Matter of Physicians Comm. for Responsible Medicine v Hogan

[*1] Matter of Physicians Comm. for Responsible Medicine v Hogan 2010 NY Slip Op 51908(U) [29 Misc 3d 1220(A)] Decided on November 3, 2010 Supreme Court, Albany County Platkin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 3, 2010
Supreme Court, Albany County

In the Matter of the Application of Physicians Committee for Responsible Medicine, Petitioner,

against

Michael F. Hogan, as Commissioner of the New York State Office of Mental Health, and THE NEW YORK STATE OFFICE OF MENTAL HEALTH, Respondents.



439-10



APPEARANCES:Egert and Trakinski

Attorneys for Petitioner

(Amy Trakinski and Leonard Egert, of counsel)

165 West 91st Street, No.16B

New York, New York 10024

Andrew M. Cuomo, Attorney General

Attorney for Respondents

(David L. Fruchter, of counsel)

The Capitol

Albany, New York 12224

Richard M. Platkin, J.

Physicians Committee for Responsible Medicine ("PCRM") brings this special [*2]proceeding pursuant to CPLR article 78, challenging the denial of a Freedom of Information Law ("FOIL") request submitted to respondent New York State Office of Mental Health ("OMH") for records pertaining to the research on animals conducted by three employees of the New York State Psychiatric Institute ("NYSPI").

BACKGROUND

PCRM alleges that it is a not-for-profit organization with more than 120,000 members and supporters that seeks to educate and inform the public on issues pertaining to the use of animals in research and education.

NYSPI is a hospital established within OMH "for the care, treatment and rehabilitation of the mentally disabled and for research and teaching in the science and skills required for the care, treatment and rehabilitation of such mentally disabled" (Mental Hygiene Law § 7.17 [b]).

On June 5, 2009, PCRM submitted a FOIL request to OMH seeking "public records from January 1, 2000 through the present, relating to the research of Drs. Suzette M. Evans, Richard W. Poltin and/or Sarah H Lisanby" (collectively "the subject researchers"). This request broadly sought, among other things: research protocols; protocol revision forms; annual reviews of research; transcripts and meeting minutes; investigation notes and/or reports, including non-compliance complaints; communications regarding non-compliance; all grant applications regarding animal research; all progress reports involving animal research; all closeout reports involving animal research; and all communications between NYSPI and the United States Department of Agriculture regarding the work of the three named researchers.

On September 17, 2009, OMH provided PCRM with 27 pages of responsive records. However, portions of these records had been redacted on the basis of the FOIL exemptions for life or safety (hereinafter "life/safety") and personal privacy. OMH denied access to other responsive records based upon the same FOIL exemptions, as well as the exemptions for trade secrets and deliberative materials.

By letter dated October 27, 2009, the agency's FOIL Appeals Officer, John B. Carroll, granted PCRM's administrative appeal in part and denied it in part. The Appeals Officer sustained the agency's reliance on the FOIL exemptions for life/safety, personal privacy and deliberative materials, but concluded that the Records Access Officer had failed to follow the statutory procedures governing access to records submitted in confidence by a commercial enterprise. Accordingly, PCRM's appeal was granted to the limited extent of directing the Records Access Officer to follow the procedures of Public Officers Law ("POL") § 89 (5) with respect to such records and denied in all other respects. On January 21, 2010, PCRM commenced this special proceeding.

As to the alleged proprietary information submitted in confidence to OMH, the Records Access Officer advised PCRM on April 5, 2010 that the commercial enterprise's "request to maintain the confidentiality of proprietary technical information on the grounds that it is comprised of trade secrets is granted; accordingly, your request . . . is denied." PCRM's administrative appeal of this determination was denied on April 26, 2010.

PCRM then filed an Amended Verified Petition on May 18, 2010 with the consent of respondents. In its amended petition, PCRM challenges OMH's October 27, 2009 and April 26, 2010 denials of access to responsive records, contending that OMH failed to describe the withheld materials or fully explain its reasons for the redactions and withholding of responsive [*3]records. PCRM further argues that OMH cannot sustain its burden of demonstrating the applicability of the FOIL exemptions for life/safety, personal privacy, trade secrets and deliberative materials.

While defending its invocation of the aforementioned FOIL exemptions, OMH offers the following statement in its Memorandum of Law:

OMH has re-evaluated this matter, and has now offered to provide PCRM with redacted versions of many of the documents which previously were withheld. To assist the Court in evaluating OMH's assertion of the FOIL exemptions upon which the redactions are based, OMH has submitted to this Court, for in camera review only, a set of documents that contains a representative sample of each of some of the major categories of documents requested by PCRM. As set forth in the May 28, 2010 affirmation of Dr. Jeffrey Lieberman, the Executive Director of [NYSPI], each of these sample documents is typical of the other requested documents that fall into the same category.In its reply papers, PCRM claims that the factual record compiled by OMH is insufficient for the agency to meet its burden of demonstrating that the withheld records are exempt from disclosure. PCRM also asserts that OMH has inappropriately sought in camera review, contending that the agency first was obliged to prepare a log identifying and describing the withheld records, the specific exemptions relied upon, and the particular factual justification giving rise to each claim of exemption.

