SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY In the Matter of ASSOCIATED GENERAL CONTRACTORS OF NEW YORK STATE, LLC, Petitioner, - against - DORMITORY AUTHORITY OF THE STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, BASIL SEGGOS AS COMMISSIONER OF NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE, SAMUEL D. ROBERTS, AS COMMISSIONER OF NEW YORK STATE OFFICE OF TEMPORARY AND. DISABILITY ASSISTANCE, NEW YORK STATE DEPARTMENT OF TRANSPORTATION, MATTHEW M. DRISCOLL, AS COMMISSIONER OF NEW YORK STATE DEPARTMENT OF ‘TRANSPORTATION, STATE OF NEW YORK, AND NEW YORK STATE INSURANCE FUND, Respondents. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. PRELIMINARY STATEMENT VERIFIED PETITION Index No. O2S30-17 Oral Argument is Requested 1, This special proceeding is brought under Article 78 of the New York Civil Practice Law and Rules (“CPLR”), pursuant to the Freedom of Information Law (“FOIL”) and Artiole 6 of the New York Public Officers Law (“POL”), and seeks to vindicate the rights of Petitionér, the "9 Associated General Contractors of New York State, LLC (“AGC NYS") to access publieecotds feooxs400.2)regarding Respondents” Dormitory Authority of the State of New York (“DASNY”), New York State Department of Environmental Conservation (“DEC”), Basil Seggos (“Seggos”) as Commissioner of DEC, New York State Office of Temporary and Disability Assistance (OTDA”), Samuel D. Roberts as Commissioner of OTDA (“Roberts”), New York State Department of Transportation (“DOT”), Matthew M. Driscoll as Commissioner of DOT (Driscoll”), and New York State Insurance Fund (“NYSIF”) factual bases for their respective determinations to establish contractual specifications imposing specific New York State certified minority business enterprise (“MBE”) and women business enterprise (“WBE”) (collectively, MBEs and WBEs shail be referred to herein as “MWBEs”) participation goals in public construction contracts let by Respondents across New York State. 2. There is a vital public interest in understanding the manner in which Respondents imposed contractual specifications establishing MWBE participation goals for State-funded construction projects. 3. Under State statute and regulation, State agencies are required to implement programs that evaluate the propriety of the imposition of MWBE participation goals for each contract. See e.g., Executive Law §313(4)(b)(emphasis supplied). 4, As explained infra, public statements by some Respondents regarding the establishment of these goals are contrary to Respondents’ noncompliant, arbitrary and capricious responses to AGC NYS's FOIL requests, suggesting that contractual MWBE specifications are inappropriately and arbitrarily assigned, and not made with regard to statutorily mandated factual, analysis, but rather imposed as announced by Governor Cuomo, who declared a thirty percent 4e0019800.3} 2(30%) Statewide MWBE goal in connection with a MWBE conference held on October 1, 2014, which “goal” has apparently been implemented by agencies since that time with no assessment of the propriety of such goals or consideration of the factors necessitated by statute and regulation. 5. Inan effort to discern the factual bases for the imposition of these specifications for identified contracts as required by statute and regulation, AGC NYS made FOIL requests to numerous agencies with regard to identified contracts having established MWBE. goal specifications. 6. In response to the FOIL requests, Respondents took months to provide, with few exceptions, similar, and in some cases identical, responses both to the requests and the administrative appeals of the same, despite the fact that each agency has its own Records Access Officer and FOIL Appeal Officer. 7. None of the Respondents certified that responsive records did not exist. 8. The coordinated responses amount to little more than categorical denials of AGC NYS's requests based on nonapplicable FOWL exemptions, and aimed at circumventing FOIL’s principles of open government, transparency and public accountability. RELIEF SOUGHT 9. Having exhausted its administrative remedies, AGC NYS now respectfully requests that this Court order and direct that Respondents comply with their obligations under FOIL and provide AGC NYS with these records. 10. Further, as authorized by FOIL, AGC NYS also requests that the Court award counsel fees and costs fees in favor of AGC NYS and against Respondents in an amount to be } See _bttps:/hvww.governor.ny.2ov/news/governor-cuomo-sets-highest-mwbe-state-contracting-goal- nation-30-percent-state-exceeds-20. (c0019400.3} 3determined at the conclusion of this proceeding, and grant AGC NYS such other, further and different relief as this Court may deem just and proper. PARTIES 11, Petitioner AGC NYS is a private, non-profit trade association, which is a chapter of the Associated General Contractors of America, representing approximately 250 construction managers and general contractors, ranging from very large firms to very small firms, as well as 85 subcontractors and 300 associate members conducting business throughout the State of New York. lis principal place of business is located in Albany, New York. 12. Respondent DASNY is a public benefit corporation, created under New York Public Authorities Law §1677. DASNY is further a public agency subject to the requirements of the FOIL, Article 6 of the POL, 13, Respondent DEC is a public agency, administered under Title 6 of the New York Codes, Rules and Regulations, and is subject to the requirements of FOIL, Article 6 of the POL. 14, Respondent Seggos is the Commissioner of DEC and is named in his official capacity. 