
    In the Matter of The Washington Post Company, Appellant, v New York State Insurance Department et al., Respondents, and Metropolitan Life Insurance Company et al., Intervenors-Respondents.
    Argued February 14, 1984;
    decided March 29, 1984
    
      POINTS OF COUNSEL
    
      Janet E. Milne, of the Maine and District of Columbia Bars, admitted pro hac vice, for appellant.
    I. The requested documents fall within the definition of “records” in the Freedom of Information Law. (Roth v Michelson, 55 NY2d 278; Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205; Matter of Erie County Agric. Soc. v Cluchey, 40 NY2d 194.) II. Treatment of the documents as “records” promotes the policy behind the Freedom of Information Law. (Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575.) III. The content of the documents is not relevant to whether they are “records.” (Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Polansky v Regan, 81 AD2d 102.) IV. The circumstances surrounding the Department’s possession of the documents do not prevent them from being records. (Matter of Erie County Agric. Soc. v Cluchey, 40 NY2d 194; Matter of John P. v Whalen, 54 NY2d 89; Matter of Lawler, Matusky & Skelly Engrs. v Abrams, 111 Misc 2d 356; Matter of Belth v Insurance Dept., 95 Misc 2d 18; Church of Scientology v State of New York, 61 AD2d 942, 46 NY2d 906; Nassau-Suffolk Hosp. Council v Whalen, 89 Misc 2d 304.) V. Special Term’s decision should be reinstated and the case remanded for implementation of that decision. (Durham Inds. v Tomy Corp., 630 F2d 905; Scaggs Music v KND Corp., 491 F Supp 908; Matter of Fink v Lefkowitz, 47 NY2d 567; Church of Scientology v State of New York, 46 NY2d 906; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575; Matter of Polansky v Regan, 81 AD2d 102; Glantz v Scoppetta, 66 AD2d 716; Matter of Belth v Insurance Dept., 95 Misc 2d 18.)
    
      Robert Abrams, Attorney-General {Paul M. Glickman, Peter H. Schiff and Martin Minkowitz of counsel), for New York State Insurance Department and another, respondents.
    The order of the court below should be affirmed since requiring the Insurance Department to sift through the thousands of documents submitted by the life insurance companies to determine which of the documents were subject to exemptions would be extremely burdensome, time consuming and not intended by the Freedom of Information Law.
    
      John R. O’Hanlon, Robert A. Kirtland and John L. Ryan for New York Life Insurance Company, intervenor-respondent.
    I. New York Life’s minutes are not agency records subject to disclosure under the Freedom of Information Law. (Kissinger v Reporters Committee, 445 US 136; Wolfe v Department of Health & Human Serus., 539 F Supp 276, 711 F2d 1077.) II. The minutes are specifically exempted by the Insurance Law. (Matter of John P. v Whalen, 54 NY2d 89; Matter of Crane Co. v Anaconda Co., 39 NY2d 14; People ex rel. Venner v New York Life Ins. Co., 111 App Div 183.).
    
      William J. Toppeta and John L. Viola for Metropolitan Life Insurance Company, intervenor-respondent.
    I. Meeting minutes of private corporate boards of directors are not agency records publicly disclosable under the Freedom of Information Law. (Forsham v Harris, 445 US 169; Matter of Cohen v Cocoline Prods., 309 NY 119; Matter of Overland v Le Roy Foods, 304 NY 573; Matter of Hafter v Eagle Fish Co., 296 NY 808; Matter of Crane Co. v Anaconda Co., 39 NY2d 14; Matter of Steinway, 159 NY 250; Matter of Tate v Sonotone Corp., 272 App Div 103; Matter of Schulman v Dejonge & Co., 270 App Div 147.) II. Meeting minutes of private corporate boards of directors are exempt from public disclosure by State law. (Matter of John P. v Whalen, 54 NY2d 89; Matter of Gannett Co. v James, 86 AD2d 744; Matter of Jordan v Hammock, 86 AD2d 725; Matter of Herald Co. v School Dist. of City of Syracuse, 104 Misc 2d 1041; Doe v Greco, 62 AD2d 498; Matter of Cohen v Cocoline Prods., 309 NY 119; Matter of Steinway, 159 NY 250; Matter of Getman v Mohawk Val. Nursing Home, 44 AD2d 392; Matter of Schulman v Dejonge & Co., 270 App Div 147; Matter of Brentmore Estates v Hotel Barbizon, 263 App Div 389.) III. Meeting minutes of private corporate boards of directors are exempt from public disclosure by Federal copyright law. (Runge v Lee, 441 F2d 579, 404 US 887; Doran v Sunset House Distr. Corp., 197 F Supp 940, 304 F2d 251; Toksvig v Bruce Pub., Co., 181 F2d 664; Quinto v Legal Times of Washington, 506 F Supp 554; Meredith Corp. v Harper & Row, 413 F Supp 385; Triangle Pub. v 
      
