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FOIL Appeal Determination for 09-02-0A (CGI, Inc., February 9, 2009)

February 9, 2009

New York State Department of Environmental Conservation
Office of General Counsel, 14th Floor
625 Broadway, Albany, New York 12233-1500
FAX: (518) 402 9018 or (518) 402-9019
Website: www.dec.ny.gov

Certified Mail, Return Receipt Requested

February 9, 2009

Elisabeth Hertzberg
CGI Technologies and Solutions, Inc.
11325 Random Hills Road
Fairfax, Virginia 22030

Re: Freedom of Information Law ("FOIL") Appeal No. 09-02-0A
FOIL Request No. 08-1814
Denial of CGI's request to withhold records from disclosure

Dear Ms. Hertzberg:

This is in response to your appeal, pursuant to the New York State Freedom of Information Law ("FOIL", codified at §§84-90 of the Public Officers Law ["POL"]), from the determination of the New York State Department of Environmental Conservation (hereinafter "Department" or "DEC") staff to deny your request for confidentiality of CGI Technologies and Solutions, Inc.'s (hereinafter "CGI") Financial Management System proposal and Web Content Management project (hereinafter "proposals") as trade secret or business confidential information. Furthermore, CGI made a claim that certain portions of the proposals would cause an unwarranted invasion of personal privacy if released to the public.

In accordance with the Department's FOIL appeal procedures, I requested the records that were determined to be released to the requester by the Department's Central Office staff. On this appeal, I conducted a de novo review of the records provided.

History of appeal
On December 10, 2008 Leo Pfohl of CGI submitted a letter to DEC claiming that the proposals were proprietary and/or confidential information that CGI believes should not be disclosed. On January 14, 2009 Meta Murray, Associate Attorney of DEC replied to CGI's request for confidentiality by denying CGI's request. Ms. Murray stated that the "recommendation of an approach or the presentation of a scheduling recommendation are examples which do not meet these tests." On January 22, 2009 you, as Senior Counsel of CGI, filed this appeal with my office. Within your appeal you claim that the proposals are confidential within the definitions of "trade secret." Below is a summary of your argument.
1) Upon submission to the Department, CGI labeled the proposals as "confidential," "confidential and proprietary," or "intellectual property rights." As they contain methods, pricing and procedures that are not generally known except to those employees, clients and others with a specific need to know and always under confidentiality restrictions. To disclose the approach CGI recommends to solving complex problems would weaken our competitive position in the market. Furthermore, the proposals contain confidential financial information that could give others an unfair advantage in a competitive bid process.
2) Personal privacy of employees. Such information is not relevant to the ordinary work of the Department and that there are privacy-related concerns to CGI and its employees.
3) Web content management technical proposal contains Federal copyrighted material (17 USC §106) and limited to inspection only (POL §87(2)(a)).

Trade Secret and Confidential Business Information
First, the Freedom of Information Law (FOIL) is based upon a presumption of access. All records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in POL §87(2)(a) through (i). Pursuant to POL §87(2), various statutory exceptions to disclosure under FOIL are listed. One of the exceptions is 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 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)). The party that requests a trade secret exception, such as CGI, Inc. in this matter, has the burden of proving that the record at issue falls within the exception. Parties that seek to take advantage of the trade secret exception "must demonstrate the existence of actual competition and the likelihood of substantial competitive injury" (Matter of Glens Falls Newspaper, Inc. v. Counties of Warren & Washington Indus. Dev. Agency, 257 A.D.2d 948, 949 (1999)); see also Matter of Encore Coll. Bookstores, 87 N.Y.2d at 421).

FOIL does not define the term "trade secret," but that the Department's regulations define the term. As defined in the regulations, a trade secret "may consist of, but shall not necessarily be limited to, any formula, pattern, process, procedure, plan, compound, device, customer lists, cost records or compilation of information that is not published or divulged and which given an advantage over competitors who do not know, use or have access to such data or information" (6 NYCRR 616.7(c)(2)(i)(a); see also Cargill, Inc. v. Sears Petroleum & Transport Corp., 334 F. Supp.2d 197, 244 (NDNY 2004) (noting that New York State follows the Restatement of Torts definition of trade secret)). The phrase "trade secret" is more extensively defined in 104 NY Jur2d 234 to mean "...a formula, process, device or compilation of information used in one's business which confers a competitive advantage over those in similar businesses who do not know it or use it. A trade secret, like any other secret, is something known to only one or a few and kept from the general public, and not susceptible to general knowledge. Six factors are to be considered in determining whether a trade secret exists: (1) the extent to which the information is known outside the business; (2) the extent to which it is known by a business' employees and other involved in the business; (3) the extent of measures taken by a business to guard the secrecy of the information; (4) the value of the information to a business and to its competitors; (5) the amount of effort or money expended by a business in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. If there has been a voluntary disclosure by the plaintiff, or if the facts pertaining to the matter are a subject of general knowledge in the trade, then any property right has evaporated" (104 NY Jur2d 234).

