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October 28, 1993

 

 

Mr. Joseph C. Donawick
27 Buhrmaster Road
Latham, N.Y. 12110-1015

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. Donawick:

I have received your letter of October 10, as well as earlier
related correspondence. Please accept my apologies for the delay
in response.

By way of background, in August, you wrote to the Director of
the Albany County Airport to express dissatisfaction concerning an
offer for an easement on your property. You indicated that you had
little information about the "process of determining the avigation
easement" and requested additional information in order to
"properly evaluate [your] options", specifically copies of "the two
avigation appraisals of the property and the methodology the
appraisers followed in arriving at their figures." In response to
that request, Airport Counsel wrote that:

"It is the policy of this office to offer
copies of our avigation appraisals only on the
basis of an exchange of bonafide appraisals
commissioned and completed by the property
owner. If you have such an appraisal we would
be more than happy to participate in an
exchange."

In conjunction with those comments, you asked whether there is any
provision of the State Constitution or any law that authorizes
government agencies or officials "to make and implement a rule or
policy whereby a citizen must 'barter' to obtain information and
data which should be freely available to a citizen."

In this regard, I offer the following comments.

First, I know of no provision of the constitution or law that
would authorize an agency or representative to require that a
member of the public "barter" in order to obtain information.

Second, the statute that generally pertains to records of
entities of state and local government, the Freedom of Information
Law, is expansive in its coverage. It is noted that §86(4) of that
statute defines the term "record" to include:

"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."

Therefore, appraisals maintained by or produced for the County, as
well as any other informational materials related to them, would
constitute "records" subject to rights conferred by the Freedom of
Information Law.

Moreover, 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. I point out, too, that when
records are available under the Freedom of Information Law, it has
been held that they must be made equally available to any person,
without regard to one's status or interest [see M. Farbman & Sons
v. New York City Health & Hosps. Corp., 62 NY 2d 75 (1984); Burke
v. Yudelson, 51 AD 2d 673 (1976)]. The Law does not generally
distinguish among applicants, and the intended use of records is
largely irrelevant to rights of access or the fees that agencies
may charge. In addition, although compliance with the Freedom of
Information Law involves the use of public employees' time, the
Court of Appeals has found that the Law is not intended to be given
effect "on a cost-accounting basis", but rather that "Meeting the
public's legitimate right of access to information concerning
government is fulfillment of a governmental obligation, not the
gift of, or waste of, public funds" [Doolan v. BOCES, 48 NY 2d 341,
347 (1979)].

Third, although all agency records are presumptively
available, I believe that two grounds for denial may be relevant to
an analysis of rights of access.

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 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.

When there is no inequality of knowledge between or among the
parties to negotiations, or 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, any impairment that might have existed prior to the
consummation of an agreement would essentially have disappeared.
In this instance, it appears that the County is willing to share
records with you under certain conditions. While I do not believe
that the conditions mentioned are relevant to public rights of
access to the records in question, again, §87(2)(c) may have a
bearing upon disclosure.

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.

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 A2d 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: Richard M. Meyers