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FOIL-AO-14687

May 24, 2004

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

I have received your letter and the materials relating to it. In short, in your capacity as President of Bath Petroleum Storage Inc. ("BPSI"), you wrote that the Department of Environmental Conservation ("DEC") denied your request to "keep confidential certain critical business information."

Having reviewed the materials, the issue, in my view, involves the strength of BPSI’s contentions and meeting the burden of defending secrecy. Since I know little about BPSI’s business or the extent to which there may be competition, I cannot provide an opinion concerning the conclusion reached by DEC. However, in considering the issues pertinent to the matter, I offer the following general comments.

First, as you are likely aware, §89(5) of the Freedom of Information Law has for years included provisions that authorize a commercial enterprise required to submit records to a state agency to seek confidentiality by identifying those portions of the records believed to fall within the scope of §87(2)(d). That exception to rights of access authorizes an agency to withhold records or portions thereof 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 §89(5), if a request is made for records believed to fall within the trade secret exception, the agency must inform the commercial enterprise of the request and provide an opportunity to indicate why it continues to contend that disclosure would cause substantial injury to its competitive position. If the agency agrees, it will deny access, and the person requesting the record, as in all other instances, has the right to appeal to the head or governing body of the agency. If the appeal sustains the initial denial of access, the person seeking the record may bring a judicial proceeding in which the agency has the burden of proving that disclosure would result in the harm described in the exception. If the agency disagrees with the commercial enterprise and contends that the record sought should be made public, the commercial enterprise has the right to appeal. If the agency’s decision to disclose is upheld on appeal, the commercial enterprise has fifteen days to go to court to attempt to block disclosure.

Second, new provisions in the Freedom of Information Law pertain to "critical infrastructure", and that phrase is defined in §86(5) to mean "systems, assets, places or things, whether physical or virtual, so vital to the state" that their "disruption, incapacitation or destruction could jeopardize the health, safety, welfare or security" of the state or its residents. The procedure prescribed in §89(5) applies with respect to critical infrastructure information. In short, a person or "entity" has the opportunity to inform a state agency that records or portions of records it submits to the state agency include information regarding critical infrastructure as that phrase is defined in §86(5). The agency would except those records from disclosure until the procedure described above is complete.

It is emphasized that critical infrastructure information is not automatically exempt from disclosure; it is subject to the same exceptions applicable in all other circumstances in which records are requested. The designation of material as critical infrastructure information is essentially a signal, a warning, that government officials need to pay special attention when a request is made for records containing information so designated.

As indicated above, your and your company have the ability to attempt to prevent a state agency from disclosing records that you believe fall within the coverage of §87(2)(d) or which contain critical infrastructure information that can be withheld pursuant to that provision or any other exception to rights of access appearing in §87(2) of the Freedom of Information Law. However, it is reiterated that an agency denying access, or a commercial enterprise seeking to prohibit disclosure, has the burden of defending secrecy.

The Court of Appeals, the state’s highest court, 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[4][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).

The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, directing that:

"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

Based on the correspondence attached to your letter, it appears that officials of DEC do not agree that the records at issue can justifiably be withheld. While I am not encouraging you initiate litigation, you may choose to do so to attempt to prohibit disclosure. In consideration of the commentary within the correspondence, it appears unlikely, in my view, that you would prevail.

I hope that the foregoing serves to clarify your understanding of the Freedom of Information Law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: P. Nicholas Garlick
Ruth Earl