February 6, 2015



FROM:            Robert Freeman, Executive Director


The staff of the Committee on Open Government is authorized to issued advisory opinions.  The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.


As you are aware, I have received your letter and a variety of material relating to it.  You have sought an advisory opinion concerning your efforts in gaining access to records of the New York City Department of Transportation (DOT).

Your request involved “the underlying GIS records for the WalkNYC program and its accompanying design and branding guidelines.” You wrote that the GIS records consist of “47 distinct layers” and include separate layers for streets, subway stops, bike lanes, points of interest and similar data.  Having examined some of the records made available, you found that many “are derived from or substantially similar to ones distributed publicly by the NYC Department of Information Technology (DoITT)”, which is a city agency that gathers and disseminates “authoritative GIS data to other city agencies and to the general public”, and does so “on a copyright-free basis via the city’s open data portal and regular uploads to Open Street Map.”  You added that “[a]t least 15 copyright-free NYC Open Data datasets are referenced by name in the data released by the DOT” and that other records in the WalkNYC layers “appear identical to DoItt open data datasets when overlaid using ESRI GIs software.”  The program’s design guidelines were prepared by a private firm, Pentagram, and you wrote that “a substantial portion of them are available from Pentagram’s blog…”

Your initial attempt to gain access was “informal”, and later “through the FOIL process.”  You were, however, discouraged by DOT’s partner in the program, the Long Island City Partnership, and were told that you “would receive the records more quickly if [you] rescinded [your] FOIL request” and that DOT considered its records to be copyrighted.  Nevertheless, you preserved your FOIL request, which was granted in part.  You were directed to a website and informed that the “raw map files” and any other point-of-interest databased for locations included in WalkNYC” were available via a link to a website. However, the records made available were limited to data relating to Long Island City, which was not referenced in your request.  When you contended in your appeal that other records falling within the scope of your request had been withheld, DOT indicated that no additional GIS records could be found, even though its website “states that installation sites for WalkNYC include…Chinatown, Long Island City, Herald Square, the Garment District, Prospect Heights and Crown Heights.”  You added that the records access officer for DOT explained during a telephone conversation that the records sought, other than those relating to Long Island City, were being withheld because, in your words, “they were considered draft intra-agency records under §87(2)(g) of FOIL.” The response also denied access to design or branding guidelines based on §87(2)(g).
You appealed, and the denial was affirmed, indicating that “DOT has no additional responsive documents and the prior partial denial, pursuant to FOIL Section 87(2)(g), is upheld.”

In consideration of the foregoing, I offer the following comments.

First, as you are likely aware, the Freedom of Information Law (FOIL) is expansive in scope, for it pertains to all government agency records and defines the term “record” broadly to include “…any information kept, held, filed, produced or reproduced by, with or for an agency…in any physical form whatsoever…”  Therefore, as soon as data is prepared by or for an agency in some physical form, it constitutes a “record” that falls within the framework of FOIL.
Based on the definition of “record”, that material is characterized as “draft” does not remove it from the definition or rights of access conferred by FOIL.  It appears that the denial of your appeal in which it was asserted that “DOT has no additional responsive documents” involves reliance on a contention or belief that “draft” material would fall beyond the definition of “record” and, therefore, beyond rights conferred by FOIL.  In consideration of the language of the definition and judicial precedent, I disagree. 
In a case in which an agency claimed, in essence, that it could remove various documents from the coverage of FOIL, the Court of Appeals found that:
"...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...
" 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)].
In short, even though the materials that you requested might exist in draft form, that they exist in some physical form brings them within the coverage of FOIL.
Second, as a general matter, FOIL 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 (l) of the Law.  
The Department cited §87(2)(g) as the basis for its denial of a portion of your request, again, presumably, the data characterized as “draft.” While I would agree that the draft data constitutes “intra-agency material”, due to the structure of that provision, it often requires substantial disclosure, and I believe that to be so in this instance.  Specifically, §87(2)(g) permits an agency to 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 emphasized 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.
I point out that one of the contentions offered by the New York City Police Department in
a case decided by the Court of Appeals, the state’s highest court, was that certain reports could be withheld because they are not final and because they related to incidents for which no final determination had been made.  The Court rejected that finding and stated that:
"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief
Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][iii)]. However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain 'statistical or
factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." [Gould et al. v. New York City Police Department, 87 NY2d 267,
276 (1996)].
In short, that a record is in "draft" or is "non-final" would not represent an end of an analysis of rights of access or an agency's obligation to review the entirety of its contents.

