March 28, 1994



Mr. Norman A. Abookire
163 Main Street
Port Byron, NY 13140

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 Mr. Abookire:

As you are aware, I have received your letter of February 22
and related correspondence.

According to your letter, having attended a meeting of the
State Education Department's Home Instruction Advisory Group, Mr.
Sam Corsi, Assistant Commissioner for Non Public Schools, "read a
memo from Education Commissioner Thomas Sobol." You took notes
concerning the contents of the memo and, following the meeting,
requested a copy of the memo. Your request was denied on the
ground that it is an "internal document".

You have sought my views concerning public rights of access to
the document in question. In this regard, I offer the following

First, 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.

An "internal document" would fall within the scope of one of
the grounds for denial, §87(2)(g). However, the mere
characterization of a record as "internal" is not determinative of
rights of access, for §87(2)(g), due to its structure, often
requires disclosure. The cited provision enables 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 a case involving intra-agency materials, the Court of
Appeals specified that the contents of those materials determine
the extent to which they may be available or withheld, for it was
held that:

"While the reports in principle may be exempt
from disclosure, on this record - which
contains only the barest description of them -
we cannot determine whether the documents in
fact fall wholly within the scope of FOIL's
exemption for 'intra-agency materials,' as
claimed by respondents. To the extent the
reports contain 'statistical or factual
tabulations or data' (Public Officers Law
section 87[2][g][i], or other material subject
to production, they should be redacted and
made available to the appellant" [Xerox
Corporation v. Town of Webster, 65 NY 2d 131,
133 (1985)].

Second, notwithstanding the authority to withhold records or
perhaps portions of records in appropriate circumstances, I point
out that the Freedom of Information Law is permissive. While an
agency may withhold records in appropriate circumstances, it is not
required to do so. As stated by the Court of Appeals:

"while an agency is permitted to restrict
access to those records falling which the
statutory exemptions, the language of the
exemption provision contains permissible
rather than mandatory language, and it is
within the agency's discretion to disclose
such records...if it so chooses" [Capital
Newspapers v. Burns, 67 NY 2d 562, 567

In this instance, it appears that Assistant Commissioner Corsi
asserted his discretionary authority to disclose by reading a
document or a portion thereof at a meeting attended by the public.
From my perspective, insofar as that document was disclosed, the
Education Department waived any right to withhold it that might
otherwise have existed. While it has been held that an erroneous
or inadvertent disclosure does not create a right of access on the
part of the public [see McGraw-Edison v. Williams, 509 NYS 2d 285
(1986)], the disclosure in this case was apparently purposeful and
intentional rather than inadvertent. If that is so, even though
there may have been a basis for withholding prior to a public
reading of the record, that activity in my view precludes the
Department from withholding any portion of the document that was

Lastly, in other correspondence, you referred to delays in
responding to requests. Here I point out that the Freedom of
Information Law provides direction concerning the time and manner
in which agencies must respond to requests. Specifically, §89(3)
of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision states in relevant part that:

"...any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive, or
governing body, who shall within ten business
days of the receipt of such appeal fully
explain in writing to the person requesting
the record the reasons for further denial, or
provide access to the record sought."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Sam Corsi, Assistant Commissioner
Gene Snay, Records Access Officer