June 17, 1994



Mr. Michael J. Matsler
Rider, Weiner, Frankel & Calhelha, P.C.
P.O. Box 2280
Newburgh, NY 12550

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. Matsler:

I have received your letter of June 3 and the materials attached to it. Your firm represents Windsor Textiles Processing, Inc. (Windsor) of Newburgh and you have sought an advisory opinion concerning the Freedom of Information Law.

By way of background, Windsor has received numerous notices of violation from the City of Newburgh due to Windsor's "alleged failure to prevent 'color pass-through' in its wastewater and failure to monitor the pH and temperature of the water violation." However, you indicated that "Windsor has no inkling as the scientific basis of the charges, and the notices of violation do not specify any." In conjunction with the foregoing, on May 20, you requested copies of "laboratory analyses, chemical analyses, engineering studies, tests, reports and findings, wastewater treatment plant logs, reports, and tests, on which the Order and Findings of Violation determined by the City Manager was based" with respect to a series of notices of violations to which you specifically referred. The records access officer denied your request "since the information sought is of a nature which may be involved in a pending criminal investigation."

In this regard, I offer the following comments.

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.

Second, the provision to which the City appears to have alluded in its denial, §87(2)(e), pertains to records compiled for law enforcement purposes. That provision authorizes an agency to withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."

The ability to withhold records under §87(2)(e) is limited to those situation in which the harmful effects described in subparagraphs (i) through (iv) would arise by means of disclosure. It is difficult, in my view, to envision how disclosure of the records would result in any of those harmful effects. Moreover, the provision that is likely of greatest significance, §87(2)(e)(i), does not refer to disclosures that might, at some point, interfere with an investigation; it refers to disclosure that "would" interfere. The language of the denial, as I interpret it, does not suggest that.

I note that you enclosed portions of the Newburgh Code relating to the matter. Section 248-47 states that:

"Whenever the city finds that any user has violated or is in violation of this Article or a wastewater contribution permit or that a discharge of wastewater has occurred in violation of any prohibition, limitation or requirement contained herein or in the Environmental Protection Agency regulations or NPDES permit, the city may serve upon such a user a written notice stating the nature of the violation. Within thirty (30) days of the date of the notice, a plan for the satisfactory correction thereof shall be submitted to the city by the user."

Absent specific information concerning the notices of violation, it may be all but impossible to comply with the requirement of submitting a plan of correction within thirty days of the date of a notice. Moreover, although the records at issue were different, the Court of Appeals suggested that disclosure of the kinds of records you seek may be beneficial rather than damaging. Fink v. Lefkowitz involved access to a manual prepared by a special prosecutor who investigated nursing homes, in which the Court of focused on §87(2)(e)(iv) and held that:

"The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprised the nonroutine procedures by which an agency obtains its information (see Frankel v. Securities & Exch. Comm., 460 F2d 813, 817, cert den 409 US 889). However beneficial its thrust, the purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution.

"To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative techniques, are those which articulate the agency's understanding of the rules and regulations it is empowered to enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or substantive law must be disclosed. Such information in the hands of the public does not impede effective law enforcement. On the contrary, such knowledge actually encourages voluntary compliance with the law by detailing the standards with which a person is expected to comply, thus allowing him to conform his conduct to those requirements" [47 NY 2d 568, 572 (1979)].

Under the circumstances, disclosure of the records sought might result in the correction rather than the continuation of alleged violations, if indeed violations have occurred.

Further, it is questionable in my view whether all of the records sought could be characterized as having been compiled for law enforcement purposes. On the contrary, some of the records might have been compiled in the ordinary course of business, and I direct your attention to a decision that illustrates why §87(2)(e) should be construed narrowly, and why a broad construction of that provision may give rise to an anomalous result. Specifically, in King v. Dillon (Supreme Court, Nassau County, December 19, 1984), the District Attorney was engaged in an investigation of the petitioner, who had served as village clerk. In conjunction with the investigation, the District Attorney obtained minutes of meetings of the village board of trustees. Those minutes, which were prepared by the petitioner, were requested from the District Attorney. In granting access to the minutes following a denial based upon §87(2)(e)(i), the decision indicated that "the party resisting disclosure has the burden of proof in establishing entitlement to the exemption," and the judge wrote that he:

"must note in the first instance that the records sought were not compiled for law enforcement purposes (P.O.L. 87[2]e). Minutes of Village Board meetings serve a different function...These were public records, ostensibly prepared by the petitioner, so there can be little question of the disclosure of confidential materials."

Often records prepared in the ordinary course of business become relevant to or used in a law enforcement investigation. In my view, when that occurs, the records would not be transformed into records compiled for law enforcement purposes. If they would have been available prior to their use in a law enforcement context, I believe that they would remain available, notwithstanding their potential use in a law enforcement activity.

Assuming that §87(2)(e) would not justify a denial with respect to some or all of the records sought, §87(2)(g) would be relevant. That provision enables 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..."

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.

As in the case of provisions discussed earlier, the contents of materials falling within the scope of §87(2)(g) represent the factors in determining the extent to which inter-agency or intra-agency materials must be disclosed or may be withheld. For example, in Ingram v. Axelrod, the Appellate Division held that:

"Respondent, while admitting that the report contains factual data, contends that such data is so intertwined with subject analysis and opinion as to make the entire report exempt. After reviewing the report in camera and applying to it the above statutory and regulatory criteria, we find that Special Term correctly held pages 3-5 ('Chronology of Events' and 'Analysis of the Records') to be disclosable. These pages are clearly a 'collection of statements of objective information logically arranged and reflecting objective reality'. (10 NYCRR 50.2[b]). Additionally, pages 7-11 (ambulance records, list of interviews) should be disclosed as 'factual data'. They also contain factual information upon which the agency relies (Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181 mot for lve to app den 48 NY2d 706). Respondents erroneously claim that an agency record necessarily is exempt if both factual data and opinion are intertwined in it; we have held that '[t]he mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion' (Matter of Polansky v Regan, 81 AD2d 102, 104; emphasis added). Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable" [90 AD 2d 568, 569 (1982)].

Similarly, the Court of Appeals has specified that the contents of intra-agency 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" (id. at 133).

In short, even though statistical or factual information may be "intertwined" with opinions, the statistical or factual portions, if any, as well as any policy or determinations, would be available, unless a different ground for denial could properly be asserted.

Lastly, it is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:

"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).

In an effort to enhance compliance with and understanding of the Freedom of Information Law, and to obviate the necessity of engaging in litigation, copies of this opinion will be forwarded to the City of Newburgh.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Hon. Audrey Carey, Mayor
Nancy D'Addio, Freedom of Information Officer