15. Respondent OTDA is a public agency, and is subject to the requirements of FOIL, Article 6 of the POL. 16. Respondent Roberts is a public officer named in his official capacity as the Commissioner of the OTDA. 17, Respondent DOT is a public agency, and is subject to the requirements of FOIL, Article 6 of the POL. 18. Respondent Driscoll is a public officer named in his official capacity as the Commissioner of the DOT. (coo1s%00.1) 419. Respondent NYSIF is a public benefit corporation, and is subject to the requirements of FOIL, Article 6 of the POL. JURISDICTION 20. This Court has jurisdiction under §7801 et seg. of the CPLR to review administrative determinations made by Respondents. YENUE 21. Pursuant to CPLR §§7804(b) and 506(b), venue lies in Albany County, in the judicial district in which Respondents made the challenged FOIL determinations and where the principal offices of Respondents and AGC NYS are located, STATEMENT OF FACTS ‘The MWBE Program in NYS 22. Effective July 19, 1988, the State of New York (“NYS”) adopted its first minority and women-owned business enterprise (“MWBE”) program in 1988, promoting State contracting participation opportunities to MWBEs, which is codified at Executive Law Art. 15-A §310-318. 23. In response to constitutional challenges brought against NYS since the inception of its MWBE program, NYS commissioned a disparity study conducted by NERA Forensics Consulting to survey the existence of discrimination and participation of MWBE’s in state contracting opportunities, which study (the “2010 Diversity Study”) was finalized in April 2010, and has since been used as the predicate for establishment of MWE participation goals in NYS contracts. 24. Under the NYS MWBE program, MBEs are businesses at least fifty-one percent (51%) owmed and independently operated by Blacks, Hispanics, Native American or Alaskan natives, or Asian and Pacific Islanders, See N.Y. Exec. Law Art. 15-A §310(7), (8). e0029400.1), 525. Similarly, WBEs must be at least fifty-one percent (51%) owned and independently operated by women, Id. at §310(15). 26. Executive Law Article 15-A further establishes the Office of Minority and Women's Business Development (the “Agency”) and empowers the director of that Agency to promulgate regulations. Jd. §§311(1), 313(1). ‘The regulations promulgated pursuant to Article 15-A, see N.Y.C.CRR. tit 5, pts. 140-44 (2010), Rules and Regulations of the Minority and Women's Business Development Program (“MWBE Regulations”), require all state agencies to submit plans setting annual and individual contract MWBE participation goals to the director of the Agency. See id. §§141.2(b), 142.2. 27. The same state statute directs contractors bidding on state contracts to submit a utilization plan outlining MWBE participation, see Art. 15-A §§ 310(9) and 313(4), and requires that bidders make good faith efforts to comply with the MWBE goals established for a particular contract. See id. at § 313(5). Ifa bidder cannot meet a goal, nut demonstrates its good faith efforts, itis entitled to a waiver of the goal contained in the Specifications. Agency Goal Setting and Establishment of Individual Contract Goals 28. State agencies are required to submit to the Director of the Agency an “agency goal plan,” which sets the goal for the percentage of participation of MWBEs on contracts issued by the agency along with a justification for the goal. MWBE Regulations §141.2. 29. The Director has the power to accept, reject or modify the proposed agency goal plan. Jd. at §141.5. 30. The Executive Law mandates that each agency, in establishing contract MWBE participation specifications must, among other things, “ implement a program that will enable the agency to evaluate each contract to determine the appropriateness of the goal pursuant to (coo19#003) 6subdivision one of this section.” Executive Law §313(4)(b)(emphasis supplied). Subdivision 1 of that section refers, as to the construction industry, an MBE goal of 14 34/100%, and a WBE goal of 8 41/100%, both of which were based on a disparity study from 2010 that was to have been replaced in 2016, but has not yet been replaced. 31. The contracting agency must also establish a MWBE participation goal for each individual contract. MWBE Regulations at §142.2(a). 32. When setting the individual contract goals: consideration shall be given to the following factors: (1) the contract and subcontract scope(s) of work; (2) the potential subcontract opportunities available in the prime contract; (3) the relevant availability data contained within the disparity study with respect to the scope of the contract and potential subcontracting opportunities; (4) the number and types of certified minority-and women-owned business enterprises found in the directory of certified minority- and ‘women-owned businesses available to perform the State contract work; (5) the geographic location of the contract performance; (6) the extent to which geography is material to the performance of the contract; (7) the ability of certified minority- and women-owned enterprises located outside of the geographic location of contract performance, notwithstanding the regional location of the certified enterprise, to perform on the State contract; (8) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; (9) the relationship of the monetary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and (10) the agency's anmual agency-specific goal established pursuant to section 141.2 of this Part. Jd, at §142.2(d) (emphasis supplied). 