NYCEDC's FOIL Response: Access Denied
Agency refuses to disclose just the names of the developer firms that responded to the Willets Point Phase One Request for Proposals
Decision is contrary to a legal advisory opinion of the New York State Committee on Open Government
Willets Point United to appeal
* * *
As the deadline for developer firms to respond to the New York City Economic Development Corporation's ("NYCEDC") Request for Proposals ("RFP") seeking a developer for "Phase One" of the proposed Willets Point development was September 9, 2011, and NYCEDC has stated that it intends to select the developer this spring, there is interest in knowing the identities of all of the respondent firms, and how many there are.
The press has speculated about the identities of the RFP respondent firms, but NYCEDC has not confirmed any specific information. Given that elected officials have allocated $410 million taxpayer dollars to this project, the public has every right to expect transparency from NYCEDC, especially concerning the availability of non-sensitive information regarding interested developer firms.
This is particularly true since questions have been raised about a certain developer in this town and its affinity for one particular box store. In addition, there is the other question about how this developer seems to always get favored nation status. Crony capitalism anyone? Willets Point United Inc. ("WPU") routinely makes Freedom of Information Law ("FOIL") requests of NYCEDC and other agencies, to obtain information that is not otherwise published. One such Request, sent by WPU to NYCEDC on January 14, 2012, sought records that would reveal just the names of the firms that responded to the Phase One RFP.
WPU deliberately limited the scope of the Request so that it excluded the creative content and other sensitive items of respondent firms' proposals. NYCEDC's response, dated February 22, 2012, acknowledges that NYCEDC possesses records that are responsive to the Request; but denies access to all of them. NYCEDC claims that disclosing the records – that is, just the names of the RFP respondent firms – "would impair present or imminent contract awards".
WPU disagrees, and considers NYCEDC's denial of access to be especially outrageous, because it conflicts with a published legal advisory opinion of the New York State Committee on Open Government ("COG"), the Albany-based agency that administrates both New York State's Freedom of Information Law and its Open Meetings Law.
Indeed, prior to sending this FOIL Request to NYCEDC, WPU consulted with COG, whose Executive Director and counsel confirmed that under the circumstances of this Request, it is unlikely that NYCEDC can justify withholding the requested records. That is, disclosing only the names of the RFP respondents would not impair any contract award.
In a prior case that is strikingly similar to WPU's present Request – involving a FOIL Request seeking RFP records that only identify respondent firms, at a time after the RFP response deadline has passed but prior to the award of a contract pertaining to the RFP – COG's legal advisory opinion concludes: "I do not believe that the policy of withholding the names of submitters of proposals, or bids, until a contract is awarded is consistent with the Freedom of Information Law." (The entire advisory opinion is accessible online at: http://www.dos.ny.gov/coog/ftext/f8937.htm)
WPU included an excerpt of that COG advisory opinion within the FOIL Request. NYCEDC's Records Access Officer, Annette Shannon, was aware of the advisory opinion when she decided to deny access to the requested records. WPU believes that it is unlawful for NYCEDC to deny access to the requested records, which would reveal just the identities of the Phase One RFP respondent firms.
WPU is appealing from NYCEDC's denial of access, and if NYCEDC's FOIL Appeals Officer does not grant the Request within 10 business days, then WPU will have no choice but to commence a court proceeding pursuant to Article 78 of the Civil Practice Law and Rules to compel NYCEDC to produce the requested records.
Everyone in NYC should be concerned about the secrecy at NYCEDC – an unaccountable agency that operates beyond the reach of any oversight. NYCEDC needs to give up the names of the developers ASAP: Let the sun shine in!
The press has speculated about the identities of the RFP respondent firms, but NYCEDC has not confirmed any specific information. Given that elected officials have allocated $410 million taxpayer dollars to this project, the public has every right to expect transparency from NYCEDC, especially concerning the availability of non-sensitive information regarding interested developer firms.
This is particularly true since questions have been raised about a certain developer in this town and its affinity for one particular box store. In addition, there is the other question about how this developer seems to always get favored nation status. Crony capitalism anyone? Willets Point United Inc. ("WPU") routinely makes Freedom of Information Law ("FOIL") requests of NYCEDC and other agencies, to obtain information that is not otherwise published. One such Request, sent by WPU to NYCEDC on January 14, 2012, sought records that would reveal just the names of the firms that responded to the Phase One RFP.
WPU deliberately limited the scope of the Request so that it excluded the creative content and other sensitive items of respondent firms' proposals. NYCEDC's response, dated February 22, 2012, acknowledges that NYCEDC possesses records that are responsive to the Request; but denies access to all of them. NYCEDC claims that disclosing the records – that is, just the names of the RFP respondent firms – "would impair present or imminent contract awards".
WPU disagrees, and considers NYCEDC's denial of access to be especially outrageous, because it conflicts with a published legal advisory opinion of the New York State Committee on Open Government ("COG"), the Albany-based agency that administrates both New York State's Freedom of Information Law and its Open Meetings Law.
Indeed, prior to sending this FOIL Request to NYCEDC, WPU consulted with COG, whose Executive Director and counsel confirmed that under the circumstances of this Request, it is unlikely that NYCEDC can justify withholding the requested records. That is, disclosing only the names of the RFP respondents would not impair any contract award.
In a prior case that is strikingly similar to WPU's present Request – involving a FOIL Request seeking RFP records that only identify respondent firms, at a time after the RFP response deadline has passed but prior to the award of a contract pertaining to the RFP – COG's legal advisory opinion concludes: "I do not believe that the policy of withholding the names of submitters of proposals, or bids, until a contract is awarded is consistent with the Freedom of Information Law." (The entire advisory opinion is accessible online at: http://www.dos.ny.gov/coog/ftext/f8937.htm)
WPU included an excerpt of that COG advisory opinion within the FOIL Request. NYCEDC's Records Access Officer, Annette Shannon, was aware of the advisory opinion when she decided to deny access to the requested records. WPU believes that it is unlawful for NYCEDC to deny access to the requested records, which would reveal just the identities of the Phase One RFP respondent firms.
WPU is appealing from NYCEDC's denial of access, and if NYCEDC's FOIL Appeals Officer does not grant the Request within 10 business days, then WPU will have no choice but to commence a court proceeding pursuant to Article 78 of the Civil Practice Law and Rules to compel NYCEDC to produce the requested records.
Everyone in NYC should be concerned about the secrecy at NYCEDC – an unaccountable agency that operates beyond the reach of any oversight. NYCEDC needs to give up the names of the developers ASAP: Let the sun shine in!
Wpu Foil Request
