November 30, 1994
Mr. Milton Goldin
The Milton Goldin Company
266 Crest Drive
Tarrytown, NY 10591-4328
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
Dear Mr. Goldin:
I have received your letter of October 21 and the materials attached to it. You have sought assistance in obtaining certain records of the Village of North Tarrytown.
The first issue involves a request for records relating to the Local Waterfront Revitalization Program, the "ISTEA Transportation Enhancement Program grant", and "correspondence between Donald W. Stever, Esq., a member of the Village of North Tarrytown Conservation Advisory Council and of the Board of the Hudson Valley Writers' Center, Inc., and officials of the Village relative to the programs and grant noted above." The request was denied on the ground that the records consist of "inter-agency communications." Upon further questioning, the Village also withheld a letter "from Don Stever as Counsel to Hudson Valley to the Village" on the ground that it is "exempt."
In this regard, it appears that a denial of access on the basis stated in the correspondence is overbroad and likely inappropriate. Section 87(2)(g) of the Freedom of Information Law pertains to "inter-agency" and "intra-agency" materials. Section 86(3) of that statute defines the term "agency" to mean:
"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office of other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."
Therefore, an agency is an entity of state or local government. Based on the definition of "agency", "inter-agency materials" would involve written communications between or among officials of two or more agencies; "intra-agency materials" would consist of communications between or among officials within an agency. When a member of the public, acting in that capacity, or a person acting as a representative of a non-governmental entity, communicates with government, the communication, in my view, could not be characterized as "inter-agency or intra-agency materials", for that person neither is nor represents an agency.
Mr. Stever appears to be involved in two roles, one for the Village's Conservation Advisory Council and the other for the Hudson Writers' Center, Inc. While I believe that the Conservation Advisory Council is an agency (see General Municipal Law, §239-x), the letter of denial indicates that Mr. Stever's letter was written "as Counsel to Hudson Valley." Since the Hudson Valley Writers' Center is not an agency, the communication between Mr. Stever and the Village would not constitute inter-agency material, and §87(2)(g) would not serve as a basis for withholding records.
Moreover, the mere characterization of records as "inter-agency or intra-agency materials" without more is not determinative of rights of access. Section 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.
The Court of Appeals, the state's highest court, has specified that the contents of inter-agency or 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[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 can properly be asserted.
Second, you referred to a conversation with Ms. Janet Gandolfo, Counsel to the Village. You wrote that she said that you "had no right to see any records because [you are] a 'commercial' enterprise" and because you sought to "discover how the Village writes its proposals." While I have no knowledge as to whether those contentions were made, I point out that, in general, the reasons for which a request is made and an applicant's potential use of records are irrelevant, and it has been held that if records are accessible under the Law, they should be made equally available to any person, without regard to status or interest [see e.g., M. Farbman & Sons v. New York City. 642 NY 2d 75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. The only situation in the Freedom of Information Law in which the intended use of records is relevant to rights of access arises under §89(2)(b)(iii), which permits an agency to withhold "lists of names and addresses if such lists would be used for commercial or fund-raising purposes" on the ground that disclosure would constitute an unwarranted invasion of personal privacy. Due to the language of that provision, the intended use of a list of names and addresses is relevant, and case law indicates that an agency can ask why a list of names and addresses has been requested [see Goldbert v. Suffolk County Department of Consumer Affairs, Sup. Ct., Suffolk Cty., (September 5, 1980). In the context of your request, however, no list has been requested, and the purpose for which you requested the records is, in my view, irrelevant to rights of access.
Lastly, you wrote that none of the denials of your requests included reference to your right to appeal. In this regard, §89(4)(a) of the Freedom of Information Law 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 of the entity, or the person therefor designated by such 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."
Further, the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401), which govern the procedural aspects of the Law, state that:
"(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall hear appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.
(b) Denial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body established to hear appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer" (section 1401.7).
It is also noted that the state's highest court has held that a failure to inform a person denied access to records of the right to appeal enables that person to seek judicial review of a denial. Citing the Committee's regulations and the Freedom of Information Law, the Court of Appeals in Barrett v. Morgenthau held that:
"[i]nasmuch as the District Attorney failed to advise petitioner of the availability of an administrative appeal in the office (see, 21 NYCRR 1401.7[b]) and failed to demonstrate in the proceeding that the procedures for such an appeal had, in fact, even been established (see, Public Officers Law [section] 87[b], he cannot be heard to complain that petitioner failed to exhaust his administrative remedies" [74 NY 2d 907, 909 (1989)].
In sum, an agency's records access officer has the duty individually, or in that person's role of coordinating the response to a request, to inform a person denied access of the right to appeal as well as the name and address of the person or body to whom an appeal may be directed.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Linda David, Village Administrator
Janet Gandolfo, Counsel