March 24, 1997




Ms. Judy Manzer
221 Oriskany Plaza
Utica, NY 13501

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. Manzer:

I have received your letter of March 5, in which you asked that I forward an advisory opinion concerning access to certain records to Robert W. Ingalls, who directs Oneida County's "911" system.

Specifically, you wrote that you have had difficulty in obtaining 911 "dispatch times" for fires in the City of Utica, i.e., records indicating the time the 911 dispatchers received the calls and the time that they notified the police and/or fire departments. Mr. Ingalls denied the requests, citing §308(5) of the County Law.

From my perspective, the records sought do not fall within the coverage of the provision cited by Mr. Ingalls and must be disclosed. In this regard, I offer the following comments.

First, §308(5), which is now §308(4) states that:

"Records, in whatever form they may be kept, of calls made to a municipality's E911 system shall not be made available to or obtained by any entity or person, other than that municipality's public safety agency, another government agency or body, or a private entity or a person providing medical, ambulance or other emergency services, and shall not be utilized for any commercial purpose other than the provision of emergency services."

In my view, "records...of calls" means either a recording or a transcript of the communication between a person making a 911 emergency call, and the employee who receives the call. I do not believe that §308(4) can validly be construed to mean records regarding or relating to a 911 call. If that were so, innumerable police and fire reports, including arrest reports and police blotter entries, would be exempt from disclosure. In short, §308(4) could not justifiably be construed to pertain to all such records. Rather, again, I believe that it pertains to the recording or transcript of a 911 call.

Second, assuming that to be so, the records in which you are interested would, in my opinion, be accessible under the Freedom of Information Law. As a general matter, that statute 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.

While one of the grounds for denial is pertinent, due to its structure, I believe that it would require disclosure in this instance. Relevant is §87(2)(g), which 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.

I point out that the Court of Appeals, the State's highest court, recently focused on what constitutes "factual data", stating 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, 490 N.Y.S. 2d 488, 480 N.E.2d 74 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549, 442 N.Y.S.2d 130]). 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, 463 N.Y.S.2d 122, mod on other grounds, 61 NY2d 958, 475 N.Y.S.2d 272, 463 N.E. 2d 613; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182. 417 N.Y.S.2d 142)" [Gould v. New York City Police Department, 89 NY2d 267, 276, 277 (1996)].

Based on the foregoing, insofar as records include reference to the times in question, I believe that they consist of "factual data" that must be disclosed under §87(2)(g)(i) of the Freedom of Information Law.

As you requested, a copy of this response will be forwarded to Mr. Ingalls.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Robert W. Ingalls