New York 1 News v. Office of President of Borough of Staten Island

• Decision Date: 09 September 1996
• Citation: 231 A.D.2d 524,647 N.Y.S.2d 270
• Parties: In the Matter of NEW YORK 1 NEWS, Respondent, v. OFFICE OF the PRESIDENT OF the BOROUGH OF STATEN ISLAND, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 270

647 N.Y.S.2d 270

231 A.D.2d 524

In the Matter of NEW YORK 1 NEWS, Respondent, v. OFFICE OF the PRESIDENT OF the BOROUGH OF STATEN ISLAND, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Sept. 9, 1996.

Paul A. Crotty, Corporation Counsel, New York City (Kristin M. Helmers and Timothy J. O'Shaughnessy, of counsel), for appellants.

Davis, Scott, Weber & Edwards, P.C., New York City (Jay E. Gerber and John Houston Pope, of counsel), for respondent.

Before ROSENBLATT, J.P., and SANTUCCI, JOY and HART, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to compel the appellants to disclose records requested pursuant to Public Officers Law article 6 (the Freedom of Information Law), the appeal is from a judgment of the Supreme Court, Kings County (Golden, J.), dated August 1, 1995, which granted the petition.

ORDERED that the judgment is affirmed, with costs.

In October 1992, the President of the Borough of Staten Island, Guy V. Molinari, while on a public access television program, stated, inter alia, that a certain prior employee of the President's Office had been accused, investigated, and determined to be guilty of "racial insensitivity". The petitioner, New York 1 News, seeks access under Public Officers Law article 6 (the Freedom of Information Law) (hereinafter FOIL) to documents outlining the investigation and determination of guilt of that employee. The appellants contend that the documents sought are exempt from disclosure on the grounds that (1) they constitute predecisional, nonfinal, intra-agency documents, and (2) the request constitutes an unwarranted invasion of personal privacy. The Supreme Court correctly concluded that the exemption did not apply to the investigator's memorandum because (1) the memorandum became a final agency policy record when Molinari adopted it as the basis for his decision; and (2) the memorandum was purely factual, so it was not protected. FOIL protects "inter-agency or intra-agency materials which are not * * * final agency policy or determinations" (Public Officers Law § 87[2][g][iii]. The exemption for intra-agency materials does not apply to final agency policy or decisions. Here, Molinari not only had relied on and incorporated the findings of the investigator, he expressly adopted them in explaining his actions. Having done so, he is precluded from claiming that the memoranda are exempt from disclosure.

In any event, Public Officers Law § 87(2)(g), even when it applies, "permits access to records or portions thereof which contain any statistical or factual information, policy or determinations upon which the agency relies" (see, Matter of Miracle Mile Assoc. v. Yudelson, 68 A.D.2d 176, 181, 417 N.Y.S.2d 142). The exemption applies only to what are called deliberative materials, "i.e., communications exchanged for discussion purposes not constituting final policy decisions" (see, Matter of Russo v. Nassau County Community Coll., 81 N.Y.2d 690, 699, 603 N.Y.S.2d 294, 623 N.E.2d 15). Factual observations are not exempt from disclosure, even in documents issued before final decision (see, e.g., Environmental Protection Agency v. Mink, 410 U.S. 73, 89, 93 S.Ct 827, 836-37, 35 L.Ed.2d 119; Matter of Professional Stds. Review Council of Am. v. New York State Dept. of Health, 193 A.D.2d 937, 940, 597 N.Y.S.2d 829; Matter of Cross-Sound Ferry Servs. v. Dept. of Transp., 219 A.D.2d 346, 634 N.Y.S.2d 575; cf., ...