At oral argument, which was held on October 1, 2010, the Court expressed concern regarding the procedural posture of this application. In responding to PCRM's FOIL request, OMH denied access to all but 27 pages of responsive documents, whereas the agency now seeks to have the Court rule on the validity of its proposed redactions to the entire set of responsive documents. Generally, a court reviewing an administrative determination is limited to the record compiled by the agency during the administrative process (see Matter of Molloy v New York City Police Dept, 50 AD3d 98 [1st Dept 2008]; Matter of Rhino Assets, LLC v New York City Dept. for the Aging, SCRIE Programs, 31 AD3d 292 [1st Dept 2006]).

The parties responded by jointly urging the Court to rule upon the applicability of the various FOIL exemptions invoked by the agency on the basis of the evidentiary record compiled by the parties on this application and the in camera materials submitted to the Court. In this connection, PCRM withdrew its objection to the Court's consideration of the in camera materials, and OMH stipulated to produce the documents withheld from PCRM, subject to such redactions as may be available pursuant to the Court's ruling. The Court accepts the parties' procedural stipulations and issues this Decision, Order & Judgment.

ANALYSIS

"Under FOIL, government records are presumptively available to the public for inspection unless subject to an exemption" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]). This "broad standard of open disclosure" serves to "achieve maximum public access to government documents" (Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of NY at Farmingdale, 87 NY2d 410, 416 [1995]). "Exemptions are narrowly construed," and "the agency that seeks to prevent disclosure bear[s] the burden of demonstrating that the requested material falls squarely within an exemption by articulating a particularized and specific justification for denying access" (Matter of Carnevale v [*4]City of Albany, 68 AD3d 1290, 1292 [3d Dept 2009]). The Court will consider each of the FOIL exemptions relied upon by OMH in turn.

A.Life/Safety

OMH first contends that many of its proposed redactions are authorized under the life/safety exemption set forth in Public Officers Law § 87 (2) (f). Under this exemption, an agency is authorized to withhold records that, "if disclosed could endanger the life or safety of any person." OMH asserts that its proposed redactions "are necessary to protect the life and safety of the named researchers, their staffs, and NYSPI, its staff and patients."

In support of its invocation of the life/safety exemption, OMH relies upon "the well-documented, increasingly frequent threats and acts of violence directed by militant animal rights extremists at research facilities and individual researchers who are engaged in research using animal subjects." Thus, OMH submits press statements from the Federal Bureau of Investigation, statements from the congressional floor debates on the Animal Enterprise Terrorism Act ("AETA"), 18 USC § 43 et seq., a February 8, 2008 statement from the then-director of the National Institutes of Health ("NIH") made after an incendiary device was placed and ignited at the door of an NIH-supported scientist, and various news clippings regarding attacks on scientists who use animals in their research.

OMH contends that in light of this history of violence by extremists, it should be permitted to redact any information that could identify the three subject researchers or any other individual associated with their research. In addition to the redaction of names and contact information, OMH maintains that it is authorized to redact information that might make it possible to discern the identities of the subjects researchers. Thus, due to the limited number of researchers working in a particular discipline and at particular geographic locations, OMH asserts that it is necessary to withhold the particulars of the researchers' grant applications and the nature of the research that they perform. The agency further claims that it might be possible to discern the identities of researchers through the bibliographic references and citations included in research papers, so this information also must be redacted. And since "selective redaction may inadvertently highlight the identity of the researchers," OMH asserts that wholesale redaction of bibliographies and journal citations is necessary.

In addition to claiming an entitlement to redact substantial portions of responsive records that might tend to identify, either directly or indirectly, the subject researchers, OMH contends that the life/safety exemption extends to the redaction of information "that can reasonably be expected to inflame and possibly incite animal rights extremists" (Respondents' Memorandum of Law ["RMOL"], at 17). According to the agency, this includes "information that describes with any detail how the research [on animals] is actually performed," including the type and number of animals used, the procedures performed, the manner in which the procedures are conducted, and allegations of noncompliance with animal welfare requirements (id. at 17-18). Thus, in addition to shielding the identities of the researchers from disclosure by direct or indirect means, OMH argues that the life/safety exemption authorizes the redaction or withholding of records describing the research activities and findings of the subject researchers.

