June 30, 1995



Mr. Gene G. Snay
Assistant Records Access Officer
Business Management Services Unit
The State Education Department
Albany, NY 12234

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. Snay:

I have received your letter of June 22, as well as a copy of a memorandum addressed to you by Samuel Corsi, Assistant Commissioner, Office of Non-Public School Service.

Mr. Corsi has sought guidance concerning public rights of access to a draft survey, copies of which were distributed at a meeting of the Home Instruction Advisory Group to members of the Advisory Group and any members of the public who were present. At the end of the meeting, Mr. Corsi asked that the surveys be returned, and a member of the public subsequently requested a copy under the Freedom of Information Law. You advised that it should be disclosed because everyone present at the meeting had access to the document at the meeting.

In his memorandum to you, Mr. Corsi expressed the understanding that drafts need not be disclosed and questioned the circumstances under which a draft survey or similar record may be withheld prior to becoming final. He also wrote that:

"On another matter concerning the FOIL, we are in the process of finalizing the home instruction survey but are concerned about whether we might have superintendents identify themselves for follow-up purposes. I anticipate that the same individual will request copies of the completed survey forms and thus have access to the individual opinions of superintendents if we ask the superintendents to identify themselves. On the other hand, if we don't ask them to identify themselves, we have no means of follow-up for clarification purposes. Could you also discuss this issue with Mr. Freeman about whether the actual survey forms are subject to FOIL or just documents which summarize survey forms. Could we get around providing the actual survey forms by marking them 'Confidential?'"

In this regard, I offer the following comments.

First, whether a document is characterized as a draft or internal, for example, I believe that it would fall within the coverage of the Freedom of Information Law. That statute pertains to all agency records, and §86(4) defines the term "record" expansively to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based on the foregoing, when information exists in some physical form, irrespective of its status or characterization as draft or final, or as a survey form, I believe that it constitutes a "record" subject to rights of access conferred by the Freedom of Information Law.

Second, in my opinion, an assertion or claim of confidentiality, unless it is based upon a statute, is likely meaningless. When confidentiality is conferred by a statute, an act of the State Legislature or Congress, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute". If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. I point out that Gannett News Service involved a survey of secondary schools conducted by a state agency that promised confidentiality and anonymity. The court nonetheless rejected the promise of confidentiality and found that the records had to be disclosed. As such, an assertion of confidentiality, without more, would not in my view serve to enable an agency to justify withholding a record. It is also noted that it has been held that a rule or regulation promulgated by an agency cannot be cited as a "statute" that would serve to exempt records from disclosure [see Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026 (1982) and Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976)].

Third, 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 with respect to both drafts and communications between the State Education Department and school district superintendents is §87(2)(g). That provision permits 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.

A draft would usually consist of intra-agency material that could be withheld except to the extent that it contains any of the four categories of available information delineated in subparagraphs (i) through (iv) of §87(2)(g). Therefore, insofar as a draft consists of statistical or factual information, for example, it would be available. However, opinions of superintendents transmitted to the Department could in my view, due to their nature, be withheld.

Lastly, I agree with your advice to Mr. Corsi to disclose the draft distributed at the meeting of the advisory group. As suggested in an opinion of March 28, 1994, copies of which were forwarded to you and Mr. Corsi, from my perspective, because the survey was disclosed to members of the public as well as the Advisory Group, 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 the record or perhaps portions of it, the intentional public dissemination in my view precludes the Department from withholding any portion of the document that was disclosed.

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: Samuel Corsi