FILED: NEW YORK COUNTY CLERK 06/21/ :51 PM INDEX NO /2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/21/2018

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1 The State University State University Plaza of New York Albany. New York Meyer, Glitzenstein & Eubanks, LLP 4115 Wisconsin Ave. N.W., Suite 210 Washington, D.C VIA CERTIFIED MAIL: Re: Freedom of Information Law Appeal-SUNY â College of Optometry Dear Ms. Lewis: I write in response to your appeal dated February 5, 2018 from the decision of the Records Access Officer ("RAO") of the State University of New York College of "College" (" FOIL" Optometry (the "College") on a Freedom of information Law ("FOIL") request submitted by Barbara Stagno, President, Citizens for Alternatives to Animal Research & Experiments (CAARE) dated December 6, 2017, which sought the following records for the period January 2012 to December 2017: Any and all records including, but not limited to annual reports, summaries, progress reports, laboratory protocols, veterinary care logs, veterinary reports, necropsy reports, pertaining to research conducted under principle investigator Jose-Manuel Alonso. All minutes from the meetings of the SUNY College of Optometry Institutional Animal Care and Use Committee (IACUC), and/or any other departmental meetings addressing the care and use of animals in research conducted under principle investigator Jose-Manuel. To Learn To Search the Power or ( SUNY ) To Serve

2 Page 2 On January 11, 2018, the RAO denied your request on four grounds: (i) Public Officers Law 5 87(2)(a) (exempt from disclosure by state or federal statute); (ii) Public Officers Law 5 87(2)(f) (endangerment of life or safety); (iii) Public Officers Law 0 87(2)(d) (trade secret); and (iv) Public Officers Law 5 87(2)(g) (intra-agency records). This appeal followed. Exemption from Disclosure Under State or Federal Statute (N.Y. Public Health Law) in your appeal, you argue that the College cannot reasonably exempt the responsive records from disclosure on this ground, because any endangerment of life or safety "is fact." entirely speculative and lacks foundation in law or Your assertion is incorrect. New York Public Health Law permits a state agency to "deny access to records or portions thereof concerning biomedical research or teaching" biomedical if such disclosure "could endanger the life or safety of any person or would be reasonably likely to endanger the security of such biomedical research laboratory." Public Health Law (emphasis added). The law was unanimously enacted by both the New York State Assembly and the New York State Senate in 2014, and was supported by the New York Committee on Open Government.1 As a result of this legislation, an agency need only show the possibility of endangerment of life or safety to any person or a reasonable likelihood of endangering the security of a biomedical research laboratory. This standard does not require a certain causal connection between the release of the records and the threat to life and property, but merely the possibility of such a connection. As further described below, the requester's organization, CAARE, has postings on its website urging personal injury and property damage. Moreover, the unreported decision that you cited in support of your argument pre-dates Public Health Law I conclude that the RAO appropriately exercised this statutory exemption from disclosure. Trade Secret In your appeal, you argue that scientists employed by public, noncommercial entities interest" such as a public university, do not have a "trade secret in their research, because such an interest can only arise "if engaged in profit-oriented research (e.g., entities)." through partnerships with for-profit You noted that the subject researcher's research interests are identified on the College's website and stated, "it strains the The New York Committee on Open Government is an agency within the New York Department of State that oversees and advises on the Freedom of Information Law. In its memorandum supporting the legislation, it stated that the new law "preserves the thrust of FOlL by authorizing denials of access based harm..." on the potential for Memorandum to Governor's Counsel re: A.8109-B, July 8, 2014.