As an initial matter, the Court notes the paucity of proof in admissible form submitted in support of OMH's claim to the life/safety exemption. No affidavits were submitted by law [*5]enforcement authorities to support the agency's assertion that the subject researchers (or anyone else) would face a risk to life or safety by reason of the disclosure of responsive records. Nor were affidavits submitted by the researchers themselves or by other individuals named in responsive documents. And the one affidavit that was submitted, from Dr. Jeffrey Lieberman, the executive director of NYSPI, merely confirms his general awareness of violence against animal researchers and expresses concern about NYSPI and its personnel being subjected to similar incidents.

Nonetheless, even from the limited factual record compiled by OMH, it is clear that extremists opposed to the use of animals in research have engaged in acts of terrorism and criminality against scientific researchers and that these despicable acts may continue despite the passage of AETA and the efforts of responsible law enforcement officials. However, for the reasons that follow, the Court finds that OMH's failure to demonstrate a non-speculative causal connection between the release of responsive records and the possibility of danger to life or safety forecloses its claim of exemption under Public Officers Law § 87 (2) (f).

The record overwhelmingly demonstrates that documents linking the subject researchers to animal research and disclosing many of the particulars of their research — the same type of information that OMH claims must be withheld to protect life and safety — already are available to the public through a wide array of sources.[FN1] Thus, articles authored by the subject researchers detailing their research activities and findings appear frequently in academic journals. These published articles can be located and/or accessed via the Internet using a web site maintained by the federal government. Further, biographic profiles of the subject researchers, including contact information, and a variety of other information about their work are available on web sites maintained by private institutions with which they are affiliated. Moreover, as OMH acknowledged at oral argument, the federal government provides access to approved grants for federal funding under the Freedom of Information Act ("FOIA"), thereby providing the public with access to details of the animal research undertaken by the subject researchers.

OMH does not seriously dispute any of the foregoing, but highlights the ability of PCRM and others to use the Internet to instantaneously disseminate and redistribute any agency documents produced pursuant to FOIL. However, much of the public information about the subject researchers and their research activities involving animals already is accessible on the Internet. As noted above, the federal government makes academic medical research, including the work of the subject researchers, available over the Internet. Moreover, even private institutions of higher education, which are not subject to FOIL, publish biographical information and academic research papers on the Internet. And, of course, OMH's argument cuts both ways, since even a single hard-copy of a published article obtained from a library or a grant application obtained from the federal government can be scanned and uploaded to the Internet for instant, world-wide dissemination. [*6]

The abundance of information already available to the public in printed form and on the Internet regarding the animal research activities of the subject researchers serves to distinguish this case from the authorities cited by OMH. None of the cases relied upon by OMH have upheld the withholding of information pursuant to the life/safety exemption where substantially similar information is available to the public (see e.g. Ruberti, Girvin & Ferlazzo P.C. v New York State Div. of State Police, 218 AD2d 494 [3d Dept 1996] [troop, zone and station assignments of each of sworn member of the State Police]; Matter of Connolly v New York Guard, 175 AD2d 372 [3d Dept 1991] [mobilization plans of the New York Guard and information regarding the methods used to communicate with Guard members in the event of mobilization]; Stronza v Hoke, 148 AD2d 900 [3d Dept 1989] [DOCS security assessment studies]; see also Matter of John H. v Goord, 27 AD3d 798 [3d Dept 2006] [identities of inmate or corrections employee who cooperated in an investigation]).

Nor does the factual record compiled by OMH establish a nexus between the disclosure of records pertaining to animal research through government open-records law and resulting acts of criminality. Indeed, the challenged October 27, 2009 determination recites: "I want to emphasize that I am unaware that any person making an information request under FOIL or other law has been held criminally responsible for acts of violence . . ." (p 3). And while Dr. Lieberman's affidavit claims that FOIL requests are used as a means to target animal researchers, the examples he cites actually refer to information obtained from Internet web sites maintained by institutions of higher education (Exhibit D) and from a whistleblower (Exhibit C).

Moreover, OMH has failed to provide a non-speculative basis for withholding "information that describes with any detail how the research [on animals] is actually performed" (RMOL, at 17-18). In addition to the shortcomings in proof discussed above, the Court is not persuaded that an agency can withhold factual information regarding the activities of State employees who conduct publicly funded research at a State hospital merely because the passions of unknown terrorists or criminals might be inflamed. State government routinely engages in activities that some individuals might find objectionable or inflammatory, but OMH can point to no precedent for insulating the work of New York State government from public scrutiny on the basis that disclosure could upset or incite those who lack respect for the rule of law.

