve communications with persons or entities outside of state or local government in New York, it is likely that they must be disclosed in their entirety, for none of the grounds for denial of access would apply.  Insofar as the communications consist of inter-agency or intra-agency materials, those portions consisting of advice, recommendation, opinion and the like may be withheld, but others consisting of statistical or factual information, instructions to staff that affect the public, or which reflect policy or final determinations must be disclosed.

Lastly, when an agency indicates that requested records do not exist or cannot be found, the applicant may request a “certification” pursuant to section 89(3)(a) of FOIL.  That provision states in relevant part that, 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.”

I hope that I have been of assistance.
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