March 18, 1998

Mr. Martin T. Reid
Director of Issue Management
State University of New York
Office of Vice Chancellor for University
and Government Relations
System Administration
State University Plaza
Albany, NY 12246

Dear Mr. Reid:

I appreciate having received a copy of your determination of March
2 of an appeal under the Freedom of Information Law by Mr. Edward T.
Owens. While I agree that the record sought, a report prepared by a
consultant, is predecisional and falls within the scope of §87(2)(g) of the
Freedom of Information Law, it is unlikely in my opinion that the report could
be withheld in its entirety.

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. It
is emphasized that the introductory language of §87(2) refers to the authority
to withhold "records or portions thereof" that fall within the scope of the
exceptions that follow. In my view, the phrase quoted in the preceding
sentence evidences a recognition on the part of the Legislature that a single
record or report, for example, might include portions that are available under
the statute, as well as portions that might justifiably be withheld. That being
so, I believe that it also imposes an obligation on an agency to review records
sought, in their entirety, to determine which portions, if any, might properly
be withheld or deleted prior to disclosing the remainder.

The Court of Appeals expressed its general view of the intent of the
Freedom of Information Law in a recent decision cited in your appeal, Gould
v. New York City Police Department [87 NY 2d 267 (1996)], stating that:

"To ensure maximum access to government
records, the 'exemptions are to be narrowly
construed, with the burden resting on the
agency to demonstrate that the requested
material indeed qualifies for exemption'
(Matter of Hanig v. State of New York Dept.
of Motor Vehicles, 79 N.Y.2d 106, 109, 580
N.Y.S.2d 715, 588 N.E.2d 750 see, Public
Officers Law § 89[4][b]). As this Court has
stated, '[o]nly where the material requested
falls squarely within the ambit of one of these
statutory exemptions may disclosure be
withheld' (Matter of Fink v. Lefkowitz, 47
N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393
N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a
categorical denial of access to records is inconsistent with the requirements
of the Freedom of Information Law. In that case, the agency contended that
complaint follow up reports, also known as "DD5's", could be withheld in
their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however, wrote that: "Petitioners
contend that because the complaint follow-up reports contain factual data, the
exemption does not justify complete nondisclosure of the reports. We agree"
(id., 276). The Court then stated as a general principle that "blanket
exemptions for particular types of documents are inimical to FOIL's policy of
open government" (id., 275). The Court also offered guidance to agencies
and lower courts in determining rights of access and referred to several
decisions it had previously rendered, directing that:

" invoke one of the exemptions of section
87(2), the agency must articulate
'particularized and specific justification' for not
disclosing requested documents (Matter of
Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571,
419 N.Y.S.2d 467, 393 N.E.2d 463). If the
court is unable to determine whether withheld
documents fall entirely within the scope of the
asserted exemption, it should conduct an in
camera inspection of representative documents
and order disclosure of all nonexempt,
appropriately redacted material (see, Matter of
Xerox Corp. v. Town of Webster, 65 N.Y.2d
131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74;
Matter of Farbman & Sons v. New York City
Health & Hosps. Corp., supra, 62 N.Y.2d, at
83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

The provision at issue, §87(2)(g), permits 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.

In a discussion of the issue of records prepared by consultants for
agencies, the Court of Appeals stated 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 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[2][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 Court in Gould 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).

"Against this backdrop, we conclude that the
complaint follow-up reports contain
substantial factual information available
pursuant to the provisions of FOIL. Sections
of the report are devoted to such purely
factual data as: the names, addresses, and
physical descriptions of crime victims,
witnesses, and perpetrators; a checklist that
indicates whether the victims and witnesses
have been interviewed and shown photos,
whether crime scenes have been photographed
and dusted for fingerprints, and whether
neighborhood residents have been canvassed
for information; and a blank space
denominated 'details' in which the officer
records the particulars of any action taken in
connection with the investigation" (id., 276-277)."

I would conjecture that at least some elements of the records, in
accordance with the direction offered by the Court of Appeals, would consist
of statistical or factual information that must be disclosed.

I hope that you consider the preceding commentary to be constructive
and that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Edward T. Owens