The Department's FOIL regulations also provide a definition for "confidential commercial information." Specifically, "confidential commercial information" may consist of "customer lists, revenue, expense, or income information, or other compilations of information that is not published or divulged and which if disclosed would likely cause substantial injury to the competitive position of the subject enterprise" (see 6 NYCRR 616.7(c)(2)(i)(b)). The Department's FOIL regulations list various factors that may be considered in determining whether to grant or to continue an exception from disclosure pursuant to POL §87(2)(d), either as a trade secret or as confidential business information. These factors are those listed above, found within 104 NY Jur2d 234 and 6 NYCRR 616.7(c)(ii)-(vi).

Personal Privacy
POL § 87(2)(b) authorizes withholding information where the release of that information "would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." POL §89(2)(b) provides that "[a]n unwarranted invasion of personal privacy includes, but shall not be limited to: . . . (i) disclosure of employment, medical or credit histories or personal references of applicants for employment; ... (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; (v) disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."

Discussion of issues
The information that CGI has sought to be withheld from disclosure encompasses two proposals regarding computer program installation services and computer consulting services that were provided to the Department. Some of the specific information that you have identified as trade secret or business confidential information could cause harm to your competitive advantage in the business of application and consulting. Even though the programs and applications proposed by CGI are all part of computer programs that are available to the public and other competitors, the applications, methods and techniques suggested by CGI are unique to CGI and have been developed over time to give your company an advantage in certain respects. Some of the information provided within the proposals is of such a level of detail and specificity, that release of such information could cause substantial injury to a competitive position of CGI. I understand that CGI and its employees have extensive knowledge in Oracle, work that is complex and requires special knowledge to make CGI's business unique.

However, not all of the information that you have sought to keep as confidential shall be deemed as such. Information that is specific as to your techniques, approaches, customization to program installation and applications, and your unique assembly of standard programs is unique to CGI. However, certain portions of the proposal demonstrate generalities and common business practices. The general approaches and commonly known practices or techniques will be released as they will cause no competitive harm to CGI.

In summation, CGI has failed to carry its burden of establishing that all of the suggested confidential information contained in the proposals is trade secret or business confidential information under New York State FOIL and the Department's regulations. Accordingly, CGI's request that the proposal information be exempt from disclosure under FOIL as a trade secret is denied in part, and the request for access to certain information is granted. It must be noted that the Web Content Management Technical Proposals is copyrighted material, and thus is only available to the requester with specified redactions through inspection and not copying. Based on the copyright designation of the Web Content Management Technical proposal I am unable to print out the redacted version of the proposal for the requester. I therefore as permission from CGI to print the redacted version of this proposal.

In regards to the request to withhold certain personal information regarding employees of CGI, I grant such request in part. I grant the withholding of the personal employment histories of the CGI employees, however, will not grant the withholding of the names, titles and business contact information. Release of such information is not an unwarranted invasion of a person's personal privacy. Reasonable people of ordinary sensibility would not feel as through their personal privacy has been unwarrantedly invaded if their name, title and business contact information is released to the public. Business professionals, specifically those who are providing a service to others, do not expect total anonymity in regards to their names, titles and business contact information. However, employment histories and the like will be withheld from release as such information would be considered invasion of one's personal privacy as such information is not relevant to the ordinary work of the Department (POL §87(2)(b)(i), (iv), (v)).

This letter is the final determination of the Department of Environmental Conservation with respect to your appeal. Attached are the redacted copies of the proposals. You have the right to seek review of this determination pursuant to Article 78 of the New York Civil Practice Law and Rules, and Public Officers Law §89(5)(c) and (d). An initiation of an Article 78 proceeding must be commenced within 15 days of service of this determination. The attached records will not be released to the requester until after the expiration of your time to appeal. In any further correspondence relating to this appeal, please refer to FOIL Appeal No. 09-04-4A.

Sincerely yours,

/s/


Dena N. Putnick, Esq.
FOIL Appeals Officer

attachments

Cc: Robert Freeman, Committee on Open Government, without attachments
Ruth Earl, Records Access Officer, without attachments
Meta Murray, Associate Attorney, without attachments
Kristie M. Sammons, PEF, without attachments

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