February 21, 2007
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 and hope that you will accept my apologies for the delay in response. You have sought an advisory opinion concerning the propriety of a denial of access to records by the Empire State Development Corporation (ESDC).
“Any and all memoranda of agreement signed since June 2005 between the Moynihan Station Development Corporation and Vornado Realty Trust and the Related Companies regarding the development of the Farley Post Office, and any subsequent correspondence among the parties or their representatives that pertains to the agreement.”
The request was denied initially by ESDC’s records access officer and later following your appeal on the basis of §87(2)(c) of the Freedom of Information Law. That provision authorizes an agency to deny access to records to the extent that disclosure “would impair present or imminent contract awards...” For several reasons, it is your view that §87(2)(c) does not justify a denial of access. First, it is your view an award of the contract had “substantially occurred” in July of 2005 when, according to your letter, Vornado and Related were designated the preferred developers.”
Second, you wrote that “some elements of that arrangement were included in a press release on July 18, 2005, and later in the General Project Plan.” And third, in October of 2006, the Public Authorities Control Board rejected the General Project Plan for the project.
You added that:
“In a letter to Assembly Speaker Sheldon Silver preceding that vote, Governor Pataki wrote that such a rejection would require the ESDC to ‘invalidate the existing award and immediately begin a new [bidding] process for a ‘bigger development’ that might include a new Madison Square Garden.’ Subsequent to the PACB rejection, ESDC Chairman Charles Gargano said publicly that the new Governor would need to ‘revive’ the project. It is therefore inconsistent that the ESDC has rejected my request on the basis that is might imperil ‘present or imminent contract awards’ when the Governor and the agency’s Chairman have stated that there is no imminent contract to be awarded.”
In this regard, I offer the following comments.
First and perhaps most importantly, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the Law. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.
The Court of Appeals, the state’s highest court, confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, 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)" [89 NY2d 267, 275 (1996)].
Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception different from that cited in response to your request. The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (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, stating 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.).
In the context of your request, the ESDC has engaged in a blanket denial of access in a manner which, in my view, is equally inappropriate. Based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by that agency for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).
In short, I believe that the blanket denial of the request was inconsistent with law.
Second, as indicated earlier, the provision upon which ESDC relied to deny access, §87(2)(c), permits an agency to deny access to records to the extent that disclosure "would impair present or imminent contract awards..." The key word in that provision in my opinion is "impair", and the question under that provision involves whether or the extent to which disclosure would "impair" the contracting process by diminishing the ability of the government to reach an optimal agreement on behalf of the taxpayers.
As I understand its application, §87(2)(c) generally encompasses situations in which an agency or a party to negotiations maintains records that have not been made available to others. For example, if an agency seeking bids or proposals has received a number of bids, but the deadline for their submission has not been reached, premature disclosure of those bids to another possible submitter might provide that person or firm with an unfair advantage vis a vis those who already submitted bids. Further, disclosure of the identities of bidders or the number of bidders might enable another potential bidder to tailor a bid in a manner that provides him with an unfair advantage in the bidding process. In such a situation, harm or "impairment" would likely be the result, and the records could justifiably be denied.
However, in a decision rendered more than twenty-five years ago, it was held that after the deadline for submission of bids or proposals has been reached and a contract has been awarded, "the successful bidder had no reasonable expectation of not having its bid open to the public" [Contracting Plumbers Cooperative Restoration Corp. v. Ameruso, 105 Misc. 2d 951, 430 NYS 2d 196, 198 (1980)]. Conversely, the Court of Appeals sustained the assertion of §87(2)(c) in Murray v. Troy Urban Renewal Agency [56 NY2d 888 (1982)], in which the issue pertained to real property transactions where appraisals in possession of an agency were requested prior to the consummation of a transaction. Because premature disclosure would have enabled the public to know the prices the agency sought, thereby potentially precluding the agency from receiving optimal prices, the agency's denial was upheld [see Murray v. Troy Urban Renewal Agency, 56 NY 2d 888 (1982)].
In the case of your request, an award was apparently made. As indicated in Contracting Plumbers, supra, and confirmed in a case involving a request for a copy of a successful proposal following an award, “Once the contract was awarded...the terms of [the] RFP response could no longer be competitively sensitive” [Cross-Sound Ferry v. Department of Transportation, 219 AD2d 346, 634 NYS2d 575, 577 (1995)]. When an agreement was reached and an award determined, the records that you requested, would, in my view, have been available to the public; no longer would disclosure in any way have “impaired” the ability of the ESDC to reach a fair and optimal agreement on behalf of the public.
A denial of access to those same records now is in my view is unjustifiable, for the agreement and award were, as I understand the matter, revoked. Further and significantly, at this juncture, it does not appear that any contract award is either “present or imminent.” If that is so, I do not believe that §87(2)(c), the provision upon which ESDC relied to deny access, would be applicable or pertinent.
In an effort to enhance understanding of and compliance with the Freedom of Information Law, copies of these opinions will be forwarded to ESDC.
I hope that I have been of assistance.
Robert J. Freeman
cc: Anita W. Laremont