March 8, 2007
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, unless otherwise indicated.
As you are aware, I have received your letter and the materials attached to it. You have sought guidance concerning the propriety of a denial of access by the Wappingers Central School District to portions of “bus stop review forms.” In response to your request, a District official wrote that :
“...you were sent copies of the three bus stop reviews with the names of the reviewers and the opinions of the stop blocked out. The information blocked out was done so at the direction of legal counsel. The stop was appealed but the appeal committee does not fill out any forms nor does it take minutes, therefore, no records are available. You were also looking for the review of your previous bus stop. This location was not reviewed and there are no records of any review. You referred to a violation of our policy. To my knowledge there is no policy which requires the appeal committee to fill out any review form.”
During our discussion of the matter, you wrote that portions of the form that were withheld involve statements offered by an administrator, a District employee involved with transportation, and a volunteer community member.
In this regard, I offer the following comments.
First, 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.
From my perspective, the exception of primary significance is §87(2)(g). I note, however, that while that provision potentially serves as a basis for denying access, due to its structure, it often requires disclosure. Specifically, §87(2)(g) authorizes an agency, such as a school district, 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.
An initial question is whether those portions deleted reflect a determination upon which the District relies, or merely opinions of the reviewers. If they are reflective of decisions, which appears to be so, I believe that they are accessible to the public, for subparagraph (iii) of §87(2)(g) requires the disclosure of final agency determinations. On the other hand, to the extent that the comments withheld reflect the opinions of the administrator and the other District employee, the redaction would, in my view, be consistent with law. Even if that is so, to the extent that their comments consist of statistical or factual information, those portions should be disclosed pursuant to subparagraph (i). Further, even if the District employees’ statements are opinions, the comments offered by the volunteer who is not an employee of the District must be disclosed, irrespective of their content. The Court of Appeals, the state’s highest court, has held that §87(2)(g) is intended to enable government officers and employees to express their opinions and recommendations without an obligation to disclose [Gould v. New York City Police Department, 89 NY2d 267, 276 (1996)]. Therefore, comments offered by the volunteer, a member of the public who is not a District employee, would not constitute inter-agency or intra-agency material that could be withheld; on the contrary, I believe that those comments are accessible to the public.
Because there is apparently an appeals committee, it appears that the portions of the forms that were withheld indicate final determinations, unless they are appealed. Consequently, if that is so and there is no appeal, I believe that those determinations must be disclosed pursuant to subparagraph (iii) of §87(2)(g). Similarly, if an appeals committee affirms the finding on the form, the finding would constitute the District’s final determination, and again, would, therefore, be available under subparagraph (iii). If the appeals committee rejects or modifies a determination, it would seem that a record should exist indicating its decision. If such a record has been prepared, I believe that it must be disclosed.
Second, when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search." If you consider it worthwhile to do so, you could seek such a certification.
Third, I believe that the names of the reviewers, if they appear in records, must be disclosed. Those persons would be identified in relation to the performance of governmental functions. As such, their identities could not, in my opinion, be withheld; disclosure would constitute a permissible, not an unwarranted invasion of personal privacy [see Freedom of Information Law, §87(2)(b)].
Lastly, when any portion of a request is denied, the person denied access has the right to appeal pursuant to §89(4)(a) of the Freedom of Information Law, which 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).
Based on the foregoing, in this instance, an appeal should be determined either by the Board, who, according to the District’s form, is the Superintendent.
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 an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be sent to District officials.
I hope that I have been of assistance.
Robert J. Freeman
cc: Richard Powel
William J. Crosson
Hon. Joel Miller