3 Page 3 imagination to believe that Dr. Alonso's research protocols are used in any commercial undertaken..." business being undertaken...." I disagree. Although public access to records laws in at least 20 states provide some form of research,2 exemption from disclosure for scholarly New York does not. In New York, an exemption for proprietary materials, including research, is governed by Public Officers secrets" Law 87(2)(d), the "trade exemption. Public Officers Law does not define secrets." "trade Agencies must therefore be guided by the New York Court of Appeals, which has opined that a trade secret is information which, if disclosed, would cause enterprise." substantial injury to the competitive position of the subject Encore College Bookstores, Inc. v. Auxiliary Service Corp.. of State University of New York at Farminqdale, injury" 87 N.Y.2d 410, 420 (1995). "Substantial competitive is measured by the commercial value of the information to its owner, and the cost to its competitors to obtain it. /d. Despite SUNY Optometry's character as a state entity, in its capacity as a leading optometric education and vision research center and home to one of the largest outpatient vision care clinics in the United States, it is unquestionably a participant in the commercial marketplace. In such a situation, the New York Committee on Open Government has opined that state agency records may be properly withheld if disclosure would cause substantial competitive injury. In an Advisory Opinion concerning a request for the State Insurance Fund's budget, the Committee wrote: [T]he Fund essentially operates as an insurance company in competition with other insurance carriers licensed to do business in the state. While the Fund as a state agency is not typical of commercial enterprises, my understanding is that, in many respects, it carries out many of its duties as an entity in competition with private firms in the insurance industry. Most pertinent to the matter, I note that there is case law indicating that when a governmental entity performs functions essentially commercial in nature in competition with private, profit making entities, it may See, e.g., Coto. REV. STAT (2)(a)(111); 5 ILL. COMP. STAT. 140/7(1)(j)(iv); IND. CODE (6); KY. REV. STAT. ANN (b); MD. CODE ANN. State Government (d); MINN. STAT ; NEB. REV. STAT (3); N.J. STAT. ANN. 0 C. 47: 1A-1.2; N.D. CENT. CODE (c); OHIO REV. CODE ANN (A); OKLA. STAT. tit A.19; OR. REV. STAT (14); PA. STAT. ANN. tit (b)(14); S.C. CODE ANN (a)(14); S.D. CODIFIED LAWs (3); UTAH CODE ANN. 63G-2-305(40); 1 VT. STAT. ANN (C)(23); VA. CODE ANN (4); WASH. REV. CODE ANN ; and WYO. STAT. ANN (a)(iii).

4 Page 4 withhold records pursuant to 5 87(2)(d) in appropriate circumstances (Syracuse & Osweqo Motor Lines, Inc. v. Frank, Sup. Ct., Onondaga Cty., October 15, 1985). In this instance, assuming that the Fund is engaged in competition with private firms engaged in the same area of commercial secret' activity, I believe that 5 87(2)(d), the so-called 'trade exception, would serve as a potential basis for denial of access. FOIL-AO-12190, July 5, Having established that the records of a state entity may be subject to exemption from disclosure under 5 87(2)(d), the next question is whether disclosure of the requested records would cause substantial competitive injury to SUNY Optometry. The New York Court of Appeals addressed the question of substantial competitive injury in Encore College Bookstores, supra. To show that competitive injury would accrue from disclosure, SUNY Optometry must show that the information is not available except request;3 through a public records request that competition exists; and that disclosure of the records would create a likelihood of substantial competitive injury. Id. at 87 N.Y.2d 410. In deciding Encore College Bookstores, the New York Court of Appeals noted that Public Officers Law 5 87(2)(d) is "virtually identical to the analogous Federal [FOlA] exemption information" for commercial and thus, the New York legislature "signaled its intent that the substantial competitive injury prong of the FOIL exemption be similar in scope to the counterpart." substantial competitive harm prong of its Federal Id. at 87 N.Y.2d On the issue of substantial competitive injury, the Encore court looked to a federal case, which held that "[w]here FOIA disclosure is the sole means by which competitors can here." obtain the requested information, the inquiry ends Encore College Bookstores at 87 N.Y.2d 410 (quoting Worthington Compressors v. Costle, 662 F. 2d 45 (D.C. Cir. 1981). Thus, if the records can only be obtained through a public records request, such records impliedly have commercial value and disclosure would subject SUNY Optometry and its researchers to competitive injury. Worthington Compressors at 662 F. 2d 51. Clearly, the records sought here are not the same as those you identified as publically available on various websites and attached to your appeal letter as Exhibits. Moreover, if they were the same records, the College would be would not be required to disclose them. In Moore v. Santucci, 151 A.D.2d 677, 678 (2d Dep't 1989), the Court determined: "[1]f the petitioner or his attorney previously received a copy of the agency record pursuant to an alternative discovery device and currently possesses the copy, a court may uphold an agency's denial of the petitioner's request under the FOIL for a duplicate copy as academic."

