July 26, 2017

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, except as otherwise indicated.


           I have received your request for an advisory opinion, as well as correspondence relating to it.  By way of background, in a request made pursuant to the Freedom of Information Law (FOIL) delivered on May 26 to the Commissioner of the City of Buffalo Department of Public Works, Parks & Streets, you referred to the “grading system for Buffalo[‘s] approximately 1,600 lane-miles of street.” You wrote that during a news conference, Mayor Brown “referenced the 1-10 grading system which is used to help prioritize which city streets are repaired.”  You requested “the most recent update…of the grading system…”

           The receipt of your request was acknowledged on the same day, and you were informed that, “due to the volume of requests this department is currently handling” and the time needed to consider your request, you would “receive a determination of your request within twenty (20) business days from the date of this acknowledgment letter.”  As of the date of your letter to this office, July 19, you received no further response.  That being so, the attorney for your employer, WGRZ, appealed based on the contention that the “two-month delay is unreasonable and constitutes a constructive denial” of your request.

            I agree, and in this regard, I offer the following comments.

            First, §84 of FOIL, the “Legislative declaration”, clearly indicates the intent of that statute and provides in part that “It is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible” (emphasis mine).  Based on that direction, it has been consistently advised that there may be no supportable or valid reason for delaying disclosure of records that are clearly public and readily retrievable.  During our discussion of the matter, you expressed the belief that the grading system is used by employees of the Department on a daily basis to determine where repairs should be made.  If that is so, the data sought appears to be readily retrievable.

            Second, aside from the direction given in the Legislative declaration, when an agency needs more than five business days from the receipt of a request, §89(3)(a) requires that the agency acknowledge the receipt of the request in writing within that time that includes “a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied…”  In the rare instance in which “circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.”

            Although the receipt of your request was acknowledged within the requisite time, as of the date of your letter to this office, more than twenty business days had passed since the acknowledgement.  That being so, the City failed to comply with law, and your appeal was proper.  As you are aware, §89(4)(a) of FOIL concerning the right to appeal a denial of access to records states in part that “Failure by an agency to conform to the provisions of paragraph (a) of this subdivision shall constitute a denial.”  “Paragraph (a)” contains the language contained in the preceding paragraph concerning the time within which an agency must respond to a request.

            Lastly, FOIL is based on a presumption of access.  Stated differently, all government agency records are available, except those records or portions thereof that fall within the grounds for denial of access appearing in §87(2).  As I understand the nature and content of the material at issue, none of the grounds for denial of access would be applicable. Assuming that the ratings contained in the rating system were prepared by the City of Buffalo, they would fall within the scope of one of the exceptions, §87(2)(g).  That provision permits an agency to deny access to 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 our view be withheld.

Perhaps most analogous is a judicial decision dealing with certain numerical ratings, wherein it was held that:

"The contract award was based on an evaluation of criteria and ratings made by the committee members. Backup factual and statistical data to a final determination of an agency is not exempt from disclosure (see also, Church of Scientology v State of New York, 54 AD2d 446, 448-449, affd 43 NY2d 754). The individual members of the DOH committee were required to rate the response to the criteria of the RFP and accord it a numerical value. The rating given each category reflects the voting which determined the contract award" [Professional Standard Review Council of America, Inc. v. NYS Department of Health, 193 AD 2d 937, 939-940 (1993)].

Also relevant is the holding in Dunlea v. Goldmark, in which the Appellate Division found that:

"[I]t is readily apparent that the language statistical or factual tabulation was meant to be something other than an expression of opinion or naked argument for or against a certain position. The present record contains the form used for work sheets and it apparently was designed to accomplish a statistical or factual presentation of data primarily in tabulation form. In view of the broad policy of public access expressed in §85 the work sheets have been shown by the appellants as being not a record made available in §88" [54 Ad 2d 446, 448; affirmed, 43 NY2d 754 (1977)].

In consideration of the language of the determinations referenced above, the latter of which was affirmed by the state's highest court, it is our view that the records sought, which apparently consist of "statistical or factual tabulations or data", are accessible.

In an effort to enhance knowledge of and compliance with law, a copy of this opinion will be sent to Commissioner Stepniak of the Department of Public Works and the City’s Corporation Counsel.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director

cc: Steven J. Stepniak, Commissioner
Timothy Ball, Corporation Counsel