June 12, 2006


Mr. Matthew K. Kearns
P.O. Box 1405
Smithtown, NY 11787-0630

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, unless otherwise indicated.

Dear Mr. Kearns:

As you are aware, I have received your letter and the materials relating to it. You have sought an advisory opinion concerning the propriety of a denial of access to records by the Empire State Development Corporation (“ESDC”).

Your request involved records relating to the possible sale of the Kings Park Psychiatric Center and bids and related documentation concerning an invitation to bid issued in 2001. You indicated the sale had been cancelled, and news articles confirm that to be so. In an article published in Newsday on January 15 of this year, it was stated that “the state has dropped the latest redevelopment plan for the form Kings Park Psychiatric Center” and that Senator John Flanagan read portions of a letter from the ESDC stating that it “will not be proceeding with the sale” and that a prior purchase agreement signed December 27, 2004 “but not yet closed on ‘is being terminated’....”

Despite the termination of the planned sale of the property, your request and ensuing appeal were denied on the basis of §87(2)(c) of the Freedom of Information Law, which authorizes an agency to withhold records insofar as disclosure would “impair present or imminent contract awards or collective bargaining negotiations...” Reference was also made to the “Terms and Conditions” included in ESDC’s “Invitation to Bid Instructions”, which state in relevant part that : “No bid for a Property shall be deemed accepted until closing on the Property has occurred under the Purchase and Sale Agreement for such Property.”

As I understand the situation, there is no basis at this juncture for a denial of access to records at issue. 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.

Many of the exceptions to rights of access are designed to avoid potentially harmful effects of disclosure, and that is so in the case of the exception cited by ESDC. In many instances, records or portions of records may be withheld for a time with justification. The same records may, however, be accessible in the future because the harmful effects of disclosure have either diminished or disappeared. The key word in §87(2)(c) is “impair”, and it is possible if not likely that disclosure during a bidding or negotiation process would have impaired the ability of ESDC to reach an optimal agreement on behalf of the public. Nevertheless, since a decision has been made to terminate plans to sell the property, no longer would disclosure “impair” a “present or imminent” contract award. That being so, although §87(2)(c) might once have served as a proper basis for denying access, I do not believe that it would be applicable now.

Second, in my view, the portion of the Terms and Conditions quoted earlier is irrelevant in considering rights of access conferred by the Freedom of Information Law. That statute pertains to all government agency records, and §86(4) defines the term “record” expansively to mean:

"...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 a case in which an agency contended, in essence, that it could choose which documents it considered to be "records" for purposes of the Freedom of Information Law, the state's highest court rejected that claim. As stated by the state’s highest court, the Court of Appeals:

"...respondents' construction -- permitting an agency to engage in a unilateral prescreening of those documents which it deems to be outside the scope of FOIL -- would be inconsistent with the process set forth in the statute. In enacting FOIL, the Legislature devised a detailed system to insure that although FOIL's scope is broadly defined to include all governmental records, there is a means by which an agency may properly withhold from disclosure records found to be exempt (see, Public Officers Law §87[2]; §89[2],[3]. Thus, FOIL provides that a request for access may be denied by an agency in writing pursuant to Public Officers Law §89(3) to prevent an unwarranted invasion of privacy (see, Public Officers Law §89[2]) or for one of the other enumerated reasons for exemption (see, Public Officers Law §87[2]). A party seeking disclosure may challenge the agency's assertion of an exemption by appealing within the agency pursuant to Public Officers Law §89(4)(a). In the event that the denial of access is upheld on the internal appeal, the statute specifically authorizes a proceeding to obtain judicial review pursuant to CPLR article 78 (see, Public Officers Law §89[4][b]). Respondents' construction, if followed, would allow an agency to bypass this statutory process. An agency could simply remove documents which, in its opinion, were not within the scope of the FOIL, thereby obviating the need to articulate a specific exemption and avoiding review of its action. Thus, respondents' construction would render much of the statutory exemption and review procedure ineffective; to adopt this construction would be contrary to the accepted principle that a statute should be interpreted so as to give effect to all of its provisions...

"...as a practical matter, 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 FOIL 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 could thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253-254 (1987)].

Based on the foregoing, that a document is not “accepted” is of no significance; once it is in the possession of an agency, it constitutes an agency record that falls within the coverage of the Freedom of Information Law.

Lastly, the Court of Appeals has held that a request for or a guarantee 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. In Washington Post v. Insurance Department [61 NY2d 557 (1984)], the controversy involved a claim of confidentiality with respect to records prepared by corporate boards furnished voluntarily to a state agency. The Court concluded that “just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption” (id., 567).

In short, I do not believe that the Terms and Conditions associated with an invitation to bid can alter or diminish rights conferred by the Freedom of Information Law.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Anita W. Laremont
Antovk Pidedjian