NY.gov Portal State Agency Listing

 

February 14, 1994

 

Mr. Thomas J. Sheridan Jr.
Hoyts Cinemas Corporation
One Exeter Plaza
Boston, MA 02116-2836

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. Sheridan:

I have received your letter of January 25 and related
documentation.

You have sought an advisory opinion concerning a request for
records of the Town of Wilton Board of Assessors. Although certain
of the records that you requested were disclosed, you were advised
that "the assessor's personal records and/or workpapers and field
books used to establish the assessed values are deemed to be
deniable records under Section 87(2) of the Public Officer's [sic]
Law (see David v. Lewisohn, 142 AD 2d 305, appeal denied, 74 NY 2d
610)". It was also stated that "any documents or information
submitted by the property owner to the assessor under
confidentiality are deniable records under Section 87(2)(d)" of the
Freedom of Information Law.

In this regard, I offer the following comments.

First, §86(4) of the Freedom of Information Law defines the
term "record" expansively to include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

In my opinion, an assessor's workpapers or field books, even if
characterized as "personal", would constitute "records" subject to
rights conferred by the Freedom of Information Law.

The Court of Appeals, the state's highest court, has construed
the definition as broadly as its specific language suggests. The
first such decision that dealt squarely with the scope of the term
"record" involved documents pertaining to a lottery sponsored by a
fire department. Although the agency contended that the documents
did not pertain to the performance of its official duties, i.e.,
fighting fires, but rather to a "nongovernmental" activity, the
Court rejected the claim of a "governmental versus nongovernmental
dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50 NY
2d 575, 581 (1980)] and found that the documents constituted
"records" subject to rights of access granted by the Law.
Moreover, the Court determined that:

"The statutory definition of 'record' makes
nothing turn on the purpose for which it
relates. This conclusion accords with the
spirit as well as the letter of the statute.
For not only are the expanding boundaries of
governmental activity increasingly difficult
to draw, but in perception, if not in
actuality, there is bound to be considerable
crossover between governmental and
nongovernmental activities, especially where
both are carried on by the same person or
persons" (id.).

Additionally, in another decision rendered by the Court of
Appeals, the Court focused on an agency claim that it could "engage
in unilateral prescreening of those documents which it deems to be
outside of the scope of FOIL" and found that such activity "would
be inconsistent with the process set forth in the statute" [Capital
Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The Court
determined that:

"...the procedure permitting an unreviewable
prescreening of documents - which respondents
urge us to engraft on the statute - could be
used by an uncooperative and obdurate public
official or agency to block an entirely
legitimate request. There would be no way to
prevent a custodian of records from removing a
public record from FOIL's reach by simply
labeling it 'purely private.' Such a
construction, which would thwart the entire
objective of FOIL by creating an easy means of
avoiding compliance, should be rejected" (id.,
254).

Second, in general, whether the subject of a record prefers to
authorize or preclude disclosure is, in my opinion, irrelevant in
terms of an analysis of rights conferred by the Freedom of
Information Law. In a case in which a law enforcement agency
permitted persons reporting incidents to indicate on a form their
preference concerning the agency's disclosure of the incident to
the news media, the Appellate Division found that, as a matter of
law, the agency could not withhold the record based upon the
"preference" of the person who reported the offense. Specifically,
in Johnson Newspaper Corporation v. Call, Genesee County Sheriff,
115 AD 2d 335 (1985), it was found that:

"There is no question that the 'releasable
copies' of reports of offenses prepared and
maintained by the Genesee County Sheriff's
office on the forms currently in use are
governmental records under the provisions of
the Freedom of Information Law (Public
Officers Law art 6) subject, however, to the
provisions establishing exemptions (see,
Public Officers Law section 87[2]). We reject
the contrary contention of respondents and
declare that disclosure of a 'releasable copy'
of an offense report may not be denied, as a
matter of law, pursuant to Public Officers Law
section 87(2)(b) as constituting an
'unwarranted invasion of personal privacy'
solely because the person reporting the
offense initials a box on the form indicating
his preference that 'the incident not be
released to the media, except for police
investigative purposes or following arrest'."

