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FOIL-AO-13400

June 25, 2002

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, unless otherwise indicated. . Dear

As you are aware, I have received your letter of May 17, the materials attached to it, and the recent determination of your appeal made under the Freedom of Information Law concerning a denial of access to records by the New York City Board of Education. You have sought an advisory opinion pertaining rights of access to the records sought.

By way of background, in April, you requested the following records with respect to the "English Language Arts Testing Program ('ELA') (RFP#1B736)", specifically, copies of "the previous Request for Proposals for the ELA", the "successful proposal for the current ELA" and the "actual contract awarding the ELA and any amendments to it." The receipt of the request was acknowledged and the request was later denied on the ground that "no awards have taken place." Based on prior discussions with staff of the Board, you wrote in your appeal that you assumed that the denial was based on §87(2)(c) of the Freedom of Information Law. In a determination of your appeal by Susan W. Holtzman, the provision cited above served as the basis for the denial, and she wrote that disclosure "would impair the present negotiations for the current contract..."

From my perspective, the denial was inconsistent with law. In this regard, I offer the following comments.

First, as a general matter, the Freedom of Information Law 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.

The Court of Appeals expressed and confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 NY 2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the agency contended that complaint follow up reports, also known as "DD5's", could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception separate from that cited in response to your request. The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276). The Court then stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, directing that:

"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

The provision upon which the Board relied to deny access, §87(2)(c), permits an agency to deny access to records to the extent that disclosure "would impair present or imminent contract awards or collective bargaining negotiations." The key word in that provision in my opinion is "impair", and the question under that provision involves whether or the extent to which disclosure would "impair" the contracting process by diminishing the ability of the government to reach an optimal agreement on behalf of the taxpayers.

As I understand its application, §87(2)(c) generally encompasses situations in which an agency or a party to negotiations maintains records that have not been made available to others. For example, if an agency seeking bids or proposals has received a number of bids, but the deadline for their submission has not been reached, premature disclosure of those bids to another possible submitter might provide that person or firm with an unfair advantage vis a vis those who already submitted bids. Further, disclosure of the identities of bidders or the number of bidders might enable another potential bidder to tailor a bid in a manner that provides him with an unfair advantage in the bidding process. In such a situation, harm or "impairment" would likely be the result, and the records could justifiably be denied.

However, in a decision rendered more than twenty years ago, it was held that after the deadline for submission of bids or proposals has been reached and a contract has been awarded, "the successful bidder had no reasonable expectation of not having its bid open to the public" [Contracting Plumbers Cooperative Restoration Corp. v. Ameruso, 105 Misc. 2d 951, 430 NYS 2d 196, 198 (1980)]. Conversely, the Court of Appeals sustained the assertion of §87(2)(c) in Murray v. Troy Urban Renewal Agency [56 NY2d 888 (1982)], in which the issue pertained to real property transactions where appraisals in possession of an agency were requested prior to the consummation of a transaction. Because premature disclosure would have enabled the public to know the prices the agency sought, thereby potentially precluding the agency from receiving optimal prices, the agency's denial was upheld [see Murray v. Troy Urban Renewal Agency, 56 NY 2d 888 (1982)].

In the case of your request, although the Board is currently involved in an RFP process and may soon award a contract, you have not sought records relating to that process or the upcoming contract award; on the contrary, the request involves records pertaining to the contract that was awarded some time ago that is about to expire. As indicated in Contracting Plumbers, supra, and confirmed in a case involving a request for a copy of a successful proposal following an award in an RFP process: "Once the contract was awarded...the terms of [the] RFP response could no longer be competitively sensitive" [Cross-Sound Ferry v. Department of Transportation, 219 AD2d 346, 634 NYS2d 575, 577 (1995)].

When the existing contract was awarded, that document, as well as the others that you requested, would, in my view, have been available to the public; no longer would disclosure in any way have "impaired" the ability of the Board to reach a fair and optimal agreement on behalf of the public; by signing a contract and consummating the process, any impairment would essentially have disappeared. A denial of access to those same records now because the Board is involved in a new RFP process in my view is unjustifiable. If anything, disclosure of the existing contract and the successful proposal that served as the basis for the award of that contract would likely enhance the process recently begun by the Board. When the winning contract and successful bids or proposals are disclosed, the recipients of those records have the ability to offer more competitive bids or proposals reflective of better value to an agency prior to the award of the next contract, thereby improving the likelihood that taxpayers will get more for their money.

It is a given that implementation of the Freedom of Information Law involves cost, time and effort. Nevertheless, it has been suggested that disclosures of winning bids, successful proposals and the contracts that have been awarded have resulted in greater competition and a better capacity on the part of private sector companies to offer government agencies and, therefore, the public, better value. In consideration of the thousands of contracts awarded annually by state and local government agencies annually, I believe that those disclosures have saved taxpayers far more than the cost of implementing that statute.

Although a determination of your appeal has been rendered, in an effort to encourage the Board to reconsider the determination, a copy of this opinion will be forwarded to Ms. Holtzman.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Susan W. Holtzman