NY.gov Portal State Agency Listing

 

April 23, 1993

Mr. Patrick Lakamp, Staff Writer
Syracuse Herald-Journal
Clinton Square
P.O. Box 4915
Syracuse, NY 13221-4915

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence.

Dear Mr. Lakamp:

I have received your letter of April 7 in which you questioned
a denial of access to records by Onondaga County.

According to your letter, you requested copies of "Room
Occupancy Tax Audits" conducted in 1992 and 1993 by the County
Comptroller's Office. You indicated that the County spends the
proceeds of the occupancy tax "to pay for convention center
construction and support the Greater Syracuse Chamber of Commerce
and tourism-related activities", and that the audits involved
eleven hotels. Attached to your letter is a memorandum advising
that the denial was based on §87(2)(d) of the Freedom of
Information Law. You asked whether the audits may properly be
withheld and whether the County can "conceal how much each hotel
collected."

In this regard, I offer the following comments.

First, 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 (i) of the Law.

Second, the only ground for denial of apparent significance is
the provision cited in the memorandum referenced above. Section
87(2)(d) enables 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."

In my opinion, the question under §87(2)(d) involves the extent, if
any, to which disclosure would "cause substantial injury to the
competitive position" of the hotels identified in the records.

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.).

In my view, the proper assertion of §87(2)(d) is dependent
upon a variety of factors, such as the specific content of the
records, the area of commerce in which business entities are
involved, the degree of competition within that area of commerce
and, again, most importantly, the effect of disclosure, i.e., the
extent to which disclosure would "cause substantial injury" to an
entity's competitive position.

From my perspective, if certain assumptions are accurate, it
would be difficult if not impossible to justify a denial of the
kind of information in which you are interested. It is assumed
that hotel room rates are public, for any person could contact a
hotel and inquire as to rates. If the occupancy tax figure enable
a recipient of those figures to know the gross receipts or income
of a hotel, perhaps it could be contended that the income of the
hotel could become known and that disclosure of those figures might
be used by competitors in a manner that could cause competitive
injury to the entity that is the subject of the figures. However,
if it can be assumed that the occupancy tax figures represent only
a portion of a hotel's business, those figures would not disclose
a hotel's gross receipts or income. Other aspects of a hotel's
business might involve revenue generated by sales in restaurants
and bars, banquet facilities and night clubs, as well as
conferences, meetings and similar functions. If income is
generated by those kinds of activities, occupancy tax figures could
not be used to ascertain the gross receipts or income of a hotel.
Further, a hotel in the Syracuse area may be part of a large chain
or corporation. If that is so, disclosure of the occupancy tax
figures pertaining to a particular hotel might indicate little
about the "competitive position" of the chain or corporation as a
whole.

In short, if the assumptions described above are valid, the
extent, if any, to which disclosure of the records in question
would "cause substantial injury to the competitive position" of a
hotel is questionable.

I an unaware of the degree of detail contained in the audits,
such as whether they include aggregate figures pertaining to a
hotel or perhaps figures involving percentages of occupancy or
statistics concerning specific kinds of rentals (i.e., by single
rooms, double, etc.). It is possible, depending on the degree of
detail that some information might properly be withheld under
§87(2)(d). However, if your interest involves the collection and
distribution of public monies generally, numbers, statistics and
other figures might be disclosed following the deletion of the
names of hotels. If the names of the hotels coupled with other
information could justifiably be withheld under §87(2)(d), absent
the names, it would be unlikely that disclosure would result in the
harmful effects sought to be avoided under that provision.

Lastly, it is emphasized that the State's highest court has
construed the Freedom of Information Law expansively, In a
discussion of the scope and intent of the Law, it has been held
that:

"Key is the Legislature's own unmistakably
broad declaration that, '[as] state and local
government services increase and public
problems become more sophisticated and complex
and therefore harder to solve, and with the
resultant increase in revenues and
expenditures, it is incumbent upon the state
and its localities to extend public
accountability wherever and whenever feasible'
(emphasis added; Public Officers Law, section
84).

"...For the successful implementation of the
policies motivating the enactment of the
Freedom of Information Law centers on go@last
as broad as the achievement of a more informed
electorate and a more responsible and
responsive officialdom. By their very nature
such objectives cannot hope to be attained
unless the measures taken to bring them about
permeate the body politic to a point where
they become the rule rather than the
exception. The phrase 'public accountability
wherever and whenever feasible' therefore
merely punctuates with explicitness what in
any event is implicit" [Aggregate-Rockland
Newspapers v. Kimball, 50 NY2d 575, 579
(1980)].

Similarly, the Court of Appeals has also held 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 NY 2d 562,
565-566 (1986)].

Based upon the foregoing, I believe that a blanket denial of
access to the records in question would be inappropriate. Further,
although I am unfamiliar with the specific contents of the records,
it appears that much of their contents should be disclosed.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Marisa V. Temple, Deputy County Attorney