5 Page 5 With respect to the competitive nature of biomedical research generally, in the legislative history to recent amendments to New York's Public Health Law (discussed supra), the Associated Medical Schools of New York, a consortium of 16 public and private medical schools incorporated in 1967, to which several SUNY schools belong, stated that biomedical research is "an important driver of the State's economy, employing more than 75,000 people and generating the intellectual property that companies" advances biotechnology, medical device and pharmaceutical and it competitive."4 characterized the nature of such research as "highly The legislative history included a memorandum in support of the law filed by the New York Committee on Open Government, the entity that oversees and advises on FOll, which noted: [B]iomedical research is a multi-billion dollar industry that states and nations compete to keep and attract research facilities.... [L]egislation focusing on the biomedical research industry is needed to attempt to enhance the ability to maintain, strengthen and continue to develop that industry in the State of New York.5 The First Department has defined a trade secret as follows: "Any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual others." or potential economic advantage over Wiener v. Lazard Freres, (1st 241 A.D.2d 114 Dep't 1998). Indeed, your argument ignores the fact that premature disclosure of university research records prior to the filing of a patent application would start the clock running on the one-year limitations period described in the Patent Act, 35 U.S.C (b), which states in pertinent part: "A person shall be entitled to a patent unless... (b) the invention was patented or described in a printed publication in this or a foreign country orin public use or on sale in this country more than one year prior to the date of the application for States" patent in the United (emphasis added). Your client's sweeping request for "any and all records pertaining to research" encompasses specific and detailed descriptions of laboratory research and would Memorandum in Support of A 8109-B, July 2014, Chapter 440 of the Laws of New York July 8, Memorandum from Robert J. Freeman, Executive Director to Governor's Counsel re: A.8109-B,

6 Page 6 include underlying hypotheses, methodologies and analyses. The proposals of researchers are themselves novel and innovative ideas for the advancement of science, and could be subject to entrepreneurial and intellectual exploitation if not appropriately protected. They contain descriptions of unpublished work being proposed or underway. The projects described in such protocols are not ready for publication and contain material that constitutes intellectual property that has not yet been filed for protection. The researcher must choose the appropriate time to publish her research, and at that time her ideas, hypotheses, methodologies and analyses will be disseminated to the public. For all of the foregoing reasons, the responsive records fall squarely within the statutory exemption from disclosure as trade secrets. I affirm the RAO's decision on this issue. Endangerment of Life or Safety Public Officers Law 5 87(2)(f) permits an exemption from disclosure for records which, person." "if disclosed could endanger the life or safety of any I believe the statute's use "could" of the word speaks for itself. The life and safety that SUNY Optometry seeks to protect is that of its employees and students employed in its research laboratories, as well as other employees, students, patients at the vision care clinic and other people on campus or who come into proximity with the campus. Animal research is a moral and philosophical issue that engenders such hostility in this country that the United States Congress saw fit to pass the Animal Enterprise Terrorism Act in (P.L , November 27, 2006, codified at 18 U.S.C. A. 5 43) That law makes it a felony to intentionally place a person in reasonable fear of death or bodily injury to themselves or their immediate family (18 U.S.C.A. 5 43(a)(2)(B)) and carries sentences of up to life imprisonment. (18 U.S.C.A. 5 43(b)(5)) Without being "led down the path of interjection [of] animal rights juxtaposed to research," laboratory Amer. Soc. For the Prevention of Cruelty to Animals v. Board of Trustees of the State University of New York, 147 Misc. 2d 847, 849 (Suffolk County 1990), I note it was the safety of such individuals that Congress sought to protect in passing its 2006 law, citing the firebombing of a Los Angeles home thought to belong to a prominent UCLA primate researcher, and similar incidents described as: [0]ccurr[ing] throughout the State of California for several years, including the two bombs placed at the Emeryville offices of Chiron Corporation, a pharmaceutical company in the Bay area that employs 4,400 employees as our nation's second largest manufacturer of flu