33. If MWBE specifications were established for a public project based on a purely policy basis, devoid of the requisite factual analysis, then the requirements of the statute would not and could not have been complied with. 34. Governor Cuomo’s public announcement that his administration was increasing the goal for MWBE state contracting utilization to thirty percent (30%), was not memorialized in any executive order, does not appear in the MWBE Regulations and is not consistent with the 2010 {e0019400.3} 7Disparity Study. 35. State agencies, including Respondents, have established contract specifications that establish various goals for MWBE participation on their state contracts, including those specified in AGC NYS's FOIL requests. 36. Such contract specifications are, as race- and gender-based public determinations, entitled to heightened scrutiny. 37. MWBE public contract participation goals must be tailored to specific industry and minority groups, and under relevant statute and the MWBE Regulations, each contract’s goals must have been set after careful evaluation of the factors enumerated in MWBE Regulations §142.2(d) and via the program required of each agency in accordance with Executive Law §313(4)(b). 38. The documents sought via FOIL were those considered by the Respondent agencies in determining to establish MWBE participation specifications in the identified public work contracts let by each respective Respondent. AS AND FOR A FIRST CAUSE OF ACTION PURSUANT TO CPLR ARTICLE 78 AGAINST RESPONDENT DASNY 39. Petitioner repeats and realleges each and every allegation contained in Paragraph Nos. “1” through “38” as if fully set forth herein, 40. Despite the statutory and regulatory requirements, DASNY’s current website states that: “Goals are established based upon geographic location of the project, job trades or service, {c0029800.3) 8previous project experience and MWBE availability”? Confusingly, its brochure entitled “Programs for Minority and Woman-Owned Businesses” states that “DASNY’s statewide construction-related goal for MWBE participation is 30 percent, attained through contracting, subcontracting, and the purchase of materials and services.” 41. On November 14, 2016, AGC NYS submitted a FOIL request (the “DASNY Request”) to the DASNY Records Access Officer seeking the following with regard to DASNY Project QC700-006, the Louis Armstrong House Museum Education Center: * A copy of the analysis conducted and utilized to reach the determination to require 20% Minority Business and 10% Woman Business Enterprise participation for this contract. © Allldocuments generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for this contract. A copy of the DASNY Request is attached hereto as Exhibit A. 42. As explained in the DASNY Request, these documents were required to have been kept in accordance with Executive Law §313 and S NYCRR 142.2(d). 43. On November 18, 2016, DASNY acknowledged receipt of the DASNY Request and stated that AGC NYS would be notified within twenty (20) business days regarding the availability of the records it sought. 44, DASNY requested multiple extensions of time and, after almost three (3) months, on February 3, 2017, denied the DASNY Request (the “DASNY Denial”), citing POL §87(2)(g) and contending that the records requested “contain inter-agency and intra-agency materials which are not i, statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii final agency policy or determinations; or iv. external audits.” A copy of the DASNY Denial is 2 See https://dasny.org/mwsbes/mwsbesubcontractorfags.aspx, {00019400.2), fdattached hereto was Exhibit B. 45. The DASNY Denjal further asserted that the records sought were “‘predecisional in nature, are integral to DASNY’s deliberative process, and contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations or other subjective matter.” (Ex. B). 46. On February 24, 2017, AGC NYS timely appealed the DASNY Denial, submitting aletier to Kay M, Edwards, Records Access Appeal Officer of DASNY (the “DASNY Appeal”). A copy of the DASNY Appeal is attached hereto as Exhibit C. 47, Inthe DASNY Appeal, AGC NYS explained that the cited reasons for denial were improper in that (1) statute and the regulations promulgated in accordance with statute mandate ‘agencies to set individual contract specifications establishing MWBE participation goals, taking into account the factual considerations specific to the contract as enumerated in $ NYCRR §142.2(@) (see Para. 32), which factual information is not subject to any exception from FOIL; (2) if such contractual specifications were imposed absent such factual considerations, then the goals established in the identified contract were not properly established; and (3) if the contractual goal specifications had been based on a factual presentation of data, and even if involved figures were estimated or intended to reflect opinions, such records must be disclosed in accordance with FOIL. 48. On March 10, 2017, DASNY denied AGC NYS’s appeal (the “DASNY Appeal Denial”). A copy of the DASNY Appeal Denial is attached hereto as Exhibit D. 49. Citing POL §87(2)(c) and (2)(g)(ii), the DASNY Appeal Denial did not certify that no documents existed, but rather refused to provide the documents sought due to three