January 8, 2009
FROM: Robert J. Freeman, Executive Director
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.
I have received your letter and the materials relating to it. You have sought confirmation of our conversations relating to the disclosure of certain records by the Town of Lewisboro.
By way of background, the Town recently engaged in an RFP process pertaining to communication towers. The RFP was distributed to numerous vendors, and proposals were received by five firms by the deadline for their submission, September 22. At an open meeting of the Town Board held that night, copies of the proposals were distributed to members of the Town Board and the Town Antenna Advisory Board, and the latter presented its analysis of the proposals to the Town Board at an open meeting held on October 20. The Board rejected two of the proposals and sought to raise questions relating to the other three. The questions were mailed to the firms, and their responses were expressed during an open meeting held on November 20. Having reviewed the proposals and the advice offered by the Antenna Advisory Board, one of the firms, Verizon, was selected.
On December 15, you received a letter from the principal of Wireless Edge, one of the firms that had been rejected, complaining that his firm was damaged by disclosure of its proposal by the Town Clerk, who responded to a request made under the Freedom of Information Law by Verizon on October 20 for all of the proposals. The Clerk made the proposals available the next day, which was a month after they had been received, and a day after the open meeting during which a presentation analyzing the proposals was given.
The RFP specified that the Town is subject to the Freedom of Information Law and states as follows:
“Should your submission, to this RFP, contain ‘trade secrets’ or other information, the disclosure of which could reasonably be expected to be harmful to business interests, you must insure that such information is clearly identified and marked as such. Identification must be specific by item or paragraph” (emphasis in the RFP).
You wrote that:
“...the cover page of the Wireless Edge proposal has Confidential written at the bottom indicating that the whole proposal is, in their opinion, Confidential. They also list most of the pages in their proposal as Confidential and Proprietary at the bottom of every page.”
In this regard, I offer the following comments.
First, the Court of Appeals, the state’s highest court, 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. For example, 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)].
Third,§89(5) of the Freedom of Information Law permits a commercial enterprise required to submit records to a state agency to 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.
Section 89(5), however, applies to state agencies only; it does not apply to the Town or other units of local government. Therefore, in my view, there was no prohibition regarding disclosure of the proposals.
Further, according to your letter, Wireless Edge did not abide by the instruction quoted earlier offered in the RFP concerning the identification of portions of records that it submitted, for its claim of confidentiality was not “specific by item or paragraph.”
Lastly, in consideration of the process by which the selection was made, which included a variety of public disclosures at open meetings, it appears unlikely that the records at issue could properly have been withheld under §87(2)(d) or other exception to rights of access.
I hope that I have been of assistance.
cc: John E. Arthur