7 Page 7 vaccines. Agents believe the second bomb was timed to go off as firstresponders arrived. Yet extremist organizations, such as the Animal Liberation Front, defend these actions around the country as morally justifiable, and shamelessly take credit for these heinous acts. Their tactics have evolved in the face of our current laws, and consequently, the scope of their terror is widening. In recent years, animal rights extremists have expanded their campaigns to include secondary and tertiary targets, such that businesses and associates who maintain even highly-attenuated relationships with animal research facilities have found themselves the targets of terror and harassment. These targets include banks, insurance companies, stockbrokers, customers, construction services, food services, Internet service providers, telecom companies, and even janitorial services. No matter how remote the relationship, anyone who does business.with an organization engaged in animal research is at risk. (Statement of Hon. Diane Feinstein, introducing Senate Bill 3880, 152 Cong. Rec. S , September 8, 2006.) "shattering" I am aware of a current website targeted specifically to certain SUNY research.6 animal On your client's website (CAARE), there exists a blog/posting area, initiated by the FOIL requester Barbara "target[s]" Stagno, which identifies as one of its " Optometry." the President of SUNY College of Under the thread Ms. Stagno initiated, there were two commenters from New York, one who offered to "rig [the researchers] up to one of these contraptions and remove anesthesia" [their] skulls... without and students." the second recommended "Do the experiments on the One commenter down."7 expressed hope that "they burn (the] college In my view, the legislative history of 18 U.S.C.A. 5 43, coupled with website comments encouraging physical harm to researchers and students and property damage to the campus (which could result in widespread personal injury or death), is sufficient to justify what I believe are SUNY Optometry's reasonable and legitimate concerns for the safety of lives, and safety from bodily injury, of its employees, students and other persons on or near campus. In my view, SUNY Optometry is entitled to the 5 87(2)(f ) exemption from disclosure and I affirm the denial of responsive records on this ground. Shatter SUNY Stony Brook Campaign Against Animal Experiments. Available at: 7 citizens for Alternatives to Animal Research and Experimentation. Available at: htt: end horrific cat ex eriments at sun.

8 Page 8 Intra-agency Records Upon my investigation of the issues you raised with respect to the RAO's exercise of this exemption from disclosure, I determined that IACUC records are kept for three years. There are two records responsive to your request, "addressing the care and use of [Alonso]." animals in research conducted under principle investigator Jose-Manuel Upon my review of these records, I have determined that they may be disclosed to you after they are redacted to exclude non-responsive text and any text that falls within an applicable exemption under the Public Officers Law. I am directing the RAO to undertake such review and redaction, and to provide you with the records within a reasonable time, in accordance with the Committee on Open Government's definition time." of "reasonable 21 NYCRR (d). Finally, with respect to your assertion that the records should be made available to you based on the Faculty Handbook clause which states that such records will be "made large," available to the community at I have been advised that such clause was inadvertently included in the section regarding the IACUC. As best as it can be discerned, this language was inadvertently copied from the prior section regarding the Committee on Affirmative Action and Cultural Diversity. IACUC minutes are not shared outside of the committee. For all of the foregoing reasons, I affirm in part the RAO's decision and direct the RAO to further process the underlying FOIL request as I have outlined in this decision. This appeal is closed. Sincerely, Ke ie J. Dupuis FOlL Appeals Officer / ELKS cc: Amber E. Hopkins-Jenkins Robert Freeman