grounds. See Legal Aid v. New York State Department of Corrections and Community Supervision, 105 A.D.3d 1120 Bd Dep’t 2013). e0039400:3) 1050. As explained below, none are sufficient on given the particular facts and legal requirements at hand. 51. The DASNY Appeal Denial’s first ground, that, AGC is not merely seeking statistical data, it is secking entrée into the predecisional deliberations of DASNY in this particularly sensitive area presumably to obtain the upper hand in current and future contract negotiations that AGC and its contractor members will certainly seek to have with DASNY This is a significant overstretch and is objectionable under both POL 87(c)(2) and (g) grounds. (see Ex. D) makes no sense legally or factually, is violative of FOIL, arbitrary and capricious. There is no overstretch on the instant facts. 52, Under New York’s State Finance Law, the imposition of a MWBE goal specification in a public construction contract cannot be a point of post-bid negotiation. Negotiation may legally occur only between the agency and the lowest bidder, post bid. Any agency modifying a material contractual specification, which certainly includes MWBE goal specifications, via post bid negotiation would be materially varying a publicly let project, and any ensuing contract would illegal. Moreover, AGC NYS’s FOIL request sought information specific to a single contract, and DASNY is required to establish MWBE goals on a per-contract basis Therefore, the argument that providing these documents will provide an “upper hand” in “future contract negotiations” is, again, irrelevant, arbitrary and capricious and not compliant with FOIL. DASNY was required to establish the goals for the project specified in the manner specified by regulation, and the disclosure of this material for the contract requested will not and cannot impair any pending or imminent contract awards, 53. Asto the DASNY Appeal Denial’s second cited ground (see Ex. D), that disclosure would somehow {e0019400.1} Wundercut DASNY’s ability to establish contractual terms necessary to promote significant policy and legislative objectives, i.e., MWBE goal setting in the public construction context, and to negotiate the best possible deal on behalf of the public in connection with this key objective on projects being currently negotiated by DASNY, agein, these goals specifications must be established on a per-contract basis, and thus disclosure of the analysis, which DASNY impliedly admits exists, will not and cannot affect future lettings or other contracts. It makes no sense that “negotiation” can apply to 2 MWBE participation specification which may, as explained supra, only be established as provided by statute. 54, The DASNY Appeal Denial’s third and final cited ground, that [furthermore, disclosure of the analysis and all documents relating to MWBE goal setting for this project would result in DASNY’s frank discussions related to this key policy objective being conducted in the public view. The opinions, evaluations, deliberations, policy formulations and recommendations of DASNY employees as an integral part of its deliberative process would be improperly disclosed. Protection from disclosure in these circumstances is precisely why the FOIL exemptions exist. (sce Ex. D) is frankly misleading. MWBE goal specifications must be established for each contract in accordance with the MWBE Regulations §142.2, which require mandatory consideration of numerous factual issues. (See Para. 32) 55. This clear mandate of MWBE Regulations §142.2 requires the evaluation of data ~not agency conjecture or policy disconnected from such data, 56. AGC NYS timely commenced this Article 78 proceeding after exhausting its administrative remedies to compel DASNY to comply with its obligations under FOIL, and provide AGC NYS with documents responsive to the DASNY Request. 57. DASNY has not produced the records sought by AGC NYS, has not certified that, it does not possess such records and has failed to properly invoke any particularized or proper exemptions under FOIL. AGC NYS has a clear right under POL §84 et seg. to the records 4e0039400.3} 12requested. 58. AGCNYS has no other remedy at law and it, respectfully, is entitled to the records sought, as well as its counsel fees and costs in accordance with Public Officer Law §89(4)(0). See Matter of New York Civ. Liberties Union v. City of Saratoga Springs, 87 A.D.3d at 338, quoting Senate Introducer Mem. In Support, Bill Jacket, L. 2006, ch. 492 at 5 [the counsel fee provision was added in recognition that persons seeking to force an agency to respond to a proper FOIL request “must engage in costly litigation” and the fee provision was amended “in order ‘to create aclear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL"). AS AND FOR A SECOND CAUSE OF ACTION PURSUANT TO CPLR ARTICLE 78 AGAINST RESPONDENT OTDA AND ROBERTS 59. Petitioner repeats and realleges each and every allegation contained in Paragraph Nos. “1” through “38” as if fully set forth herein. 60. On October 7, 2017, AGC NYS submitted a FOIL request (“OTDA Request”) upon OTDA Records Access Officer. A copy of the OTDA Request is attached hereto as Exhibit B. 61. The ODTA Request sought the following information, required to have been kept in accordance with Executive Law §313 and 5 NYCRR 142.2(4), regarding a contract let by OTDA, for the West Street Apartments — 2016-031: A copy of the analysis conducted and utilized to reach the determination to require 20% Minority Business Enterprise and 10% ‘Woman Business Enterprise participation for this contract. All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for this contract. xB). 