Indeed, OMH acknowledges that the issue of animal research is one of legitimate public concern and that persons who are philosophically opposed to animal research, who challenge its necessity, or who take issue with the State's role in conducting such research have a right to "speak out peacefully and protest against it" (RMOL, at 16). While OMH seeks to characterize the records at issue in this case as that "which can reasonably be expected to be used not to educate the public, but to inflame animal rights activists" (Lieberman Aff. ¶ 3), this characterization does not withstand scrutiny. As detailed below, PCRM has put forward proof demonstrating that responsive records are germane to its mission of educating and informing the public about animal research, and OMH has not submitted any proof to the contrary.[FN2]

At bottom, it is highly speculative that the subject researchers (or any other person) could [*7]be endangered by granting PCRM's FOIL request. Rather, given the plethora of information already available to the public about the subject researchers and their use of animals in research, upholding the agency's invocation of life/safety exemption would merely cordon off from public scrutiny one particular aspect of this field: the details of the State's participation in animal research through its mental health agency. Such a result would run counter to FOIL's "broad standard of open disclosure", which serves to "achieve maximum public access to government documents" (Matter of Encore Coll. Bookstores, 87 NY2d at 416).

Accordingly, the Court concludes that OMH has failed to meet its burden of providing a non-speculative basis for concluding that the disclosure of the records sought by PCRM could endanger the life or safety of any person.

B.Personal Privacy Exemption

Relatedly, OMH argues that certain redactions of responsive records are warranted under FOIL's personal privacy exemption. Pursuant to POL § 87 (2) (b), an agency may withhold records that "if disclosed would constitute an unwarranted invasion of personal privacy." "An unwarranted invasion of personal privacyincludes, but shall not be limited to":

i. disclosure of employment, medical or credit histories or personal references of applicants for employment;

ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility;

iii. sale or release of lists of names and addresses if such lists would be used for [fig 1] solicitation or fund-raising purposes;

iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or

v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency; or

vi. information of a personal nature contained in a workers' compensation record, except as provided by section one hundred ten-a of the workers' compensation law.

(POL § 89 [2] [b]).

OMH acknowledges that the factual circumstances of this case do not fall within the "nonexclusive list of examples" set forth in the statute (Matter of Data Tree, LLC v Romaine (9 NY3d 454, 462 [2007]). As such, the Court is required to "balanc[e] the privacy interests at stake against the public interest in disclosure of the information" (Matter of New York Times Co. v City of NY Fire Dep't, 4 NY3d 477, 485 [2005]). Ultimately, "[w]hat constitutes an unwarranted invasion of personal privacy is measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities" (Matter of Humane Socy. of U.S. [*8]v Fanslau, 54 AD3d 537 [3d Dept 2008] [internal quotations omitted]).

In seeking to discharge its burden of articulating a particularized and specific justification

for invocation of the personal privacy exemption, OMH relies largely upon the same arguments and evidence put forward in support of its claim to the life/safety exemption. On that basis, OMH asserts that it should be permitted to redact "identifying information such as names and CVs, and location information such as phone numbers, building addresses, and room and floor numbers" (RMOL, at 21). The agency also seeks the wholesale redaction of bibliographies and scientific citations on privacy grounds. OMH further asserts the privacy exemption extends to "unfounded allegations of non-compliance" with animal welfare requirements, arguing the researchers' reputational interest outweighs any countervailing public interest. Finally, the agency argues that the subject researchers have a privacy interest in unfunded granted applications, which include "thoughts and ideas which are personal to the researchers."

The Court is not persuaded that the personal privacy exemption extends to the redaction of information that would tend to identify the subject researchers or disclose the particulars of their work. In assessing the privacy interest at stake, the Court is mindful that public employees have a diminished expectation of privacy with regard to details of their public employment. Further, the extensive public record of the researchers' academic activities and accomplishments in areas involving the use of animals in research necessarily gives rise to a diminished expectation of privacy with respect to such work.

On the other hand, PCRM has demonstrated a legitimate public interest in being granted access to records detailing the research activities of State employees in order to assess, among other things, the scientific value and social utility of the research being performed and whether public resources should continue to be devoted to this research. These efforts would be hampered without access to information disclosing who conducts the research, the credentials of the researchers, and the scientific papers and publications that underlie their work. Contrary to OMH's contention, this public interest is not negated (or substantially diminished) by the oversight efforts of government regulators and the existence of animal welfare and protection laws. Thus, the Court concludes that the balance tips decidedly in favor of disclosure of the identities of the subject researchers and the details of their work, including research protocols, protocol revision forms, progress reports, closeout reports and final agency reviews of the research involving the subject researchers.[FN3]

However, the Court agrees with OMH that the personal privacy exemption may be invoked with respect to contact information for the individuals identified in responsive documents, including phone numbers, email addresses, building addresses, room and floor numbers and any other similar information. Even recognizing the diminished expectation of privacy associated with this type of information and its availability from other sources, PCRM has failed to articulate any countervailing public interest in its release (see Matter of Humane [*9]Socy. of U.S. v Brennan, 53 AD3d 909, 911 [3d Dept 2008] [telephone numbers]).

