June 10, 2003
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 a copy of your determination of an appeal rendered under the Freedom of Information Law concerning a request for certain records by David Wilson of the Journal News. From my perspective, the response suggests a misinterpretation of the law.
At issue are three audits prepared by private entities retained by the onxville School. You sustained an initial denial of access based on a finding that the records are intra-agency materials that could be withheld based on the decision rendered in Xerox Corp. v. Town of Webster [65 NY2d 131 (1985)]. In addition, one of the reports was withheld on the ground that it falls within the attorney- client privilege.
In this regard, if indeed the attorney was retained to offer legal advice, I would agree that the report that he prepared would fall within the scope of the attorney-privilege and, therefore, would be exempt from disclosure pursuant to §§4503 of the Civil Practice Law and Rules and 87(2)(a) of the Freedom of Information Law.
However, the other two reports appear to constitute external audits, and if that is so, I believe that they must be disclosed. Pertinent, as you are aware, is §87(2)(g). That provision authorizes 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.
The Xerox decision to which you referred did not pertain to external audits prepared by private entities, but rather to other records prepared by outside consultants to assist in the decision making process. By its nature, an audit consists of statistics and facts, as well as opinions and recommendations. Similarly, by its nature, an external audit includes the same kind of content, but is prepared by an entity outside of government. To suggest that opinions and recommendations within an external audit may be withheld would render subparagraph (iv) of §87(2)(g) meaningless, and the State Legislature could not have intended that to be so. I note, too, that §87(2)(g)(iv) was enacted initially as part of the "Governmental Accountability, audit and Internal Control Act of 1987." The provisions of that act "sunset" periodically but have been renewed several times to ensure, in part, that external audits remain accessible to the public.
I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance.
Robert J. Freeman
cc: David Wilson