Sent:    Thursday, June 13, 2013 11:07 AM
Subject:           RE: Question for Bob Freeman

Hi –

            I left a message on your voicemail, but here it is, again, in brief.

            There is often confusion because 89(5) applies only to state agencies.  Under that provision, when a private entity submits records to a state agency, it may identify those portions of the records that it believes would, if disclosed, cause substantial injury to its competitive position and be withheld under 87(2)(d).  If a FOIL request is made for those records, or if the agency wants to disclose on its own initiative, the procedure prescribed by 89(5) must be implemented; it is mandatory.

            Section 89(5), as inferred above, does not apply to local government agencies.  However, when a request is made for records submitted by a private entity, if there is a possibility that 87(2)(d) is pertinent, it has been suggested that the local government agency contact the entity, indicating that FOIL requires disclosure, unless there is an exception that authorizes a denial of access.  If the private entity considers certain material to be “proprietary” (a favorite term), the agency should specify that if a request is denied, the agency bears the burden of proof in court.  Significantly, the agency cannot merely suggest to the court that the entity claims that the material is secret; rather, the agency must prove to the court how and why disclosure would cause substantial  injury to the competitive position of the entity.  Unless the agency has sufficient information to feel comfortable making that argument, the entity should be told that the agency must disclose to comply with law.

            Hope this helps.