As to unfounded allegations of misconduct, the Court concludes that OMH has failed to demonstrate the applicability of the personal privacy exemption. While the agency argues that the release of such records would adversely affect the reputations of the researchers, it fails to submitany proof establishing the extent to which the subject researchers would suffer professional or personal harm through the disclosure of complaints that previously have been determined by regulatory authorities to be unfounded.[FN4] Likewise, the Court's review of the in camera materials fails to disclose a basis for the asserted exemption. On the other hand, PCRM credibly argues that its "watchdog" role extends to the opportunity to undertake review of the activities of oversight entities in relation to allegations of non-compliance with animal welfare laws and regulations.[FN5]

Nor has OMH demonstrated that the disclosure of unfunded grant applications would be offensive and objectionable to a reasonable person of ordinary sensibilities. The grant proposals prepared by the researchers in connection with their public employment were submitted to potential sponsors with the expectation that they would be funded and, therefore, subject to disclosure. And there is nothing in OMH's submissions that articulates how the release of records pertaining to the publicly funded work of State employees implicates a substantial personal privacy interest. On the other hand, the Court sees at least some modicum of public interest in allowing public access to the types of research that State employees have proposed to undertake using public resources.

Based on the foregoing, the Court finds that OMH's invocation of the personal privacy exemption can be sustained only to the extent of allowing the agency to redact the contact information for individuals identified in responsive documents.

C.Deliberative Materials [*10]

Respondents also rely upon the FOIL exemption for deliberative materials to support the redaction of responsive records. Pursuant to POL § 87 (2) (g), an agency is authorized to withhold "inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policy or determinations; or iv. external audits."

"In deciding to exempt from disclosure under FOIL certain intra-agency or inter-agency materials that contain communications exchanged for discussion purposes not constituting final policy decisions, the Legislature recognized the need to permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure" (Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 2010 NY Slip Op 6388 [3d Dept] [internal quotations omitted]).

However, the exemption for deliberative materials does not extend to records that constitute factual data or "final agency policy or determinations." In this context, "[f]actual data . . . simply means objective information, rather than opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 277 [1996]). Thus, portions of inter-agency communications that are "objective and factual in nature" must be disclosed, even if the remainder of the requested records consist of deliberative materials that are subject to withholding or redaction (see e.g. Matter of Humane Socy., supra [requiring disclosure of layout and structure of farm buildings, the activities conducted in each building, the manner used to collect samples for testing, the number and location of animals, and the manner in which animals are moved within the farm]).

OMH argues that at least two types of documents responsive to PCRM's FOIL request may be withheld under the exemption for deliberative materials: (1) records relating to unfunded grant applications; and (2) records regarding unfounded complaints of non-compliance. According to OMH, the disclosure of such materials would harm its deliberative process and potentially have a chilling effect.

The burden rests squarely on OMH to demonstrate that the communications at issue constitute either intra-agency or inter-agency communications that are neither purely factual information nor final agency determinations. However, the only proof in admissible form submitted by OMH is the affidavit of Dr. Lieberman, which does not refer to the FOIL exemption for deliberative materials or provide any factual predicate for its application. Thus, the record does not include proof regarding who authored the allegedly deliberative materials, who the materials were sent to, "the nature of the relationship that exists between the[se] entities" and proof that the "communication[s] in question [were] exchanged as part of the deliberative process in government decision-making" (Town of Waterford, supra).[FN6] [*11]

These deficiencies are not remedied by OMH's submission of in camera materials. While the redacted materials are color-coded to reflect the agency's proposed redactions under the FOIL exemptions for life/safety, personal privacy and trade secrets, there is nothing in the submission that identifies records (or portions thereof) for which exemption is claimed under POL § 87 (2) (g) (see Fruchter Letter to the Court of July 28, 2010 [describing in camera materials]). And, in any event, the Court's inspection of in camera materials establishes that the documents included therein are objective and factual in nature, thus falling outside the exemption for deliberative materials.

