Request for Real Estate Finance Bureau Review Manual

To Whom It May Concern:

Pursuant to the New York Freedom of Information Law, I hereby request the following records:

Any and all guidance documents that any attorney or engineer of the Real Estate Finance Bureau (REFB) has prepared to facilitate review of offering plans within the past ten years. Such guidance documents would likely include uniform comments that review attorneys and engineers may reference for efficient review of offering plans. For the purpose of this FOIL request, such guidance documents do not include REFB policy memoranda or cooperative policy statements available via the website of the Office of the Attorney General as of the date of this request. I am really looking for a handbook or manual that the Review Section of REFB uses internally. Any such document should be available to the public (as is the Securities & Exchange Commission's Financial Reporting Manual, available at https://www.sec.gov/divisions/corpfin/cffinancialreportingmanual.shtml).

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,

Sloan de Milo

Thank you!

Hello. Would you please let me know the status of this request?

Hello

Are you saying that the Real Estate Finance Bureau maintains an internal manual for review of offering plans, but you are unwilling to disclose it to the public? If so, I don't understand because it would be a document similar to the SEC's Financial Reporting Manual (which is publicly available). New York's Freedom of Information Law is patterned after the federal Freedom of Information Act and the New York document I am seeking is similar to a document readily available from a federal agency.

You say the documents I am seeking are exempt from disclosure under CPLR 3101(c), but, as recognized in the Matter of Competitive Enter. Inst. v Attorney Gen. of N.Y., 161 A.D.3d 1283 (3d Dep't 2018), the CPLR 3101 work product exception to FOIL is only narrowly applied for materials specifically prepared for litigation. The documents I am seeking would not have been prepared for litigation, but to assist AG staff in reviewing offering plans submitted by the public.

You say the documents I am seeking are exempt from disclosure under New York Public Officers Law § 87(2)(e) because release could interfere with law enforcement investigations or judicial proceedings, but does not make sense. Disclosure of the documents I am requesting could not possibly cause any such interference. In fact, the opposite is true because public disclosure of the documents I have requested would actually help the public comply with AG regulations. Please see this excerpt from Fink v. Lefkowitz, 47 N.Y.2d 567 (1979):
To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative techniques, are those which articulate the agency's understanding of the rules and regulations it is empowered to enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or substantive law must be disclosed.

I am merely asking for records drafted by the Office of the Attorney General which clarify the offering plan review process.

You also say the documents I am seeking are exempt from disclose under Public Officers Law § 87(2)(g), but that statute specifically provides an exception to the exemption re "instructions to staff that affect the public." I am specifically requesting such instructions regarding offering plan submissions from the public and therefore this FOIL exemption is inapplicable. See Tuck-It-Away v. Empire State, 54 A.D.3d 154 (1st Dep't 2008).

I am surprised that you have decided to withhold the documents I requested and I urge you to reconsider. Please comply with the Freedom of Information Law and provide me with the documents I requested.

Thank you.

Dear Ms. Sheingold:

I would like to appeal the recent determination to withhold records responsive to my FOIL request.

Based on Mr. Jerry's response to my request, I understand that the Real Estate Finance Bureau maintains an internal manual for review of offering plans but is not willing to disclose it to the public. Such a document would be similar to the SEC's Financial Reporting Manual (which is publicly available at https://www.sec.gov/divisions/corpfin/cffinancialreportingmanual.shtml). New York's Freedom of Information Law is patterned after the federal Freedom of Information Act and the New York document I am seeking would be similar to a document readily available from a federal agency.

Mr. Jerry's denial determination indicates that documents I am seeking are exempt from disclosure under CPLR 3101(c), but, as recognized in the Matter of Competitive Enter. Inst. v Attorney Gen. of N.Y., 161 A.D.3d 1283 (3d Dep't 2018), the CPLR 3101 work product exception to FOIL is only narrowly applied for materials specifically prepared for litigation. The documents I am seeking would not have been prepared for litigation, but to assist AG staff in reviewing offering plans submitted by the public.

Mr. Jerry's denial determination indicates that documents I am seeking are exempt from disclosure under New York Public Officers Law § 87(2)(e) because release could interfere with law enforcement investigations or judicial proceedings, but disclosure of the documents I am requesting could not cause any such interference. Public disclosure of the documents I have requested would, in fact, help the public comply with AG regulations. Please see this excerpt from Fink v. Lefkowitz, 47 N.Y.2d 567 (1979):
To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative techniques, are those which articulate the agency's understanding of the rules and regulations it is empowered to enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or substantive law must be disclosed.

My request is only for records drafted by the Office of the Attorney General which clarify the offering plan review process.

Mr. Jerry's denial determination indicates that documents I am seeking are exempt from disclosure under Public Officers Law § 87(2)(g), but that statute specifically provides an exception to the exemption re "instructions to staff that affect the public." I am specifically requesting such instructions regarding offering plan submissions (which affect the public) and therefore this FOIL exemption is inapplicable. Please see Tuck-It-Away v. Empire State, 54 A.D.3d 154 (1st Dep't 2008).

Please understand there is no basis in law to withhold the documents I requested. I would greatly appreciate receiving the documents I requested at your earliest convenience.

Thank you.