December 23, 1993



Ms. Darlene Balducci
12 Bluebird Lane
Huntington, NY 11743

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence.

Dear Ms. Balducci:

I have received your letter of November 16 and the materials
attached to it.

Your correspondence focuses upon a day camp/school in the Town
of Huntington that apparently is the subject of building and fire
code violations. As I understand your remarks, the violations are
described in a report that has been withheld. It is your belief
that you "have the right to know what violations were found upon
inspection" by Huntington Town officials.

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

As a general matter, 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.

In my view, although a report prepared by Town employees would
fall within one of the grounds for denial, that provision, due to
its structure, often requires disclosure. Specifically, §87(2)(g)
of the Freedom of Information Law authorizes an agency to withhold
records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or

ii. instructions to staff that affect the

iii. final agency policy or determinations;

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 the context of your inquiry and in conjunction with the
foregoing, insofar as a report or reports may consist of
expressions of opinion or recommendation, I believe that those
portions may be withheld. However, those portions consisting of
statistical or factual information must in my view be disclosed
under §87(2)(g)(i). Further, insofar as such records indicate
violations of building or fire codes, for example, those portions
would be reflective of final agency determinations available under

I point out, too, that it had been claimed in the past that
building code inspection records could be withheld on the ground
that they involved investigatory files compiled for law enforcement
purposes. Nevertheless, in one of the first decisions rendered
under the Freedom of Information Law, which at the time was not as
expansive in terms of rights of access as the current law, the
files of a building code enforcement agency, including records
indicating code violations, were found to be accessible [see Young
v. Town of Huntington, 388 NYS 2d 978 (1976)].

Lastly, although the records in question might relate to or be
used in ligitation or enforcement proceedings, that would not
apparently remove them from public rights of access. The initial
ground for denial in the Freedom of Information Law, §87(2)(a),
pertains to records that are "specifically exempted from disclosure
by state or federal statute." One such statute is §3101(d) of the
Civil Practice Law and Rules, which exempts material prepared for
litigation from disclosure. Nevertheless, the records sought would
apparently have been prepared or acquired in the ordinary course of
business, rather than for any purpose relating to litigation.
Further, it has been determined judicially that if records are
prepared for multiple purposes, one of which includes eventual use
in litigation, §3101(d) does not serve as a basis for withholding
records; only when records are prepared solely for litigation can
§3101(d) be properly asserted to deny access to records [see e.g.,
Westchester-Rockland Newspapers v. Mosczydlowski, 58 AD 2d 234

Additionally, as stated by the Court of Appeals in a case
involving a request made under the Freedom of Information Law by a
person involved in litigation against an agency: "Access to
records of a government agency under the Freedom of Information Law
(FOIL) (Public Officers Law, Article 6) is not affected by the fact
that there is pending or potential litigation between the person
making the request and the agency" [Farbman v. NYC Health and
Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an
earlier decision, the Court of Appeals determined that "the
standing of one who seeks access to records under the Freedom of
Information Law is as a member of the public, and is neither
enhanced...nor restricted...because he is also a litigant or
potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99
(1980)]. The Court in Farbman, supra, discussed the distinction
between the use of the Freedom of Information Law as opposed to the
use of discovery in Article 31 of the Civil Practice Law and Rules.
Specifically, it was found that:

"FOIL does not require that the party
requesting records make any showing of need,
good faith or legitimate purpose; while its
purpose may be to shed light on governmental
decision-making, its ambit is not confined to
records actually used in the decision-making
process (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.)
Full disclosure by public agencies is, under
FOIL, a public right and in the public
interest, irrespective of the status or need
of the person making the request.

"CPLR article 31 proceeds under a different
premise, and serves quite different concerns.
While speaking also of 'full disclosure'
article 31 is plainly more restrictive than
FOIL. Access to records under CPLR depends on
status and need. With goals of promoting both
the ascertainment of truth at trial and the
prompt disposition of actions (Allen v.
Crowell-Collier Pub. Co., 21 NY 2d 403, 407),
discovery is at the outset limited to that
which is 'material and necessary in the
prosecution or defense of an action'" [see
Farbman, supra, at 80].

Based upon the foregoing, the pendency of litigation would
not, in my opinion, affect either the rights of the public or a
litigant under the Freedom of Information Law.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.



Robert J. Freeman
Executive Director

cc: Town Attorney
Jo-Ann Raia, Town Clerk