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March 3, 1993

 

Ms. Dierdre A. Burgman
Senior Vice President
and General Counsel
1515 Broadway, 55th Floor
New York, N.Y. 10036-0209

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. Burgman:

I have received your letter of February 26 and appreciate your
forwarding of correspondence pursuant to §89(4)(a) of the Freedom
of Information Law relating to certain appeals.

The materials involve requests for information and records
concerning the proposed Olympus Headquarters and Land Use
Improvement Project. Having reviewed the requests, appeals and the
responses thereto by the records access officers designated by the
Urban Development Corporation (UDC), it is clear that a great deal
of documentation has been made available. However, other
documentation was withheld.

Since you referred to your desire to receive an "advisory
guideline" regarding the treatment of the requests, 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, it appears that the records withheld involve lease
agreements between UDC and the Parr Development Company and between
Parr and Olympus, related draft documents, and appraisals. With
respect to those documents, it appears that two of the grounds for
denial may be relevant.

Section 87(2)(c) permits an agency to withhold records to the
extent that disclosure would "impair present or imminent contract
awards or collective bargaining negotiations." As it relates to
the impairment of "contract awards", §87(2)(c) is, in my opinion,
generally cited and applicable in two types of circumstances.

One involves a situation in which an agency is involved in the
process of seeking bids or proposals concerning the purchase of
goods and services. If, for example, an agency seeking bids or
proposals has received a number of bids, but the deadline for their
submission has not been reached, premature disclosure for the bids
to another possible submitter might provide that person or firm
with an unfair advantage vis a vis those who already submitted
bids. Further, disclosure of the identities of bidders or the
number of bidders might enable another potential bidder to tailor
his bid in a manner that provides him with an unfair advantage in
the bidding process. In such a situation, harm or "impairment"
would likely be the result, and the records could justifiably be
denied. However, after the deadline for submission of bids or
proposals has been reached, often the passage of that event results
in the elimination of harm. Further, it has been held that bids or
proposals are available after a contract has been awarded, and
that, in view of the requirements of the Freedom of Information
Law, "the successful bidder had no reasonable expectation of not
having its bid open to the public" [Contracting Plumbers
Cooperative Restoration Corp. v. Ameruso, 105 Misc. 2d 951, 430 NYS
2d 196, 198 (1980)].

The other situation in which §87(2)(c) has successfully been
asserted to withhold records pertains to real property transactions
where appraisals in possession of an agency were requested prior to
the consummation of a transaction. Again, premature disclosure
would have enabled the public to know the prices the agency sought,
thereby potentially precluding the agency from receiving an optimal
price [see Murray v. Troy Urban Renewal Agency, 56 NY 2d 888
(1982)].

In both of the kinds of the situations described above, there
is an inequality of knowledge. More specifically, in the bid
situation, the person who seeks bids prior to the deadline for
their submission is presumably unaware of the content of the bids
that have already been submitted; in the appraisal situation, the
person seeking that record is unfamiliar with its contents. As
suggested above, premature disclosure of bids would enable a
potential bidder to gain knowledge in a manner unfair to other
bidders and possibly to the detriment of an agency and, therefore,
the public. Disclosure of an appraisal would provide knowledge to
the recipient that might effectively prevent an agency from
engaging in an agreement that is most beneficial to taxpayers.

If there is no inequality of knowledge between or among the
parties to negotiations, and if records have been shared or
exchanged by the parties, it is questionable and difficult to
envision how disclosure would "impair present or imminent contract
awards (see Community Board 7 of Borough of Manhattan v. Schaffer,
Supreme Court, New York County, NYLJ, March 20, 1991). Further,
if a lease or contract has been signed, presumably negotiations
have ended, and any impairment that might have existed prior to the
consummation of an agreement would essentially have disappeared.

Also of potential relevance is §87(2)(g), which pertains to
the authority to withhold "inter-agency or intra-agency materials."
If an appraisal or survey is prepared by agency officials, it
could be characterized as "intra-agency material." Further, the
Court of Appeals has held that appraisals and other reports
prepared by consultants retained by agencies may also be considered
as intra-agency materials subject to the provisions of §87(2()(g)
[see Xerox Corporation v. Town of Webster, 65 NY 2d 131 (1985)].

More specifically, §87(2)(g) states that an agency may
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. As such, the specific contents of inter-agency or intra-agency materials determine the extent to which they
are available or deniable under §87(2)(g).

It has been held that factual information appearing in
narrative form, as well as those portions appearing in numerical or
tabular form, is available under §87(2)(g)(i). For instance, 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 [i.e., §87(2)(c)]
could properly be asserted.

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: Gerald S. and Elfriede Craddock