4c0019400.1) 1362. On October 7, 2017, OTDA acknowledged receipt of the OTDA Request and stated that AGC NYS would be notified within twenty (20) business days regarding the availability of ‘the records it sought, 63. Following multiple succeeding extensions of time, on January 27, 2017, the OTDA denied the OTDA Request (the “OTDA Denial”), contending, just as DASNY had done, that: To the extent OTDA has records responsive to your request, the records are being denied pursuant to New York State Public Officers Law § 87(2)(g), as the records contain inter-agency and intra-agency materials which are not 1) statistical or factual tabulations or data; 2) instructions to staff that affect the public; 3) final agency policy or determinations; or 4) external audits. ‘They are pre-decisional in nature, are integral to the OTDA’s deliberative process, and contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations, or other subjective matter. 64, The OTDA Denial letter was essentially identical to the DASNY’s Denial of similar records in connection with the DASNY Request, dated February 3, 2017 (see Ex. B). A copy of the OTDA Denial is attached hereto as Exhibit F. 65. On February 24, 2017, AGC NYS timely appealed the ODTA Denial via letter to the FOIL Appeal Officer of OTDA (the “OTDA Appeal”), explaining that the cited reasons for denial were improper in that (1) statute, as well as the regulations promulgated in accordance with statute, mandate agencies to set individual contract specifications establishing MWBE participation goals, taking into account the factual considerations specific to the contract as ‘enumerated in 5 NYCRR §142.2(4) (see Para. 32), which factual information was not subject to any exception from FOIL; (2) if such contractual specifications were imposed absent such factual considerations, then the goals established in the identified contract were not properly established; and (3) if the contractual goal specifications had been based on a factual presentation of data, and even if involved figures were estimated or intended to reflect opinions, such records must be {coo19400.1} 4disclosed in accordance with FOIL. 66. By letter dated March 15, 2017, OTDA denied AGC NYS’s OTDA Appeal (the “OTDA Appeal Denial”). A copy of the OTDA Appeal Denial is attached hereto as Exhibit H. 67. Ina document that was similar to those others offered by other agencies (compare Exs. D and L), and citing POL §87(2)(g), the OTDA Appeal Denial did not certify that no documents existed, but rather refused to provide the documents sought due to its contention that such materials were predecisional in nature, regardless of the fact that the materials at issue must contain statistical or factual information, even if entwined with opinion, and the Denial asserted no alternative ground for exception. 68. As explained by AGC NYS in its OTDA Appeal, this reason for nondisclosure is insufficient. 69. The advisory opinion issued by the Executive Director of the Committee on Open Government dated February 13, 2015 as to “FOIL-AO-19250,” (the “Freeman Advisory Opinion”) is on point with the particular facts here, stating: intra-agency records, including consultant reports, are subject to disclosure pursuant to the Freedom of Information Law (FOIL), and that portions of those records consisting of “statistical or factual tabulations or data” are required to be made available . .. - .. While inter-agency or intra-agency materials may be withheld, portions of those materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policies or determinations. or external audits must be disclosed, unless a different ground for denial may properly be asserted . . . Judicial _decisions confirm that there is no basis for withholding statistical or factual information, ie.. numerical figures, including estimates and projections even though they may have been advisory and subject to change. In a decision affirmed by the Court of Appeals . .. the records at issue contained three columns of numbers related to certain areas of expenditures. One column consisted of a breakdown of expenditures for the current fiscal year; the second consisted of a breakdown of proposed expenditures recommended by a state agency; the third consisted of a breakdown of proposed {co018400.3) is{co01s4003) expenditures recommended by a budget examiner for the Division of the Budget. Although the latter two columns were merely ates and subject to modification, they were found to be “statistical tabulations” accessible under the Freedom of Information Law as originally enacted [see Dunlea v. Goldmark, 380 NYS 2d 496, affd 54 AD 2d 446, aff'd 43 NY 2d 754 (197)]. «++ Currently, §87(2)(g)(i) requires the disclosure of “statistical or factual tabulations or data.” As stated by the Appellate Division in Dunlea: “[Ijt is readily apparent that the language statistical or factual tabulation was meant to be something other than an expression of opinion or naked argument for or against a certain position. The present record contains the form used for work sheets and it apparently was designed to accomplish a statistical or factual presentation of data primarily in tabulation form. In view of the broad policy of public access expressed in §85 the work sheets have been shown by the appellants as being not a record made