May 31, 1996



Ms. Janet G. Bell
2 Penn Boulevard
Scarsdale, NY 10583

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 Ms. Bell:

I have received your communication of May 15 in which you sought an opinion concerning a denial of a request made under the Freedom of Information Law to the Village of Scarsdale.

As I understand the matter, one of the documents sought is a lease between the Village and Kids B.A.S.E.; the other involves what the Deputy Village Manager characterized as information "relating to the fair market value of a rental of the American Legion property." He denied access to the former on the ground that the lease is in draft "and is still being negotiated" and to the latter because it is "confidential."

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, with respect to the lease, it would appear that the only ground for denial of significance is §87(2)(c), which enables an agency to withhold records to the extent that disclosure would "impair present or imminent contract awards or collective bargaining negotiations." In my opinion, the key word in the provision quoted above is "impair", and the issue involves the extent to which disclosure would preclude the Village from engaging in an optimal agreement on behalf of the taxpayers.

I am unaware of the nature or details of the negotiations. If there are no other parties involved or potentially involved in the lease negotiations, it is questionable in my view whether disclosure would "impair" the contracting process. In a case involving negotiations between a New York City agency and the Trump organization, the court referred to an opinion that I prepared and adopted the reasoning offered therein, stating that:

"Section 87(2)(c) relates to withholding records whose release could impair contract awards. However, here this was not relevant because there is no bidding process involved where an edge could be unfairly given to one company. Neither is this a situation where the release of confidential information as to the value or appraisals of property could lead to the City receiving less favorable price.

"In other words, since the Trump organization is the only party involved in these negotiations, there is no inequality of knowledge between other entities doing business with the City" [Community Board 7 v. Schaffer, 570 NYS 2d 769, 771 (1991); Aff'd 83 AD 2d 422; reversed on other grounds 84 NY 2d 148 (1994)].

Based on the foregoing, if the Village and Kids B.A.S.E. are the only potential parties to the negotiations and both are familiar with the records at issue, disclosure would likely not place either at a disadvantage in the negotiations and disclosure in that event would not likely impair the capacity of the Village to negotiate an optimal agreement. On the other hand, if other parties are or may potentially be involved, it is possible that premature disclosure would impair the process and that, therefore, the record could be withheld under §87(2)(c).

With respect to the second matter involving the fair market value of a rental, again, I have no specific knowledge of the facts in the matter. However, I point out that §87(2)(c) has successfully been asserted to withhold records pertains to real property transactions where appraisals in possession of an agency were requested prior to the consummation of a transaction. Again, premature disclosure would have enabled the public to know the prices the agency sought, thereby potentially precluding the agency from receiving an optimal price [see Murray v. Troy Urban Renewal Agency, 56 NY 2d 888 (1982)]. Unlike the situation involving the draft lease, in the case of an appraisal or similar records known only to an agency, there would be an inequality of knowledge, and disclosure of an appraisal would provide knowledge to the recipient that might effectively prevent an agency from engaging in an agreement that is most beneficial to taxpayers.

Also potentially relevant would be §87(2)(g). That provision permits an agency to withhold:

"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. An appraisal prepared by or for an agency would in my view constitute intra-agency material that would fall within the scope of §87(2)(g) and depending upon the effects of its disclosure under §87(2)(c).

Lastly, I point out that an assertion or claim of confidentiality, unless it is based upon a statute, is generally meaningless. When confidentiality is conferred by a statute, an act of the State Legislature or Congress, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which, again, states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute". If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such, an assertion of confidentiality without more, would not in my view serve to enable an agency to withhold a record.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: John N. Crary