Legal services contracts (New York State Division of Homes and Community Renewal)

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:

a copy of any agreements—since 1/1/2015 between the agency and any law firm or vendor of legal services—that are related, in part or in whole, to federal or state law enforcement investigations.

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

Dear FOIL Appeals Officer,

I write to formally appeal the denial of access regarding my Freedom of Information Law ("FOIL") request, initially submitted via email on August 18, 2017. The records denied include:

- a copy of any agreements—since 1/1/2015 between the agency and any law firm or vendor of legal services—that are related, in part or in whole, to federal or state law enforcement investigations.

On September 28, 2017, the Records Access Officer ("RAO") denied my request, writing, in part, "Please be advised that records responsive to your request are exempt pursuant to Public Officers Law 87(2)(c), as disclosure would impair present or imminent contract awards."

First, according to the Committee on Open Government ("COG"), 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.'"

Second, COG has written that, with respect to section 87(2)(c), "the key word is 'impair', and the question under that provision involves whether or the extent to which disclosure would 'impair' the contracting process by diminishing the ability of the government to reach an optimal agreement on behalf of the taxpayers."

The RAO offers zero evidence to support his contention that disclosure would impair the contracting process.

Third, as the nonprofit Reporters for the Committee for Freedom of the Press has written, "The 'impairment of contract award' language has been held to allow an agency to withhold documents in cases of imminent, or even potential, awards of contracts, but not in cases where contractual agreements are consummated. Compare Murray v. Troy Urban Renewal Agency, 84 A.D.2d 612, 444 N.Y.S.2d 249 (3d Dep't 1981), aff'd, 56 N.Y.2d 888, 438 N.E.2d 1115, 453 N.Y.S.2d 400 (1982) (denying access to reports by an independent appraiser for the potential sale of buildings) and Pirro v. Murray, (Sup. Ct., Onondaga County, Aug. 2, 1982) (denying access to records of resource survey project) with Shaw v. Triborough Bridge and Tunnel Auth., N.Y.L.J., June 17, 1980 (Sup. Ct., New York County, 1980) (granting access to records related to a 'consummated' contractual agreement). See also Buffalo Evening News v. City of Lackawanna, (Sup. Ct., Erie County, June 24, 1985) (granting access to names of persons making escrow deposits relating to negotiations for development of aluminum mill); Faxton Hospital v. Plumley, No. 84-9 64 (Sup. Ct., Oneida County, May 30, 1984) (granting access to documents submitted by applicant for industrial development revenue bonds).  See also Verizon New York, Inc. v. Bradbury, 40 A.D.3d 1113, 837 N.Y.S.2d 291 (2d Dep’t 2007) (draft of cable franchise agreement with municipality was not exempt from disclosure as the impairment of an imminent contract award because party seeking the records and Verizon were not competitors for the issuance of a cable television franchise)."

If any of the responsive records are contracts that have been consummated, they cannot be withheld pursuant to the exemption cited—and even if any responsive records are contracts that *have* been consummated, that does not automatically mean they can be withheld pursuant to the cited exemption.

I am therefore constrained, for the foregoing reasons, to believe my request was wrongly denied. Please release all records responsive to my request.

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.

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.

Sincerely,
Luke Stoddard Nathan