IN THE MATTER OF ENCORE COLLEGE BOOKSTORES, INC., &C., APPELLANT, v.
AUXILIARY SERVICE CORPORATION OF THE STATE UNIVERSITY OF NEW YORK AT
FARMINGDALE, ET AL., RESPONDENTS.
87 N.Y.2d 410, 663 N.E.2d 302, 639 N.Y.2d 990
December 27, 1995
1 No. 304(1995 NY Int. 298)
Decided December 27, 1995
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Joseph A. Faraldo, for Appellant.
Suzanne M. Berger, for Respondent Auxiliary Services Corp.
John P. Dellera, for Respondent SUNY at Farmingdale.
KAYE, CHIEF JUDGE:
This appeal presents two questions regarding the Freedom of
Information Law (FOIL): first, does material received by a corporation
providing services for a State university and kept on behalf of the
university constitute a "record" that is presumptively discoverable
under FOIL; and second, when does disclosure of information obtained
from a commercial enterprise fall within the FOIL exemption for
commercial information (Public Officers Law § 87(2)(d))? We conclude,
here, that the material constituted a record subject to disclosure
under FOIL but exempt because release of the information sought by
petitioner would cause substantial injury to its competitor.
I.
The principal business of petitioner Encore College Bookstores, Inc.
is the acquisition, collection and sale of college textbooks and other
learning-related materials. Encore operates a bookstore near the
Farmingdale campus of respondent State University of New York (SUNY),
a public university established pursuant to Education Law § 352.
Respondent Auxiliary Service Corporation of the State University of
New York Agricultural and Technical College at Farmingdale (ASC) is a
not-for-profit corporation created in 1954. According to ASC's bylaws,
its general purpose is "to establish, operate, manage and promote
educationally related services for the benefit of the (SUNY) Campus
Community, including faculty, staff and students in harmony with the
educational mission and goals of the College." As explained in ASC's
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
Suzanne M. Berger, for Respondent Auxiliary Services Corp. John P. Dellera, for Respondent
This appeal presents two questions regarding the Freedom of Information Law (FOIL): first,
We conclude, here, that the material constituted a record subject to disclosure under FOIL
The principal business of petitioner Encore College Bookstores, Inc. is the acquisition,
Encore operates a bookstore near the Farmingdale campus of respondent State University of New
Respondent Auxiliary Service Corporation of the State University of New York Agricultural and
As explained in ASC's agreement with SUNY, the university "requires certain auxiliary
Among the services ASC is charged with furnishing for SUNY is a campus bookstore, which ASC
SUNY agreed to provide the subcontractor with the necessary data, such as course numbers,
In order to ensure that the bookstore had a complete inventory of the textbooks needed for
Barnes & Noble asserted that its campus bookstore had suffered a decrease in sales revenue
The trial court dismissed the petition, finding first that SUNY's lack of involvement in
It too held that SUNY was not obligated under FOIL to produce material neither created by it
We nevertheless grant the petition as to SUNY, because the university has not independently
In furtherance of this objective, the Legislature in 1977 restructured article 6, imposing a
61 NY2d 557, 564).
To be sure, New York's Freedom of Information Law is patterned after the Federal Freedom of
ASC urges that, even if it is subject to FOIL, the information is shielded by the exemption
FOIL fails to define substantial competitive injury.
By utilizing and continuing language virtually identical to the analogous Federal exemption
As established in Worthington Compressors v Costle ), whether "substantial competitive harm"
The reasoning underlying these considerations is consistent with the policy behind --to
Opinion by Chief Judge Kaye.
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