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April 9, 1993

 

 

Mr. John Trubin, Vice-Chairman
NYC Housing Authority
250 Broadway
New York, N.Y. 10007

Dear Mr. Trubin:

I appreciate having received a copy of your determination of
an appeal of a denial of access to records requested by Mr. Richard
Adler. Although I am in general agreement with the determination,
it may be overbroad in terms of the extent to which the records
were withheld.

In this regard, I offer the following comments.

First, you are aware, 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 (i) of the Law.

Second, based upon the judicial interpretation of the Freedom
of Information Law, internal memoranda and similar records, as well
as records prepared for an agency by a consultant, may be treated
as "intra-agency" materials that fall within the scope of
§87(2)(g). That provision 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 discussion of the issue of consultant reports that you
cited, the Court of Appeals stated that:

"Opinions and recommendations prepared by
agency personnel may be exempt from disclosure
under FOIL as 'predecisional materials,
prepared to assist an agency decision
maker***in arriving at his decision' (McAulay
v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY
2d 659). Such material is exempt 'to protect
the deliberative process of government by
ensuring that persons in an advisory role
would be able to express their opinions freely
to agency decision makers (Matter of Sea Crest
Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative
process, agencies may at times require
opinions and recommendations from outside
consultants. It would make little sense to
protect the deliberative process when such
reports are prepared by agency employees yet
deny this protection when reports are prepared
for the same purpose by outside consultants
retained by agencies. Accordingly, we hold
that records may be considered 'intra-agency
material' even though prepared by an outside
consultant at the behest of an agency as part
of the agency's deliberative process (see,
Matter of Sea Crest Constr. Corp. v. Stubing,
82 AD 2d 546, 549, supra; Matter of 124 Ferry
St. Realty Corp. v. Hennessy, 82 AD 2d 981,
983)" [Xerox Corporation v. Town of Webster,
65 NY 2d 131, 132-133 (1985)].

Based upon the foregoing, the Court in Xerox 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).

Therefore, intra-agency materials or records prepared by a
consultant for an agency would be accessible or deniable, in whole
or in part, depending on their contents. In my view, insofar as
the records in question consist of advice, recommendations or
opinions, they could be withheld. However, to the extent that they
consist of statistical or factual data, for example, I believe that
they would be available, unless a different ground for denial could
be asserted.

I hope that I have been of some assistance. If you would like
to discuss the matter, please fill free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb