May 28, 2014

FOIL-AO-19134

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.

 

Dear

As you are aware, I have received your correspondence concerning requests made pursuant to the Freedom of Information Law directed to the Executive Chamber and the New York State Thruway Authority.

  Your initial request sent on September 24 to the Executive Chamber and the Thruway Authority involved “All email exchanges related to the Tappan Zee Bridge replacement project” between the Executive Chamber and “Tappan Zee Constructors” from July 25 through August 25 of that year, the same kinds of exchanges during the same period involving the Thruway Authority and Tappan Zee Constructors, and email exchanges concerning the project during that period between the Thruway Authority and the Executive Chamber.  In a response of October 9, you were informed that a diligent search had been made, but that the Executive Chamber “does not possess records responsive to your request.”

In consideration of the possible volume of the request and time needed to respond, you revised the request for records of the Thruway Authority early in 2014 to include the email exchanges involving the parties described above to limit the time of those exchanges to the period of July 25, 2013 through August 2, 2013.  In a letter from the Thruway Authority’s records access officer dated February 14, you were informed that staff was continuing its search and review of the records and that you would be notified in writing on or before April 1 of your right to obtain the records.  Another letter was sent to you on April 15 indicating that you would be notified “on or before May 27, 2014, if the materials are available for release, or if additional time is needed.”

As you are likely aware, the Freedom of Information Law (FOIL) includes direction that requires agencies to respond to requests for records in a timely manner.  Although that statute offers flexibility to agencies relative to the time in which they must determine rights of access, there are provisions that preclude agencies from delaying their responses in a manner inconsistent with the specific direction appearing in the law.

Section 89(3)(a) of FOIL states in part that:

“Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied...”

New language was added to that provision in 2005 stating that:

“If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.” 

Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request.  When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied.  However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date, a “date certain”, by which it will grant access.  That date must be reasonable in consideration of the circumstances of the request.

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of twenty business days or less given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the date certain given beyond twenty business days, or if that date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)].  In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:

“...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.”

Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal.  In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Law and Rules.

Based on the facts that you provided and the correspondence, I believe that you could have appealed on the ground that your request was constructively denied.  When you were informed that your request would be granted or denied by April 1, but no response was given by that date, you could have considered the request to have been denied, which gave you the right to appeal.  If you choose not to do so and consider May 27 to be the “date certain”, and if there is no determination by that date, it is clear in my opinion that you may consider the request to have been denied and that you may appeal.

Section 89(4)(b) was also amended and states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal.  In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Law and Rules.

Next, although I am unfamiliar with the contents of records falling within the scope of your request, I offer the following general remarks.

First, FOIL is based on a presumption of access.  Stated differently, all agency records are available, except those records or portions of records that fall within the exception to rights of access appearing in paragraphs (a) through (l) of §87(2) of FOIL.

To provide perspective regarding rights of access,  the third element of your request involves communications between or among agencies, as the term “agency” is defined in §86(3) of FOIL, and pertinent is one of the exceptions, §87(2)(g).  Specifically, §87(2)(g) states that an agency may 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 our view be withheld.

Communications between the Executive Chamber and the Thruway Authority would constitute “inter-agency materials”, and as suggested above, their content would be the key factor in determining the extent to which those communications may be withheld, or conversely, must be disclosed.

The other two categories of your request involve communications between agencies and entities outside of government, the “Tappan Zee Constructors.”  Those communications would not constitute inter-agency or intra-agency materials and, therefore, §87(2)(g) would not serve as a basis for denying access to those communications.  Whether other exceptions might be pertinent or applicable is unknown to me.

Lastly, you recently sent a copy of a response addressed to you on May 15 by the Federal Highway Administration (FHA) concerning your request under the federal Freedom of Information Act (FOIA) for a copy of Section D of the Thruway’s Authority’s application for “TIFIA credit assistance.”   TIFIA is the Transportation Infrastructure Finance and Innovation Act, which provides federal credit assistance for significant surface transportation projects, such as the Tappan Zee Bridge replacement project.  The FHA denied the request, and its response states that:

“NYSTA [the Thruway Authority] has indicated that the release of the preliminary rating opinion letter would cause substantial harm to its competitive position as a public issuer in the capital markets by releasing preliminary, confidential, sensitive, hypothetical commercial and financial information relating to the financing of the New NY Bridge Project (the ‘Project’) and NYST’s system-wide capital needs.  Public disclosure of this information would have a material and adverse impact on NYST’s credit rating, which would impair its position in the capital markets.

         “The information set forth in Section D contains hypothetical commercial and financial information such as hypothetical toll revenues and financing scenarios both for the Project and for the entire NYSTA system….and the [t]he release of such financing plans and the attendant details prior to receipt of requisite State approvals would be misleading, premature, and would inaccurately portray NYSTA’s commercial and financial position.”

 
It is questionable in my view whether the records at issue could be withheld, particularly in blanket fashion, if requested from the Thruway Authority.  The provision in FOIL most closely associated the provisions of federal law referenced by the FHA, §87(2)(d), enables an agency to deny access to records insofar as disclosure “would cause substantial injury to the competitive position of a commercial enterprise.”   The Thruway Authority is a governmental entity, not a commercial enterprise.  Although it has been advised in narrow circumstances that an agency may withhold its records in accordance with §87(2)(d) when it functions as a competitor in a commercial marketplace, I question how and whether the Thruway authority “competes” with other entities.

I point out, too, that the Court of Appeals, the state’s highest court, in construing §87(2)(d) determined that:

“…the party seeking exemption must present specific, persuasive evidence that disclosure will cause it to suffer a competitive injury; it cannot merely rest on a speculative conclusion that disclosure might potentially cause harm” [Markowitz v. Serio, 11 NY3d 43, 51 (2008)].

Further while the records at issue might be characterized as “intra-agency materials”, it has been determined that estimates, projections and similar numerical presentations constitute “statistical tabulations” or data that are accessible under FOIL, even though they do not reflect “objective reality” [Dunlea v. Goldmark, 54 AD2d 446, 448 (1976), aff’d, 43 NY2d 754 (1977)].

  I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director.

 

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