March 4, 2010

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 and the materials attached to it.  Please accept my apologies for the delay in response.

            You have sought advice in relation to a denial of access to certain records that you requested from Dutchess Community College.  In brief, the College is considering a proposal to construct dormitories on its campus and you requested a feasibility study prepared for the College, as well as records indicating:

“The business case or financial analysis that includes a) the projected cost of construction and maintenance of residence halls at Dutchess Community College, b) the projected price of room and board to be charged to resident students, c) the projected impact of residence halls upon the College’s budget for support services and d) the projected break-even population of the residence halls.”

            Although the College disclosed the feasibility study, the remainder of the request was denied, “because, to the extent such records exist in files as final records, disclosure would impair present or imminent contract awards.”

            In this regard, I offer the following comments.

            First, the Freedom of Information Law pertains to existing records, and §89(3)(a) states in part that an agency, such as the College, is not required to create a record in response to a request.

            Second and more importantly, that statute is applicable to all agency records, and §86(4) defines the term “record” to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

            In view of breadth of the definition quoted above, any existing documentation falling within the scope of your request, whether it “exist[s] in files as final records” or otherwise, would constitute a record or records that fall within the coverage of the Freedom of Information Law.

            Third, 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.  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, the state’s highest court, expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [89 NY2d 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 Department contended that certain reports 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), and 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, stating 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.).

            In the context of your request, because the requested records have been withheld in their entirety, the determination would, in my view, likely be inconsistent with the language of the law and judicial interpretations.  I am not suggesting that the records sought must necessarily be disclosed in full.  Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by that agency for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access.  As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof... as long as the requisite particularized showing is made" (id., 277; emphasis added).

            The basis for denial cited by the College, §87(2)(c), permits an agency to deny access to records to the extent that disclosure "would impair present or imminent contract awards or collective bargaining negotiations."  The key word in that provision in my opinion is "impair", and the question under that provision involves whether or the extent to which disclosure would "impair" the process of awarding a contract or by diminishing the ability of the government to reach an optimal agreement on behalf of the taxpayers.  That a contract has not been signed or ratified, in my view, is not determinative of rights of access or, conversely, an agency's ability to deny access to records.  Rather, I believe that consideration of the effects of disclosure is the primary factor in determining the extent to which §87(2)(c) may justifiably be asserted.

            While I am unfamiliar with the specific content of any existing records that fall within the scope of your request, several aspects of the request, items b,c and d, due to their nature, do not appear to implicate §87(2)(c).  With respect to item a, “projected costs of maintenance and construction”, I believe that the degree of detail contained within the records would be significant in determining rights of access or, conversely, the ability of the College to justify a denial of access.  If indeed the award of contracts is “imminent” and certain records include specific information that is sufficiently detailed that disclosure would enable contractors or others that might provide goods or services to the College to tailor their bids or proposals in a manner that would preclude or “impair” the ability of the College to reach an optimal agreement on behalf taxpayers, to that extent, a denial of access might be valid.  However, if the records are not so detailed or specific that disclosure would create harm or “impairment” of that nature, I do not believe that a denial of access based on §87(2)(c) could be justified.

            In sum, insofar as the records of your interest exist, it would appear that ability of the College to deny access is limited as suggested in the preceding commentary.

            Copies of this opinion will be forwarded to the College.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director


cc: Dr. D. David Conklin
George H. Buchanan