October 22, 1999


Ms. Kimberly G. Shell
Harris, Beach & Wilcox
20 Corporate Woods Boulevard
Albany, NY 12211

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

Dear Ms. Shell:

As you are aware, I have received your letter of September 8, as well as the materials
attached to it. Please accept my apologies for the delay in response.

You have sought an advisory opinion concerning rights of access to certain records
prepared by the New York State Department of Transportation (NYSDOT). Specifically,
you wrote that:

"As part of NYSDOT's job of building and maintaining the
roadways of the State of New York, NYSDOT solicits bids
for state highway projects from various subcontractors,
including stone and gravel (course aggregate) producers. In
connection therewith, NYSDOT requires that all course
aggregate be supplied from NYSDOT-approved aggregate
sources. In order to be ‘approved' by NYSDOT, each
supplier must submit a course aggregate sample to NYSDOT,
which in turn performs a variety of tests to determine
compliance with NYSDOT specifications. NYSDOT
documents such test results on data sheets, an example of
which is attached hereto.

"...the data sheets list the name and address of the supplier
whose materials were tested, the materials actually tested,
numerical test results in various performance categories, and
an identification of the mineral composition of the sample
tested. The data sheets list only factual and statistical
information, no NYSDOT opinions or recommendations are
included on these test result data sheets. Further, the test
results consist of information compiled solely by NYSDOT.
The course aggregate producers supply nothing to NYSDOT
except for the material samples to be tested. The test results
contain information not generated or supplied by any
commercial enterprise, but rather contain data generated by
NYSDOT through materials testing."

You have asked whether the test reports are "exempt from disclosure" under
§87(2)(d) of the Freedom of Information Law or accessible under that statute. From my
perspective, the records must be disclosed. In this regard, I offer the following comments.

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 provision to which you referred, the so-called "trade secret" exception, 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 submitted by a
commercial enterprise and which if disclosed would cause substantial injury to the competitive
position of the subject enterprise..."

The term "record" is defined in §86(4) of the Freedom of Information Law 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 the context of your inquiry, a commercial enterprise has not submitted "records" to an
agency, but rather raw materials used in the construction of highways. I note that it has been
held that items of physical evidence, such as tools and clothing, do not constitute "records",
even though perusal of those items might produce information or knowledge [see Allen v.
Strojnowski, 129 AD2d 700; motion for leave to appeal denied, 70 NY2d 871 (1989)].
Similarly, the tests prepared by NYSDOT are not derived from information consisting of
records obtained from a commercial enterprise. In short, I do not believe that §87(2)(d) is
applicable or that it may properly be asserted as a means of denying access to the records at

Also pertinent is another ground for denial. However, due to its structure, that
provision would, in my opinion, require disclosure 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 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.

Based on the sample test sheet that you provided, its contents appear to consist solely
of statistical or factual information. If that is so, the records would be available in their

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: John Dearstyne