available in §88” (54 AD2d 446, 448).” ‘The Court was also aware of the fact that the records were used in the deliberative process, stating that: “The mere fact that the document is a part of the deliberative process is imelevant in New York State because §88 clearly makes the back- up factual or statistical information to a final decision available to the public. This necessarily means that the deliberative process is subject of examination although limited to tabulations. In particular there is no statutory requirement that such data be limited to ‘objective’ information and there no apparent necessity for such a limitation” (jd. at 449). Similarly, in a decision involved ratings relating to requests for proposals (RFP's). The ratings were prepared by staff for the purpose of evaluating criteria used in analyzing the RFP's. Even though the ratings consisted essentially of numerical fi assigned to opinions. it was held that they must be disclosed [Professional Standards Review Council v. NYS Department of Health, 193 AD 2d 937 (1993)]. Another decision highlighted that the contents of materials falling within the scope of section 87(2)(g) represent the factors in determining the extent to which inter-agency or intra-agency materials must be disclosed or may be withheld. For example, in Ingram v. Axelrod, the Appellate Division held that: “Respondent, while admitting that the report contains factual data, contends that such data is so intertwined with subject analysis and opinion as to make the entire report exempt. Afier reviewing the report in camera and applying to it the above statutory and regulatory criteria, we find that Special Term correctly held pages 3-5 (‘Chronology of Events’ and ‘Analysis of the Records’) to be 16disclosable. These pages are clearly a ‘collection of statements of objective information logically arranged and reflecting objective reality’. (10 NYCRR 50.2[b]). Additionally, pages 7-11 (ambulance records, list of interviews) should be disclosed as factual data’. Thev also_contain factual_information_upon_which the agency relies (Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181 mot for lve to app den 48 NY2d 706). Respondents erroneously claim that an agency record necessarily is exempt if both factual data and i {intertwined in it, we have held that '[i]he mere fact that some of the data might be an estimate or a recommendation does not convert it into_an expression of opinion’ (Matter of Polansky y Regan, 81 AD2d 102, 104; emphasis added). Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable” [90 AD 2d 568, 569 (1982)] Similarly, the Court of Appeals has specified that the contents of intra-agency materials determine the extent to which they may be available or withheld, for it was held that: “While the reports in prineiple may be exempt from disclosure, on this record - which contains only the barest description of them - we cannot determine whether the documents in fact fall wholly within the scope of FOIL’s exemption for ‘intra-agency materials,” as claimed by respondents. To the extent the reports contain ‘statistical or_factual tabulations or data’ (Public Officers Law section 8712 or other material subject to production, they should be redacted and made available to the appellant” (id, at 133). In short, even though statistical or factual information may be “intertwined” with opinions, the statistical or factual portions, if any, as well as any policy or determinations, would be available, unless a different ground for denial could properly be asserted .. .2 70. ‘The documents sought by AGC NYS are no different from those consultant documents described in the Freeman Advisory Opinion, 71. MWBE goal specifications must be established for each contract in accordance with the MWBE Regulations §142.2(d), which requires mandatory consideration or numerous factual issues (see Para, 32). 72. — This clear mandate of MWBE Regulation §142.2 requires the evaluation of data ~ 3 The Freeman locs.dos.ny.gov/coo; is publicly available at {eo019400.3), 7not agency conjecture or policy disconnected from such data, 73. Upon information and belief, Respondents OTDA and Roberts established the specifications for the identified contract, including the inclusion and establishment of the MWBE goal specification 74, Petitioner AGC NYS timely commenced this Article 78 proceeding to compel OTDA to comply with its obligations under FOIL, and provide Petitioner with documents responsive to the OTDA Request to which it is entitled. 75. AGCNYS is further entitled to its counsel fees and costs in this matter. See Matier of New York Civ, Liberties Union v. City of Saratoga Springs, 87 4.D.3d at 338, quoting Senate Introducer Mem. In Support, Bill Jacket, L. 2006, ch. 492 at 5 {the counsel fee provision was added in recognition that persons seeking to force an agency to respond to a proper FOIL request “must engage in costly litigation” and the fee provision was amended “in order ‘to create aclear deterrent to unreasonable delays and denials of access [and thereby} encourage every unit of government to make a good faith effort to comply with the requirements of FOIL”). 76. Article 78 is the appropriate method of review of agency determinations concerning FOIL requests. 