Petitioner and the Respondent had entered into a non-prosecution agreement resolving an investigation into certain of Petitioner's alleged activities in both his public official capacity and his personal capacity. Subsequently Petitioner sought to enjoin the Respondent from disclosing a certain record sought in a request made pursuant to Article 6 of the Public Officers Law, the New York State Freedom of Information Law [FOIL]. Supreme Court denied the petition and dismissed the proceeding. Petitioner appealed the Supreme Court's action.
Citing Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, the Appellate Division held that Supreme Court properly determined that any promise of confidentiality made to the Petitioner did not afford a protection against disclosure of the non-prosecution agreement pursuant to FOIL and that the agreement requested should be released. The court explained that in Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, the Court of Appeals held "FOIL imposes a broad duty on government agencies to make their records available to the public" and the exemption to disclosure pursuant to Public Officers Law §87(2)(a)* relied on by Petitioner was not applicable.
The Court of Appeals also noted that, as originally enacted, FOIL contained an exemption for records "confidentially disclosed to an agency and compiled and maintained for the regulation of commercial enterprise, including trade secrets." This "confidentially disclosed" provision was deleted when the statute was amended.
In Washington Post v. Ins Dept, 61 N.Y.2d 557 the Court of Appeals opined "Thus, respondent had no authority to use its label of confidentiality to prevent disclosure of the [requested document]. "(T)o allow the government to make documents exempt by the simple
means of promising confidentiality would subvert FOIA's disclosure
mandate" [cf. Washington Post Co. v United States Dept. of Health Human Servs., 690 F.2d 252, 263]."
* Public Officers Law §87(2)(a), in pertinent part, provides "except that such agency may deny access to records or portions thereof that:
"(a) are specifically exempted from disclosure by state or federal statute; [In New York State the release of some public records are limited by statute. See, for example, Education Law, §1127 - Confidentiality of records; §33.13; Mental Hygiene Law - Clinical records; confidentiality.]
"(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;
"(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;
"(d) 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; and records, among other things,
"(e) are compiled for law enforcement purposes only to the extent that disclosure would:
"i. interfere with law enforcement investigations or judicial proceedings, provided however, that any agency, which is not conducting the investigation that the requested records relate to, that is considering denying access pursuant to this subparagraph shall receive confirmation from the law enforcement or investigating agency conducting the investigation that disclosure of such records will interfere with an ongoing investigation;"
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