April 3, 2009
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 attached to it and hope that you will accept my apologies for the delay in response.
By way of background, in 1997, Brighton Lodging Associates, LLC (“LLC”) applied for assistance to the County of Monroe Industrial Development Agency (“COMIDA”) under a COMIDA program, and you wrote that:
“As part of the financing of the proposed project, LLC received a mortgage tax abatement of $60,000, based upon a mortgage principal amount of $6,000,000. Had the project not been financed through COMIDA, $30,000 of the mortgage tax would have been paid to the Town of Brighton, and $30,000 would have been paid to the County of Monroe.
“Following the recording of the mortgage, the applicant chose to withdraw its application from the COMIDA Jobs Plus Program. In response, the Town of Brighton asked COMIDA to seek reimbursement of the $60,000 in mortgage tax benefits that the LLC had received before it withdrew its application.
“After discussions between the Town of Brighton and COMIDA, the Town and COMIDA entered into a Confidentiality Agreement dated May 2008, under which COMIDA agreed to pay a sum of monies directly to the Town to settle the dispute, in lieu of seeking the return of the mortgage tax abatement previously granted by COMIDA. The Confidentiality Agreement also includes various provisions relating to the confidentiality of the Agreement and the terms thereof...The parties agree that pending your advisory opinion in this matter, the Confidentiality Agreement should remain confidential, pursuant to Section 89(5)(a)(1) of the Public Officers Law.”
In brief, the confidentiality agreement requires that its content shall remain confidential and that either party would inform the other of any request or demand for confidential material.
Having received a request pursuant to the Freedom of Information Law for a copy of the confidentiality agreement between the Town of Brighton and COMIDA, you have sought an advisory opinion concerning rights of access to that document. COMIDA has contended that the agreement may be withheld under §87(2)(g) “[b]ecause the Agreement is inter-agency material...” and “on the basis of the public interest privilege against disclosure.” From my perspective, those contentions are inconsistent with the language of the Freedom of Information Law and the judicial interpretation of that law, and the confidentiality agreement must be disclosed. In this regard, I offer the following comments.
First, I point out that §89(5) of the Freedom of Information Law pertains only to records submitted by commercial entities to state agencies. It does not apply in any way to entities of local government.
Second, as you are aware, 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.
Second, the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals thirty years ago:
"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the court for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].
In another decision, the Court of Appeals found that:
"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" [Capital Newspapers v. Burns,67 NY2d 562, 565-566 (1986)].
Several controversies have arisen in which agreements or settlements have included provisions requiring confidentiality. Those kinds of agreements have uniformly been struck down and found to be inconsistent with the Freedom of Information Law. In short, it has been held that a promise or assertion of confidentiality cannot be upheld, unless a statute specifically confers confidentiality. In Gannett News Service v. Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)], a state agency guaranteed confidentiality to school districts participating in a statistical survey concerning drug abuse. The court determined that the promise of confidentiality could not be sustained, and that the records were available, for none of the grounds for denial appearing in the Freedom of Information Law could justifiably be asserted. In a decision rendered by the Court of Appeals, it was held that a state agency's:
"long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature's definition of 'record' 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..." [Washington Post v. Insurance Department, 61 NY 2d 557, 565 (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...”
The Court also concluded that “just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption” (id., 567).
In Geneva Printing Co. and Donald C. Hadley v. Village of Lyons (Supreme Court, Wayne County, March 25, 1981), a public employee charged with misconduct and in the process of an arbitration hearing engaged in a settlement agreement with a municipality. One aspect of the settlement was an agreement to the effect that its terms would remain confidential. Notwithstanding the agreement of confidentiality, which apparently was based on an assertion that "the public interest is benefitted by maintaining harmonious relationships between government and its employees", the court found that no ground for denial could justifiably be cited to withhold the agreement.
Third, with respect to the public interest privilege or its equivalent, although that basis for withholding records might be properly asserted in other contexts, it does not exist with respect to the ability to withhold records under the Freedom of Information Law. As stated by the Court of Appeals in 1979: "[T]he common-law interest privilege cannot protect from disclosure materials which that law requires to be disclosed" [see Doolan v. BOCES, 48 NY 2d 341, 347]. In short, either records or portions thereof fall within the grounds for denial appearing in §87(2) of the Freedom of Information Law, or they do not; if they do not, there would be no basis for denial, notwithstanding a claim of privilege.
Lastly, although §87(2)(g) represents an exception to rights of access, due to its structure, it often requires disclosure, and I believe that to be so in this instance. That provision permits an agency to withhold records that:
"are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."
It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
As suggested earlier, it has been held on several occasions that settlement agreements are accessible, notwithstanding attempts to guarantee confidentiality. One of the decisions, Geneva Printing Co., supra, specified that a settlement is a final agency determination accessible under subparagraph (iii) of §87(2)(g). The exception regarding inter-agency or intra-agency materials as explained by the Court of Appeals involves the ability to withhold opinions, advice, recommendations and the like that are predecisional and which reflect a deliberative process [see e.g., Xerox Corporation v. Town of Webster 65 NY2d 131, 490 NYS2d 488 (1985), Gould, Scott and DeFelice v. New York City Police Department, 653 NYS2d 54, 89 NY2d 267 (1996)]. The record at issue, as I understand it , represents the culmination or result of a deliberative process and is indeed a final determination that must be disclosed.
I hope that I have been of assistance. Should you want to discuss the matter, please feel free to contact me.
Robert J. Freeman
cc: Michael J. Townsend