August 11, 1997

Mr. Stan Breite
156 Upper Whitfield Road
Accord, NY 12404

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. Breite:

I have received your letter of July 10, as well as the
materials attached to it.

According to your letter, the Town of Rochester has recently
cited §87(2)(g) of the Freedom of Information Law as a means of
denying requests for records. You asked whether the Town may
properly withhold statements prepared by the Planning Board that
include its recommendations concerning any proposed amendment to
the Town's Zoning and Land Use Ordinance.

From my perspective, it is clear that portions of the kinds of
records to which you referred may be withheld; it is possible that
other aspects of those records must be disclosed. In this regard,
I offer the following comments.

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 (i) of the Law.

I believe that the records in question clearly fall within the
scope of the provision cited by the Town as justification for
denial of access. However, that provision, due to its structure,
often requires disclosure. Specifically, §87 (2)(g) of the Freedom
of Information Law enables 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.

One of the contentions offered by the New York City Police
Department in a recent decision rendered by the State's highest
court was that certain reports could be withheld because they are
not final and because they relate to incidents for which no final
determination had been made. The Court of Appeals rejected that
finding and stated that:

"...we note that one court has suggested that
complaint follow-up reports are exempt from
disclosure because they constitute nonfinal
intra-agency material, irrespective of whether
the information contained in the reports is
'factual data' (see, Matter of Scott v. Chief
Medical Examiner, 179 AD2d 443, 444, supra
[citing Public Officers Law §87[2][g][111]).
However, under a plain reading of §87(2)(g),
the exemption for intra-agency material does
not apply as long as the material falls within
any one of the provision's four enumerated
exceptions. Thus, intra-agency documents that
contain 'statistical or factual tabulations or
data' are subject to FOIL disclosure, whether
or not embodied in a final agency policy or
determination (see, Matter of Farbman & Sons
v. New York City Health & Hosp. Corp., 62 NY2d
75, 83, supra; Matter of MacRae v. Dolce, 130
AD2d 577)..." [Gould et al. v. New York City
Police Department, 87 NY2d 267, 276 (1996)].

In short, that a report is predecisional or "non-final" would
not represent an end of an analysis of rights of access or an
agency's obligation to review the contents of a record.

The Court also dealt with the issue of what constitutes
"factual data" that must be disclosed under §87(2)(g)(i). In its
consideration of the matter, the Court found that:

"...Although the term 'factual data' is not
defined by statute, the meaning of the term
can be discerned from the purpose underlying
the intra-agency exemption, which is 'to
protect the deliberative process of the
government by ensuring that persons in an
advisory role [will] be able to express their
opinions freely to agency decision makers'
(Matter of Xerox Corp. v. Town of Webster, 65
NY2d 131, 132 [quoting Matter of Sea Crest
Constr. Corp. v. Stubing, 82 AD2d 546, 549]).
Consistent with this limited aim to safeguard
internal government consultations and
deliberations, the exemption does not apply
when the requested material consists of
'statistical or factual tabulations or data'
(Public Officers Law 87[2][g][i]. Factual
data, therefore, simply means objective
information, in contrast to opinions, ideas,
or advice exchanged as part of the
consultative or deliberative process of
government decision making (see, Matter of
Johnson Newspaper Corp. v. Stainkamp, 94 AD2d
825, 827, affd on op below, 61 NY2d 958;
Matter of Miracle Mile Assocs. v. Yudelson, 68
AD2d 176, 181-182) 9id., 276-277).]

In sum, to reiterate, insofar as the records at issue consist
of recommendations, advice or opinions, for example, I believe that
they may be withheld; insofar as they consist of statistical or
factual information, they must in my view be disclosed.

I hope that I have been of assistance.
Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Town Board
Veronica L. Sommer