November 3, 2009


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.


            We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to your request for records made to the Metropolitan Transportation Authority.  Specifically, you inquired whether the Freedom of Information Law permits an agency to deny access to records pursuant to §87(2)(d) when the procedural requirements of §89(5) have not been met.  In this regard, we offer the following comments.

            As you are likely aware, 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 (j). Section 87(2)(d) authorizes 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 obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise;”

            Accordingly, when responding to a request for records, the issue is whether disclosure would cause substantial injury to the submitting entity’s competitive standing in a competitive marketplace.

            In our view, the nature of the record, the area of commerce in which a commercial entity is involved and the presence of the conditions described above that must be found to characterize records as trade secrets would be the factors used to determine the extent to which disclosure would "cause substantial injury to the competitive position" of a commercial enterprise. Therefore, the proper assertion of §87(2)(d) would be dependent upon the facts and, again, the effect of disclosure upon the competitive position of the entity to which the records relate.

            As you know, §89(5) of the Freedom of Information Law includes provisions that authorize a commercial enterprise required to submit records to a state agency to seek confidentiality by identifying those portions of the records believed to fall within the scope of §87(2)(d).

            Under §89(5), if a request is made for records believed to fall within the trade secret exception, the agency must inform the commercial enterprise of the request and provide an opportunity to indicate why it continues to contend that disclosure would cause substantial injury to its competitive position.  If the agency agrees, it will deny access, and the person requesting the record, as in all other instances, has the right to appeal to the head or governing body of the agency.  If the appeal sustains the initial denial of access, the person seeking the record may bring a judicial proceeding in which the agency has the burden of proving that disclosure would result in the harm described in the exception.  If the agency disagrees with the commercial enterprise and contends that the record sought should be made public, the commercial enterprise has the right to appeal.  If the agency’s decision to disclose is upheld on appeal, the commercial enterprise has fifteen days to go to court to attempt to block disclosure.

            In our view, when an entity responds to a request for proposals from a state agency, the entity is “required” to submit certain information to the agency, and the provisions of §89(5) may be triggered.  If the entity fails to request preferential treatment at the time of submission of the records, in our opinion a required element of §89(5) would not have been met, and the agency would then have none of the obligations imposed by that provision.

            This is not intended to suggest that an agency is prohibited from contacting a submitting entity upon receipt of a request for records submitted by that entity.  In our opinion, a communication of that nature would serve as a direct method by which an agency could gather information about the effect of disclosure of the record in the entity’s particular market or industry, despite the absence of a request for confidentiality, an agency may, based on its own analysis, or following consultation with a commercial entity, determine to withhold records or portions of records on the basis of §87(2)(d).  Nevertheless, it remains our opinion that in order for the appeal provisions of §89(5) to apply, the submitting entity must make the request for confidentiality upon submission of the records to the state agency.

            Having reviewed the two communications from the MTA, dated March 31, 2009, it appears that the MTA is affording the applicant the right to appeal its determination to withhold one page of the record, pursuant to §89(5)(c)(i).  In keeping with the explanation offered above, and the information you provided, that the submitting entity did not make an appropriate request at the time of submission, it is our opinion that the provisions of §89(5) do not apply, and that no such appeal is available to the applicant.  The issue, in our view, involves the strength of the MTA’s decision to deny access, and whether it can meet the burden of defending its determination.

            On behalf of the Committee on Open Government, we hope that this is helpful to you.



                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director



cc: Ann Cutler