Finally, in connection with its invocation of the deliberative process exemption, OMH directs the Court's attention to Education Law § 6527 (3), which exempts from pre-trial disclosure in civil litigation documents pertaining to certain medical or quality-assurance review functions undertaken by hospitals and health-care providers. As the complaints at issue do not concern the quality of care being provided to patients or pertain to a dispute between medical professionals and their patients, the Court is not persuaded that the cited statute has any applicability to this matter.[FN7]

Based on the foregoing, the Court concludes that OMH's invocation of the FOIL exemption for deliberative materials cannot be sustained.[FN8]

D.Trade Secrets

Next, OMH contends that certain responsive records are exempt from disclosure because they constitute trade secrets. Under FOIL, 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" (POL § 87 [2] [d]). For a commercial enterprise to obtain the benefit of this exemption, "it must be established that [the enterprise] is in actual competition with other entities, and that release of the information would likely cause it substantial competitive injury" (Matter of City of Schenectady v O'Keeffe, 50 AD3d 1384, 1386 [3d Dept 2008]). Such a finding "cannot merely rest on a speculative conclusion that disclosure might potentially cause harm" (Matter of Markowitz v Serio, 11 NY3d 43, 51 [2008]). [*12]

While the term "trade secret" is not defined in FOIL (or elsewhere in statute), courts applying New York law generally follow Section 757 of the Restatement of Torts in determining whether information is entitled to protection as a trade secret (see Ashland Mgt. v Janien, 82 NY2d 395, 407 [1993]). Under the Restatement's definition, a trade secret is " any formula, pattern, device or compilation of information which is used in one's business, and which gives [the business] an opportunity to obtain an advantage over competitors who do not know or use it'" (id., quoting Restatement of Torts § 757, Comment b). Evaluation of a claim of trade secret status requires consideration of the degree to which the information sought to be protected truly is "secret", including: " (1) the extent to which the information is known outside of [the] business; (2) the extent to which it is known by employees and others involved in [the] business; (3) the extent of measures taken by [the business] to guard the secrecy of the information; (4) the value of the information to [the business] and [its] competitors; (5) the amount of effort or money expended by [the business] in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others'" (id.).

In support of its claim to the trade secret exemption, OMH relies upon Dr. Lieberman's affidavit, which sets forth two separate, but related, claims under POL § 87 (2) (d): one of which is made on behalf of an unidentified commercial entity, referred to in OMH's written submissions as "the Company", and the other of which is made by OMH on its own behalf (¶ 4). Both claims pertain to the same documents, a particular grant application to the NIH and the related research protocol (id.). In his affidavit, Dr. Lieberman recounts certain information that he received from the principal investigator ("PI") of the grant at issue, but does not disclose the identity of this individual.

According to the information that Dr. Lieberman received from the PI, the purpose of the grant application is to develop a novel technique for the treatment of certain psychiatric disorders (id. [4] [a]). To facilitate this research, the PI obtained the assistance of the Company, which agreed to provide technical support for the research (id.). The Company allegedly provided the PI with a letter of intent to include in the NIH grant application indicating the Company's agreement to provide this support on the condition that its proprietary information remain confidential (see id.). To support the agency's claim that the material it seeks to withhold constitutes a trade secret, Dr. Lieberman avers, again on the basis of what he was advised by the unnamed PI:[FN9][*13][T]he information for which the PI claims trade secret protection is material which the PI has taken measures to keep secret: it has not been previously published or presented; it is known only to the PI or some individuals who have worked in the PI's lab; it is information developed over a period of 17 years with private foundations, State and federal funds . . . ; it is information which would take a competitor substantial time, expertise and funds to develop independently and thus would be a windfall to any who were able to access it through FOIL; and if disclosed, would cause substantial injury to the PI's competitive efforts . . . .

It is my understanding that if these trade secrets were disclosed prior to finalizing the invention and taking the appropriate steps to protect the intellectual property rights in it . . . , the commercial value of the invention would be severely compromised and would cause substantial injury to the competitive position of the subject enterprise — here, a collective enterprise comprised of all those with a financial stake in the commercialization of the invention. (Id. [4] [b] [ii], [c]).

Even accepting the validity of OMH's position that the State agency may possess trade secrets — information that is "used in [OMH's] business, and which gives [the agency] an opportunity to obtain an advantage over competitors who do not know or use it" (Restatement of Torts § 757, Comment b) — the factual record fails to substantiate the agency's contention that the materials at issue are entitled to trade secret status.

In his affidavit, Dr. Lieberman explicitly acknowledges that his averments pertaining to trade secrets were based solely on the information told to him by the unidentified PI (see ¶ 4 [a] ["I have been advised by the Principal Investigator . . ."; ¶ 4 [b] ["I have been further advised by the PI . . . "]; ¶ 4 [b] [i] ["The claim is based on the PI's assertion . . . "]).[FN10] Thus, the only proof submitted by OMH in support of its trade secret claim is non-probative hearsay. Nor is there anything in the in camera materials that would allow the Court to independently conclude that the agency's invocation of the trade secret exemption is proper.

