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FOIL-AO-15701

December 20, 2005

Dear

As you are aware, I have received your letter in which you sought an advisory opinion concerning issues that you presented in relation to the Freedom of Information Law. By way of background, you wrote that:

"Cablevision Systems of Long Island Corporation (Cablevision) is in the process of requesting disclosure of draft franchise agreements that Verizon New York Inc. (Verizon) has filled with a number of municipal governments across Long Island, and elsewhere in New York State and related documents. Verizon has voluntarily provided the drafts to the municipalities in order to facilitate and in connection with negotiations for it to acquire franchise authority from the towns. These franchises will allow Verizon to provide cable television service in those localities.

"Cablevision has existing franchises in many of the localities where Verizon is contemplating offering cable service. Cablevision does not oppose Verizon’s entry into the video business. State law, however, requires that franchises granted to new providers of cable television service result in a level regulatory and economic playing field between the incumbent cable company and the new provider. 16 NYCRR 895.3. Cablevision, therefore, seeks to review the drafts that have been provided to the municipalities in order to participate meaningfully in the franchising process of each municipality (16 NYCRR 894.7) and assert its right under state law to a level playing field.

"Verizon has systematically opposed each Cablevision request for disclosure of draft cable franchise agreements. In fact, it has regularly threatened municipalities with legal action if they disclose the draft franchises and, in some instances, has obtained injunctions against local government entities that had determined to provide disclosure. We fully expect Verizon to continue this course of action with every Town that Cablevision approaches for disclosure."

In your capacity as the attorney for Cablevision, you asked:

"1) whether municipalities have discretion to disclose all documents in their possession, irrespective of whether the documents can be claimed to fall within exceptions to the FOIL’s directive of mandatory disclosure; and

2) if so, whether Verizon has standing to challenge the exercise of that discretion by opposing the disclosure of documents by municipalities on the ground that the documents at issue allegedly fall within one or more FOIL exceptions for disclosure."

In this regard, I offer the following comments.

First, as you suggested in your letter, the Freedom of Information Law is broad in its coverage, for it pertains to all government agency records and defines the term "record" in §86(4) to include:

"...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, draft franchise agreements constitute agency records subject to rights of access conferred by the Freedom of Information Law when they come into the possession of a state or municipal agency.

I note, too, that 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...."

Second, it is emphasized that the Freedom of Information Law is permissive. Although an agency may withhold records in accordance with the grounds for denial appearing in §87(2), the Court of Appeals has held that the agency is not obliged to do so and may choose to disclose. As stated in that unanimous decision: "...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].

There are numerous instances in which agencies choose to disclose records they have the ability to withhold, and their authority to do so has been confirmed judicially. In Buffalo Teachers Federation v. Buffalo Board of Education, although §89(7) of the Freedom of Information Law specifies that public employees’ home addresses need not be disclosed, it was determined that the agency "may, should it choose, grant access to information which is exempt from disclosure under FOIL" [156 AD2d 1027, 1028 (1990)].

Perhaps most pertinent is Seelig v. Sielaff [200 AD2d 298 (1994)], in which the lower court enjoined a New York City agency from releasing the social security numbers of correction officers without their written consent pursuant to the Personal Privacy Protection Law, Article 6-A of the Public Officers Law. While the Appellate Division agreed that disclosure of social security numbers would result in an unwarranted invasion of correction officers' privacy, the Court unanimously reversed and vacated the judgment because the agency involved is an entity of local government and, therefore, is not subject to the Personal Privacy Protection Law or prohibited from disclosing social security numbers. Specifically, it was found that:

"The injunctive relief granted by the IAS Court was based upon Public Officers Law §92 (1), part of this State's Personal Privacy Protection Law. That law by its own terms excepts the judiciary, the State Legislature, and 'any unit of local government' from its purview. Consequently, the relief granted against the respondents was improper" (id., 299).

In short, while a state agency that is subject to the Personal Privacy Protection Law is obliged to protect against disclosures to the public that would constitute an unwarranted invasion of personal privacy [see Freedom of Information Law, §§87(2)(b) and 89(2); Personal Privacy Protection Law, §96(1), neither an entity of local government nor a court is required to do so.

