Guidepost Solutions LLC records

To Whom It May Concern:

Pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records:

(1) the "list" of projects "previously furnished to [Governor Andrew Cuomo's] staff" that identifies projects that Guidepost Solutions LLC recommends subjecting to a "stress audit."
(2) the "numerous reports" provided by Guidepost Solutions LLC "in real time" to Governor Andrew Cuomo's staff. If and only if these "numerous reports" were provided only verbally, please provide any and all records that *reflect or document* the content or substance of these "numerous reports."

The above records are mentioned on the second page of a September 22, 2016 hand-delivered letter from Bart M. Schwartz to Governor Andrew Cuomo, viewable here (along with another letter between the same parties): https://assets.documentcloud.org/documents/3866796/Guidepost-Letters-to-Executive-Pdf-Marked-Redacted.pdf

Therefore, it is reasonable to conclude that the above records (1 & 2) were created on or before Sept. 22, 2016 but on or after April 29, 2016 (the date that the executive chamber's contract with Guidepost Solutions LLC reportedly began).

Please also note that statistical or factual tabulations or data; instructions to staff that affect the public; and final agency policy or determinations cannot be withheld from the public under Section 87(2)(g) of Public Officers Law, Article 6.

If my request is too broad or does not adequately describe the Records, please contact me so that I may clarify my request, and when appropriate inform me of the manner in which Records are filed, retrieved or generated.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Luke Stoddard Nathan

FOIL Appeals Officer:

I write to formally appeal the denial of access regarding my Freedom of Information Law ("FOIL") request, initially submitted via email to the Executive Chamber ("Chamber") on July 5, 2017. The records denied include:

(1) the "list" of projects "previously furnished to [Governor Andrew Cuomo's] staff" that identifies projects that Guidepost Solutions LLC recommends subjecting to a "stress audit."
(2) the "numerous reports" provided by Guidepost Solutions LLC "in real time" to Governor Andrew Cuomo's staff. If and only if these "numerous reports" were provided only verbally, please provide any and all records that *reflect or document* the content or substance of these "numerous reports."

On December 29, 2017, the Chamber denied my request in its entirety, citing Public Officers Law section 87(2)(g) and 87(2)(a), with the latter more specifically referring to attorney-client privilege.

I note at the outset that according to the Committee on Open Government, FOIL is "based on a presumption of access and [requires] that agency records be disclosed, unless an exception to rights of access enables an agency to withhold records or portions of records." Further, the "state’s highest court [has] asserted time and again that the exceptions to rights of access must be 'narrowly construed.'"

Given this presumption of access, it is difficult to see how a blanket denial is warranted here. While certain appropriately tailored redactions might be necessary to conceal deliberative materials within the responsive documents, it seems on its face unlikely that none of the records, for instance, contain "statistical or factual tabulations or data." A list of state-subsidized real-estate development projects, for instance, seems to fit that bill.

As for the claim of attorney-client privilege, I note that Guidepost Solutions LLC's contract with the Chamber contains a provision that states, in part, "It is understood that no attorney-client relationship will exist between CHAMBER and GUIDEPOST. It is also understood that this AGREEMENT does not create an attorney-client relationship between CHAMBER and GUIDEPOST." (http://blog.timesunion.com/capitol/archives/265281/executive-chamber-releases-contract-with-investigator-bart-schwartz/)

For the foregoing reasons, I believe my FOIL request was wrongly denied by the Chamber. Please release all responsive records.

As required by FOIL, the head or governing body of an agency, or whomever is designated to determine appeals, is required to respond within 10 business days of the receipt of an appeal. If the records are denied on appeal, please explain the reasons for the denial **fully** in writing as required by law (recitation of statute or mere citation is insufficient to meet this requirement).

In addition, please be advised that FOIL directs that all appeals and the determinations that follow be sent to the Committee on Open Government, Department of State, 41 State Street, Albany, New York 12231.

Thank you,
Luke Nathan