      New England Newspaper Pub. Co., 46 F Supp 198; Holdredge v Knight Pub. Corp., 214 F Supp 921; Estate of Hemingway v Random House, 49 Misc 2d 726, 53 Misc 2d 462, 29 AD2d 633, 23 NY2d 341; Rosemont Enterprises v Random House, 366 F2d 303, 385 US 1009; Universal City Studios v Sony Corp., 659 F2d 963; Association of Amer. Med. Colls. v Carey, 482 F Supp 1358.)
    
      Werner Weinstock and Norman L. Tolle for The Equitable Life Assurance Society of the United States, intervenor-respondent.
    I. The minutes of Equitable’s board of directors and investment and finance committees are not the type of records to which the public should be provided access under the Freedom of Information Law. (Matter of Westchester Rockland Newspapers v Mosczydlowski, 58 AD2d 234.) II. The Department has expressly assured Equitable that its minutes would be treated as confidential, and the Department is bound by this assurance on which Equitable relied. (NLRB v Sears, Roebuck & Co., 421 US 132; Nassau-Suffolk Hosp. Council v Whalen, 89 Misc 2d 304; Matter of Baumgarten v Koch, 97 Misc 2d 449; Chrysler Corp. v Brown, 441 US 281; Sterling Drug v Federal Trade Comm., 450 F2d 698; Washington Post Co. v United States Dept. of Health & Human Servs., 690 F2d 252; RCA Global Communications v Federal Communications Comm., 524 F Supp 579.) III. Equitable’s minutes never passed from its control to become property subject to the free disposition of the Department. (Goland v Central Intelligence Agency, 607 F2d 339; Federal Trade Comm. v Owens-Coming Fiberglass Corp., 626 F2d 966; Ryan v Department of Justice, 617 F2d 781.) IV. The public interest requires that Equitable’s minutes be exempt from disclosure under the Freedom of Information Law. (Matter of Lambert v Barsky, 91 Misc 2d 443; Matter of Baumgarten v Koch, 97 Misc 2d 449; Cirale v 80 Pine St. Corp., 35 NY2d 113; Matter of Doolan v Board of Coop. Educational Servs., 48 NY2d 341; Wunsch v City of Rochester, 108 Misc 2d 854.) V. The Department’s determination is entitled to the same deference as that given the opinion of the Committee on Public Access to Records. (Matter of John P. v Whalen, 54 NY2d 89.) VI. The Committee on Public Access to Records had no authority to render its advisory opinion. 
      (Matter of John P. v Whalen, 54 NY2d 89.) VII. The release of Equitable’s minutes would cause substantial competitive harm. (National Parks Conservation Assn. v Kleppe, 547 F2d 673; Comstock Int. v Export-Import Bank, 464 F Supp 804; Gulf & Western Inds. v United States, 615 F2d 527; Union Oil Co. v Federal Power Comm., 542 F2d 1036; Pennzoil Co. v Federal Power Comm., 534 F2d 627; Continental Oil Co. v Federal Power Comm., 519 F2d 31, cert den sub nom. Superior Oil Co. v Federal Power Comm., 425 US 971.) VIII. Equitable’s minutes are trade secrets in their entirety and should be accorded privacy: therefore, the minutes are exempt under the Freedom of Information Law. (Union Oil Co. v Federal Power Comm., 542 F2d 1036; Spiselman v Rabinowitz, 270 App Div 548; Rural Housing Alliance v United States Dept. of Agric., 498 F2d 73.)
    
      Cornish F. Hitchcock, John Cary Sims and Alan B. Morrison for Freedom of Information Clearing House, amicus curiae.
    
    The requested documents are “records” subject to the Freedom of Information Law. (Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 48 NY2d 706; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Szikszay v Buelow, 107 Misc 2d 886; American Broadcasting Cos. v Siebert, 110 Misc 2d 744; Consumer Prod. Safety Comm. v GTE Sylvania, 447 US 102; Steadman v Securities & Exch. Comm., 450 US 91; Reiter v Sonotone Corp., 442 US 330; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575; Matter of John P. v Whalen, 54 NY2d 89; Matter of Short v Board of Managers, 57 NY2d 399.)
   OPINION OF THE COURT

Chief Judge Cooke.

