Recently, we explored some of the ways that the Freedom of Information Law (FOIL) behaves under some special circumstances incident to a real estate transaction. In particular, we discussed the imminent contract award exemption to record disclosure. In this post, we will use that same scenario to discuss yet another exemption to FOIL. We encourage you to read through the last blog post and either refresh your recollection or learn the facts of that case. However, we'll summarize the facts as follows:
A Board of Trustees is considering a lease for classroom space at Tax Parcel X. The owner is a supporter of Charter Schools and is seeking a reliable tenant to mitigate against the recent decline of property values generally and the recent loss of an anchor tenant due to bankruptcy. He has approached the school with an offer slightly below market price, hoping to fill the space quickly with your school.
Of course, as a lawyer, I cannot resist the near involuntary urge to tell you that each circumstance is different, and that if you have any question about the FOIL request you received or the response you propose to send, you should contact your attorney. An attorney experienced in FOIL should be able to give you a quick answer to the vast majority of questions you might have.
Getting back to the problem at hand, presume that there have been no Board meetings since the landlord approached you, and you must vote on the lease at the regularly scheduled Board meeting or the offer expires. Of course, you would like to consider the lease prior to the meeting so that it can be fully vetted. This will be your new infrastructure space, and you don't have the resources to later find out you made a mistake or failed to consider a factor in the lease after it is already executed. And of course, some of this discussion is going to involve price. You ask one of your sub-committees or one or more of your administrators to create a report fully vetting the lease in time for your Board to review prior to the next meeting. You ask those creating the report to provide you with an analysis of the lease price and what the reasonable value of the lease might otherwise be
Now, you are not going to review the Freedom of Information Law or the Open Meetings Law every time your Board needs to communicate. But on this particular occasion, we'll say that you did. And in reviewing the Freedom of Information Law, you found that inter and intra agency memoranda are exempt from disclosure under FOIL so long as they are not statistical or factual tabulations of data, final agency determinations, instructions to staff that affect the public, or external audits. You conclude, logically, that the report itself is an advisory analysis, not a final determination or statistical or factual tabulation of data, and therefore is not at risk of being disclosed in response to a FOIL request. Disclosure of this information would quickly become a detriment to your school's bargaining position.
Your sub-committee drafts a report. Pages one and two summarize a history of how this lease came to the attention and consideration of your school. Pages three through five contain an analysis of the current value of the real estate, listing surrounding property values, regional, statewide and national trends in property values, the value of the property to a landlord not leasing or selling under duress, and a list of what the School would be able to and/or willing to pay depending on the inclusion or exclusion of certain terms discussed later in the report. The last few pages of the report contain a series of recommendations to the Board based upon a number of variables listed in pages three though five.
As was inevitable in this discussion, a request is then made for "all records related to the Lease relating to Tax Parcel X". Should you deny this request? Again, we highly recommend discussing this, even if briefly, with your attorney first. What you may not have seen, and what your attorney should already know, is that the highest court in New York State, as well as the New York State Committee on Open Government have issued opinions on the availability of these types of reports under the Freedom of Information Law. And the following is what they have determined, and what you would likely not have found when reviewing the Freedom of Information Law.
To understand this particular exemption, you must understand that the language of the Freedom of Information Law is somewhat misleading. Firstly, it exempts from disclosure all inter or intra agency memoranda which "are not" factual or statistical tabulations of data. You likely noted this when you determined that your sub-committee's report was an advisory analysis and therefore not a statistical or factual tabulation of data. Secondly, the Freedom of Information Law itself contains no definition of what constitutes a statistical or factual tabulation of data. Noting this, the Court of Appeals has determined that:
"Factual data ... simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making ."
This definition is nowhere to be found in the text of FOIL, and can be found in only a few judicial opinions and advisory opinions of the Committee on Open Government, yet is an axiomatic point, knowledge of which is a requisite factor in determining the application of FOIL to your records. It is especially important because in 1982 the New York State Department of Health took the position that inter or intra agency memoranda in which the statistical or factual data were inextricably intertwined with the advisory nature of the memoranda were exempt from disclosure. The Court of Appeals, New York's highest court, disagreed, and determined that even advisory reports which serve the dominant purpose of expressing an advisory opinion can be considered, in part, to be statistical or factual tabulations of data subject to disclosure. In doing this, the Court of Appeals effected a key change in the text of the law. It changed the exemption from inter or intra agency memoranda which "are not" statistical or factual tabulations of data to inter or intra agency memoranda which "do not contain" statistical or factual data. The likelihood is that, without knowing what to look for, you and your staff would not have found this change which the Courts have read into FOIL and which, in this case, actually contradicts the language of the statute itself. And that contradiction might make pages three through of your sub-committee's report, which discusses regional price trends, the school's price options and ability, and other factual data which support the advice of the sub-committee, available to public disclosure. This would, of course, act as a detriment to school's bargaining position.
Of course, an attorney who is experienced in FOIL should know this, and will be able to save you and your school the human and financial resources associated with determining whether to disclose or refuse to disclose the record. An attorney experienced in FOIL might also be able to determine if some other exemption might apply. And discussing this with an attorney experienced in charter school law and municipal compliance before you task your subcommittee with this report might be a useful way to ensure that information the school needs to keep private to protect its bargaining position is kept private. Ultimately, an attorney can protect your schools resources by ensuring that a routine FOIL request is only a minimal time investment, by ensuring proper compliance with FOIL so as to avoid a judgement and defense costs, and by ensuring that your school can protect the privacy of information when disclosure might act as a detriment to your school's bargaining position. Don't forget that, to help your school become more familiar with the basics of FOIL and more proficient with dealing with FOIL requests.