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October 19, 1998

Mr. Michael A. Kless
87 Payne Ave.
Buffalo, NY 14220

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. Kless:

I have received your letter of October 4, as well as the materials attached to it. You
have sought my views concerning a denial of your request by Ms. Kathleen E. O'Hara,
Assistant Corporation Counsel for the City of Buffalo.

It is my understanding that you are attempting to obtain certain "emergency medical
response protocols." In response to the request, Ms. O'Hara wrote that the section of the
protocols of your interest "is protected by copyright and its distribution is through exclusive
license only." Consequently, she denied access, citing §87(2)(d) of the Freedom of
Information Law and stating that "since the document is a trade secret or was submitted to
the agency by a commercial enterprise, or was derived from information obtained from a
commercial enterprise and...if disclosed, would cause substantial injury to the competitive
position of the subject enterprise."

In this regard, if the City has acquired software, for example, from a private entity,
and the software is licensed or copyrighted, reproduction of the copyrighted material without
the consent of the copyright holder would likely result in copyright infringement. Further, if
reproduction of the software would defeat the purpose of the copyright and cause injury to
enterprise that holds the copyright, it is likely in my view that §87(2)(d) of the Freedom of
Information Law could validly be asserted.

In terms of the ability of a citizen to use an access law to assert the right to reproduce
copyrighted material, the issue has been considered by the U.S. Department of Justice with
respect to copyrighted materials, and its analysis as it pertains to the federal Freedom of
Information Act is, in my view, pertinent to the issue as it arises under the state Freedom of
Information Law.

The initial aspect of its review involved whether the exception to rights of access
analogous to §87(2)(a) of the Freedom of Information Law requires that copyrighted
materials be withheld. The cited provision states that an agency may withhold records that
are "specifically exempted from disclosure by state or federal statute." Virtually the same
language constitutes a basis for withholding in the federal Act [5 U.S.C. 552(b)(3)]. In the
fall 1983 edition of FOIA Update, a publication of the Office of Information and Privacy at
the U.S. Department of Justice, it was stated that:

"On its face, the Copyright Act simply cannot be considered
a 'nondisclosure' statute, especially in light of its provision
permitting full public inspection of registered copyrighted
documents at the Copyright Office [see 17 U.S.C. 3705(b)]."

Since copyrighted materials are available for inspection, I agree with the conclusion that
records bearing a copyright could not be characterized as being "specifically exempted from
disclosure...by...statute."

The next step of the analysis involves the Justice Department's consideration of the
federal Act's exception (exemption 4) analogous to §87(2)(d) of the Freedom of Information
Law in conjunction with 17 U.S.C. §107, which codifies the doctrine of "fair use". Section
87(2)(d) permits an agency to withhold records that "are trade secrets or are submitted to an
agency by a commercial enterprise or derived from information obtained from a commercial
enterprise and which if disclosed would cause substantial injury to the competitive position
of the subject enterprise." Under §107, copyrighted work may be reproduced "for purposes
such as criticism, comment, news reporting, teaching (including multiple copies for classroom
use), scholarship, or research" without infringement of the copyright. Further, the provision
describes the factors to be considered in determining whether a work may be reproduced for
a fair use, including "the effect of the use upon the potential market for or value of the
copyrighted work" [17 U.S.C. §107(4)].

According to the Department of Justice, the most common basis for the assertion of
the federal Act's "trade secret" exception involves "a showing of competitive harm," and in
the context of a request for a copyrighted work, the exception may be invoked "whenever it
is determined that the copyright holder's market for his work would be adversely affected by
FOIA disclosure" (FOIA Update, supra). As such, it was concluded that the trade secret
exception:

"stands as a viable means of protecting commercially valuable
copyrighted works where FOIA disclosure would have a
substantial adverse effect on the copyright holder's potential
market. Such use of Exemption 4 is fully consonant with its
broad purpose of protecting the commercial interests of those
who submit information to government... Moreover, as has
been suggested, where FOIA disclosure would have an
adverse impact on 'the potential market for or value of [a]
copyrighted work,' 17 U.S.C. §107(4), Exemption 4 and the
Copyright Act actually embody virtually congruent protection,
because such an adverse economic effect will almost always
preclude a 'fair use' copyright defense...Thus, Exemption 4
should protect such materials in the same instances in which
copyright infringement would be found" (id.).

In my opinion, due to the similarities between the federal Freedom of Information Act
and the New York Freedom of Information Law, the analysis by the Justice Department may
properly be applied when making determinations regarding the reproduction of copyrighted
materials maintained by entities of government in New York. In sum, if reproduction of
copyrighted software and similar records would "cause substantial injury to the competitive
position of the subject enterprise," i.e., the holder of the copyright, in conjunction with
§87(2)(d) of the Freedom of Information Law, it would appear that an agency could preclude
reproduction of the work.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Kathleen E. O'Hara, Assistant Corporation Counsel