The minutes of insurance company meetings that are given by the companies to the New York State Insurance Department for its examination constitute “records” within the meaning of the New York Freedom of Information Law (FOIL). Consequently, they are subject to public review under FOIL unless it is established that the documents are, in whole or in part, subject to a statutory exemption.

Under New York’s regulatory system, the affairs of domestic insurance companies are subject to examination by the respondent State Insurance Department (see Insurance Law, art 3 et seq.). To facilitate this review, the insurance companies are required to maintain certain books and records, including minutes of the corporate board of directors’ meetings; to provide respondent with access to these documents at reasonable hours; and to cooperate with respondent in facilitating such examinations (see Insurance Law, §§ 26-a, 28, 29). A long-standing practice, formalized by the use of circular letters since 1927, developed among insurance companies for the voluntary sending of copies of their minutes to the respondent’s offices, rather than requiring the respondent’s examiners to travel to each insurance company for inspections. Respondent promised to keep such records confidential.

In 1980, a reporter from petitioner, The Washington Post, filed a formal request under FOIL with respondent for access to the minutes of the meetings of the Boards of Directors or Trustees and certain finance committees of Metropolitan Life Insurance Company, New York Life Insurance Company, and The Equitable Life Assurance Society of the United States for the years 1978 through 1980. After initially refusing the request, respondent indicated that the records would be disclosed, except for those portions that might be deemed exempt under section 87 (subd 2, par [d]) of the Public Officers Law by respondent and the insurance companies after they had an opportunity to review the documents. Subsequently, the Department again reversed itself, denying all access on the grounds that the minutes were not “records” within the purview of FOIL or, alternatively, that they were exempt from that law’s disclosure requirements. In addition, respondent asserted that its grant of confidentiality precluded disclosure and best protected the interests of policyholders.

The Committee on Public Access to Records concluded, in an advisory opinion sought by petitioner, that a blanket denial of access to the minutes was improper because they were “records” under FOIL which should be disclosed to the extent that respondent, after a complete review, did not establish grounds for exemption. When respondent continued to refuse access, petitioner instituted this article 78 proceeding to compel disclosure of the documents. The three affected insurance companies were granted leave to intervene.

Special Term granted the petition, holding that the corporate board meeting minutes were “records” regardless of whether the submission of the documents was voluntary. It provided for in camera inspection of those portions which the intervenors or respondent wished to claim were subject to an exemption from the disclosure requirement of FOIL. Before the inspection was held, an appeal was taken.

The Appellate Division reversed, holding that the documents were not “records” as defined in FOIL because they did not aid any governmental decision-making. Rather, they were the private property of the intervenors, voluntarily put in the respondent’s “custody” for convenience under a promise of confidentiality. This court now reverses.

The statutorily stated policy behind FOIL is to promote “[t]he people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations’’ (Public Officers Law, § 84). Consistent with this policy, the Legislature restructured FOIL in 1977 (L 1977, ch 933, § 1) to make the vast majority of requested documents presumptively discoverable as “records” under the very broad definition contained therein: “any information kept, held, filed, produced or reproduced by, with or for any agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photo, letters, microfilms, computer tapes or discs, rules, regulations or codes” (Public Officers Law, § 86, subd 4; see Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, 580). FOIL is generally liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government (see Matter of Fink v Lefkowitz, 47 NY2d 567, 571). The task before this court now is to determine whether the requested minutes are within the scope of FOIL, and if so, whether they are subject to an exemption under the statute.

The requested minutes are “records” under the plain language of FOIL because they are “information kept, held, filed, produced * * * by, with or for an agency.” When the plain language of the statute is precise and unambiguous, it is determinative (see Roth v Michelson, 55 NY2d 278, 283; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208). Additionally, inclusion of the documents requested here furthers the policy behind FOIL. The minutes are reviewed by respondent as part of its statutory duty to supervise and regulate the insurance industry for the protection of the interests of the people of this State (see Insurance Law, §§ 26-a, 27, 28, 55 et seq:, 196 et seq.). Respondent’s determination as to whether statutory violations have occurred and should be remedied are affected by its inspection of the minutes (see, e.g., Insurance Law, § 56, subd 4; § 57, subd 1; § 67, subd 3). Thus, the documents are relevant to a governmental decision-making process. Moreover, “[t]he statutory definition of ‘record’ makes nothing turn on the purpose for which a document was produced or the function to which it relates” (Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, 581, supra). As the expanding boundaries of government become “increasingly difficult to draw * * * there is bound to be considerable crossover between governmental and nongovernmental activities” (id., at p 581).

