January 13, 1995
Donald Brenner, P.E.
4 Independence Avenue
Tappan, NY 10983
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.
Dear Mr. Brenner:
I have received your letter of December 1 in which you sought an advisory opinion concerning the Freedom of Information Law.
According to your letter, Wayne A. Gavioli, Town Attorney of the Town of Orangetown, "has refused to allow [you] to review or to make copies of inter-office memoranda" consisting of "instructions...to the building department which seem to suggest a course of action for the building department to take." You added that "[t]he memoranda are not couched as opinions of law or marked as confidential, but simply suggest a practical course of conduct and a recommended course of conduct for the building department to take." You have asked whether in my view "these inter-office memoranda not claimed to be protected by attorney/client privilege" are available under the Freedom of Information Law.
In my opinion, based on your description of the records in question, they need not be disclosed. 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.
Relevant under the circumstances is §87(2)(g). 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. Since the records apparently consist of recommendations or advice, I believe that they may be withheld under §87(2)(g), even if they do not constitute opinions of law or communications subject to the attorney/client privilege.
I hope that the foregoing serves to clarify your understanding of the Freedom of Information Law and that I have been of assistance.
Robert J. Freeman
cc: Wayne A. Gavioli