77. AGC NYS has a clear right under POL §84 et seg. to the records requested, 78. OTDA has not produced the records sought by AGC NYS, has not clarified that they do not exist and has failed to properly invoke any proper particularized exemptions under FOIL. 79. OTDA failed to meet its burden to provide specific and particularized justification for withholding the requested records from disclosure under FOIL. 80. | AGC NYS has exhausted its administrative remedies, and no other remedy at law. (conss40o.3} 18AS AND FOR A THIRD CAUSE OF ACTION PURSUANT TO CPLR ARTICLE 78 AGAINST RESPONDENTS DOT AND DRISCOLL 81. Petitioner repeats and realleges each and every allegation contained in paragraphs “1 through “38” as if fully set forth herein, DOT’s own website states* that the MWBE goals for projects funded with 100% State funds are “Minority-Owned Business Enterprise Goal is 12%, Women-Owned Business Enterprise Goal is 18%.” 82. On June 8, 2016, AGC NYS submitted a FOIL request (the “DOT Request”) to the DOT Records Access Officer, seeking the following with regard to contract number D263143: A copy of the analysis conducted and utilized to reach the determination to require 12% Minority Business and 18% Woman Business Enterprise participation for this contract. All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in S NYCRR 142.2(@) for this contract. A copy of the DOT Request is attached hereto as Exhibit I. 83, As explained in the DOT Request, these documents were required to have been kept in accordance with Executive Law §313 and 5 NYCRR 142.2(d). (See Ex. I, Paras, 28-38, supra 84, On August 10, 2016, DOT acknowledged receipt of the DOT Request and stated that AGC NYS would be notified by September 9, 2016, regarding the availability of the records it sought. See DOT Engineering Directive (ED) 15-001, available at https://www dot.ny.gov/portal/pls/portal/ MEXIS_APP.EI EB DOC_DETAILS.show?p_arg_names=doe _48ep_org_values=11786, $ See https://www.dot.ny.gov/divisions/engineering/design/dqab/hdm/chapter-21/dmwbe-goals. eo013400.3) 1985. Following multiple succeeding extensions, on January 27, 2017, more than five months later, denied the DOT Request (the “DOT Denial”). A copy of the DOT Denial is attached hereto as Exhibit J. 86. The DOT Denial did not certify that documents did not exist, but refused access to responsive documents, stating: To the extent the Department has records responsive to your request, the records are being denied pursuant to Public Offices Law §87(2)(g), as the records would consist of interagency and intra- agency materials which are not: i, statistical or factual tabulations or data; ii. instructions to staff that affect the public; ii. final agency policy or determinations; or iv. external audits. They would be predecisional in nature, would be integral to the Department's deliberative process, and would contain opinions, evaluations, deliberations, policy formulations, proposals, _ conclusions, recommendations or other subjective matter. &x.D. 87. DOT's Denial is essentially identical to denial letters received from DASNY and OTDA denying FOIL requests for similar records in connection with contracts let by those agencies (see Exs. B and F). 88. On February 24, 2017, AGC NYS timely appealed the DOT Denial via letter to the FOIL Appeal Officer of the DOT (the “DOT Appeal”). A copy of the DOT Appeal is attached hereto as Exhibit K, 89. In the DOT Appeal, AGC NYS argued that, even though statistical or factual information may be “intertwined” with opinions, the statistical or factual portions, if any, as well as any policy or determinations, must be disclosed in compliance with FOIL unless a different ground for denial could properly be asserted. See Ex. K. 90. By letter dated March 15, 2017, the DOT denied the DOT Appeal in its entirety (the “DOT Appeal Denial”). A copy of the DOT Appeal Denial is attached hereto as Exhibit L. {co019400.3) 2091. Ina document that was similar to those others offered by other agencies (compare Exs. D and H), and citing POL §87(2)(g), the DOT Appeal Denial did not certify that no documents existed, but rather refused to provide the documents sought due to its contention that such materials ‘were predecisional in nature, regardless of the fact that the materials at issue must contain statistical or factual information, even if entwined with opinion, and the Denial asserted no altemative ground for exception. 92. As explained by AGC NYS in its DOT Appeal, this reason for nondisclosure is insufficient. 93. The Freeman Advisory Opinion on this topic (see Para. 69) is on point with regard to the DOT Request, and its assertion that “even though statistical or factual information may be ‘intertwined’ with opinions, the statistical or factual portions, if any, as well as any policy or determinations, would be available, unless a different ground for denial could properly be asserted” holds true here as well 94, The documents sought by AGC NYS are no different from those consultant documents described in the Freeman Advisory Opinion. 95. _ MWBE goal specifications must be established for each contract in accordance with the MWBE Regulations §142.2(4) which mandate that a myriad of factual issues be considered. 96. This clear mandate in the MWBE Regulations requires the evaluation of data — not agency conjecture or policy disconnected from such data. 97. Upon information and belief, Respondents DOT and Driscoll established the specifications for the identified contract, including the inclusion and establishment of the MWBE $ See https://docs.dos.ny.gov/coog/ftext/20: 50.htm, {00194003} 21goal specification. 