January 17, 1995



Mr. Denis P. Meadows, Head
Grants Administration Unit
The State Education Department
Albany, New York 12230

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, unless otherwise indicated.

Dear Mr. Meadows: As you are aware, I have received your letter of December 2 in which you sought an advisory opinion concerning the Freedom of Information Law.

In your capacity as administrator of the Local Government Records Management Improvement Fund (LGRMIF) grant program for the State Archives and Records Administration (SARA), you wrote that, each year, you receive requests for copies of "successful grant applications and/or application narratives." The application consists of a two page form and a "five part application narrative." Since you have disclosed those records in the past based on the belief that they must be made available, you have sought a clarification and opinion on the matter.

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.

Second, of greatest significance in terms of analysis of the ability to withhold the records in question is §87(2)(g), which pertains to "inter-agency and intra-agency materials." I point out that §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 or 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."

Based on the foregoing, written communications between agencies, i.e., between a town or village and SARA, would constitute inter-agency materials that fall within the coverage of §87(2)(g).

That provision authorizes an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

Having reviewed a sample of an application, it is clear that some aspects of it consist of factual information that must be disclosed pursuant to §87(2)(g)(i). Basic information, such as the name of a municipality, its population, number of employees, budget and similar data would in my opinion clearly be available. Various portions of the grant application narrative might also consist of factual information that must be disclosed. For instance, a statement that a municipality currently has a certain amount of cubic feet of map storage would represent a fact that would be available under the Law. However, many remaining aspects of the narrative would consist of expressions of opinion, proposed work plans, intended results, justifications and the like that could be withheld under §87(2)(g).

From my perspective, the only other ground for denial of potential significance would be §87(2)(d), which 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. A municipality is not a commercial enterprise. However, there may be portions of an application or addenda to an application that consist of technical information developed by a private firm. To that extent, §87(2)(d) might be applicable.

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 an entity's competitive position. I cannot offer specific guidance concerning the extent to which §87(2)(d) might properly be asserted. As experts in information technology, you and staff are in a better position to engage in that kind of assessment.

Lastly, I point out that the Freedom of Information Law is permissive. As stated by the State's highest court:

"while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency's discretion to disclose such records...if it so chooses" [Capital Newspapers v. Burns, 67 NY 2d 562, 567 (1986); see also, Buffalo Teachers Federation v. Buffalo Board of Education, 156 Ad 2d 1027 (1990)]."

Therefore, even though portions of the records in question might be withheld in accordance with one or more of the grounds for denial, there is no obligation to withhold them.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.



Robert J. Freeman
Executive Director