FOIL AO 19726

April 30, 2019


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, except as otherwise indicated.

Dear :

I am writing in response to your request for an advisory opinion regarding the ability of an agency subject to the Freedom of Information Law (FOIL) to withhold a settlement agreement on the grounds that the agreement contains a non-disclosure clause. 

You state that the Town of Orchard Park recently negotiated a retirement settlement agreement with its former Police Chief.  Included in the agreement was the following non-disclosure clause:

“To the extent such terms are not otherwise required to be made available to the public pursuant to law or in accordance with legal process, the Town and Pacholec agree to keep the terms and the existence of this Agreement completely confidential and shall not disclose any information concerning the existence or terms of this Agreement or provide a copy of this Agreement to anyone except [list of exceptions]…”

You ask whether or not FOIL “overcomes the limits of this language and requires that the agreement be provided under a Freedom of Information Law request.”  In our view, any limitation on access to the record must governed by FOIL, and the public’s statutory right to access government records cannot be bargained away by contract or agreement. 

As you are likely aware, FOIL is based upon a presumption of access.  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 (o) of the Law.  The courts have consistently interpreted FOIL in a manner that fosters maximum access.  As stated by the Court of Appeals forty years ago:

"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2).  Thus, the agency does not have carte blanche to withhold any information it pleases.  Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the court for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908).  Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld." [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]

In another decision, the Court of Appeals found that:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79).  The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers." [Capital Newspapers v. Burns,67 NY2d 562, 565-566 (1986)]

Several controversies have arisen in which agreements or settlements have included provisions requiring confidentiality.  Those kinds of agreements have uniformly been struck down and found to be inconsistent with FOIL.  In short, it has been held that a promise or assertion of confidentiality cannot be upheld, unless a statute specifically confers confidentiality.  In Gannett News Service v.  Office of Alcoholism and Substance Abuse Services,415 NYS 2d 780 (1979), a state agency guaranteed confidentiality to school districts participating in a statistical survey concerning drug abuse.  The court determined that the promise of confidentiality could not be sustained, and that the records were available, for none of the grounds for denial appearing in FOIL could justifiably be asserted.  In a decision rendered by the Court of Appeals, it was held that a state agency's:

"long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature's definition of 'record' under FOIL.  The definition does not exclude or make any reference to information labeled as 'confidential' by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt..." [Washington Post v. Insurance Department, 61 NY 2d 557, 565 (1984)]

The Court also concluded that “just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption” (id., 567).

In Geneva Printing Co. and Donald C. Hadley v. Village of Lyons (Supreme Court, Wayne County, March 25, 1981), a public employee charged with misconduct and in the process of an arbitration hearing engaged in a settlement agreement with a municipality.  One aspect of the settlement was an agreement to the effect that its terms would remain confidential. Notwithstanding the agreement of confidentiality, which apparently was based on an assertion that "the public interest is benefitted by maintaining harmonious relationships between government and its employees," the court found that no ground for denial could justifiably be cited to withhold the agreement.

In sum, rights of access conferred by FOIL take precedence over any inconsistent terms of a contract or agreement. 

I hope this information proves useful.



Kristin O’Neill
Assistant Director