February 13, 2015
FROM: Robert Freeman, Executive Director
The staff of the Committee on Open Government is authorized to issued advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
As you suggested, this is in follow up to the opinion rendered on February 12 and confirms that intra-agency records, including consultant reports, are subject to disclosure pursuant to the Freedom of Information Law (FOIL), and that portions of those records consisting of “statistical or factual tabulations or data” are required to be made available.
Intra-agency records fall within the coverage of §87(2)(g) of FOIL, which states that an agency may withheld records that:
“are inter-agency or intra-agency materials which are not:
- statistical or factual tabulations or data;
- instructions to staff that affect the public;
- final agency policy or determinations; or
- external audits, including but not limited to audits performed by the comptroller and the federal government…”
It is emphasized 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 those materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policies or determinations, or external audits must be disclosed, unless a different ground for denial may properly be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like may be withheld.
Judicial decisions confirm that there is no basis for withholding statistical or factual information, i.e., numerical figures, including estimates and projections even though they may have been advisory and subject to change. In a decision affirmed by the Court of Appeals, the state’s highest court, 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to modification, they were found to be "statistical tabulations" accessible under the Freedom of Information Law as originally enacted [see Dunlea v. Goldmark, 380 NYS 2d 496, aff'd 54 AD 2d 446, aff'd 43 NY 2d 754 (1977)].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 AD2d 446, 448).”
The Court was also aware of the fact that the records were used in the deliberative process, 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).
Similarly, in a decision involved ratings relating to requests for proposals (RFP's). The ratings were prepared by staff for the purpose of evaluating criteria used in analyzing the RFP's. Even though the ratings consisted essentially of numerical figures assigned to opinions, it was held that they must be disclosed[Professional Standards Review Council v. NYS Department of Health, 193 AD 2d 937 (1993)].
Another decision highlighted that the contents of materials falling within the scope of section 87(2)(g) represent the factors in determining the extent to which inter-agency or intra-agency materials must be disclosed or may be withheld. For example, in Ingram v. Axelrod, the Appellate Division held that:
“Respondent, while admitting that the report contains factual data, contends that such data is so intertwined with subject analysis and opinion as to make the entire report exempt. After reviewing the report in camera and applying to it the above statutory and regulatory criteria, we find that Special Term correctly held pages 3-5 ('Chronology of Events' and 'Analysis of the Records') to be disclosable. These pages are clearly a 'collection of statements of objective information logically arranged and reflecting objective reality'. (10 NYCRR 50.2[b]). Additionally, pages 7-11 (ambulance records, list of interviews) should be disclosed as 'factual data'. They also contain factual information upon which the agency relies (Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181 mot for lve to app den 48 NY2d 706). Respondents erroneously claim that an agency record necessarily is exempt if both factual data and opinion are intertwined in it; we have held that '[t]he mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion' (Matter of Polansky v Regan, 81 AD2d 102, 104; emphasis added). Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable” [90 AD 2d 568, 569 (1982)]
Similarly, the Court of Appeals has 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).
In short, even though statistical or factual information may be "intertwined" with opinions, the statistical or factual portions, if any, as well as any policy or determinations, would be available, unless a different ground for denial could properly be asserted.
Lastly, it is emphasized that FOIL is permissive. Although an agency may withhold records in accordance with the grounds for denial appearing in §87(2), the Court of Appeals has held that the agency is not obliged to do so and may choose to disclose. As stated in that unanimous decision: "...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].
There are numerous instances in which agencies choose to disclose records they have the ability to withhold, and their authority to do so has been confirmed judicially. For example, in Buffalo Teachers Federation v. Buffalo Board of Education, although §89(7) of the Freedom of Information Law specifies that public employees’ home addresses need not be disclosed, it was determined that the agency “may, should it choose, grant access to information which is exempt from disclosure under FOIL” [156 AD2d 1027, 1028 (1990)].
In the context of the situation to which you referred, the agency may choose to disclose the entirety of the documentation sought, even though it might have the discretionary authority to withhold portions of the materials.