Xerox Corp. v. Town of Webster

• Decision Date: 29 January 1985
• Citation: 107 A.D.2d 1035,486 N.Y.S.2d 498
• Parties: In the Matter of XEROX CORPORATION, Respondent, v. The TOWN OF WEBSTER, New York; Irving R. Kent, Supervisor of the Town of Webster; Joyce Straight, Clerk of the Town of Webster; Margaret Kuhn, Assessor of the Town of Webster; The Village of Webster, Robert R. Johnville, Mayor of the Village of Webster; Dorothy Hinxman, Clerk of the Village of Webster, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 498

486 N.Y.S.2d 498

107 A.D.2d 1035

In the Matter of XEROX CORPORATION, Respondent, v. The TOWN OF WEBSTER, New York; Irving R. Kent, Supervisor of the Town of Webster; Joyce Straight, Clerk of the Town of Webster; Margaret Kuhn, Assessor of the Town of Webster The Village of Webster, Robert R. Johnville, Mayor of the Village of Webster; Dorothy Hinxman, Clerk of the Village of Webster, Appellants.

Supreme Court, Appellate Division Fourth Department.

Jan. 29, 1985.

Levy, Feldman & Licata, P.C., by Robert Feldman, Rochester, for appellants.

Davidson, Fink, Cook & Gates by Anthony Adams, Rochester, for respondent.

Before DILLON, P.J., and CALLAHAN, DOERR, DENMAN and SCHNEPP, JJ.

MEMORANDUM:

As part of its underlying Article 7 of the Real Property Tax Law proceeding, petitioner seeks certain prior appraisal reports prepared by an outside appraisal firm hired by the Town of Webster. Its request for access to these reports under the discovery provisions of the CPLR has previously been denied (Matter of Xerox Corp. v. Sanger, 104 A.D.2d 720, 480 N.Y.S.2d 651). When the instant request, pursuant to article 6 of the Public Officers Law (Freedom of Information Law), was rejected by the Town under section 87(2)(a) of that law, this CPLR Article 78 proceeding ensued. Finding that the Town had failed to meet its burden of showing that the appraisal reports fell within the statutory exemption, Special Term ordered disclosure of the reports. We reverse.

The Freedom of Information Law exempts from disclosure records which "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; or iii. final agency policy or determinations" (Public Officers Law § 87[2][g]). While "intra-agency" is nowhere defined, it has been held, and we agree, that "The purpose of the exemption was 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", where " 'an agency record is submitted by outside consultants as part of the deliberative process, and it was solicited by the agency, we find it entirely reasonable to deem the resulting document to be an "intra-agency" memorandum' " (Matter of Sea Crest Constr. Corp. v. Stubing, 82 A.D.2d 546, 549, 442 N.Y.S.2d 430, quoting Ryan v. Department of Justice, 617 F.2d 781, 790).

New York cases hold that predecisional reports which "provide necessary advice and recommendations to aid the agency in carrying out its functions," as opposed to final agency determinations or policy, are exempt from disclosure (Kheel v. Ravitch, 93 A.D.2d 422, 427, 462 N.Y.S.2d 182, affd. 62 N.Y.2d 1, 475 N.Y.S.2d 814, 464 N.E.2d 118; Sinicropi v. County of Nassau, 76 A.D.2d 832, 428 N.Y.S.2d 312, mot. for lv. to app. denied 51 N.Y.2d 704, 432 N.Y.S.2d 1028, 411 N.E.2d 797; Matter of McAulay v. Board of Educ. of City of N.Y., 61 A.D.2d 1048, 403 N.Y.S.2d 116, affd. 48 N.Y.2d 659, 421 N.Y.S.2d 560, 396 N.E.2d 1033)....