December 26, 2002


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


I have received your letter in which you sought an advisory opinion concerning a request
made under the Freedom of Information Law to the Niagara Frontier Transportation Authority
("NFTA"), which you serve as General Counsel.

As I understand the request, it involves a Memorandum of Understanding ("MOU") signed
by the Niagara Airport Development Corporation ("NADC") and the proposed operator of the
Niagara Falls International Airport, as well as communications between those entities, and minutes
of an NADC meeting during which the signing of the MOU was authorized. You wrote that:

"The unsolicited proposal submitted by the NADC to the NFTA is for
a transfer of the Niagara Falls International Airport from the NFTA
to NADC. The two memoranda in question are between the NADC
and an airport operator and a developer, respectively. The plan would
be to have the airport operator run the airport and the developer
conduct any development projects, both on the airport and the
property surrounding the airport. The memoranda were submitted to
the NFTA in order for the NFTA to be able to evaluate, among other
things, the level of financial commitment for the proposal."

Co-Counsel to the Niagara County Industrial Development Agency appears to have received
the same request ("IDA"), and that entity, citing an opinion rendered by this office, FOIL-AO-12727,
denied the request.

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. The only exception of apparent relevance under the circumstances is §87(2)(c), which permits
an agency withhold records to the extent that disclosure "would impair present or imminent contract
awards or collective bargaining negotiations."

The advisory opinion to which Counsel to the IDA referred involved a letter of intent, which
was withheld by a New York City agency based on the following contention:

"The letter of intent merely establishes the framework for the NYSE
project and subsequent negotiations, but, with the exception of certain
limited provisions, does not, in and of itself, create any legally
binding obligations or liabilities. Since the agreements for the project
have not been finalized, it is my determination that disclosure of the
letter of intent is premature and would unduly impair and
compromised the City's ability to negotiate the final project
documents with the NYSE. Additionally, to the extent that any terms
of the letter of intent can be construed as a binding obligation,
consideration of the 'effects of disclosure' on the city's ongoing
negotiations with respect to the project is paramount. Although
negotiation of the letter of intent only involves one private party, as
you point out, the NYSE project, in its entirety, involves negotiations
with multiple parties with various property interests. Disclosure of
the letter of intent could have the effect of undermining the City's
negotiations, causing it to lose leverage in its negotiations with
property owners and tenants on the site of the proposed NYSE
project, and compromising its ability to negotiate the best possible
deal for the City."

Counsel to the City Agency also specified that the letter of agreement included reference to
certain deadlines, which, if disclosed, would, in her view, damage New York City's bargaining
position with any number of those parties. In short, she indicated that if those dates became known
to a party or parties to the negotiations would have the ability to develop a negotiation or bargaining
strategy that would place the City at a clear disadvantage. Based on those considerations, it was
advised that the letter of intent could be withheld under §87(2)(c).

The question, in my view, is whether the situation at issue is analogous to that considered in
the advisory opinions referenced by Counsel to the IDA.

Based on a review of the materials and the facts as described in our conversation, the matter
at hand is not comparable to that considered in the opinion referenced above. In that situation, there
were multiple parties and multiple negotiations, the results of which were contingent upon one
another. It was my understanding that disclosure of an agreement between the agency and a single
party would have had an adverse impact on the agency's ability reach optimal agreements on behalf
of the taxpaying public with the other parties engaged in a series of negotiations with the agency in
relation to a multi-faceted project. In the case of the matter that you have raised, it appears that the
only parties involved in the proposal are the NADC and an airport developer. Additionally, you
indicated that the only entities involved in reviewing the proposal are the NFTA and the Federal
Aviation Administration (FAA). If the foregoing is accurate, I cannot envision how or why
disclosure of the MOU could "impair present or imminent contract awards..."

Lastly, as you are likely aware, §89(4)(b) of the Freedom of Information Law places the
burden of defending a denial of access on a government agency, and the courts have consistently
construed the exceptions to rights of access narrowly. The Court of Appeals expressed its general
view of the intent of the Freedom of Information Law in Gould v. New York City Police Department
[87 NY 2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions
are to be narrowly construed, with the burden resting on the agency
to demonstrate that the requested material indeed qualifies for
exemption' (Matter of Hanig v. State of New York Dept. of Motor
Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750
see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly
where the material requested falls squarely within the ambit of one of
these statutory exemptions may disclosure be withheld' (Matter of
Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393
N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to
records is inconsistent with the requirements of the Freedom of Information Law.

In sum, as I view the issue, the request could not justifiably be denied.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Patrick Bradley
George W. Cregg, Jr.
Timothy T. Hollis