November 3, 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 Mr. Byron:
We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Hudson River-Black River Regulating District. Specifically, you requested a copy of a geotechnical report regarding the Conklingville Dam that was prepared by an engineer and mandated by the Federal Energy Regulatory Commission. The District denied your request on the ground that “Critical Energy Infrastructure Information (CEII)” is exempt from disclosure pursuant to the federal Freedom of Information Act (FOIA) and regulations promulgated by FERC that evaluate requests for access to records based on an applicant’s “legitimate interest.” In this regard, we 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 (j) of the law.
Section 87(2)(a) is the first ground for denial and states that an agency may withhold records that “are specifically exempted from disclosure by state or federal statute.” Although we are not experts with respect to application of FOIA, we have reviewed the statute and are unable to locate an exemption for CEII.
A statute, based upon judicial interpretations of the Freedom of Information Law, is an act of the State Legislature or Congress [see Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)], and it has been found that agencies’ regulations are not equivalent to statutes for purposes of §87 (2)(a) of the Freedom of Information Law [see Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026 (1982) ]. Accordingly, insofar as FERC’s regulations render records or portions of records deniable in a manner inconsistent with the Freedom of Information Law or some other statute, those regulations in our opinion would be uncontrolling. Regulations, even federal, cannot operate, in our view, in a manner that provides fewer rights of access than those granted by the Freedom of Information Law.
This is not to say that the records you have requested are therefore required to be released in full. As previously mentioned, an agency may deny access to records of portions thereof that fall under specific grounds for denial appearing in §87(2) of the Freedom of Information Law. Most pertinent in our view would be the provision pertaining to inter and intra-agency records, §87(2)(g), which 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 our view be withheld.
The same kind of analysis would apply with respect to records prepared by consultants for agencies, for the Court of Appeals 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., GEI Consultants, 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[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.
The other exception of possible significance is §87(2)(f), which authorizes an agency to deny access to the extent that disclosure "could endanger the life or safety of any person"; however, we are unaware of the extent to which that may be so in this case. We note that §87(2)(f) may be relevant in relation to matters involving "critical infrastructure." That phrase is defined in §86(5) to mean:
"...systems, assets, places or things, whether physical or virtual, so vital to the state that the disruption, incapacitation or destruction of such systems, assets, places or things could jeopardize the health, safety, welfare or security of the state, its residents or its economy."
Relatively recent amendments to the Freedom of Information Law authorize a commercial entity to seek the procedural protection accorded by §89(5) when it submits records regarding critical infrastructure to a state agency. The statute does not provide that the records are exempt from disclosure, but rather that they may be subject to the procedures prescribed in §89(5) regarding documents submitted to state agencies.
On behalf of the Committee on Open Government, we hope that this is helpful to you.
Camille S. Jobin-Davis
cc: Ann Fisher