May 17, 1996



Hon. David Bishop
County of Suffolk
276 N. Wellwood Avenue
Lindenhurst, NY 11757-3708

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 Legislator Bishop:

I have received your letter of April 11 in which you sought an opinion concerning the propriety of a denial of a request for records of the State Department of Labor.

You wrote that "[e]very year Suffolk County provides tens of millions of dollars in tax breaks to dozens of selected companies on the belief that these companies create jobs", but that you were informed by the Department of Labor that you are "not entitled to know the number of employees actually working at these companies." The Department has denied access on the basis of §537 of the Labor Law.

In this regard, as you may be aware, the Committee on Open Government is authorized to offer advisory opinions concerning the Freedom of Information Law. While the Committee does not have jurisdiction to interpret or advise with respect to the Labor Law, the issue in this instance in my view involves which statute governs access, the Freedom of Information Law or §537 of the Labor Law. If the former applies, it is likely that the records sought would be available; if the latter applies, however, the records would be confidential.

It is noted that the Freedom of Information Law pertains to all agency records. Section 86(4) of that statute defines the term "record" to mean:

"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."

Based on the foregoing, information in any physical form whatsoever maintained by or for an agency, such as the Department of Labor, would constitute a "record" that falls within the coverage of the Freedom of Information Law.

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.

Relevant to the matter is the first ground for denial, §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §537 of the Labor Law, which is entitled "Disclosures prohibited", and which states in subdivision (1) that:

"[I]nformation acquired from employers or employees pursuant to this article shall be for the exclusive use and information of the commissioner in the discharge of his duties hereunder and shall not be open to the public nor be used in any court in any action or proceeding pending therein unless the commissioner is a party to such action or proceeding, notwithstanding any other provisions of law. Such information insofar as it is material to the making and determination of a claim for benefits shall be available to the parties affected and, in the commissioner's discretion, may be made available to the parties affected in connection with effecting placement."

To the extent that the records sought fall within the scope of §537, they would be confidential, unless they are "material to the making and determination of a claim for benefits" or the Commissioner of Labor asserts his discretionary authority to disclose records for the purpose of effecting placement in a job.

As suggested earlier, the question involves the extent to which §537 of the Labor Law indeed prohibits the disclosure of records. I have attempted to obtain information regarding the intent of §537 of the Labor Law and have reviewed various judicial determinations rendered pursuant to or in conjunction with that statute. There is no information that I could find in the nature of legislative history (i.e., bill jackets) that indicates the specific purpose of §537 of the Labor Law. However, its language and judicial interpretation in my view indicate that its thrust involves an intent to protect the privacy of both employers and employees that submit information to the Department of Labor. The statute itself refers to parties to actions or proceedings and to information "material to the making and determination of a claim for benefits." The records that you seek apparently do not contain any information regarding proceedings or claims, nor do they identify any particular person or persons. Further, in the only judicial decision that I could locate that pertains to the intent of §537 of the Labor Law, which had been §524 of the Labor Law, it was found that:

"...section 524 of the Labor Law prohibits the use of such records in the courts unless the Industrial Commissioner is a party to the action or proceeding. While the act does not disclose the object of the Legislature, it undoubtedly was to prevent exposure to public gaze of the names of applicants who are receiving benefits under the auspices of the statute and under which the employer bears the burden. This is a reasonable objective" [Andrews v. Cacchio, 35 NYS 2d 259, 260; 264 App. Div. 791 (1942)].

Although Andrews, supra, was decided in 1942, there is no decision of which I am aware that indicates a different intent than that quoted above. Moreover, the Andrews decision has been cited as recently as 1982 [see Clegg v. Bon Temps., Ltd., 452 NYS 2d 825 (1982)].

The only item of legislative history regarding what had been §524 involves a memorandum to Counsel to the Governor regarding Chapter 117 of the Laws of 1936 in which it was stated that §524 "makes formal changes in order to comply with the provisions of the federal Social Security Act."

In order to determine whether federal law prohibits disclosure of the records that you are seeking or records analogous to those sought, I have contacted the U.S. Department of Labor. Having spoken today with an attorney for the Department of Labor, I was informed that no provision of federal law would prohibit the disclosure of the records in question. It was, however, stated that, depending upon the circumstances, such information might be considered a trade secret that could be withheld under the federal Freedom of Information Act, 5 U.S.C. §552(b)(4).

While the New York Freedom of Information Law contains a basis for withholding concerning trade secrets, it is unlikely in my view that it could justifiably be cited in this instance. Section 87(2)(d) states that an agency may withhold records 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..."

From my perspective, it is difficult to envision how the records in question could be characterized as trade secrets or how disclosure could cause substantial injury to the competitive position of a firm.

In sum, if indeed §537 of the Labor Law is intended to protect personal privacy, I do not believe that it is applicable to the records that you are seeking, for there are no privacy considerations present.

I point out that, in an effort to learn more of the Department's position, I contacted the attorney for the Department who responded to your request. Notwithstanding my contentions, it is his belief that the information in question falls within the prohibition imposed by §537 of the Labor Law. While several judicial decisions were cited by Mr. Redmond, none in my opinion clearly pertains to the matter at hand. Closer to the situation in my view is the Andrews decision, which although rendered more than fifty years ago, has not, based on my research, been reversed or modified.

As Mr. Redmond indicated in his response to you, you may appeal a denial of a request to the Commissioner. The right to appeal a denial of access is conferred by §89(4)(a) of the Freedom of Information Law, which states in relevant that:

"any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person thereof designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought..."

Since more than thirty days have elapsed since the denial of the request, if you want to continue to pursue the matter, it is suggested that you begin the process again with a new request. I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Jerome Tracy
Robert W. Redmond