December 12, 1994



Mr. Russ Haven
Staff Counsel
9 Murray Street
New York, NY 10007-2272

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.

Dear Mr. Haven:

I have received your letter of November 4 in which you requested an advisory opinion concerning the Freedom of Information Law.

The matter involves a request made to the Division of Equalization and Assessment (the Division) for "the latest block assignment list, or boundary files, in digital format that are used to create computer representations of the State Senate and Assembly legislative districts, along with the attribute information for each of these districts." The request was denied by the Division's records access officer, who confirmed that the Division maintains the files that you requested but indicated that the data was obtained from the Legislative Task Force Demographic Research and Reapportionment pursuant to a confidentiality agreement. The agreement, which is dated February 3, 1989, states that:

"It is hereby agreed to and understood that the digitized files pertaining to New York State Senate, Assembly and Congressional District boundary lines are trade secrets and proprietary in nature. The giving of said digitized files to the Division of Equalization and Assessment by the New York State Legislative Task Force on Demographic Research and Reapportionment is expressly conditioned upon the agreement by the Division of Equalization and Assessment that it will not give, sell, trade, assign, or in any way, release said digital files to any third party."

Further, following the receipt of your request, the records access officer was orally advised by an employee of the Task Force that "the Task Force is unwilling to permit us [the Division] to release the data."

In your appeal following the denial, you wrote that:

"It bears noting that the District Lines Data, in digital format, represent the current New York State Senate and Assembly legislative district lines now in effect. The District Lines Data represent, then, the final work product of the Task Force. In essence, the information requested is the digital equivalent of widely available hard copy maps of the state legislative districts. Indeed, in 1992 the New York State Legislature adopted the district lines by public vote in the Assembly and Senate. The boundaries for the legislative districts were then published in the 1992 Session Laws. See L. 1992 Chapters 76-78 and 302. Thus, a description of the District Lines Data is already public. NYPIRG is simply requesting access to this information in digital format."

In this regard, I offer the following comments.

First, I believe that data files that you requested constitute agency records subject to the broad disclosure requirements imposed by the Freedom of Information Law upon agency, irrespective of the origin of the files. As you are aware, §86(4) of the Freedom of Information Law defines the term "record" expansively to include:

"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."

The Court of Appeals has construed the definition of "record" as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term "record" involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50 NY 2d 575, 581 (1980)] and found that the documents constituted "records" subject to rights of access granted by the Law. Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id.).

In a decision involving records prepared by corporate boards furnished voluntarily to a state agency, the Court of Appeals reversed a finding that the documents were not "records," thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the Court relied upon the definition of "record" and reiterated that the purpose for which a document was prepared or the function to which it relates are irrelevant. Moreover, the decision indicated that "When the plain language of the statute is precise and unambiguous, it is determinative" (id. at 565).

In short, when the data files came into the possession of the Division, I believe that they became "agency records."

It is also noted that the definition of "record" includes specific reference to computer tapes and discs, and it was held more than ten years ago that "[i]nformation is increasingly being stored in computers and access to such data should not be restricted merely because it is not in printed form" [Babigian v. Evans, 427 NYS 2d 688, 691 (1980); aff'd 97 AD 2d 992 (1983); see also Szikszay v. Buelow, 436 NYS 2d 558 (1981)]. Consequently, when printed records are available under the Law, the same records would be available when they are maintained in an electronic format.

Second, 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.

Section 87(2)(g) pertains to "inter-agency" and "intra-agency" materials. Section 86(3) of the Freedom of Information Law defines the term "agency" to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office of other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

Therefore, agencies generally are entities of state or local government. Based on the definition of "agency", "inter-agency materials" would involve written communications between or among officials of two or more agencies; "intra-agency materials" would consist of communications between or among officials within an agency. The State Legislature, as well as "any committee, subcommittee, joint committee, select committee, or commission thereof" [see Freedom of Information Law, §86(2)] fall outside the scope of the definition of "agency." Consequently, the records sought would not consist of "inter-agency or intra-agency materials" as described in §87(2)(g). Even if they could be so characterized, §87(2)(g)(i) and (iii) respectively require the disclosure of "statistical or factual tabulations or data" and final agency determinations. Therefore, even if applicable, I do not believe that §87(2)(g) would serve as a basis for denial.

Aside from the confidentiality agreement, the records access officer relied upon §87(2)(d) as a basis for withholding the records. That provision 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 obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise."

In my opinion, the question under §87(2)(d) involves the extent, if any, to which disclosure would "cause substantial injury to the competitive position" of a commercial enterprise.

The concept and parameters of what might constitute a "trade secret" were discussed in Kewanee Oil Co. v. Bicron Corp., which was decided by the United States Supreme Court in 1973 (416 (U.S. 470). Central to the issue was a definition of "trade secret" upon which reliance is often based. Specifically, the Court cited the Restatement of Torts, section 757, comment b (1939), which states that:

"[a] trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers" (id. at 474, 475).

In its review of the definition, the court stated that "[T]he subject of a trade secret must be secret, and must not be of public knowledge or of a general knowledge in the trade or business" (id.).

In my view, the proper assertion of §87(2)(d) is dependent upon a variety of factors, such as the specific content of the records, the area of commerce in which business entities are involved, the degree of competition within that area of commerce and, again, most importantly, the effect of disclosure, i.e., the extent to which disclosure would "cause substantial injury" to a commercial entity's competitive position.

In my opinion, since the data are not secret, but rather are reflective of law, and since the State Legislature is not a commercial enterprise, §87(2)(d) could not validly be asserted as a basis for denial. Moreover, that provision refers to an entity's "competitive position"; with whom does the Legislature "compete"?

Lastly, 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 the Freedom of Information Law 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)].

In a different context, 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 benefited 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. On the contrary, it was determined that:

"the citizen's right to know that public servants are held accountable when they abuse the public trust outweighs any advantage that would accrue to municipalities were they able to negotiate disciplinary matters with its employee with the power to suppress the terms of any settlement".

In so holding, the court cited a decision rendered by the Court of Appeals and stated that:

"In Board of Education v. Areman, (41 NY2d 527), the Court of Appeals in concluding that a provision in a collective bargaining agreement which bargained away the board of education' s right to inspect personnel files was unenforceable as contrary to statutes and public policy stated: 'Boards of education are but representatives of the public interest and the public interest must, certainly at times, bind these representatives and limit or restrict their power to, in turn, bind the public which they represent. (at p. 531).

A similar restriction on the power of the representatives for the Village of Lyons to compromise the public right to inspect public records operates in this instance.

The agreement to conceal the terms of this settlement is contrary to the FOIL unless there is a specific exemption from disclosure. Without one, the agreement is invalid insofar as restricting the right of the public to access."

Lastly, it is emphasized that the State's highest court has construed the Freedom of Information Law expansively. In a discussion of the scope and intent of the Law, it has been held that:

"Key is the Legislature's own unmistakably broad declaration that, '[as] state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible' (emphasis added; Public Officers Law, section 84).

"...For the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on go@last as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Aggregate-Rockland Newspapers v. Kimball, 50 NY2d 575, 579 (1980)].

Similarly, the Court of Appeals has also held 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 NY 2d 562, 565-566 (1986)].

In sum, I believe that a denial of access to the records in question was inappropriate. I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Robert L. Beebe, Records Appeals Officer
Steven J. Harrison, Records Access Officer
Debra Levine