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February 23, 2000

FOIL-AO-11971

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

As you are aware, I have received a variety of correspondence from both of you
concerning Ms. Lama's efforts to gain access to copies of records maintained by the Town of
Perinton.

The initial issue, one that has been considered and discussed exhaustively, related to
the fees sought to be imposed by the Town for the reproduction of large sized building plans,
which can be copied as single documents only by a commercial copying service. While it
appears that the copying service, Kinko's, would have provided adequate assurances that it
could maintain the security and integrity of original documents, that matter appears to have
been resolved. In short, Ms. Lama indicated that Mr. Copp said that he can provide 8 ½" by
11" copies of the house plans "that can be pieced together", and Ms. Lama wrote that she
would be "willing to accept that as a compromise."

A second issue relates to the time in which an agency must respond to a request for
records. In a letter addressed to Ms. Lama on January 14 by the Town Clerk, Susan C.
Roberts, Ms. Roberts referred to a conversation she had with me and wrote that I advised
that:

"1.) Records Access officers may take vacations. When the
officer is out of the office requests addressed to him would not
be received by him until his return. The five business days for
a response would begin at that time. Therefore, a letter sent to
me on November 29, 1999, would not have reached me until
my return from vacation on December 6, 1999. Faxes are a
much less reliable form of delivery. The fax, which you said
was sent to me on November 29, 1999, was never received. 2.)
When other employees are on vacation records which are easily
accessible in their offices should be made available. Records
which are not easily accessible to anyone but the employee
would not be available until their return. A letter to the FOIL
applicant, within the five business days allowed, stating that
the employee is on vacation and giving a date when the record
would be available is sufficient."

While I do not recall the details of the conversation between the Town Clerk and
myself, I offer the following clarifications. Certainly records access officers and others may
take vacations. However, absence due to vacation does not necessarily enable the agency to
delay the disclosure of records. As stated in the Town's resolution implementing the
Freedom of Information Law, as well as the regulations promulgated by the Committee on
Open Government (21 NYCRR Part 1401), the records access officer has the duty of
coordinating an agency's response to requests. In my view, part of the function of
"coordinating" involves ensuring that Town personnel respond to requests to the extent that
they can do so in the absence of the records access officer. Further, the Town's resolution
appears to anticipate the absence of officers or employees, for in addition to the Town Clerk,
two deputy town clerks, or their successors, are designated as records access officer.

I note, too, that the meaning of the phrase "a letter sent to me" is unclear. Does that
mean letters marked "personal" only, letters addressed to "Susan C. Roberts", those
addressed to the "Town Clerk", or those addressed to "Susan C. Roberts, Town Clerk"?
From my perspective, each of the preceding sent to the Clerk's place of business could be
assumed to have been sent to her in conjunction with the performance of her official duties.
The only category in my view that might not be immediately opened upon receipt by the
Town would be those marked "personal." With respect to all others, insofar as they
constitute requests made under the Freedom of Information Law, I believe that the Town
would be obliged to respond in some manner within five business days of its receipt of such
requests.

Even in the absence of the Clerk, I believe that the intent of the Freedom of
Information Law should be given effect. In the statement of intent that appears at the
beginning of the Law, §84, the Legislature declared that the state and its localities are
required to make records available "wherever and whenever feasible." In my view, if a
record that has been requested is clearly available under the law and can be readily located,
there would likely be no valid basis for delaying disclosure as much as or beyond five
business days following the receipt of a request, irrespective of the absence of the records
access officer.

I point out in passing that two elements of the Town's resolution appear to be out of
date. While the Freedom of Information Law as originally enacted in 1974 made reference to
a "fiscal officer" (see Section 4 of the Resolution), there has been no reference in the law to a
fiscal officer since 1978. Similarly, while the original §88(1) of the Freedom of Information
Law referred to disclosure of a payroll record by the fiscal officer to bona fide members of
the news media, the provision dealing with the payroll record since 1978 has been §87(3)(b).
That provision does not distinguish between the news media and others.

Also, Section 7 of the Resolution refers to the Town Board determining an appeal
within seven business days of the receipt of an appeal. Although the Town Board could
continue to determine appeals within seven business days, §89(4)(a) provides that the person
or body designated to determine appeals has ten business days from the receipt of an appeal
to do so.

Third, much of the dispute appears to involve the issue of copyright. A close reading
of the opinions previously rendered and the only decision of which I am aware dealing with a
request for a record under the Freedom of Information Law that might merit copyright
protection does not suggest that the Town has the right to forbid the public from viewing or
copying building or architectural plans.

Since Mr. Copp is willing to reproduce the plans by "piecing them together", there
appears to be no issue concerning endangering one's life or safety [see Freedom of
Information Law, §87(2(f)]; on the contrary, it appears that the plans would clearly be
available for inspection. The only exception to rights of access pertinent to the matter would
be §87(2)(d), which 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 the Copyright Act, 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 U.S. Department of Justice, the most common basis for the assertion
of the federal Freedom of Information 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.).

Conversely, it was suggested that when disclosure of a copyrighted work would not
have a substantial adverse effect on the potential market of the copyright holder, the trade
secret exemption could not appropriately be asserted. Further, "[g]iven that the FOIA is
designed to serve the public interest in access to information maintained by government," it
was contended that "disclosure of nonexempt copyrighted documents under the Freedom of
Information act should be considered a 'fair use'" (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
could 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 architectural plans 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. On the other hand, if reproduction of the
work would not result in substantial injury to the competitive position of the copyright
holder, it appears that the work would be available for copying under the Freedom of
Information Law.

In the only decision that has dealt with copyright in relation to the Freedom of
Information Law, Sagaponack Homeowners Association v. Town of Southampton (Supreme
Court, Suffolk County, NYLJ, September 29, 1998), the court emphasized that to withhold
copyrighted material, it must be proven that disclosure would in fact "cause substantial injury
to the competitive position" of the holder of the copyright. There is nothing in the
correspondence from the Town that refers to the harm that could arise by reproducing the
records at issue.

Perhaps most importantly, it is my understanding that Ms. Lama has not sought the
records for the purpose of using them in any commercial context; rather, I believe that her
intent involves using them in an effort to have influence over the course or nature of
development in the Town. According to the holding in Sagaponack, her intent would appear
to constitute a "fair use." At the end of that decision, reference was made to the fact that the
records would be used for a purpose related to litigation, not for any commercial endeavor,
and the court found that disclosure in that context would not constitute "a general
publication" and would not "interfere with the copyright." If my assumptions concerning
Ms. Lama's intent are accurate, I believe that the same conclusion would be reached, that
reproduction of the records, perhaps with conditions concerning their redisclosure or
reproduction, would, under the circumstances, constitute a permissible fair use.

I hope that the foregoing serves to clarify the issues and that I have been of assistance.
Should questions arise concerning the foregoing, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Susan C. Roberts