March 10, 2003
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.
I have received your letter, which reached this office on February 18.
You have sought an opinion concerning a request for "copies of an application that was presented to the Greenville Planning Board by SBA Greenville Wireless Communications Facility" (SBA). SBA is apparently a subsidiary of SBA Towers, Inc. and applied for a special use permit to construct a wireless communications facility. Although the application was withdrawn, copies remain in the Planning Board's possession. The application, according to your letter, consists of "approximately 100 pages and includes several reports such as: Radio Frequency Engineering, RF Emission and Airspace Safety and Visual Impact Assessment report."
The report includes a statement that "the findings opinions and recommendations expressed herein are intended for the exclusive use of SBA Towers, Inc. in making appropriate regulatory filings and may not be reproduced by other parties in any form or manner." The issue involves the effect of that statement. In this regard, I offer the following comments.
First, the Freedom of Information Law pertains to all agency records, such as those of a town, and §86(4) defines the term "record" expansively to mean:
"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
Based on the foregoing, the application, as well as any accompanying materials, constitute agency records that fall within the coverage of the Freedom of Information Law.
Second, the statement on the document that you forwarded indicating that the report and associated materials may not be reproduced is, in my view, of no significance in terms of the law. The only instances in which records or portions of records may not be available for inspection or copying would involve those in which they may be withheld in accordance with one or more of the grounds for denial appearing in §87(2).
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 for inspection and copying 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. Further, §89(3) requires that an agency make copies of records accessible to the public upon payment of the requisite fee.
The state's highest court, the Court of Appeals, expressed 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[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).
Third, there is nothing in the Freedom of Information Law that authorizes a person or agency to claim, promise or engage in an agreement conferring confidentiality or prohibiting the reproduction of accessible records. In a case in which a law enforcement agency permitted persons reporting incidents to indicate on a form their preference concerning the agency's disclosure of the incident to the news media, the Appellate Division found that, as a matter of law, the agency could not withhold the record based upon the "preference" of the person who reported the offense. Specifically, in Johnson Newspaper Corporation v. Call, Genesee County Sheriff, 115 AD 2d 335 (1985), it was found that:
"There is no question that the 'releasable copies' of reports of offenses prepared and maintained by the Genesee County Sheriff's office on the forms currently in use are governmental records under the provisions of the Freedom of Information Law (Public Officers Law art 6) subject, however, to the provisions establishing exemptions (see, Public Officers Law section 87). We reject the contrary contention of respondents and declare that disclosure of a 'releasable copy' of an offense report may not be denied, as a matter of law, pursuant to Public Officers Law section 87(2)(b) as constituting an 'unwarranted invasion of personal privacy' solely because the person reporting the offense initials a box on the form indicating his preference that 'the incident not be released to the media, except for police investigative purposes or following arrest'."
Similarly, the Court of Appeals has held that a request for or a promise of confidentiality is all but meaningless; unless one or more of the grounds for denial appearing in the Freedom of Information Law may appropriately be asserted, the record sought must be made available. In Washington Post v. Insurance Department [61 NY2d 557 (1984)], the controversy involved a claim of confidentiality with respect to records prepared by corporate boards furnished voluntarily to a state agency. The Court of Appeals reversed a finding that the documents were not "records" subject to the Freedom of Information Law, thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Moreover, it was determined that:
"Respondent's long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature's definition of 'records' under FOIL. The definition does not exclude or make any reference to information labeled as 'confidential' by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt (see Matter of John P. v Whalen, 54 NY2d 89, 96; Matter of Fink v Lefkowitz, 47 NY2d 567, 571-572, supra; Church of Scientology v State of New York, 61 AD2d 942, 942-943, affd 46 NY2d 906; Matter of Belth v Insurance Dept., 95 Misc 2d 18, 19-20). Nor is it relevant that the documents originated outside the government...Such a factor is not mentioned or implied in the statutory definition of records or in the statement of purpose..."
The Court also concluded that "just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption" (id., 567).
If the application and the materials were submitted to the Planning Board and were seen or inspected by the public, or if they were intended to be available for public review, even though the application was later withdrawn, I do not believe that there would be any basis for denying access or the ability to obtain a copy. If on the other hand, the documentation was neither reviewed nor intended to be reviewed by the public, of potential significance would be §87(2)(d), which authorizes an agency to withhold records or portions of 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;"
Since I am unfamiliar with the contents of the records, I cannot conjecture as to the extent, if any, to which the Town might properly withhold them in accordance with the exception cited above.
I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman Executive Director