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FOIL-AO-18124

From:   Freeman, Robert (DOS)
Sent:    Wednesday, May 26, 2010 2:57 PM
To:     
Subject:           RE: FOIL Request

Hi –

Thanks for the kind words.  I enjoyed the trip to western NY and seeing you and your colleagues last week.

With respect to the issue, access to a vendor’s proposal that bears a copyright, it has consistently been advised that the fact that a record is copyrighted does not affect rights of access under the Freedom of Information Law.  As in any other situation, the content of a record and the effects of disclosure in consideration of the exceptions to rights of access appearing in §87(2)(a) through (k) are the factors in determining the extent to which records are accessible or, conversely, may be withheld. 

I note that it was held 30 years ago that bids are accessible after a contract has been awarded. 
Further, proposals submitted in an rfp process typically are available when an award has been made.  However, in some instances, when a proposal and related documentation include unique or perhaps detailed current financial information, §87(2)(d) may be pertinent.  That provision authorizes an agency withhold records or portions of records which, if disclosed, would cause substantial injury to the competitive position of a commercial enterprise.  I point out, too, that if an agency denies access, and the denial is challenged in court, the agency has the burden of proof.  In this context, the agency would be required to demonstrate that disclosure would cause substantial injury to the competitive position of the vendor.

I hope that this is of assistance.  If you or the person who raised the issue would like to discuss the matter, please feel free to call.

Robert J. Freeman
Executive Director
Committee on Open Government
Department of State
One Commerce Plaza, Suite 650
99 Washington Avenue
Albany, NY 12231
Phone: (518)474-2518
Fax: (518)474-1927
Website: www.dos.ny.gov/coog/index.html