April 27, 1998
Mr. Mark Silberman, Esq.
759 President Street, Apt. 3-I
Brooklyn, NY 11215
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.
Dear Mr. Silberman:
I have received your letter of April 5 and the correspondence attached
According to your letter, the building in which you reside is one of a
number of buildings composing the Save Our Neighborhood Association
("SONA") in the Park Slope section of Brooklyn. SONA is involved in a
dispute with the Berkeley Carroll School and the New York City Economic
Development Corporation ("EDC"). You indicated that the School "has
received approval form the EDC for IDA Facility Revenue Bonds to build a
large athletic facility on a site within a mostly residential neighborhood..."
SONA requested "certain documents relating to the school's application for
the IDA bonds." Although some of the records sought were made available,
others have been withheld on the basis of §87(2)(c) of the Freedom of
You have asked that I "intervene to ensure that the EDC discloses all
information that it is required to under FOIL."
In this regard, it is noted at the outset that the Committee on Open
Government is authorized to offer opinions and advice concerning the
Freedom of Information Law. The Committee is not empowered to
"intervene" in the legal sense or otherwise compel an agency to grant or deny
access to records. It is my hope however, that opinions rendered by the
Committee are educational and persuasive and that they serve to enhance
compliance with the Freedom of Information Law. With those goals, I offer
the following comments.
As you may be aware, 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 provision upon which the EDC has relied to withhold records,
§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 process by diminishing the ability of
the government to reach an optimal agreement on behalf of the taxpayers.
That a contract has not been signed or ratified, in my view, is not
determinative of rights of access or, conversely, an agency's ability to deny
access to records. Rather, I believe that consideration of the effects of
disclosure is the primary factor in determining the extent to which §87(2)(c)
may justifiably be asserted.
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 for the 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 his 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, after the
deadline for submission of bids or proposals are available after a contract has
been awarded, and that, in view of the requirements of the Freedom of
Information Law, "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)]. Similarly, if an agency is involved in collective bargaining
negotiations with a public employee union, and the union requests records
reflective of the agency's strategy, the items that it considers to be important
or otherwise, its estimates and projections, it is likely that disclosure to the
union would place the agency at an unfair disadvantage at the bargaining table
and, therefore, that disclosure would "impair" negotiating the process.
It is noted that the Court of Appeals sustained the assertion of
§87(2)(c) in a case that did not clearly involve "contract awards" or collective
bargaining negotiations. In Murray v. Troy Urban Renewal Agency [56
NY2d 888 (1982)], 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)].
Based on the correspondence, your attorney has contended, in
essence, that §87(2)(c) does not serve as a valid ground for denial. She wrote
"The information we seek is unrelated to any contract; no
contract between IDA and the School is contemplated,
negotiated or entered into. We seek information about an
application by a private entity (the School) for access to a
bond facility provided by a public entity (the IDA), and
documents supporting the IDA's decision to issue such bonds.
IDA and EDC and the process by which bonds are issued exist
pursuant to a statutory regime granting such authority. IDA
issues these bonds for a specific purpose after an extensive
application and review process, which includes a public
hearing. That hearing has already been held in this matter"
In response, the EDC's appeals officer wrote that:
"Contrary to your contention that the
information you are seeking is unrelated to any
contract and that no contract between IDA
and the School is contemplated, the proposed
project does contemplate the execution of
numerous agreements between the parties,
including among others a lease agreement.
Thus, the release of documents requested in
paragraph 3 could unduly impair and
compromise IDA's ability to negotiate the
terms and conditions of the bond issuance and
the agreements required for such issuance."
If I understand the matter accurately, §87(2)(c) would not apply.
While agreements must be reached between the school and the IDA, I do not
believe that their relationship as contracting parties, for reasons discussed
earlier, are of the sort envisioned by §87(2)(c). In each of the kinds of the
situations described earlier, there is an inequality of knowledge. In the bid
situation, the person who seeks bids prior to the deadline for their submission
is presumably unaware of the content of the bids that have already been
submitted; in the context of collective bargaining, the union would not have
all of the agency's records relevant to the negotiations; in the appraisal
situation, the person seeking that record is unfamiliar with its contents. As
suggested above, premature disclosure of bids would enable a potential bidder
to gain knowledge in a manner unfair to other bidders and possibly to the
detriment of an agency and, therefore, the public. Disclosure of an records
regarding collective bargaining strategy or appraisals would provide
knowledge to the recipient that might effectively prevent an agency from
engaging in an agreement that is most beneficial to taxpayers.
In a case involving negotiations between a New York City agency and
the Trump organization, the court referred to an opinion that I prepared and
adopted the reasoning offered therein, stating that:
"Section 87(2)(c) relates to withholding
records whose release could impair contract
awards. However, here this was not relevant
because there is no bidding process involved
where an edge could be unfairly given to one
company. Neither is this a situation where the
release of confidential information as to the
value or appraisals of property could lead to
the City receiving less favorable price.
"In other words, since the Trump organization
is the only party involved in these negotiations,
there is no inequality of knowledge between
other entities doing business with the City"
[Community Board 7 v. Schaffer, 570 NYS 2d
769, 771 (1991); Aff'd 83 AD 2d 422;
reversed on other grounds 84 NY 2d 148
Based on the foregoing, assuming that the records at issue are known
to both parties, the rationale described above and the judicial decisions
rendered to date suggest that §87(2)(c) could not justifiably have been
asserted to withhold the records.
In an effort to resolve the matter, a copy of this opinion will be
forwarded to the EDC.
I hope that I have been of assistance.
Robert J. Freeman
cc: Judy E. Fensterman