New York Agency: Absent Written Agreement Delegating Authority To PSC, Agency Would Be Required To Independently Determine Whether To Disclose ESCO Confidential Info In Response To FOIL Request

Absent a written agreement delegating its authority of Freedom of Information Law requests to the Department of Public Service, the New York State Office of General Services (OGS) said that it would be required to independently determine whether to release confidential ESCO info, obtained as part of its participation in the PSC's review of the ESCO mass market, in response to FOIL requests

OGS was addressing a situation in which it received a FOIL request for protected ESCO information for which the PSC's presiding ALJs had not yet made a determination on confidential protection. The presiding PSC ALJs had said that, in such situation, the OGS (or other state agency) records access officer (RAO) would deny access to the requested information on the grounds that the information is exempt from disclosure under Public Officers Law (POL) §89(5), and that, pending a formal resolution of an exemption request by the Department of Public Service, OGS "would have no independent ability to make a separate FOIL determination."

OGS disagreed with this interpretation.

"According to OGS’s interpretation of the relevant statutes and its regulations, OGS cannot abdicate its statutory duty to determine whether a document is exempt from disclosure under FOIL, absent a written agreement as suggested by COOG [Committee on Open Government]," OGS said

"OGS has an independent obligation to determine whether a record in its possession qualifies for an exemption from disclosure under FOIL," OGS said. In the absence of a written agreement delegating its FOIL responsibility to the PSC, OGS said that, in situations where the ALJs have ruled on the confidentiality of ESCO information, "[w]hile OGS would certainly take into consideration any determination made by DPS Staff, such a determination would not be dispositive."

OGS said that it is willing to sign an agreement delegating its authority, to the Department of Public Service, to make FOIL determinations

Separately, the Utility Intervention Unit said that it is willing to enter a Memorandum of Understanding with the DPS under which it would agree to be bound by determinations regarding protected information adopted by the PSC, with the MOU stating, "(f)or those proceedings in which DOS [Department of State, UIU] is a party, DOS will adopt the determinations of the DPS Presiding Officer as that of its own RAO with respect to the designation of information as Protected Information. Such determinations of the DPS Presiding Officer, and the resolution of appeals thereof, shall automatically function as the corresponding determinations of DOS’s RAO and/or Records Appeals Officer under 19 NYCRR § 80.6."

The New York Attorney General said that it was willing to enter a similar MOU.