Moreover, the Court notes that Dr. Lieberman's allegations regarding trade secret status are highly conclusory and largely track the language of the Restatement. It is well established [*14]that affidavits that merely parrot the elements of the pertinent test for exemption are insufficient for an agency to meet its burden of proof under FOIL (see Church of Scientology of NY v State of New York, 46 NY2d 906, 908 [1979]; see also Matter of West Harlem Bus. Group v Empire State Dev. Corp., 13 NY3d 882 [2009] ["conclusory characterizations"]).

Accordingly, the Court concludes that OMH cannot discharge its burden of establishing the applicability of POL § 87 (2) (d) on the basis of conclusory assertions of trade secret status by an affiant who candidly acknowledges that he is merely repeating to the Court what he was told by another, unidentified individual.

Finally, insofar as OMH asserts the trade secret exemption on behalf of the Company, an unidentified commercial entity that requested confidential treatment of certain allegedly proprietary information, the Court concludes that neither the agency nor the Company have submitted any competent proof to establish that disclosure of the requested records would cause competitive harm to the Company.[FN11]

E.IACUC Records

Finally, OMH claims that it properly refused to turn over records maintained by NYSPI's Institutional Animal Use and Care Committee ("IACUC"). In this regard, OMH relies upon the precedential force of Matter of American Soc. for Prevention of Cruelty to Animals v Board of Trustees of State Univ. of NY (184 AD2d 508 [2d Dept 1992], lv. denied 80 NY2d 757), which holds that IACUC records are not subject to FOIL because "the IACUC is a creature of federal law overseeing a program dictated by federal law" (Respondents' Memorandum of Law, at 30).

PCRM concedes that it is bound by ASPCA's holding that records maintained by an IACUC are not subject to FOIL. However, PCRM argues that the records it seeks in this proceeding are those in the possession of OMH — a State agency indisputably subject to FOIL. In this connection, PCRM observes that the Animal Welfare Act ("AWA") requires OMH and other sponsoring agencies to maintain records created and submitted by their IACUCs (see e.g. 7 USC § 2143 [b] [3], [4]; see also 9 CFR § 2.35 [a]).

At oral argument, the parties agreed and stipulated that OMH would withdraw its claim/defense based on the ASPCA case with respect to agency records, but reserve its right to redact or withhold such responsive records on the basis of any applicable FOIL exemption. As there no longer is a live controversy between the parties on this point, there is no need for the Court to go any further.

CONCLUSION

Based on the factual record compiled by the parties, the Court's inspection of the in camera materials submitted by OMH and the parties' procedural stipulations, the Court concludes that the petition must be granted in part and denied in part. Accordingly,[FN12] it is [*15]

ORDERED, ADJUDGED and DECREED that the petition is granted to the extent that respondents' FOIL determinations of October 27, 2009 and April 26, 2010 are hereby vacated and annulled, and the matter is remanded to the Office of the Mental Health with a direction to promptly comply with petitioner's FOIL request in a manner not inconsistent with this Decision, Order & Judgment.

This Decision, Order and Judgment is being transmitted to the counsel for petitioner, the materials submitted for in camera inspection are being returned to counsel for respondents; and all other papers are being transmitted to the Albany County Clerk for filing. The signing of this Decision, Order and Judgment shall not constitute entry or filing underCPLR § 2220. Counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.

Dated: Albany, New York

November 3, 2010

RICHARD M. PLATKIN

A.J.S.C.

Papers Considered:

Notice of Amended Verified Petition, dated May 7, 2010;

Amended Verified Petition, sworn to May 7, 2010, with attached exhibits A-I;

Affidavit of Mark Kennedy, Esq., sworn to May 7, 2010, with attached exhibits A-M;

Verified Answer, sworn to on May 28, 2010;

Affirmation of David L. Fruchter, Esq., dated May 28, 2010, with attached exhibits A-F;

Affidavit of Jeffrey Lieberman, M.D., sworn to May 28, 2010, with attached exhibits A-E;

Respondents' Memorandum of Law, dated May 28, 2010;

Affidavit of Leslie Rudloff, Esq., dated June 28, 2010, with attached exhibits A-B (submitted under seal);

Affidavit of John J. Pippin, M.D.;

Affidavit of Molly Knobler, sworn to June 28, 2010, with attached exhibits A-M;

Affidavit of Leslie Rudloff, Esq., sworn to June 28, 2010, with attached exhibits A-N;

Affidavit of Gillian Lyons, sworn to June 28, 2010, with attached exhibits A-V;

Petitioner's Reply Brief, dated July 15, 2010; [*16]

Documents submitted for in camera review, along with correspondence dated July 28, 2010. Footnotes

Footnote 1: The Court further notes that while OMH labors mightily to shield the identities of the subject researchers from disclosure, the fact remains that PCRM specifically requested records pertaining to the animal research conducted by these three named individuals. Thus, the subject researchers' participation in animal research would be confirmed by the mere release of responsive records, even if names and identities were redacted in the manner sought by the agency.

