October 1, 2013
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 yours of August 21, 2013, referencing a request which, to date, has not been received from Mr. Todd Elzey, for an advisory opinion regarding application of the Freedom of Information and Open Meetings Laws to tentative budget worksheets requested from Ontario County. Specifically, you contend that the draft Ontario County Transportation Department budget was not required to be made available to the public either pursuant to the Freedom of Information Law or §103(e) of the Open Meetings Law. We feel compelled to write because our opinion differs so dramatically.
In this regard, we note first that the characterization of a record as “draft” or “proposed” is not determinative of rights of access. The Freedom of Information Law pertains to all agency records, and §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 ). At that time, the Freedom of Information Law granted access to “statistical or factual tabulations” (see original Law, §88[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 your reliance on a Second Department decision, Delaney v Del Bello, (62 AD2d 281, 286-288, 405 NYS2d 276 [2nd Dept 1978]), in which the court distinguished the request from that made in Dunlea, on the ground that the Dunlea issue “arose within the context of a budget which had already been finally adopted.” (id. at 286.) The Appellate Division applied an overall balancing test, finding that disclosure would be more harmful to the interest of government than helpful to the interests of the party making the request.
This analysis, and the court’s decision in Delaney, in our opinion is inaccurate, and has been overruled by the Court of Appeals decision in Gould v New York City v New York City Police Department, 89 NY2d 267, 653 NYS2d 54 (1996).
Specifically, in Gould, the Court determined 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 reports is ‘factual data’ (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[g][iii)]. 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 (1196)].
In short, that a record “does not represent final agency policy or determinations” does not necessarily enable an agency to withhold inter-agency or intra-agency materials in their entirety. On the contrary, portions of those materials may be available under subparagraphs (i) through (iv) of §87(2)(g), unless a different exception applies.
The Court focused on what constitutes "factual data", stating 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, 490 N.Y.S. 2d 488, 480 N.E.2d 74 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549, 442 N.Y.S.2d 130]). 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[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, 463 N.Y.S.2d 122, mod on other grounds, 61 NY2d 958, 475 N.Y.S.2d 272, 463 N.E. 2d 613; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182. 417 N.Y.S.2d 142)" (Gould v. New York City Police Department, 89 NY2d 267-276, 277 ).
Further, we note recent amendments to Open Meetings Law §103, effective on February 2, 2012. The goal of the 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 a public body schedules a document for discussion during an open meeting 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 is helpful.
Camille S. Jobin-Davis
c: Todd Elzey (via email)