January 5, 1993
Ms. Cynthia Dietz, GIS Manager
Northern Lights Office Park
Syracuse, N.Y. 13220-3225
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 Ms. Dietz:
I have received your letter of December 31 in which you alluded to legislative recommendations offered by the Committee on Open Government, as well as "holes" in the Freedom of Information Law that permit agencies to withhold information "that is not a statistic or table" under §87(2)(g).
In this regard, enclosed is a copy of the Committee's recent annual report to the Governor and the Legislature. The names of the members of the Committee appear on our letterhead and may be reached through this office.
With respect to §87(2)(g), although that provision represents a possible basis for denial, due to its structure, it often requires disclosure. Specifically, that provision 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. With respect to geographic information systems, in general, I believe that maps, images and the like would constitute "factual data" that must be disclosed. Further, it has been held that estimates and projections, even though they may not be reflective of "objective reality", nonetheless constitute "statistical" tabulations that must be disclosed [see e.g., Dunlea v. Goldmark, 54 AD 2d 446, aff'd 43 NY 2d 754 (1977)]. As such, I believe that much , if not all of the information, contained within a GIS must be disclosed.
If you would like to discuss the matter, please feel free to contact me. I hope that I have been of some assistance.
Robert J. Freeman