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FOIL-AO-13941

March 13, 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,
unless otherwise indicated.

Dear

As you are aware, I have received a variety of materials from you and the Banking
Department concerning your request for records relating to the application by HSBC Holdings PLC to acquire Household International, Inc. Since you have received some records from other states analogous to those requested, you have questioned the Department's authority to deny access. In its responses to your request and appeal, the Department cited §36(10) of the Banking Law and §87(2)(d) of the Freedom of Information Law as the bases for its determination.

In this regard, first, two opinions, one dated March 10, 1998 and the other, November 6,
2000, were prepared at your request concerning §87(2)(d). Having reviewed them, I do not believe that I can add meaningful commentary to that previously offered. If you need copies of those opinions, I will be pleased to furnish them on request.

Second, the initial ground for denial in the Freedom of Information Law, §87(2)(a), pertains
to records that "are specifically exempted from disclosure by state or federal statute." One such
statute is §36(10) of the Banking Law, which as amended in 2000, states that:

"All reports of examinations and investigations, correspondence and
memoranda concerning or arising out of such examination and
investigations, including any duly authenticated copy or copies
thereof in the possession of any banking organization, bank holding
company or any subsidiary thereof (as such terms 'bank holding
company' and 'subsidiary' are defined in article three-A of this
chapter), any corporation affiliated with a corporate banking
organization within the meaning of subdivision six of this section and
any non-banking subsidiary of a corporation which is an affiliate of
a corporate banking organization within the meaning of subdivision
six-a of this section, foreign banking corporation, licensed lender,
licensed casher of checks, licensed mortgage banker, registered
mortgage broker, or the savings and loan bank of the state of New
York or the banking department, shall be confidential
communication, shall not be subject to subpoena and shall not be
made public unless, in the judgement of the superintendent, the ends
of justice and the public advantage will be subserved by the
publication thereof, in which event the superintendent may publish or
authorize the publication of a copy of any such report or any part
thereof in such manner as may be deemed proper. For the purposes
of this subdivision, 'reports of examinations and investigations, and
any correspondence and memoranda concerning or arising out of such
examinations and investigations', includes any such materials of a
bank, insurance or securities regulatory agency of the federal
government or that of any other state or that of any foreign
government which are considered confidential by such agency or
foreign government and which are in the possession of the
department."

Based on conversations with officials of the Department and a review of §36(10), it appears
that its reliance on that statute was proper. In short, many of the records sought appear to consist of materials "arising out of" an examination or investigation of a banking organization. If that is so,
I believe that §36(10) would serve as a valid basis for a denial of access. Further, when that statute is applicable, disclosure of analogous materials by other jurisdictions would not in my opinion diminish the Department's ability to withhold records.

I hope that the foregoing is of value to you.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Sara A. Kelsey
Christine M. Tomczak