February 22, 2010
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 hope that you will accept my apologies for the delay in response.
According to your letter, a request made pursuant to the Freedom of Information Law was sent to the Empire State Development Corporation (ESDC) on August 5, and its receipt was acknowledged on August 10. On September 25, you were informed by letter that a response would be delayed until October 30, and on October 30, you received a letter indicating that a response would not be accomplished until November 30. On November 18, you appealed on the ground that the request was constructively denied, and on November 30, ESDC indicated that it would grant access to the records, but that it would delay doing so until December 30. Despite a response suggesting that there would be significant disclosure, you wrote that the request was denied in part on several grounds, including “personal privacy, trade secrets and interference with contract negotiations.” You also referred to the “inter-agency exception” relative to the records sought, which is, in your words, “cause for alarm.”
The request involves correspondence and communications, as well as contracts, agreements and invitations covering the period of 2005 to the present, between ESDC or its subsidiary, the Brooklyn Bridge Park Development Corporation (hereafter “the Corporation”), and various entities, such as Two Trees Management, St. Ann’s Warehouse, the Brooklyn Arts Council, the Brooklyn Academy of Music, other similar entities, and lobbyists, consultants and staffs of those entities.
In consideration of the foregoing, I offer the following comments.
First, pursuant to §89(3)(a), an agency cannot engage in one delay after another. In short, following the receipt of a request, an agency has five business days to respond in some manner. If more than that time needed, the agency must acknowledge the receipt of the request within that time and offer an approximate date, not to exceed twenty additional business days, to grant access to the records in whole or in part. In the rare situation in which it is found that more than twenty additional business days are needed, the agency may do so, with an explanation of the reason for the delay and an indication of a “date certain”, a self-imposed deadline by which it will grant access to the records in whole or in part (see regulations of the Committee on Open Government, 21 NYCRR §1401.5). When the date certain is reasonable in consideration of attendant facts and circumstances, the agency would be complying with law. There is no provision that permits agencies to indicate extension after extension. Moreover, and particularly pertinent in the context of the facts that you described, if the agency fails to determine rights of access by the date certain, §89(4)(a) states that such failure constitutes a denial of access that may be appealed. The same provision specifies that an agency must determine an appeal within ten business days of the receipt of the appeal and either “provide access” to the records or “fully explain in writing” the reasons for further denial. The phrase “provide access” in my view means making the records available, not further delaying disclosure.
Second, without an indication of the nature of the records sought, a detailed response cannot be offered concerning rights of access. However, 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 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 expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 NY 2d 267 (1996)], 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)" (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, directing 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.).
The exception to which you referred as “cause for alarm”, §87(2)(g), pertains to “inter-agency or intra-agency materials. Here I note that the term “agency” is defined in §86(3) of the Freedom of Information Law 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."
Therefore, an “agency”, in brief, is an entity of state or local government. Inter-agency materials would include communications between or among entities of state or local government; intra-agency materials would involve communications within an agency. Communications between ESDC or its subsidiary and entities that are not agencies, such as those that you mentioned, arts related and other organizations, would not fall within §872)(g), and that provision could not, in my view, be properly asserted as a basis for withholding those kinds of records.
The exception regarding “personal privacy”, §§87(2)(b) and 89(2)(b), involves disclosure that would constitute “an unwarranted invasion of personal privacy.” The provision has been construed to pertain to items concerning nature persons that a reasonable person of ordinary sensibilities would consider to be intimate or highly personal [see Hanig v. NYS Department of Motor Vehicles, 79 NY2d 106 (1992). That exception does not apply to items pertaining to individuals in their professional or business capacities. Consequently, the extent to which the exception concerning unwarranted invasions of personal privacy may properly be asserted may be minimal.
With respect to trade secrets, §87(2)(d) permits an agency to withhold records insofar as disclosure would “cause substantial injury” to the competitive position of a commercial enterprise. Whether several of the entities referenced in your request could be characterized as “commercial enterprises” is conjectural. Further, in a recent decision by the Court of Appeals, it was found that, to justify a denial of access under §87(2)(d), an agency must prove that disclosure would indeed cause substantial injury to an entity’s competitive position; the likelihood of harm cannot be merely theoretical [Markowitz v. Serio, 11 NY3d 43 (2008)]. In my view, the likelihood of competitive harm diminishes over the course of time. Current information concerning a commercial enterprise might be of great value to a competitor, and disclosure, therefore, might cause substantial competitive harm. However, today’s trade secret or commercially valuable information may become well known within an area of commerce or industry or perhaps irrelevant or obsolete. That may not be so with respect to other than current or recent information that you have requested.
Lastly, §87(2)(c) permits an agency to withhold records or portions of records when disclosure “would impair present or imminent contract awards...” Once a contract has been awarded, any impairment of an agency’s ability to reach an optimal agreement on behalf of the public has essentially disappeared, and the ability to assert that exception in most instances also expires. That being so, the extent to which that provision may properly be asserted with respect to encompassing a period of five years likely is minimal.
I hope that the foregoing will be of value and that I have been of assistance. Copies of this opinion will be forwarded to ESDC.
I hope that I have been of assistance.
Robert J. Freeman
cc: Anita Laremont, Appeals Officer
Antovk Pidedjian, Records Access Officer