Summary
In Xerox, we determined that real estate appraisal reports prepared by a private consulting firm at the agency's request were exempt from disclosure as intra-agency material (see65 N.Y.2d at 133, 490 N.Y.S.2d 488, 480 N.E.2d 74).
Summary of this case from Town of Waterford v. State Dep't of Envtl. ConservationOpinion
Decided June 4, 1985
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Harold L. Galloway, J.
Anthony J. Adams, Jr., for appellant.
Robert A. Feldman for respondents.
Opinions and recommendations that would, if prepared by agency employees, be exempt from disclosure under the Freedom of Information Law (FOIL) as "intra-agency materials" (Public Officers Law § 87 [g]), do not lose their exempt status simply because they are prepared for the agency, at its request, by an outside consultant.
Appellant commenced this article 78 proceeding to review the determinations of respondents denying access under FOIL to requested documents, including real estate appraisal reports prepared for respondents by a private consulting firm in connection with possible revaluation of appellant's property after new construction. Special Term granted the petition and directed respondents to make the requested documents available. The Appellate Division modified, agreeing with respondents that the appraisal reports were "intra-agency materials" exempt from disclosure under section 87 (2) (g) of the Public Officers Law.
Appellant urges, first, that section 51 of the General Municipal Law, establishing general principles for access to public records, requires disclosure of the requested documents notwithstanding the exemptions specified in FOIL. Such a result would nullify the FOIL exemptions, which the Legislature — presumably aware of General Municipal Law § 51 at the time it enacted FOIL — could not have intended. To give effect to both statutes, the FOIL exemptions must be read as having engrafted, as a matter of public policy, certain limitations on the disclosure of otherwise accessible records.
Appellant's arguments under FOIL center on the fact that the appraisal reports were prepared by an outside consultant, rather than an agency itself, and thus by definition are said to fall outside the exemption for "intra-agency materials" (Public Officers Law § 87 [g]). Appellant contends, further, that even if the reports could be considered agency materials, they are the consultant's final product and subject to disclosure as a final determination (Public Officers Law § 87 [g] [iii]), and that the agency's decision not to revalue the property frees the reports for disclosure.
Opinions and recommendations prepared by agency personnel may be exempt from disclosure under FOIL as "predecisional material, prepared to assist an agency decision maker * * * in arriving at his decision" ( Matter of McAulay v Board of Educ., 61 A.D.2d 1048, affd 48 N.Y.2d 659). Such material is exempt "to protect the deliberative process of the 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 Constr. Corp. v Stubing, 82 A.D.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 A.D.2d 546, 549, supra; Matter of 124 Ferry St. Realty Corp. v Hennessy, 82 A.D.2d 981, 983).
The final determination being that of respondents to take no action with respect to property revaluation, the consultant's opinion or recommendation cannot be considered a final agency determination subject to disclosure under section 87 (2) (g) (iii) of the Public Officers Law. Similarly, the fact that respondents ultimately took no action does not divest the reports of their quality as "intra-agency materials," since FOIL protects against disclosure of predecisional memoranda or other nonfinal recommendations, whether or not action is taken ( see, e.g., Matter of Kheel v Ravitch, 93 A.D.2d 422, 427-429, affd 62 N.Y.2d 1; Sinicropi v County of Nassau, 76 A.D.2d 832, lv denied 51 N.Y.2d 704; Matter of Miracle Mile Assoc. v Yudelson, 68 A.D.2d 176, lv denied 48 N.Y.2d 706; Matter of McAulay v Board of Educ., 61 A.D.2d 1048, affd 48 N.Y.2d 659, supra).
While the reports in principle may be exempt from disclosure, on this record — which contains only the barest description of them — we cannot determine whether the documents in fact fall wholly within the scope of FOIL's exemption for "intra-agency materials," as claimed by respondents. To the extent the reports contain "statistical or factual tabulations or data" (Public Officers Law § 87 [g] [i]), or other material subject to production, they should be redacted and made available to appellant. Since it does not appear that either court below reviewed the reports to make such a determination, the matter must be remitted to permit an in camera inspection.
Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, Monroe County, for further proceedings in accordance with this opinion.
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur in Per Curiam opinion.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, etc.