May 12, 1995



Ms. Rita Bloom
1675 York Avenue
New York, NY 10128

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 Ms. Bloom:

I have received your letter of April 27, as well as related correspondence. You have sought an advisory opinion concerning a denial of access to records by the New York City Board of Education.

You requested records "presented at the conference held on June 10, 1992 at the Chancellor's grievance level", and you specified that the documents in question "were open for [your] viewing" at the conference. Nevertheless, the request was denied pursuant to §87(2)(g) of the Freedom of Information Law, which, according to an attorney for the Board, "exempts from disclosure records 'which are inter-agency or intra-agency materials, which are not final agency policy or determinations'."

In this regard, I offer the following comments.

First, if the records sought were made available for your inspection at a conference held pursuant to law or a collective bargaining agreement, I believe that it must be made available to you now. In a decision concerning a request for records maintained by the office of a district attorney that would be exempted from disclosure under the Freedom of Information Law, it was held that "once the statements have been used in open court, they have lost their cloak of confidentiality and are available for inspection by a member of the public" [see Moore v. Santucci, 151 AD 2d 677, 679 (1989)]. Based upon that decision, it appears that records introduced into evidence or disclosed during a public judicial proceeding or a similar proceeding during which you viewed the records should be available to you. 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 §87(2)(g) might ordinarily serve as a proper basis for withholding the records sought, the prior disclosure to you in my view precludes the Board from withholding documents that were disclosed to you.

Further, 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 (1986)].

In this instance, because you were involved in a proceeding, the records at issue were disclosed, even though they might properly be withheld from the public generally under the Freedom of Information Law.

Lastly, as an aside, I believe that the statement offered by the Board's attorney concerning §87(2)(g) is incomplete and, therefore, inaccurate. That provision does not exempt from disclosure inter-agency or intra-agency materials "which are not final agency policy or determinations." "Final agency policy or determinations" represents one category among four kinds of information within inter-agency or intra-agency materials that must be disclosed. Specifically, the provision at issue 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.

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)].

Based on the foregoing, the fact that inter-agency or intra-agency materials do not consist of final agency policy or determinations is not determinative of rights of access. Again, other categories of information found within those materials, i.e., "statistical or factual tabulations or data", must be disclosed, even if they are unrelated to a policy or a determination.

In an effort to enhance compliance with and understanding of applicable law, and to encourage their reconsideration of the matter, copies of this opinion will be forwarded to Board officials.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Bruce K. Gelbard, Secretary
Susan Jonides Deedy, Staff Attorney