Respondent’s long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature’s definition of “records” under FOIL. The definition does not exclude or make any reference to information labeled as “confidential” by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt (see Matter of John P. v Whalen, 54 NY2d 89, 96; Matter of Fink v Lefkowitz, 47 NY2d 567, 571-572, supra; Church of Scientology v State of New York, 61 AD2d 942, 942-943, affd 46 NY2d 906; Matter of Belth v Insurance Dept., 95 Misc 2d 18, 19-20). Nor is it relevant that the documents originated outside the government (see Matter of John P. v Whalen, supra, at pp 92-93 [patient’s medical records obtained during investigation of doctor were “records”, although exempt]). Such a factor is not mentioned or implied in the statutory definition of records or in the statement of purpose (see Public Officers Law, §§ 84, 86, subd 4).

Once determined to be “records”, the minutes must be disclosed under FOIL unless respondent or the intervenors meet their burden of demonstrating that they fit within one of the statutory exemptions (see Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, 580, supra; Matter of Fink v Lefkowitz, 47 NY2d 567, 571, supra; Public Officers Law, § 87, subd 2; § 89, subd 4, par [b]). It is argued that the records should be exempted in their entirety because they are “specifically exempted from disclosure by state * * * statute” (Public Officers Law, § 87, subd 2, par [a]) or, alternatively, because they contain “trade secrets or are maintained for the regulation of commercial enterprise which if disclosed would cause substantial injury to the competitive position of the subject enterprise” (Public Officers Law, § 87, subd 2, par [d]).

Nothing in FOIL itself expressly calls for exemption of the minutes. Intervenors’ argument that the Insurance Law is a State statute that specifically imposes confidentiality is unpersuasive. The Insurance Law requires the intervenors to maintain certain records, including the minutes requested here, and to provide reasonable access to them for examination by the respondent and its examiners (see Insurance Law, §§ 26-a, 29). However, the Insurance Law does not include any references to confidentiality or prohibit access by others to these minutes. Similarly, that an insurance company may review and comment on an examination report by respondent before its release to the public (see Insurance Law, § 30) does not, without more, render the minutes confidential (cf. Matter of John P. v Whalen, 54 NY2d 89, 97, supra [clear legislative intent to preserve confidentiality of patients’ medical records gathered in agency investigation]). While an express statement is not necessary to establish an exemption under a State statute, there is a requirement of a clear legislative intent to establish and preserve confidentiality (see id., at pp 96-98) which is not met under the Insurance Law. Lastly, the intervenors’ reliance on a limited confidentiality accorded by common law (see Matter of Cohen v Cocoline Prods., 309 NY 119; Matter of Steinway, 159 NY 250) is misplaced (see Matter of Doolan v Board of Coop. Educational Serus., 48 NY2d 341, 347). FOIL expressly refers to statutory exemptions so that a common-law privilege is inapposite.

Intervenors’ claim, that the minutes should be exempted in their entirety as information maintained for its commercial enterprise which would injure its competitive position if disclosed, is also unpersuasive (see Public Officers Law, § 87, subd 2, par [d]). Intervenors urge that sensitive information about a company’s policy, financial management, investment strategy, and problems will be revealed, and thus ruin its competitive edge and be detrimental to the interests of the policyholders. This claim is presented in the form of conclusory pleading allegations and affidavits to the effect that every page of the minutes contains such sensitive information, all this without the benefit of evidentiary support. Consequently, the burden of proving that the records should be exempted in their entirety has not been met (see Church of Scientology v State of New York, 46 NY2d 906, 908, supra). That some portions of the records may be entitled to exemption does not warrant withholding the minutes completely (see Matter of Fink v Lefkowitz, 47 NY2d 567, 571, supra). If intervenors can establish that indeed disclosure will substantially injure their competitive positions, they will be entitled to an exemption. Whether and what portions should be protected can be ascertained at the in camera inspection that was ordered by Special Term (see id., at p 571).

Finally, it is noted that just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption. 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” (L 1974, ch 578; Public Officers Law, former § 88, subd 6, par b). When the statute was amended this provision was deleted. Thus, respondent had no authority to use its label of confidentiality to prevent disclosure of the minutes (cf. Washington Post Co. v United States Dept. of Health & Human Serus., 690 F2d 252, 263 [“(T)o allow the government to make documents exempt by the simple means of promising confidentiality would subvert FOIA’s disclosure mandate”]).

The intervenors’ other arguments have been considered and found to be without merit.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, New York County, reinstated.

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order reversed, etc.  