March 31, 1997




Mr. Frederick W. Turner
Town Attorney
Town of Greenburgh
P.O. Box 205
Elmsford, NY 10523-0205

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. Turner:

I have received your letter of March 17 in which you sought advice concerning the Freedom of Information Law. Please note that I attempted to reach you by phone without success. In short, you have asked whether §87(4) of the Freedom of Information Law pertains exclusively to state agencies, and, if that is so, whether §87(2)(d) may be asserted by entities of local government.

In this regard, §87(4) in my view pertains only to state agencies. As you are aware, for purposes of that subdivision, the phrase "state agency" is defined to mean "only a state department, board, bureau, division, council or office and any public corporation the majority of whose members are appointed by the governor." I note that §87(4) relates to §89(5), which pertains to situations in which commercial enterprises submit records to state agencies pursuant to law or regulation and the records include information that might fall within the scope of §87(2)(d). I believe that §87(4) was enacted in conjunction with §89(5) in order to clearly limit the application of the latter provision to state agencies.

Notwithstanding the foregoing, §87(2) pertains to all agencies, including units of local government. Therefore, it is clear in my opinion that a unit of local government has the authority to withhold records, where appropriate, in accordance with §87(2)(d). I hope that I have been of assistance.



Robert J. Freeman
Executive Director