FOIL AO 18338
Sent: Tuesday, December 28, 2010 10:06 AM
Subject: RE: FOILable information
I have received your communication in which you referred to the contracting process and wrote that "[a]s any contract between the vendor and his subs is private and not public in nature, [you] do not feel the price is material that should be available under FOIL." You have asked whether that is accurate.
In this regard, first, as you may be aware, FOIL pertains to all agency
records, such as those of a county, and defines the term "record" in §86(4) expansively to mean "any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever..." Therefore, if the documentation in question is maintained by or for the County, it would constitute a "record" that falls within the
coverage of FOIL.
Second, FOIL is based on a presumption of access, and requires that all agency records be made available, except to the extent that records or portions of records may properly be withheld in accordance with the grounds for denial of access appearing in §87(2).
Before a bid has been awarded, §87(2)(c) is often pertinent, for it enables an agency to deny access insofar as disclosure "would impair present or imminent contract awards or collective bargaining negotiations." Stated differently, if no award has been made, and premature disclosure would preclude the County from engaging in an optimal purchase price, I believe that the County may deny access. If a contract has been awarded, §87(2)(c) would no longer apply.
Relevant, however, may be §87(2)(d), which permits an agency to withhold
records to the extent that disclosure "would cause substantial injury to the competitive position" of a commercial enterprise. If the records in question are requested under FOIL, it is suggested that you contact the prime contractor, explain that the records must be disclosed, unless it can be demonstrated that disclosure would cause substantial injury to the competitive position of a commercial enterprise. If, based on the information provided, you believe that §87(2)(d) may justifiably be asserted, the County would have the ability to deny access.
I hope that I have been of assistance. Should further questions arise, please feel free to contact me.
Robert J. Freeman
Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231