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FOIL-AO-18005

 

 

                                                                                                February 22, 2010

Dear

            I appreciate receipt of a copy of the determination of Mr. Dabkowski’s appeal following a denial of his request for certain records by Erie County.

            According to the determination, Mr.  Dabkowski requested “records relating to the Erie County Cultural Resources Advisory Board (ECCRAB) funding applications from the Arts Council in Buffalo and Erie County (hereafter ‘Arts Council’) for the years 2001-2009.”  In his denial of the appeal, Mr. Grant cited two exceptions to rights of access, paragraphs (d) and (g) of §87(2) of the Freedom of Information Law.  From my perspective, for the following reasons, I believe that the ability to assert both is limited and that various aspects of the records sought must be disclosed to comply with law.

            As a general matter, 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 (k) of the Law.

            It is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access.  As stated by the Court of Appeals, the state’s highest court, nearly 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 courts 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 rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

            Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was 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" (id., 565-566).

            The first exception cited,§87(2)(d), permits 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..."

            Although the Arts Council is a not-for-profit organization, Mr. Grant contended that it competes with other entities for funding and that the applications submitted by the Council and other entities “include proprietary information which, if disclosed, would cause substantial injury to the competitive position of the subject organization”and, therefore, that “the release of the Arts Council’s application would cause harm to its competitive position in obtaining its objectives.”  While that may be so with respect to certain elements of the Council’s applications, it is doubtful in my view that a blanket denial of access to those and related records can be justified. 

            The question under §87(2)(d) involves the extent, if any, to which disclosure would "cause substantial injury to the competitive position" of a commercial entity.

            The concept and parameters of what might constitute a "trade secret" were discussed in Kewanee Oil Co. v. Bicron Corp., which was decided by the United States Supreme Court in 1973 (416 (U.S. 470).  Central to the issue was a definition of "trade secret" upon which reliance is often based.  Specifically, the Court cited the Restatement of Torts, section 757, comment b (1939), which states that:

"[a] trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.  It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers" (id. at 474, 475).

            In its review of the definition, the court stated that "[T]he subject of a trade secret must be secret, and must not be of public knowledge or of a general knowledge in the trade or business" (id.).  The phrase "trade secret" is more extensively defined in 104 NY Jur 2d 234 to mean:

"...a formula, process, device or compilation of information used in one's business which confers a competitive advantage over those in similar businesses who do not know it or use it.  A trade secret, like any other secret, is something known to only one or a few and kept from the general public, and not susceptible to general knowledge.  Six factors are to be considered in determining whether a trade secret exists:  (1) the extent to which the information is known outside the business; (2) the extent to which it is known by a business' employees and others involved in the business; (3) the extent of measures taken by a business to guard the secrecy of the information; (4) the value of the information to a business and to its competitors; (5) the amount of effort or money expended by a business in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.  If there has been a voluntary disclosure by the plaintiff, or if the facts pertaining to the matter are a subject of general knowledge in the trade, then any property right has evaporated."

            In my view, the nature of record, the area of commerce in which a commercial entity is involved and the presence of the conditions described above that must be found to characterize records as trade secrets would be the factors used to determine the extent to which disclosure would "cause substantial injury to the competitive position" of a commercial enterprise.  Therefore, the proper assertion of §87(2)(d) would be dependent upon the facts and, again, the effect of disclosure upon the competitive position of the entity to which the records relate.

            Perhaps most relevant to the analysis is a decision rendered by the Court of Appeals, which, for the first time, considered the phrase "substantial competitive injury" in Encore College Bookstores, Inc. v. Auxiliary Service Corporation of the State University of New York at Farmingdale, [87 NY2d 410 (1995)].   In that decision, the Court reviewed the legislative history of the Freedom of Information Law as it pertains to §87(2)(d), and due to the analogous nature of equivalent exception in the federal Freedom of Information Act (5 U.S.C. §552), it relied in part upon federal judicial precedent.

