January 15, 1997




Mr. Thomas Grace
P.O. Box 160
New Berlin, NY 13411

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. Grace:

I have received your letter of December 11, which reached this office on December 16. Please accept my apologies for the delay in response.

You have questioned the propriety of a denial of your request for a survey by the Chenango County Attorney. You wrote that the survey was prepared three years ago in conjunction with the Millbrook Watershed Project. The County Attorney denied access for the following reasons:

" such survey is intra-agency material which is not statistical or factual tabulations or data; instructions to staff that affect the public; final agency policy or determinations; external audits;

such survey, if disclosed, would impair present or imminent contract negotiations as the survey is an element of the proposed consideration for the exercise of the option;

such survey is the work product of an independent professionally licensed land surveyor whose competitive position would be subject to substantial injury if disclosed without a direct relationship between the receivor of the work product and the licensed professional and the payment of a fee for such professional services;

the survey constitutes attorney work produce as it was prepared for use of the County Attorney in relation to the Millbrook project and the drafting of various options, agreements and easements which have yet to be concluded;

the survey cost several hundred dollars in public moneys and is an intrinsically valuable document, the release of which, without full consideration for the cost thereof, would constitute a gift of public funds in violation of the New York State Constitution, Article 8, Section 1."

From my perspective, it is questionable whether the contentions offered by the County Attorney could be justified. 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.

The first ground for denial to which the County Attorney alluded, §87(2)(g), pertains to intra-agency materials. Assuming that the survey was prepared for the County by a surveyor, it would appear to constitute intra-agency material [see Xerox Corp. v. Town of Webster, 65 NY2d 131 (1985)]. 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.

If the survey in question is typical of land surveys generally, it would likely consist entirely of factual information that must be disclosed under §87(2)(g)(i), unless a different ground for denial could properly be asserted. According to Black's Law Dictionary, a survey is "the process by which a parcel of land is measured and its contents ascertained; also a statement of the result of such survey, with the courses and distances and the quantity of the land." Based on the definition, again, the survey would appear to consist of factual information. Further, the Court of Appeals, the State's highest court, held recently that "[f]actual data... simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process" (Gould et. al v. New York City Police Department, ___ NY 2d ___, decided November 29, 1996).

Another ground for denial, §87(2)(c), states that an agency may withhold records insofar as disclosure would "impair present contract awards..." That provision has been appropriately asserted in situations involving real property transactions when an agency would have been required to disclose its findings or opinions regarding the value of property [see e.g., Murray v. Troy Urban Renewal Agency, Sup. Ct., Rensselaer Cty., April 24, 1980, rev'd 84 AD 2d 612, 56 NY 2d 888 (1982) and Town of Oyster Bay v. Williams, 134 AD 2d 267 (1987)]. In the cases cited above, the records sought were appraisals prepared by or for agencies, and it was determined that their denials of access were appropriate, for disclosure would have enabled potential purchasers to know of the agencies' views concerning the value or optimal purchase price of the parcels. In short, the survey does not contain the kind of information found to be deniable.

A third exception to which the County Attorney alluded is §87(2)(d), which permits an agency to withhold records that:

"are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise which if disclosed would cause substantial injury to the competitive position of the subject enterprise..."

The intent of the language quoted above is to enable government to withhold records prepared by a commercial enterprise that would be valuable to competitors of that enterprise. In a recent decision rendered by the Court of Appeals [Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University, 87 NY 2d 410 (1995)], the Court held that when government disclosure is sole means by which competitors can obtain the requested record, the inquiry ends with consideration of how valuable the information would be to a competing business and the extent to which disclosure would damage its competitive position. In this instance, the information would not be available solely from government; presumably any surveyor could prepare a similar record. When a record is available from another source at some cost, consideration must be given not only to the commercial value of such information but also to the cost of acquiring it through other means, because competition in business turns on the relative costs and opportunities faced by members of the same industry, which might be substantially different if one could obtain information by paying the copying cost rather than the cost of replication (id. at 420). The Court observed that the reasoning underlying these considerations is consistent with the policy behind §87(2)(d) to protect businesses from the deleterious consequences of disclosing confidential commercial information so as to further the state's economic development efforts and attract business to New York (id.). In applying those considerations to Encore's request, the Court concluded that the submitting enterprise was not required to establish actual competitive harm; rather, it was required, in the words of Gulf and Western Industries v. United States, 615 F.2d 527, 530 (D.C. Cir., 1979) to show "actual competition and the likelihood of substantial competitive injury" (id., at 421). In my view, since equivalent information could be acquired or prepared, it seems unlikely that disclosure would cause substantial injury to the competitive position of the firm that prepared the survey. Further, the request clearly has not been made by a competitor or in a context in which competition from a person or firm in the business of surveying is pertinent.

It was also contended that the survey constitutes an attorney work product that may be withheld. It is questionable in my view whether records prepared by a surveyor could be characterized as the work product of an attorney. Further, while material prepared solely for litigation may be exempt from disclosure [see Civil Practice Law and Rules, §3101(d)], it has been held that when records are prepared for multiple purposes, one of which might include eventual use in litigation, an agency cannot claim the exemption [see Westchester Rockland Newspapers v. Mosczydlowski, 58 AD 2d 234 (1977)]. In my view, the same principle would apply here.

The final claim is that disclosure would constitute an unconstitutional gift. In this regard, although compliance with the Freedom of Information Law involves the use of public employees' time and perhaps other costs, the Court of Appeals has found that the Law is not intended to be given effect "on a cost-accounting basis", but rather that "Meeting the public's legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds" [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)]. I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Robert D. Briggs, Chairman of the Board
Richard W. Breslin, County Attorney