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OML-AO-4733

                                                                                                March 4, 2009

 

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

           As you are aware, I have received your correspondence concerning your efforts in gaining access to records “associated with a property reassessment done by GAR Associates of Buffalo in contract with the City of Kingston, N.Y.”  I hope that you will accept my apologies for the delay in response. 

            Please note that the opinions rendered by this office are advisory, and that the Committee on Open Government has no enforcement authority.  Based on a review of the materials, I offer the following comments.

            First, the Freedom of Information Law pertains to existing records, and §89(3)(a) states in relevant part that an agency, such as the City of Kingston, is not required to create a record in response to a request.  Insofar as the information sought does not exist in the form of a record or records, the Freedom of Information Law would not apply.

            Second, the Freedom of Information Law pertains to all agency records, and §86(4) 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."

           Based on the foregoing, records kept or produced by, with or for an agency are subject to rights of access.  Therefore, if, for example, GAR prepared or maintains records for the City, I believe that they would constitute City records that fall within the coverage of the Freedom of Information Law.

            In circumstances in which entities or persons outside of government maintain records for a government agency, it has been advised that requests for those records be made to the records access officer of that agency.  Pursuant to regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401), the records access officer has the duty of coordinating an agency’s response to requests for records.  Insofar as GAR maintains records for the City, to comply with the Freedom of Information Law and the implementing regulations, the records access officer must either direct GAR to disclose the records in a manner consistent with law, or acquire the records from GAR in order that he or she can review the records for the purpose of determining rights of access. 

            Third, with respect to rights of access, 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 (j) of the Law.

            The exception of greatest significance,§87(2)(g), potentially serves as one of the grounds for denial of access to records.  However, due to its structure, it often requires substantial disclosure.  The cited 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.  Records prepared by the assessor or other City officers or employees would constitute “intra-agency” materials that would be accessible or deniable depending on their content.

            The same kind of analysis would apply with respect to records prepared by consultants for agencies, for the Court of Appeals, the state’s highest court, has held 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, records prepared by a consultant for an agency, i.e., GAR, may be withheld or must be disclosed based upon the same standards as in cases in which records are prepared by the staff of an agency.  It is emphasized that 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, a record prepared by a consultant for an agency would be accessible or deniable, in whole or in part, depending on its contents.

            Next, in my view, the contract between the City and GAR would be accessible, for none of the grounds for denial of access could properly be asserted to withhold that records.

            Lastly, with respect to the proceedings and minutes of the Board of Assessment Review, I refer to the Open Meetings Law.  That statute is applicable to public bodies, and §102(2) defines the phrase “public body” to mean:

"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."

           In consideration of the foregoing, I believe that a board of assessment review is clearly a “public body” required to comply with the Open Meetings Law.

            As a general matter, meetings of public bodies must be conducted in public, unless there is a basis for entry into executive session when an exemption from the Open Meetings Law is pertinent.  From my perspective, which is consistent with your understanding, the portion of the meeting of a board of assessment review during which those challenging their assessments are heard must be conducted open to the public.  Following oral presentations, a board’s deliberations could be characterized as "quasi-judicial proceedings" that would be exempt from the Open Meetings Law pursuant to §108(1) of that statute.  It is emphasized, however, that even when the deliberations of such a board may be outside the coverage of the Open Meetings Law, its vote and other matters would not be exempt.  As stated in Orange County Publications v. City of Newburgh:

"there is a distinction between that portion of a meeting...wherein the members collectively weigh evidence taken during a public hearing, apply the law and reach a conclusion and that part of its proceedings in which its decision is announced, the vote of its members taken and all of its other regular business is conducted.  The latter is clearly non-judicial and must be open to the public, while the former is indeed judicial in nature, as it affects the rights and liabilities of individuals" [60 AD 2d 409,418 (1978)].

           Therefore, although an assessment board of review may deliberate in private, based upon the decision cited above, oral presentations before the board, as well as the act of voting or taking action must in my view occur during a meeting held open to the public.

            Additionally, I note that both the Freedom of Information Law and the Open Meetings Law impose record-keeping requirements upon public bodies.  With respect to minutes of open meetings, §106(1) of the Open Meetings Law states that:

"Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon."

           The minutes are not required to indicate how the Board reached its conclusion; however, I believe that the conclusion itself, i.e., a motion or resolution, must be included in minutes.  I note, too, that
since its enactment, the Freedom of Information Law has contained a related requirement in §87(3).  The provision states in part that:

"Each agency shall maintain:

(a) a record of the final vote of each member in every agency proceeding in which the member votes..."

           In short, because an assessment board of review is a "public body" and an "agency", I believe that it is required to prepare minutes in accordance with §106 of the Open Meetings Law, including a record of the votes of each member in conjunction with §87(3)(a) of the Freedom of Information Law.

            I point out, too, that §525(2)(a) of the Real Property Tax Law entitled "Hearing and determination of complaints" states in part that:

"The assessor shall have the right to be heard on any complaint and upon his request his or her remarks with respect to any complaint shall be recorded in the minutes of the board.  Such remarks may be made only in open and public session of the board of assessment review."

Based on the foregoing, insofar as the assessor is present for the purpose of offering information  or a point of view, I believe that the public, pursuant to the Real Property Tax Law, has the right to be present.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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cc: Records Access Officer
Mary Ann Bahruth
Board of Assessment Review