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January 12, 2000

FOIL-AO-11905

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter of December 10, as well as the materials attached to it.

You referred to an advisory opinion rendered on August 6 in which it was advised that
booklists prepared or maintained by faculty members at the State University at Albany ("SUNY")
are accessible under the Freedom of Information Law. Thereafter, you sent requests for booklists
to nearly four hundred faculty members on or about December 1, and copies of those requests were
forwarded to Stephen Beditz, SUNY's records access officer. In addition, in a separate letter to Mr.
Beditz, you asked that he insure that an appropriate response be made to your requests in view of
his duties as records access officer. With the exception of replies from "a handful" of faculty
members, you received no response to the requests. Consequently, your attorney appealed on your
behalf based on a contention that SUNY constructively denied the request.

You enclosed a copy of memorandum of December 8 addressed to all teaching faculty by Mr.
Beditz in which he wrote that he most "emphatically does not agree" with your assertions, or,
therefore my opinion that faculty members or SUNY are obliged to respond to your requests. He
wrote, however, that he would respond to your requests and added that:

"We have provided information when appropriate but have
steadfastly refused, consistent, we believe, with the applicable
provisions of the Freedom of Information Law, to provide booklists
compiled at considerable expense and effort by Barnes and Noble
College Bookstores. To do so would place Barnes and Noble, who
is under contract to provide these services to the University, at a
significant competitive disadvantage."

From my perspective, Mr. Beditz' position is inconsistent with law. In this regard, I offer
the following comments.

First, for reasons discussed in the opinion of August 6, I believe that your requests made
directly to faculty members were valid, and that SUNY was required to respond in a manner
consistent with the Freedom of Information Law. To briefly reiterate the points made in that
opinion, booklists maintained by faculty members constitute "records" that fall within the coverage
of the Freedom of Information Law; the persons in receipt of the requests must either respond to you,
the applicant for the records, or forward the requests to the appropriate person, i.e., SUNY's records
access officer, who, by law, has "the duty of coordinating agency response to public requests for
access to records" [21 NYCRR §1401.2(a)]; and SUNY, through its records access officer and
employees, must respond in accordance with the time limitations imposed by law.

If my understanding of the matter is accurate, Mr. Beditz has failed to accomplish the duties
he is bound by law to carry out, and the records sought have been improperly withheld.

Second, while the state's highest court determined that an institution in the State University
system is not required to disclose compilations of booklists, the Court of Appeals also indicated that
the contents of those compilations may be acquired by anyone willing to expend the time, effort and
expense of developing the compilations on their own initiative [see Encore College Bookstores, Inc.
v. Auxiliary Service Corporation of the State University of New York at Farmingdale, 87 NY2d 410
(1996)]. In Encore, the Auxiliary Services Corporation (ASC) operated a campus bookstore for a
branch of the State University pursuant to a contract, and its records were found to be records of the
State University and, therefore, subject to the Freedom of Information Law. Barnes & Noble was
awarded a contract to stock course books designated by the faculty, and "[i]n order to ensure that the
bookstore had a complete inventory of the textbooks needed for the upcoming semester, Barnes &
Noble sent each faculty member a purchase order form on which they listed the desired books" (id.,
415). The forms were returned to Barnes & Noble, and copies were sent to ASC. Encore requested
the lists furnished to the University by Barnes & Noble, for like Mary Jane Books, it operated a
bookstore near the campus.

Although the Court found that the booklists maintained by ASC were State University
records subject to rights conferred by the Freedom of Information Law, it determined that they could
be withheld under §87(2)(d) of that statute. That provision enables 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;"

The Court adopted the "substantial competitive harm" test enunciated by federal courts in
interpreting the federal Freedom of Information Act and found that the proper assertion of §87(2)(d)
"turns on the commercial value of the requested information to competitors and the cost of acquiring
it through other means" (id., 420).

If you requested the booklists that Barnes & Noble has developed through a substantial
expenditure of time, effort and resources, I believe that a denial of access would be fully appropriate
and consistent with law and the holding in Encore. However, since you attempted through the
Freedom of Information Law to make requests to individual faculty members, exerting your own
time, effort and resources, you are not seeking to take advantage of the work already performed by
a competitor; rather, it appears that you are attempting to duplicate that effort. Consequently,
disclosure of those individual items of information could not be equated, in my view, with the
disclosure of the lists or compilations that were prepared by Barnes & Noble in Encore. As stated
by the Court of Appeals:

"The information in the booklist, accumulated by virtue of the effort
and expense of Barnes & Noble, is also directly available to Encore.
Disclosure through FOIL however, would enable Encore to obtain the
requisite information without expending its resources, thereby
reducing its cost of business and placing Barnes & Noble at a
competitive disadvantage" (id., 421).

"Disclosure through FOIL" in the context of Encore involved the "accumulation" of information by
Barnes & Noble that its competitor sought to obtain with virtually no effort on its part. In your
situation, you are seeking to duplicate the effort on your own. That being so, and in view of the
decision rendered by the state's highest court, I do not believe that SUNY could justifiably assert
§87(2)(d) or any other ground for denial as a basis for withholding the individual booklists
maintained by faculty members that you have requested. On the contrary, I believe that it is the
responsibility of SUNY, through its records access officer, to ensure that those records are made
available to you, either directly by faculty members or by the records access officer in the
performance of his duty to coordinate SUNY's response to your request.

In an effort to enhance compliance with and understanding of the Freedom of Information
Law, copies of this opinion will be forwarded to SUNY officials.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director