Moreover, although the issue did not involve law enforcement, the
Court of Appeals has held that a request for or a promise of
confidentiality is all but meaningless; unless one or more of the
grounds for denial appearing in the Freedom of Information Law may
appropriately be asserted, the record sought must be made available
[see Washington Post v. New York State Insurance Department, 61 NY
2d 557, 567 (1984)]. This is not to suggest that records or
portions of records might not justifiably be withheld, but rather
that a claim or promise of confidentiality in my opinion is
irrelevant to an analysis of rights of access to records.

Third, 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.

The only ground for denial of apparent relevance regarding the
records submitted by the property owner is §87(2)(d), the provision
cited in the denial. That provision 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.).

From my perspective, 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. While portions of the records in
question might cause substantial injury to a firm's competitive
position if disclosed, that harmful effect might not arise with
respect to the remainder, which should be disclosed.

Lastly, with regard to assessors' personal notes, workpapers,
field books and the like, I point out that long before the
enactment of the Freedom of Information Law, it was established by
the courts that records pertaining to the assessment of real
property are generally available [see e.g., Sears Roebuck & Co. v.
Hoyt, 107 NYS 2d 756 (1951); Sanchez v. Papontas, 32 AD 2d 948
(1969).

In my view, although one of the grounds for denial would be
applicable to those records, that provision, due to its structure,
may require disclosure. 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
my view be withheld. As such, the specific contents of inter-agency or intra-agency materials determine the extent to which they
are available or deniable under §87(2)(g).

It has been held that factual information appearing in
narrative form, as well as those portions appearing in numerical or
tabular form, is available under §87(2)(g)(i). For instance, in
Ingram v. Axelrod, the Appellate Division held that:

"Respondent, while admitting that the report
contains factual data, contends that such data
is so intertwined with subject analysis and
opinion as to make the entire report exempt.
After reviewing the report in camera and
applying to it the above statutory and
regulatory criteria, we find that Special Term
correctly held pages 3-5 ('Chronology of
Events' and 'Analysis of the Records') to be
disclosable. These pages are clearly a
'collection of statements of objective
information logically arranged and reflecting
objective reality'. (10 NYCRR 50.2[b]).
Additionally, pages 7-11 (ambulance records,
list of interviews) should be disclosed as
'factual data'. They also contain factual
information upon which the agency relies
(Matter of Miracle Mile Assoc. v Yudelson,
68 AD2d 176, 181 mot for lve to app den 48
NY2d 706). Respondents erroneously claim that
an agency record necessarily is exempt if both
factual data and opinion are intertwined in
it; we have held that '[t]he mere fact that
some of the data might be an estimate or a
recommendation does not convert it into an
expression of opinion' (Matter of Polansky v
Regan, 81 AD2d 102, 104; emphasis added).
Regardless, in the instant situation, we find
these pages to be strictly factual and thus
clearly disclosable" [90 AD 2d 568, 569
(1982)].

Similarly, the Court of Appeals has specified that the
contents of intra-agency materials determine the extent to which
they may be available or withheld, for it was held that:

"While the reports in principle may be exempt
from disclosure, on this record - which
contains only the barest description of them -
we cannot determine whether the documents in
fact fall wholly within the scope of FOIL's
exemption for 'intra-agency materials,' as
claimed by respondents. To the extent the
reports contain 'statistical or factual
tabulations or data' (Public Officers Law
section 87[2][g][i], or other material subject
to production, they should be redacted and
made available to the appellant" (id. at 133).

In short, even though statistical or factual information may be
"intertwined" with opinions, the statistical or factual portions,
if any, as well as any policy or determinations, would be
available, unless a different ground for denial [i.e., §87(2)(c)]
could properly be asserted.

I am familiar with the decision cited in the denial, David v.
Lewisohn. That case involved notations contained in real property
transfer data which included notations labelled as "S" and "I", for
"significant" and "insignificant", made by assessors to report
tentative opinions. It was held that those notations did not
denote facts, but rather were "non-final recommendations" and
opinions that could be withheld under §87(2)(g).

Insofar as the assessors' papers consist of opinions, I
believe that they may be withheld. However, others portions of
records consisting of statistical or factual information, for
example, must in my opinion be disclosed, unless a different ground
for denial can be asserted.
I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Town Board
Arthur J. Johnson