February 24, 1997





Ms. Kathryn G. Guadagnino
Records Access Officer
NYS Department of Environmental Conservation
50 Wolf Road
Albany, NY 12233-1016

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. Guadagnino:

I have received your letter of January 29 in which you requested an advisory opinion concerning the Freedom of Information Law.

The issue involves access to the "NYSDEC Spill Report Form", and you enclosed several samples of completed forms. Also enclosed is copy of a memorandum transmitted between staff of the Department of Environmental Conservation in 1993 in which reference was made to an opinion that I provided suggesting that the "remarks" field in the form be redacted pursuant to §87(2)(g) of the Freedom of Information Law. I do not recall whether the form was seen at that time, or whether advice was offered based on a verbal description of its contents. Nevertheless, as you are aware, there are two sections containing remarks. The first, which appears on page one of the form, consists of "caller remarks"; the second, which appears on page two and is typically the only item on that page, is entitled "DEC Remarks." Based on my review of the forms and the direction provided in a recent decision rendered by the Court of Appeals, I believe that page one would be available in its entirety. Page two in some instances appears to include information that could be withheld in part; in others, the second page would appear to be available in its entirety.

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 provision that represents the focus of the matter, §87(2)(g), enables in 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.

The Court of Appeals' decision dealt with similar reports prepared in a different context. The decision pertained to so-called "complaint follow-up reports" prepared by New York City police officers. In the context of your inquiry, the spill reports are also prepared following a call made by a person outside of DEC. Further, the complaint follow-up reports are prepared by a police officer at the scene; spill reports are prepared by DEC staff who also go to the scene of a spill.

One of the contentions offered by New York City was that the reports could be withheld because they are not final and because they relate to incidents for which no final determination had been made. The Court of Appeals rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][111]). However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." (Gould et al. v. New York City Police Department, ___ NY2d ___, November 26, 1996).

The Court also dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i). In its consideration of the matter, the Court found that:

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][i]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182).

"Against this backdrop, we conclude that the complaint follow-up reports contain substantial factual information available pursuant to the provisions of FOIL. Sections of the report are devoted to such purely factual data as: the names, addresses, and physical descriptions of crime victims, witnesses, and perpetrators; a checklist that indicates whether the victims and witnesses have been interviewed and shown photos, whether crime scenes have been photographed and dusted for fingerprints, and whether neighborhood residents have been canvassed for information; and a blank space denominated 'details' in which the officer records the particulars of any action taken in connection with the investigation."

Like the spill report form that contains "caller remarks", the complaint follow-up reports include statements of witnesses and others. The Police Department contended that witness statements could not be characterized as factual. The Court found otherwise and dealt with the issue as follows:

"...the Police Department argues that any witness statements contained in the reports, in particular, are not 'factual' because there is no assurance of the statements' accuracy and reliability. We decline to read such a reliability requirement into the phrase 'factual data', as the dissent would have us do, and conclude that a witness statement constitutes factual data insofar as it embodies a factual account of the witness's observations. Such a statement, moreover, is far removed from the type of internal government exchange sought to be protected by the intra-agency exemption (see, Matter of Ingram v. Axelod, 90 AD2d 568, 569 [ambulance records, list of interviews, and reports of interviews available under FOIL as 'factual data']). By contrast, any impressions, recommendations, or opinions recorded in the complaint follow-up report would not constitute factual data and would be exempt from disclosure. The holding herein is only that these reports are not categorically exempt as intra-agency material. Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made."

Based on the foregoing, the Court concluded that the blanket exemption claimed by the Police Department could not be sustained. In this instance, virtually the entirety of page 1 of the spill report consists of factual information which, in my view, must be disclosed.

With respect to page two of the form consisting of DEC remarks, again, in some cases the remarks are wholly factual and would be available. Some, however, raise questions or offer opinions. To that extent, the Department would have the ability to withhold those portions of page two.

In only one instance did I see information that could be withheld under §87(2)(b) on the ground that disclosure would result in "an unwarranted invasion of personal privacy." Specifically, one form referred to a resident as an 86 year old woman. Whether that fact was relevant to the matter is conjectural. Nevertheless, that reference was the only one that I located among dozens of forms in which there would be an issue relating to the protection of personal privacy.

Another arguable basis for withholding some elements of the DEC remarks might be §87(2)(e). That provision permits an agency to withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."

From my perspective, a spill and the response to it are essentially public events. Further, the events would be known to the owners of property or those responsible for the spill. As such, it is difficult to envision how the harmful effects of disclosure described in §87(2)(e) would arise through release of the forms. Moreover, the DEC remarks are generally quite brief. In many cases, they consisted of a brief notation or a single paragraph. In unusual situations, the remarks may be of greater length. However, I saw none that consisted of more than a half page. That being so, again, it is unlikely that §87(2)(e) would serve as a basis for withholding.

Lastly, it is emphasized that the Freedom of Information Law is permissive. While the Department would have the ability to withhold those portions of the forms consisting of staff opinions, for example, there would be no obligation to do so, and the Department could choose to disclose [see Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].

If you would like to discuss the matter, please feel free to contact me. I hope that I have been of assistance.



Robert J. Freeman
Executive Director