Request for Real Estate Finance Bureau Review Manual

Sloan de Milo filed this request with the Office of the Attorney General - New York of New York.
Tracking #

G000709-091018

Status
Processing

Communications

From: Sloan de Milo

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

From: Office of the Attorney General - New York

Re: FOIL Request #G000709-091018

Dear Mr. Milo:

This is an automated reply to your above-referenced FOIL request.  Please do not respond to this message.

Within five business days, you will receive a written acknowledgment of the receipt of your request with a statement of the approximate date when your request will be granted or denied.

New York State Office of the Attorney General

Please visit the NYS OAG FOIL Request Center to view frequently asked questions, submit a new request, or monitor request progress.  You may (https://nyag.mycusthelp.com/WEBAPP/_rs/SupportHome.aspx) view this request in the My Request Center. (https://nyag.mycusthelp.com/WEBAPP/_rs/CustomerIssues.aspx)

From: Office of the Attorney General - New York

September 17, 2018
RE:  Freedom of Information Law (FOIL) Request Reference # G000709-091018
Dear Mr. Milo:
Pursuant to Public Officers Law §89(3)(a), the Office of the Attorney General acknowledges receipt of the above-referenced FOIL request.
We are performing a diligent search for the records you request.  We will notify you of the status of your request on or before October 16, 2018.
If we should locate any documents that respond to your request, and if we provide them in electronic format, we will notify you of any fee in advance.  If we provide paper copies, we will also notify you of any fee in advance; for paper copies, the first five pages would be provided free of charge, and the cost for the remaining pages would be $.25 per page.
Sincerely,
Michael Jerry
Assistant Attorney General

Please visit the NYS OAG FOIL Request Center to view frequently asked questions, monitor request progress, and submit future requests. (https://nyag.mycusthelp.com/WEBAPP/_rs/SupportHome.aspx)
View This request in the My Request Center. (https://nyag.mycusthelp.com/WEBAPP/_rs/RequestEdit.aspx?rid=5800&coid=)

From: Sloan de Milo

Thank you!

From: Office of the Attorney General - New York

October 16, 2018
RE:  Freedom of Information Law (FOIL) Request Reference # G000709-091018
Dear Mr. Milo:
This email is in response to the above-referenced FOIL request.
The Office of the Attorney General has conducted a diligent search for the records that you have requested.
Please be advised that the records that respond to your request are exempt from disclosure and have been withheld pursuant to:
• Public Officers Law § 87(2)(a), which provides that records that are exempted from disclosure by state or federal statute are exempt from disclosure under FOIL.  The records constitute attorney work product, which is exempt from disclosure under Civil Practice Law and Rules § 3101(c); • New York Public Officers Law § 87(2)(e), because the documents requested were compiled for law-enforcement purposes and would, if disclosed, interfere with law-enforcement investigations or judicial proceedings; and • Public Officers Law § 87(2)(g), because the records are inter-agency or intra-agency materials. You have a right to appeal the foregoing decision. If you elect to do so, you must appeal in writing, within 30 days, to Kathryn Sheingold, Records Appeals Officer.  Your appeal can be sent by email to FOIL.Appeals@ag.ny.gov or by mail to State of New York, Office of the Attorney General, Division of Appeals and Opinions, The Capitol, Albany, New York 12224.  You can reach the Records Appeals Officer by telephone at (518) 776-2009.
Sincerely,
Michael Jerry Assistant Attorney General

Please visit the NYS OAG FOIL Request Center to view frequently asked questions, monitor request progress, and submit future requests. (https://nyag.mycusthelp.com/WEBAPP/_rs/SupportHome.aspx)
View This request in the My Request Center. (https://nyag.mycusthelp.com/WEBAPP/_rs/RequestEdit.aspx?rid=5800&coid=)

From: Sloan de Milo

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

From: Sloan de Milo

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.

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