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February 8, 1993

 

 

Mr. Pete Panse
Wallkill Citizens' Coalition, Inc.
Rd 1 Box 492 Van Duzer Road
Middletown, N.Y. 10940

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 Mr. Panse:

I have received your letter of January 18 in which you
requested an advisory opinion concerning the Freedom of Information
Law.

According to your letter and the material attached to it, your
request for "departmental worksheets used to prepare the 1993
budget" was denied by the Supervisor of the Town of Wallkill on the
ground that those records "are intra-agency documents and are
exempt".

In this regard, I offer the following comments.

First, 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 section 87(2)(a) through (i) of the Law.

Second, I agree that the records in question constitute
"intra-agency documents". However, the provision that deals with
those kinds of records, due to its structure, often requires
disclosure. Specifically, §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
my view be withheld.

In a case involving similar records, also called "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, I 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 AD 2d 446, aff'd 43 NY 2d 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 Ad 2d 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 my view that the
records in question, to the extent that they consist of
"statistical or factual tabulations or data", are accessible under
the Freedom of Information Law.

Further, another decision highlighted that the contents of
materials falling within the scope of section 87(2)(g) represent
the factors in determining the extent to which inter-agency or
intra-agency materials must be disclosed or may be withheld. For
example, in Ingram v. Axelrod, the Appellate Division held that:

"Respondent, while admitting that the report
contains factual data, contends that such data
is so intertwined with subject analysis and
opinion as to make the entire report exempt.
After reviewing the report in camera and
applying to it the above statutory and
regulatory criteria, we find that Special Term
correctly held pages 3-5 ('Chronology of
Events' and 'Analysis of the Records') to be
disclosable. These pages are clearly a
'collection of statements of objective
information logically arranged and reflecting
objective reality'. (10 NYCRR 50.2[b]).
Additionally, pages 7-11 (ambulance records,
list of interviews) should be disclosed as
'factual data'. They also contain factual
information upon which the agency relies
(Matter of Miracle Mile Assoc. v Yudelson,
68 AD2d 176, 181 mot for lve to app den 48
NY2d 706). Respondents erroneously claim that
an agency record necessarily is exempt if both
factual data and opinion are intertwined in
it; we have held that '[t]he mere fact that
some of the data might be an estimate or a
recommendation does not convert it into an
expression of opinion' (Matter of Polansky v
Regan, 81 AD2d 102, 104; emphasis added).
Regardless, in the instant situation, we find
these pages to be strictly factual and thus
clearly disclosable" [90 AD 2d 568, 569
(1982)].

Similarly, the Court of Appeals has specified that the
contents of intra-agency materials determine the extent to which
they may be available or withheld, for it was held that:

"While the reports in principle may be exempt
from disclosure, on this record - which
contains only the barest description of them -
we cannot determine whether the documents in
fact fall wholly within the scope of FOIL's
exemption for 'intra-agency materials,' as
claimed by respondents. To the extent the
reports contain 'statistical or factual
tabulations or data' (Public Officers Law
section 87[2][g][i], or other material subject
to production, they should be redacted and
made available to the appellant" (id. at 133).

In short, even though statistical or factual information may be
"intertwined" with opinions, the statistical or factual portions,
if any, as well as any policy or determinations, would be
available, unless a different ground for denial could properly be
asserted.

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, a copy of this opinion will be
forwarded to the Town Supervisor.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: William Cummings, Supervisor