December 11, 2001


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.


I appreciate having received correspondence from you concerning a denial of a request made under the Freedom of Information Law. The denial of access was based on your finding that the records in question are "intra-agency communications which are not subject to being produced..."

For purposes of clarification and to enhance compliance with and understanding of the Freedom of Information Law, I point out that the mere characterization of records as "inter-agency" or "intra-agency" communications is inadequate in determining rights of access to those records; rather, the specific contents of those communications serve as the factors in determining the extent to which those materials may be withheld.

As you are aware, 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.

One of the grounds for denial, §87(2)(g), focuses on the records in question. However, due to its structure, it often requires substantial disclosure. Specifically, the cited provision 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.

Lastly, having reviewed the District's application for public access to records, I noticed that applicants must indicate whether they reside in the District and the purpose of the request. In my view, the District cannot in most instances require applicants to include the information sought. In short, the Freedom of Information Law does not distinguish among applicants. I note that the Education Law, §2116, which was enacted in 1947, states that district records are available to qualified voters of the district. However, with the enactment of the Freedom of Information Law in 1974, it was held that that statute broadens the class of those enjoying rights of access to records to the general public and that persons who do not reside in a school district have the same rights of access as those who do [see Duncan v. Bradford Central School District, 394 NYS2d 362 (1977)]. With respect to the purpose for which a request is made, it has consistently been advised by this office and held by the courts that records accessible under the Freedom of Information Law must be made equally available to any person, without regard to status or interest [see Burke v. Yudelson, 51 AD2d 673 (1976); Farbman v. New York City, 62 NY2d 75 (1984)].

I hope that I have been of assistance.



Robert J. Freeman
Executive Director