April 3, 1996



Mr. Alfred O'Connor
Staff Attorney
NYS Defenders Association, Inc.
11 North Pearl Street - 18th Floor
Albany, NY 12207-2709

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, unless otherwise indicated.

Dear Mr. O'Connor:

I have received your letter of March 21 in which you requested an advisory opinion concerning the Freedom of Information Law. Specifically, you asked whether in my view "an audiotape of a judicial seminar conducted by the Office of Court Administration (OCA) is subject to disclosure under New York's Freedom of Information Law."

In your letter, you described a three-day seminar for New York State judges concerning the death penalty law and the trial of a capital case. You indicated further that the seminar was led by a variety of speakers, including many from other jurisdictions, as well as other experts on the subject. In order to learn more of the matter, I contacted OCA. In brief, I was informed that the seminar was more akin to a series of roundtable discussions rather than lectures. In the same vein, I was told that the judges were active, candid participants and not merely listeners.

I agree with your contention that OCA is an "agency" required to comply with the Freedom of Information Law [see Quirk v. Evans, 455 NYS 2d 918, 97 AD 2d 992 (1983) and Babigian v. Roberts, 515 NYS 2d 944 (1986)]. Further, the audiotape in my view would constitute an agency record that falls within the coverage of the Freedom of Information Law. Section 86(4) of that statute defines the term "record" to include:

"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, it is clear in my opinion that the audiotape in which you are interested constitutes an agency record subject to rights of access.

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.

From my perspective, it is likely that the tape recording falls within the scope of one of the grounds for denial, §87(2)(g). As I understand the event, the speakers essentially served as consultants. If that is so, even though the audiotape differs in some respects from a memorandum or report, for example, I believe that, under the circumstances, the communications captured on the audiotape could be characterized as "intra-agency" in nature.

The provision pertaining to those kinds of communications 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.

In a discussion of the issue of records prepared by consultants for agencies, the Court of Appeals stated that:

"Opinions and recommendations prepared by agency personnel may be exempt from disclosure under FOIL as 'predecisional materials, prepared to assist an agency decision maker***in arriving at his decision' (McAulay v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY 2d 659). Such material is exempt 'to protect the deliberative process of government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative process, agencies may at times require opinions and recommendations from outside consultants. It would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies. Accordingly, we hold that records may be considered 'intra-agency material' even though prepared by an outside consultant at the behest of an agency as part of the agency's deliberative process (see, Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD 2d 546, 549, supra; Matter of 124 Ferry St. Realty Corp. v. Hennessy, 82 AD 2d 981, 983)" [Xerox Corporation v. Town of Webster, 65 NY 2d 131, 132-133 (1985)].

Based upon the foregoing, records prepared by a consultant for an agency may be withheld based upon the same standards as in situations in which records are prepared by the staff of an agency. Again, although the audiotape might not represent the more traditional kind of communication furnished by a consultant to an agency, it appears that the communications between the expert consultants and judges and employees were analogous to the kinds of exchanges that occur frequently in written form between consultants and agencies.

In short, insofar as the audiotape consists of recommendations, suggestions or expressions of opinion, for example, whether offered by expert consultants or by judges or employees, it appears that the audiotape could justifiably be withheld. I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Hon. Barry Cozier, Deputy Chief Administrative Judge