Footnote 2: The Court notes that the purpose for which a requestor seeks access to governmental records generally is irrelevant to determination of a claim of exemption under FOIL.

Footnote 3: The Court notes that OMH has not submitted any proof regarding the privacy interests of the other individuals referred to in responsive documents, the bulk of whom appear to be State employees or the authors of published scientific papers. Accordingly, the Court has no basis to reach a different conclusion with respect to the disclosure of their identities.

Footnote 4: OMH has not shown that this is a case like Anonymous v. Bureau of Prof'l Med. Conduct (2 NY3d 663, 668-669 [2004]), in which the Court of Appeals took notice of the fact that "[m]any people who learn that a doctor has been charged with misconduct will think it possible that there was something to the charges, even if they were not upheld. Belief in that possibility will often be enough to make a prospective patient seek out another doctor. . . ." The record does not disclose that the subject researchers treat human patients who might be deterred by the disclosure of unfounded complaints regarding the care and treatment of animals or that the researchers would face any other form of professional or personal stigma as a result of the disclosure of complaints that have been reviewed by regulators and found to be lacking in merit.

Footnote 5: The validity of a similar public policy interest was recognized in Anonymous, supra: "the strong public interest in the enforcement of the rules against professional misconduct, . . . so that [the public] can evaluate, among other things, the vigor and efficiency with which allegations of misconduct are being pursued." However, the Anonymous Court recognized that it was the province of the Legislature to strike an appropriate balance between the competing policy interests at stake, and that in enacting the non-disclosure requirement of Public Health Law § 230 (9), the Legislature struck that balance in favor of confidentiality (id.). Under FOIL, however, that balance must tip in favor of disclosure unless the agency proves otherwise.

Footnote 6: The Court recognizes that PCRM's FOIL request extends to communications between OMH and the United States Department of Agriculture, an agency of the federal government. While Town of Waterford holds that these inter-agency communications may be protected by the exemption for deliberative materials in appropriate cases, the record does not disclose the nature of the relationship that exists between the foregoing government entities or otherwise establish that the communications are deliberative in nature, rather than objective and factual.

Footnote 7: Insofar as OMH relies upon Education Law § 6527 (3) to exempt unfounded complaints of misconduct from disclosure under FOIL, its claim to exemption properly lies under POL § 87 (2) (a).

Footnote 8: The Court notes that at oral argument, PCRM disclaimed any effort to obtain access to internal agency communications reflecting OMH's deliberative processes with respect to grant applications, representing that it seeks only the final grant proposals submitted by the subject researchers for public funding where such proposals have been acted upon by the potential funding source. Likewise, PCRM represented that it does not seek the agency's deliberations regarding unfounded complaints of misconduct, but requests access only to the complaints received by the agency and the agency's final disposition of those complaints. Accordingly, PCRM's FOIL request shall be deemed narrowed in accordance with the foregoing representations.

Footnote 9: In this connection, OMH notes that under the Bayh-Dole Act, 35 USC § 200 et seq., recipients of federal funding may obtain exclusive rights in inventions derived therefrom for the purpose of further development and commercialization, subject to certain "march-in" licensing rights retained by the federal government. OMH also directs the Court's attention to POL § 64-a, entitled "Patent Policy", which authorizes a State agency to adopt a patent policy and, pursuant to such a policy, compensate a State employee with royalties or other compensation resulting from an invention. OMH submits proof that it has adopted a patent policy, dated November 7, 2007, that requires its employees to assign it the rights to any patents or inventions developed in the course of employment and provides the inventor(s) with a share of the revenues received from the commercialization of the patents or inventions.

Footnote 10: At oral argument, counsel to OMH acknowledged this fundamental weakness in the agency's proof and attempted to justify the absence of an affidavit made on personal knowledge based upon the same life/safety concerns discussed supra. The Court does not find this excuse persuasive. As the identities of the subject researchers are disclosed in the verified petition, as well as in the subject FOIL request, their identities cannot reasonably be considered to be confidential within the context of this litigation. Moreover, the Court has not been presented with any persuasive reason why the PI, with the assistance of her house counsel and the Office of Attorney General, could not have applied to file an affidavit under seal, requested the Court to consider additional in camera materials or sought a conference with the Court and opposing counsel to discuss an appropriate course of action. (The Court notes that respondents did not seek Court approval prior to submitting in camera materials in opposition to the petition).

Footnote 11: OMH's counsel confirmed at oral argument that the Company was aware of PCRM's FOIL request and on notice of this litigation.

Footnote 12: The Court has considered the parties' remaining contentions and finds them unavailing or unnecessary to the disposition of this proceeding.