            In its discussion of the issue, the Court stated that:

"FOIL fails to define substantial competitive injury.  Nor has this Court previously interpreted the statutory phrase.  FOIA, however, contains a similar exemption for 'commercial or financial information obtained from a person and privileged or confidential' (see, 5 USC § 552[b][4]).  Commercial information, moreover, is 'confidential' if it would impair the government's ability to obtain necessary information in the future or cause 'substantial harm to the competitive position' of the person from whom the information was obtained...

"As established in Worthington Compressors v Costle (662 F2d 45, 51 [DC Cir]), whether 'substantial competitive harm' exists for purposes of FOIA's exemption for commercial information turns on the commercial value of the requested information to competitors and the cost of acquiring it through other means.  Because the submitting business can suffer competitive harm only if the desired material has commercial value to its competitors, courts must consider how valuable the information will be to the competing business, as well as the resultant damage to the submitting enterprise...

...[A]s explained in Worthington:

Because competition in business turns on the relative costs and opportunities faced by members of the same industry, there is a potential windfall for competitors to whom valuable information is released under FOIA.  If those competitors are charged only minimal  FOIA retrieval costs for the information, rather than the considerable costs of private reproduction, they may be getting quite a bargain.  Such bargains could easily have competitive consequences not contemplated as part of FOIA's principal aim of promoting openness in government (id., 419-420).

            I note that in the event of a challenge to an agency’s determination in court, the agency has the burden of proving that an exception was properly asserted.  In the context of §87(2)(d), it must be proven that the records at issue would, if  disclosed, clearly cause substantial injury to the Council’s competitive position.  Significantly, in a recent decision by the Court of Appeals involving that exception, the Court determined that the potential harm through disclosure cannot be speculative or theoretical; on the contrary, it must be proven to be real [Markowitz v. Serio, 11 NY3d 43 (2008)].  It is possible that portions of recent applications submitted by the Arts Council would, if disclosed, cause substantial injury to its competitive position.  Other aspects of those records, however, may not be unique or detailed and would not, if disclosed, result the harm that the law seeks to avoid.  Further, while current or recent information may be of value to competitors, the value diminishes over course of time.  Today’s trade secret may be tomorrow’s common knowledge or even obsolete tomorrow.  In like manner, the older the application, the less likely, in my opinion, would be the County’s ability to justify a denial of access on the basis of §87(2)(d).

            The other exception cited by Mr. Grant pertains to “inter-agency materials.”  I note that §86(3) of the Freedom of Information Law defines the term “agency” to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

            Based on the foregoing, an agency is, in brief, an entity of state or local government.  Mr. Grant agreed with Mr. Dabkowski’s contention that the Arts Council is not an agency.  That being so, the applications submitted by the Arts Council, as well as any other communications transmitted between the County and the Arts Council, would not constitute inter-agency materials.  Consequently, those records would not fall within the scope of section 87(2)(g), and that provision could not be asserted as a basis for denying access to any such records.  

            Section 87(2)(g) would, however, be applicable to internal communications between and among County officers and employees, as well as communications between or among the County and agencies outside of the County, i.e. the New York State Council on the Arts or other state or local government agency.  Insofar as Mr. Dabkowski’s request includes those internal governmental communications, the cited provision is applicable and permits the County 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.

            One of the contentions offered by the New York City Police Department in a decision rendered by the Court of Appeals was that certain reports could be withheld because they are not final and because they relate to matters for which no final determination had been made.  The Court rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][111]).  However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions.  Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." [Gould et al. v. New York City Police Department, 87 NY2d 267, 276 (1996)].

            In short, that a record is “predecisional”, "non-final" or that it may relate to a matter that is preliminary would not represent an end of an analysis of rights of access or an agency's obligation to review the contents of a record.

            The Court also dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i).  In its consideration of the matter, the Court found that:

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]).  Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][I].  Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182) id., 276-277).]      

            I hope that the preceding remarks serve to clarify understanding of and compliance with the Freedom of Information Law and that the County will reconsider its determination.

            I hope that I have been of assistance.

 

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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