The Court also dealt with the issue of what constitutes "factual data" that must be disclosed
under §87(2)(g)(i). In its consideration of the matter, the Court found that:
"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not
apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][i]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182)" (id., 276-277).
As I understand GIS data, layers of information on a base map, are, by their nature, factual. If that is so, §87(2)(g) could not validly be asserted to withhold existing data falling within the scope of your request.
The correspondence attached to your letter indicates that DOT is suggesting that the data may be copyrighted and, therefore, perhaps deniable on that basis.  Related to that possibility is §87(2)(d) of FOIL, the so-called “trade secret” exception to rights of access.
I am not an expert with respect to the Copyright Act, but I believe that a key issue involves the use of records that are copyrighted.  With respect to the ability of a person to use an access law to assert the right to reproduce copyrighted materials, the issue has been considered by the U.S. Department of Justice with respect to those materials, and its analysis as it pertains to the federal Freedom of Information Act is, in our view, pertinent to the issue as it arises under the state FOIL.
The initial aspect of its review involved whether the exception to rights of access analogous to §87(2)(a) of FOIL requires that copyrighted materials be withheld.  The cited provision states that an agency may withhold records that are "specifically exempted from disclosure by state or federal statute."  Virtually the same language constitutes a basis for withholding in the federal Act [5 U.S.C. 552(b)(3)].  In the fall 1983 edition of FOIA Update, a publication of the Office of Information and Privacy at the U.S. Department of Justice, it was stated that:
"On its face, the Copyright Act simply cannot be considered a 'nondisclosure' statute, especially in light of its provision permitting full public inspection of registered copyrighted documents at the Copyright Office [see 17 U.S.C. 3705(b)]."
Since copyrighted materials are available for inspection, we agree with the conclusion that records bearing a copyright could not be characterized as being "specifically exempted from"
The next step of the analysis involves the Justice Department's consideration of the federal Act's exception (exemption 4) analogous to §87(2)(d) of FOIL, which in conjunction with 17 U.S.C. §107, permits an agency to withhold records 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."  Under §107, copyrighted work may be reproduced "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" without infringement of the copyright.  Further, the provision describes the factors to be considered in determining whether a work may be reproduced for a fair use, including "the effect of the use upon the potential market for or value of the copyrighted work" [17 U.S.C. §107(4)].
According to the Department of Justice, the most common basis for the assertion of the federal Act's "trade secret" exception involves "a showing of competitive harm," and in the context of a request for a copyrighted work, the exception may be invoked "whenever it is determined that the copyright holder's market for his work would be adversely affected by FOIA disclosure" (FOIA Update, supra).  As such, it was concluded that the trade secret exception:
"stands as a viable means of protecting commercially valuable copyrighted works where FOIA disclosure would have a substantial adverse effect on the copyright holder's potential market.  Such use of Exemption 4 is fully consonant with its broad purpose of protecting the commercial interests of those who submit information to government... Moreover, as has been suggested, where FOIA disclosure would have an adverse impact on 'the potential market for or value of [a] copyrighted work,' 17 U.S.C. §107(4), Exemption 4 and the Copyright Act actually embody virtually congruent protection, because such an adverse economic effect will almost always preclude a 'fair use' copyright defense...Thus, Exemption 4 should protect such materials in the same instances in which copyright infringement would be found" (id.).
In my opinion, due to the similarities between the federal Freedom of Information Act and the New York Freedom of Information Law, the analysis by the Justice Department may properly be applied when making determinations regarding the reproduction of copyrighted materials maintained by entities of government in New York.  In sum, if reproduction of copyrighted material would, in the words of §87(2)(d) of FOIL, "cause substantial injury to the competitive position of the subject enterprise," i.e., the holder of the copyright, it would appear that DOT could preclude reproduction of the work.  But again, the Copyright Act is not a statute that forbids or exempts records from disclosure.
Significant, however, is your contention that another City agency, DoITT, freely discloses a variety of data that is the same as that which might be claimed to be copyrighted by DOT.  You indicated that DoITT’s GIS layers are available on the City’s open data portal, which enables any person to aggregate, extract and creatively use the data as they see fit.  From my perspective, DOT’s claim cannot be justified if that is so. 
Further, as you may be aware, when an agency’s denial of access is challenged in a judicial proceeding, the agency has the burden of proof, which involves a demonstration that disclosure would cause actual harm.  As stated in Markowitz v. Serio, “To meet its burden, the party seeking exemption must present specific, persuasive evidence that disclosure will cause it to suffer a competitive injury; it cannot merely rest upon a speculative conclusion that disclosure might potentially cause harm” [11 NY3d 43, 51 (2008)].  A key question, in my view, is, very simply, with whom does DOT compete in this realm?  Similarly, is it functioning as a competitor in a commercial marketplace?  Unless it can demonstrate that disclosure would cause actual harm, I do not believe that it can meet the burden of proof.  It would seem, too, that the purpose of creating the data at issue is to disclose it to and for the benefit of the public.  Limiting disclosure would appear to be contrary to the inherent purpose of creating the data.
The remaining area of dispute relates to design guidelines.  As noted earlier, they were prepared by an external firm, Pentagram, but you wrote that a “substantial portion of them are available from Pentagram’s blog…”  Having reviewed Pentagram’s blog entry, it is clearly available to anyone.  Insofar as equivalent material has been withheld by DOT, I do not believe that doing can be justified.  The guidelines were withheld based on §87(2)(g).  As indicated in the earlier review of that provision, it specifies that four categories of information falling within that exception must be disclosed, unless a separate exception applies.  In addition to statistical and factual information available under subparagraph(i), subparagraphs (ii) and (iii) respectively require disclosure of “instructions to staff that affect the public” and “final agency policy.”  The guidelines appear to be reflective of instructions to staff that affect the public or the policy of DOT relative the implementation of the WalkNYC program.  If that is so, they must be disclosed to comply with FOIL.
In sum, even if the data that are the subject of your request may be characterized as “draft”, they nonetheless constitute records that fall within the coverage of FOIL.  Due to the nature of the data, it would consist of factual information available under §87(2)(g)(i) of FOIL, and even if it subject to copyright, that alone would not in my opinion serve as a valid basis for limiting disclosure.  For the reason suggested in the preceding paragraph, the design guidelines that you requested should be disclosed.  And finally, no exception, including §87(2)(d) concerning “substantial injury to the competitive position of a commercial enterprise”, would apparently be applicable or justifiable as a basis for denying access.
In an effort to resolve the matter, negate the necessity of initiating litigation, and to encourage attainment of the goals inherent in FOIL, copies of this opinion will be forwarded to DOT officials.
I hope that I have been of assistance.