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Is there a new standard to consider when providing public records pursuant to a FOIL request?

Is there a new standard to consider when providing public records pursuant to a FOIL request?
Matter of Verizon NY, Inc. v Mills, 2007 NY Slip Op 52616(U), Decided on August 10, 2007, Supreme Court, Westchester County, Judge Robert M. DiBella, [Not be published in the Official Reports.]

The general view of the Freedom of Information Law is that "The Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy" (Matter of Alderson v New York State Coll. Of Agric. & Life Sciences at Cornell Univ., 4 NY3d 225).

As the Court of Appeals said in Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, "An agency's records are presumptively open to public inspection, without regard to need or purpose of the applicant? and "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government." [Matter of Capital Newspapers v Whalen, 69 NY2d 246, emphasis supplied].

In other words, when faced with a FOIL request, an agency must either provide the record sought, deny the request and indicate the specific exemption to disclosure it is relying upon justifying such refusal, or certify that it does not possess the requested document and that it could not be located after a diligent search.*

Indeed, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to ?voluntarily? provide the information or record requested. In the event the custodian of the record declines to provide the information, the individual or organization is required to file a FOIL request to obtain the information.

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

However, in the Verizon decision the court appears to have set a new test to be applied by the custodian of the public record when responding to a FOIL request.

In response to Cablevision Systems Corporation, Inc.?s (Cablevision) request submitted pursuant to the Freedom of Information Law (FOIL), the Village of Elmsford was prepared to disclose certain revenue and sales information concerning ?Verizon New York, Inc.?s? to Cablevision.

Elmsford had granted Verizon a cable television franchise. The terms of the agreement required Verizon to submit quarterly reports to the Village indicating revenue and sales data broken down on a monthly basis. This data is used to calculate the franchise fee Verizon must pay to the Village.

In May 2007, Verizon provided the Village with a report for the first quarter of 2007.

Anticipating a FOIL request would be submitted by its competitor, Cablevision, Verizon also sent the Village a letter stating that the report was not subject to disclosure under FOIL. The letter stated that release of the report would cause Verizon substantial competitive injury and thus, Public Officers Law §87(2)(d) precluded its disclosure.

Cablevision submitted a FOIL request to the Village seeking a copy of the report. The Village informed Verizon that it intended to honor the FOIL request, stating that ?the Village intends to provide a copy of the requested document within five (5) days of our receipt of the request?.?

Verizon objected and initiated an Article 78 action in an effort to prevent Elmsford?s releasing the information to Cablevision.Verizon contended that the report contained confidential and competitively sensitive information and that its disclosure to Cablevision would cause it substantial competitive harm. In effect, Verizon argued that the Village was prohibited from disclosing the report under the competitive injury exemption set forth in Public Officers Law § 87(2)(d).

Judge DiBella agreed and granted Verizon?s petition.In his decision, Judge DiBella acknowledged that ?FOIL's purpose is to facilitate access to public documents" and that ?FOIL?s statutory scheme mandates that ?[e]ach agency. . shall make available for public inspection and copying all records? unless the records fall within a statutory exemption? [emphasis supplied].

Although Public Officers Law §87(2)(d) provides that an agency "may deny access to records or portions thereof that . . . are trade secrets or are submitted to an agency by a commercial enterprise . . . and which if disclosed would cause substantial injury to the competitive position of the subject enterprise," this is not the same as requiring the custodian of the record to make a determination as to whether the record sought falls within one or more exceptions and then to withhold such records unless it shows that providing the record sought is not arbitrary or capricious.

Yet this appears to be the requirement flowing from the Verizon decision.

According to the decision, the issue before the court was whether Verizon has met its burden of showing that disclosure of the report will result in a likelihood of substantial competitive injury.

Judge DiBella said that ?It is clear to this court that Cablevision seeks the reports for the purpose of gaining a competitive advantage. Cablevision and Verizon are competitors in the cable services industry. The disclosure of the report would enable Cablevision to obtain otherwise unavailable information without expending its resources, further placing Verizon at a competitive disadvantage.?

The court then continued, stating "As Verizon has demonstrated a likelihood of substantial competitive injury, it has shown that the franchise fee reports fall squarely within the ambit of Public Officers Law §87(2)(d)."

Judge DiBella ruled that ?the Village's decision to release the report pursuant to Cablevision's FOIL request was made without regard for relevant facts and lacked a sound basis in reason.

Thus, he said, the Village's ultimate decision to release the report "was based not on facts or an interpretation of the relevant legal standard, but solely on its desire to avoid fulfilling its obligation to make a determination of whether the report was subject to disclosure under FOIL. This is not a reasonable basis upon which a municipality may make a FOIL determination.?

The court?s conclusion: ?The Village's determination to release the report was arbitrary and capricious,? and granted Verizon?s petition.

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].

The Verizon NY decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2007/2007_52616.htm

Full post as published by New York Public Personnel Law on August 05, 2009 (boomark / email).