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June 18, 1993

 

 

Mr. Paul Lewis, Chairman
Community Board No. 3
34-33 Junction Blvd.
Jackson Heights, N.Y. 11373

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,
unless otherwise indicated.

Dear Mr. Lewis:

I have received your letter of June 2, as well as related
materials. You have sought an advisory opinion concerning a denial
of your request for a copy of a proposed lease between New York
City and the United States Tennis Association (USTA) by the New
York City Department of Parks & Recreation.

According to the Department's Chief of Planning, the proposed
action involves a disposition of City owned land by lease "for the
limited purposes of operating a public recreational facility and
conducting events, primarily the U.S. Open tournament." He
indicated that the project has been discussed "publicly for almost
two years" and that "public review and participation on the project
has been, and continues to be, indispensable in shaping this
proposal to benefit the park, the surrounding Queens communities,
and the City." In addition, General Counsel to the Department
wrote that you have been furnished with "a 22-page package of
materials, including a [sic] summaries of the proposed lease terms
and the anticipated economic effects of the project, as well as a
full presentation about the USTA expansion plan by knowledgeable
City and USTA representatives."

Both you and Department attorneys are familiar with and have
cited and relied upon judicial decisions and opinions rendered by
this office, all of which focus on §87(2)(c) of the Freedom of
Information Law. That provision, as you are aware, permits an
agency to withhold records to the extent that disclosure would
"impair present or imminent contract awards..."

General Counsel to the Department appears to rely heavily on
an advisory opinion prepared in 1988 in which it was advised that
a draft lease, according to the facts of that controversy, could be
withheld. However, as she pointed out, the draft leases in that
situation "were but one part of a larger project involving possible
negotiations with other developers concerning other sites within
the geographic boundaries of the larger project and disclosure
would give such developers an advantage by allowing them to become
familiar, not only with the terms of the proposed leases, but also
the negotiating strategy implemented by UDC." This situation, as
I understand the facts, is different from that described in the
1988 opinion. In that earlier case, the agency was or would
potentially have been involved with a variety of contracting
parties. As such, disclosure of one among many elements of the
project would have impaired the agency's ability to engage in
optimal agreements with others. In this case, while the process
may be lengthy and complex, as I understand the facts, the City is
negotiating only with USTA, and disclosure of the record in
question would not provide any advantage to other developers or
contracting parties, because there are none.

Counsel also wrote that:

"Although agreement has been reached on some
terms, many others remain subject to revision
and negotiation between City representatives
and USTA. Public disclosure of this document
at this point, would compromise the City's
ability to arrive at an integrated resolution,
in the City's best interest, of those issues
which have yet to be solved. In addition,
disclosure of the draft lease would expose the
City's negotiation strategy to other
organizations, cities and municipal
governments that have expressed interest in
luring the USTA from the City and could very
well lead such entities to develop competing
facilities and events or bid against the City
to persuade the USTA to locate the U.S. Open
elsewhere. Any of these developments would
clearly impair the negotiations of the lease
agreement in the sense contemplated by Section
87(2)(c)."

Nevertheless, you informed me that the USTA has not negotiated with
any other municipality or organization concerning the subject at
issue and that it is not seeking or accepting "bids" from other
sources. If your information is accurate, using the language of
§87(2)(c), there is no "present or imminent" competition regarding
the citing of a USTA facility. If that is so, claims that
disclosure would jeopardize the City's position vis-a-vis other
municipalities would appear to be without merit.

As indicated earlier, a variety of materials concerning the
project, including summaries of the proposed leased terms, have
been disclosed. I am unaware of how much information has been
publicly disclosed in relation to the records that have been
withheld. However, to the extent that information has been made
available, equivalent information contained within the records
sought should in my opinion be made available, for the prior
disclosure would negate any "impairment" envisioned by §87(2)(c).

Further, the introductory language of §87(2) of the Freedom of
Information Law refers to the authority to withhold "records or
portions thereof" that fall within the scope of the grounds for
denial that follow. The phrase quoted in the preceding sentence
indicates that, even within a single record, some portions may be
available under the Law while others may be deniable. That phrase
also imposes an obligation upon an agency to review records sought
in their entirety to determine which portions, if any, may
justifiably be withheld and to disclose the remainder.

From my perspective, if the City is involved in negotiations
with the USTA which are not interwoven with other contract
negotiations, and if there is little or no likelihood of
"competition" from other municipalities, it would be difficult to
justify a denial of access to the records in question. Moreover,
due to the disclosures already made, a blanket denial would in my
view be inappropriate. At the very least, it would appear that
those portions of the records sought reflective of information that
has been disclosed in substance must be made available.

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: Marjorie A. Cadogan, General Counsel