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May 26, 1994



Mr. Eric Zager
WSTM - Television
1030 James Street
Syracuse, NY 13203

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. Zager:

I have received your letter of April 29 and the materials
attached to it.

By way of background, two employees of the Onondaga County
Department of Transportation were involved in an accident in a
County vehicle on February 2. The incident was apparently not
reported in a timely manner, and both employees admitted to having
engaged in misconduct and were subject to a penalty. On April 4,
you requested records concerning the County's investigation of the
matter, and on April 22, you received a response granting access to
some records but also stating that "documents involving the actual
investigation are not available to you as they are exempt under
Section 87 2(g)3 of the New York State Public Officer's [sic] Law".

You have contended the denial was not rendered in a timely
fashion, and you have questioned its propriety. In this regard,
I offer the following comments.

First, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to
requests. Specifically, §89(3) of the Freedom of Information Law
states in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision states in relevant part that:

"...any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive, or
governing body, who shall within ten business
days of the receipt of such appeal fully
explain in writing to the person requesting
the record the reasons for further denial, or
provide access to the record sought."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

Second, 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 §87(2)(a) through (i) of the Law.

By citing §87(2)(g)(iii) of the Freedom of Information Law as
the basis for the denial, it appears that the records access
officer determined that the records prepared as part of the
investigation are not available because they are not final
determinations. If indeed that is the claim, I believe that it is
based on a misinterpretation of the Freedom of Information Law.
This is not to suggest that every aspect of the records of the
investigation must be disclosed; rather, I am suggesting that
portions of the records may be accessible under the Law.

The provision referenced in the response, §87(2)(g), is one of
the grounds for denial. However, due to its structure, it often
requires disclosure of certain aspects of records. Section
87(2)(g) permits an agency to withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or

ii. instructions to staff that affect the

iii. final agency policy or determinations;

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

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).

Therefore, even though the records sought do not consist of final
agency policies or determinations, I believe that those portions
consisting of statistical or factual information or instructions to
staff that affect the public would be available, unless a different
ground for denial could properly be asserted.

Aside from §87(2)(g), also of possible relevance may be
§87(2)(b), which authorizes an agency to withhold records to the
extent that disclosure would constitute "an unwarranted invasion of
personal privacy". Although the standard concerning privacy is
flexible and may be subject to conflicting interpretations, the
courts have provided substantial direction regarding the privacy of
public employees. It is clear that public employees enjoy a lesser
degree of privacy than others, for it has been found in various
contexts that public employees are required to be more accountable
than others. Additionally, the courts have found that, as a
general rule, records that are relevant to the performance of a
public employee' s official duties are available, for disclosure in
such instances would result in a permissible rather than an
unwarranted invasion of personal privacy [see e.g., Farrell v.
Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v.
County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978);
Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing
Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty.,
March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims,
1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v.
NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988);
Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk
Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d
562 (1986)]. Conversely, to the extent that records are irrelevant
to the performance of one's official duties, it has been found that
disclosure would indeed constitute an unwarranted invasion of
personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty.,
NYLJ, Nov. 22, 1977].

Lastly, the courts have consistently interpreted the Freedom
of Information Law in a manner that fosters maximum access. As
stated by the Court of Appeals more than a decade ago:

"To be sure, the balance is presumptively
struck in favor of disclosure, but in eight
specific, narrowly constructed instances where
the governmental agency convincingly
demonstrates its need, disclosure will not be
ordered (Public Officers Law, section 87, subd
2). Thus, the agency does not have carte
blanche to withhold any information it
pleases. Rather, it is required to articulate
particularized and specific justification and,
if necessary, submit the requested materials
to the court for in camera inspection, to
exempt its records from disclosure (see Church
of Scientology of N.Y. v. State of New York,
46 NY 2d 906, 908). Only where the material
requested falls squarely within the ambit of
one of these statutory exemptions may
disclosure be withheld" [Fink v. Lefkowitz, 47
NY 2d 567, 571 (1979)].

In another decision, the Court of Appeals found that:

"The Freedom of Information Law expresses this
State's strong commitment to open government
and public accountability and imposes a broad
standard of disclosure upon the State and its
agencies (see, Matter of Farbman & Sons v New
York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance
of the public's vested and inherent 'right to
know', affords all citizens the means to
obtain information concerning the day-to-day
functioning of State and local government thus
providing the electorate with sufficient
information 'to make intelligent, informed
choices with respect to both the direction and
scope of governmental activities' and with an
effective tool for exposing waste, negligence
and abuse on the part of government officers"
[Capital Newspapers v. Burns, 67 NY 2d 562,
565-566 (1986)].

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Martin A. Farrell, Records Access Officer
Christina Pezzulo, Deputy County Attorney