Analogous under the circumstances is the operation of §89(5) of the Freedom of Information Law, under which a commercial enterprise required to submit records to a state agency may identify those portions of records considered to be deniable under §87(2)(d) at the time of their submission. Section 87(2)(d) authorizes an agency to withhold trade secrets or other records submitted by a commercial enterprise to the extent that disclosure "would cause substantial injury to the competitive position of the subject enterprise. If the agency accepts the claim made by that entity, it essentially would agree to keep the records confidential. If a request is later made under the Freedom of Information Law, or if a state agency, on its own initiative, seeks to disclose records that had been accorded protection, it would be required to inform the entity claiming the exemption from disclosure and offer the entity an opportunity to explain why disclosure would "cause substantial injury" to its competitive position. If, following the exhaustion of administrative remedies by either a person seeking the records claimed to be exempt or by the entity claiming the exemption, a judicial proceeding is commenced, it would have to be proven that the records would cause substantial injury to the entity’s competitive position if disclosed. The burden would be on the agency if it has denied access based on its agreement with the entity that the records are exempt under §87(2)(d). On the other hand, if the agency believes that the record should be disclosed, the entity would have the burden of proof. The law specifies in that latter instance that a commercial entity seeking to prohibit the state agency from disclosing records has fifteen days from the issuance from the issuance of the agency’s final determination to initiate a judicial proceeding to attempt to block disclosure.

As in the case of the Personal Privacy Protection Law under which a state agency may be prohibited from disclosing personal information [§96(1)] and which specifies that an aggrieved person may seek judicial review and relief (§97), §89(5) of the Freedom of Information Law offers a commercial enterprise the ability to prohibit a state agency from disclosing records that might be withheld based on §87(2)(d) by initiating a judicial proceeding. However, in this instance, since your questions involve local governments, not state agencies, neither the procedure nor the potential protection accorded by §89(5) is applicable or available to Verizon or any other commercial enterprise. Section 89(5) provides a means by which a commercial enterprise can initiate a judicial proceeding against a state agency that has chosen to disclose records; there is no provision that provides a commercial enterprise with the authority to bring suit to preclude a unit of local government from disclosing records in its possession.

I am mindful of the decision rendered last month in Verizon New York, Inc. v. Bradbury [803 NYS2d 409 (2005)] in which Verizon initiated a proceeding pursuant to Article 78 to prohibit the Village of Rye Brook from disclosing documents that the Village sought to make available to the public. The court did not explain in any detail the means by which Verizon had standing to bring suit. Further, the court cited §89(5), stating that:

"Given the public interest in disclosure, the courts place the burden of proof on the party seeking to invoke the exemptions to prove entitlement thereto (Public Officers Law §89[5][e]..." (Id., 415).

While it is true that a commercial enterprise may have the burden of defending a denial of access at the conclusion of the procedure described in §89(5), it is reemphasized that §89(5) is applicable only with respect to records submitted to state agencies; no similar procedure exists in the Freedom of Information Law in the case of records submitted to local government agencies. In this instance, there was no denial of access. On the contrary, the Village determined to disclose the records. As I understand the matter, absent a denial of a request, there is no vehicle under which a person or firm has the ability to initiate a judicial proceeding concerning rights of access to local government records. That appears to be so in consideration of §89(4)(b), which states that:

"Except as provided in subdivision five of this section, a person denied access to a record in an appeal determination under the provisions of paragraph (a) of this subdivision may bring a proceeding for review of such denial pursuant to article seventy-eight of the civil practice law and rules. In the event that access to any record is denied pursuant to the provisions of subdivision two of section eighty-seven of this article, the agency involved shall have the burden of proving that such record falls within the provisions of such subdivision two. Failure by an agency to conform to the provisions of paragraph (a) of this subdivision shall constitute a denial."

Based on the foregoing, "except as provided in subdivision five" of §89, which applies only to state agencies, or as otherwise provided by law, it is reiterated that the Freedom of Information Law is permissive, and that the Court of Appeals and other courts have so held. Even when agencies may have the ability to deny access to records, they are not required to do so and may assert their discretionary authority to disclose. That being so, and in consideration of the foregoing, I do not believe that Verizon would have standing to challenge a determination by a local government to disclose records it has received from Verizon.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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