December 16, 2009

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 have received your letter, as well as the materials attached to it, and hope that you will accept my apologies for the delay in response.

            By way of background, you indicated that you represent a charter school licensed and operating in New York City.  In that capacity, you sent a request made pursuant to the Freedom of Information Law to the records access officer at the State University for written communications between Richard Rossi (in fact, Ralph Rossi), Vice President of and General Counsel at the Charter Schools Institute, an entity which is part of the State University.  In response to the request, you were granted access to records that were “extensively redacted”, without explanation.  You asked whether there is any justification for the redactions.

            In this regard, I offer the following comments.

            First, having reviewed the correspondence that you forwarded, there is no reference to a reason for the redactions, nor were you informed of the right to appeal the denial of access to portions of the records sought.  The regulations promulgated by the Committee on Open Government, which have the force and effect of law, require that an agency’s records access officer “coordinate” an agency’s response to requests for records and ensure that agency personnel indicate the reason for a denial of access to any portion of requested records (21 NYCRR §1401.2).  Section 1401.7 also requires that a person denied access be informed of the right to appeal, including the identity of the person or body to whom an appeal may be made.  For your information, the person designated to determine appeals at the State University is Rose Marie Scrodanus, who serves in the University’s Office of Counsel.  I note, too, that the Court of Appeals has held that an agency’s failure to inform a person denied access of his or right to appeal the denial gives that person the right to seek judicial review of the denial by initiating a proceeding under Article 78 of the Civil Practice Law and Rules [Barrett v. Morgenthau, 144 AD2d 1040, 74 NY2d 907 (1990)].

            Second, 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 (k) of the Law.

            Your request involved communications between Mr. Rossi and employees of the State Education Department, the New York City Department of Education and former employees of the school that you represent.  Assuming that the former employees were employed by the school at the time that the communications between them and Mr. Rossi occurred, all of the records falling within the scope of your request, I believe that all such communications would constitute “inter-agency materials” that fall within the scope of §87(2)(g). 

            The State University, the State Education Department, and the New York City Department of Education clearly constitute “agencies” as the term “agency is defined in §86(3) of the Freedom of Information Law.  The Education Law, §2854(1)(e), states that charter schools are required to comply with the Freedom of Information Law, and it was recently held that a charter school is “tantamount to an agency....and their employees stand on similar  ground as public employees” [New York State United Teachers v. Brighter Choice Charter School, 64 AD3d 1130 (2009)].

            Although §87(2)(g) potentially serves as a basis for denial of access, due to its structure, it often requires disclosure of records or portions of records.  Specifically, the cited
provision 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..."

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 decision rendered by the Court of Appeals was that certain reports could be withheld because they are not final and because they relate to matters for which no final determination had been made.  The Court 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 record is “predecisional”, "non-final" or that it may relate to a matter that is in “the pre-planning stage” 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) id., 276-277).]      

            I am unaware of the content of the redacted material.  However, as suggested by the courts, agencies are required to review records sought in their entirety to determine which, portions, if any may properly be withheld. 

            Lastly, if the former employees were not employees of the school when the communications between them and Mr. Rossi occurred, those communications would not, in my view, fall within the scope of §87(2)(g).  In that event, it is  possible, depending on their nature, that portions of those records might be withheld on the basis of §87(2)(b).  That provision authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.”

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director


cc: Kate Graetzer
Rose Marie Scrodanus
Ralph Rossi