Mr. Peter Henner
The Alliance for Environmental Renewal
27 Huntwood Drive
Clifton Park, NY 12065
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, unless otherwise indicated.
Dear Mr. Henner:
As you are aware, I have received your letter of October 23 and related correspondence. You have sought an advisory opinion concerning rights of access to what you characterized as "the weekly Significant Non-Compliance List" prepared by the Department of Environmental Conservation.
According to your letter, although the record in question had been available until October, your client was recently advised that it would no longer be disclosed. You wrote that the record is a printout consisting of "a compilation of data pertaining to non-compliance with the terms and conditions of State Pollution Discharge Elimination System (SPDES) Permits", and that it "lists entities which are in violation of the terms and conditions of their permits, and provides certain data pertaining to the permits and the specific violations."
Having discussed the matter with Department officials, they contended that your characterization of the report is a "misnomer", and that it is known as an "exceptions report." Based on our conversations, the report consists of a computer printout of any item that appears to be inconsistent with the terms and conditions of a permit and was described as a "first blush of keypunched information." It was suggested that some of the information entered into the computer may be inaccurate and that, therefore, items appearing on the printout may also be inaccurate. Consequently, the Department has taken the position that the contents of the report are not factual and that they must be verified prior to disclosure.
In this regard, 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 §87(2)(a) through (i) of the Law.
Second, from my perspective, it is likely that only one of the grounds for denial, §87(2)(g), is pertinent to an analysis of rights of access. Specifically, 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 decision involving intra-agency materials, so-called "budget worksheets", it was held that numerical figures, including estimates and projections of proposed expenditures, are accessible, even though they may have been advisory, subject to change and were not reflective of objective reality. In that case, I believe that the records at issue contained three columns of numbers related to certain areas of expenditures. One column consisted of a breakdown of expenditures for the current fiscal year; the second consisted of a breakdown of proposed expenditures recommended by a state agency; the third consisted of a breakdown of proposed expenditures recommended by a budget examiner for the Division of the Budget. Although the latter two columns were merely estimates and subject to modification, they were found to be "statistical tabulations" accessible under the Freedom of Information Law as originally enacted [see Dunlea v. Goldmark, 380 NYS 2d 496, aff'd 54 AD 2d 446, aff'd 43 NY 2d 754 (1977)]. At that time, the Freedom of Information Law granted access to "statistical or factual tabulations" [see original Law, §88(1)(d)]. Currently, §87(2)(g)(i) requires the disclosure of "statistical or factual tabulations or data". As stated by the Appellate Division in Dunlea:
"[I]t is readily apparent that the language statistical or factual tabulation was meant to be something other than an expression of opinion or naked argument for or against a certain position. The present record contains the form used for work sheets and it apparently was designed to accomplish a statistical or factual presentation of data primarily in tabulation form. In view of the broad policy of public access expressed in §85 the work sheets have been shown by the appellants as being not a record made available in §88" (54 Ad 2d 446, 448)."
The Court was also aware of the fact that the records were used in the deliberative process and were not final, stating that:
"The mere fact that the document is a part of the deliberative process is irrelevant in New York State because §88 clearly makes the back-up factual or statistical information to a final decision available to the public. This necessarily means that the deliberative process is to be a subject of examination although limited to tabulations. In particular, there is no statutory requirement that such data be limited to 'objective' information and there no apparent necessity for such a limitation" (id. at 449).
While I am unfamiliar with the actual contents of the record sought, it appears that the holding in Dunlea may relate to the matter. In that case, numbers did not reflect reality, but rather estimates and projections that were subject to revision and change. In this instance, the data contained in a printout may include factually accurate items, as well as erroneous information. Nevertheless, the computer in generating the data only prints out inconsistencies with a permit. In view of the function of the computer, to catch inconsistencies, it would seem that there should be a presumption that its output involves factual data. In other situations in which data may be preliminary, subject to change or unverified, it has been suggested that an agency indicate on the record when it is disclosed that its contents may later be modified, corrected or verified. By so doing an agency would meet its obligation to disclose "statistical or factual tabulations or data" and give effect to the legislative declaration found in §84 of the Freedom of Information Law while concurrently indicating that the data is not final.
In any number of circumstances, agencies might contend that data should not be disclosed because it is preliminary or unverified. If that kind of contention were meritorious, many records that are routinely disclosed or which have been found to be available would be beyond the scope of rights of access. Budget figures, including estimates and projections analogous to those described in Dunlea, as well as those prepared by municipalities in the development of their budgets, are accessible. The working papers of auditors consisting of non-final statistical or factual tabulations, draft handwritten soil test results, and scoring or rating sheets reflective of evaluations of criteria used in the process of awarding a contract have been found to be accessible [see Polansky v. Regan, 440 NYS 2d 356, 81 AD 2d 102 (1981), Steele v. NYS Department of Health, 464 NYS 2d 925 (1983) and Professional Standards Review Counsel of America, Inc. v. NYS Department of Health , 597 NYS 2d 829, 193 AD 2d 937 (1983)].
It is emphasized that 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 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 courts 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 rendered by the Court of Appeals, it was held that:
"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].
Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was 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" (id., 565-566).
I hope that I have been of assistance.
Robert J. Freeman
cc: Sandra Allen, Office of Counsel
Robert Cronin, Division of Water