March 29, 1995



Ms. Rachel Ross
Project Manager
Inside Healthcare Computing
3842 College Avenue #2
Culver City, CA 90232

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 Ms. Ross:

I have received your letter of February 27 in which you referred "with disappointment" to an advisory opinion addressed to you on February 17 concerning your request for records of the State Department of Health.

Based upon your comments, it is not clear that you fully understand §89(5) of the Freedom of Information Law. That provision is, from my perspective, procedural in nature; it merely supplements §87(2)(d), the so-called "trade secret" exception. I agree with your contention that §89(5) only applies when a commercial entity, at the time of submission of records to a state agency, seeks the protection potentially accorded by that provision. As I wrote to you: "in the case of the particular records sought, Mr. Macdonald [the Department's records access officer] informed me that portions of the records initially submitted for which exceptions from disclosure were requested were incorporated into the contracts. To that extent, it would seem reasonable to confer the procedural protection accorded by §89(5) on those aspects of the contracts." I did not suggest in any way that records other than those "initially submitted" would be subject to §89(5).

Nevertheless, the fact that a firm might not have sought to invoke §89(5), or that other records may later be developed, does not diminish an agency's capacity to deny access under §87(2)(d). That provision appears in the key substantive aspect of the Freedom of Information Law, the language indicating that all records are available, except those records or portions of records that fall within the exceptions that ensue. It is noted that §89(5) does not apply to local governments, but rather only to state agencies. Nevertheless, that does not diminish the ability of a local government to assert §87(2)(d) in appropriate circumstances. Similarly, a state agency may withhold records or portions of records under §87(2)(d) even if a commercial entity does not invoke §89(5) or where §89(5) is inapplicable. The language of §87(2)(d) itself indicates that records may be withheld when §89(5) is inapplicable. To reiterate, it states that an agency may 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."

Information derived from other records would not have been initially submitted by a firm. Section 87(2)(d) might nonetheless apply when disclosure "would cause substantial injury to the competitive position of the subject enterprise."

You also contend that the "aggregate amount of funds expended by a public hospital and paid to a private vendor as the result of a contractual arrangement is clearly public record." The opinion of February 17 did not address the issue of the "aggregate amount" of payments made by a public hospital to a private vendor, and it would appear that such a figure would be public. In that opinion, I referred to the possibility that "various aspects" of the records might be withheld. Additionally, since I have neither the right to review the records in question nor expertise regarding the competitive nature of the hospital systems market, I wrote that I could not "advise with certainty as to the propriety of the Department's denial", but that a denial would be proper, "[a]ssuming that the claims...can be justified."

If you continue to believe that the Department's denial of access is inconsistent with the Freedom of Information Law, you may initiate a proceeding under Article 78 of the Civil Practice Law and Rules. It is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade 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 courts 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 rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was 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" (id., 565-566). I hope that the foregoing serves to enhance your understanding of the matter.



Robert J. Freeman
Executive Director


cc: Lois Uttley
Don Macdonald