98. Petitioner AGC NYS timely commenced this Article 78 proceeding to compel the DOT to comply with its FOIL obligations and provide AGC NYS with documents responsive to the DOT Request. 99. Article 78 is the appropriate method of review of agency determinations concerning FOIL requests. 100. DOT has not produced the records sought by AGC NYS, has not certified that they do not exist and has failed to properly invoke any proper exemptions under FOIL. 101. DOT failed to mect its burden to provide specific and particulatized justification for withholding the requested records from disclosure under FOIL. 102, AGC NYS has exhausted its administrative remedies and has no other remedy at Jaw. 103. AGC NYS has a clear right under POL §84 et seq. to the records requested and is farther entitled to its counsel fees and costs in prosecuting this proceeding. See Matter of New York Civ. Liberties Union v. City of Saratoga Springs, 87 A.D.3d at 338, quoting Senate Introducer Mem. In Support, Bill Jacket, L. 2006, ch. 492 at 5 [the counsel fee provision was added in recognition that persons seeking to force an agency to respond to a proper FOIL request “must engage in costly litigation” and the fee provision was amended “in order ‘to create a clear deterrent, to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL"). {coo19400.), 22AS AND FOR A FOURTH CAUSE OF ACTION PURSUANT TO CPLR ARTICLE 78 AGAINST RESPONDENT NYSIF 104, Petitioner repeats and realleges each and every allegation contained in paragraphs “1” through “38” as if fully set forth herein, 105. AGCNYS submitted a FOIL request, dated August 8, 2016 (the “NYSIF Request”) upon NYSIF seeking: * A copy of the analysis conducted and utilized to reach the determination to require 30% Minority Business and Woman Business Enterprise participation for [NYSIF Project No. 2016-16-RE-CSA, Project Number 1ONY049C07}, * All documents generated or in the possession of NYSIF which were relied upon or used in considering the factors set, forth in 5 NYCRR 142.2(d) for this contract. A copy of the NYSIF Request is attached hereto as Exhibit M. 106. On August 12, 2016, NYSIF acknowledged receipt of the NYSIF Request and stated that AGC NYS would be notified within twenty (20) business days regarding the availability of the records it sought. 107. Following muitiple succeeding extensions of time, on January 27, 2017, NYSIF denied the NYSIF Request (the “NYSIF Denial”) via email. A copy of the NYSIF Denial is attached hereto as Exhibit N. 108. The NYSIF Denial does not certify that no responsive records exist, but rather states To the extent NYSIF has records responsive to your request, the records are being denied pursuant to POL§87(2)(g), as the records would consist of inter-agency and intra-agency materials which are not i statistical or factual tabulations or data; i instructions to staff that affect the public; iii. final agency policy or determinations; ot iv. external audits. They would be predecisional in nature, would be integral to NYSIF’s deliberative process, and would contain (coos400.3} 23opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations or other subjective matter. Ex). 109. NYSIF’s Denial was effectively identical to denial letters received from OTDA (see Ex. F), DASNY (see Ex. B), and the DOT (see Ex. J), denying FOIL requests for similar records, and itis defective for the same reasons. 110. On February 24, 2017, AGC NYS timely appealed the NYSIF Denial via letter to the FOIL Appeal Officer of NYSIF (the “NYSIF Appeal”). A copy of the NYSIF Appeal is attached hereto as Exhibit O. 111. In the NYSIF Appeal, AGC NYS explained that (1) statute and the regulations promulgated in accordance with statute mandate agencies to set individual contract goals for ‘MWBE participation, taking into account the factual considerations specific to the contract as, enumerated in 5 NYCRR §142.2(c) (see Para. 32), which factual information is not subject to any exception from FOIL; (2) if such contractual specifications were imposed absent such factual considerations, then the goals established in the identified contract were not properly established; and (3) if the contractual goal specifications had been based on a factual presentation of data, and even if involved figures were estimated or intended to reflect opinions, such records must be disclosed in accordance with FOIL. (Ex. 0). 112. By letter dated March 15, 2017, the NYSIF denied the NYSIF Appeal in its entirety (the “NYSIF Appeal Denial”) on the same grounds specified in the NYSIF Denial. A copy of the NYSIF Appeal Denial is attached hereto as Exhibit P, 113. Ina document that was similar to those others offered by other agencies (compare Exs, H and L), and citing POL §87(2)(g), the NYSIF Appeal Denial did not provide documents responsive to the request, did not certify that no documents existed, but rather refused to provide e0o19400.1) 24the documents sought due to its contention that such materials were predecisional in nature, regardless of the fact that the materials at issue must contain statistical or factual information, even if entwined with opinion, and the Denial asserted no alternative ground for exception (see Ex. P). 114, As explained by AGC NYS in its NYSIF Appeal, this reason for nondisclosure is insufficient, noncompliant with FOIL and arbitrary and capricious. 115, The Freeman Advisory Opinion on this topic (see Para. 69) is on point with regard to the NYSIF Request, and its assertion that “even though statistical or factual information may be ‘intertwined’ with opinions, the statistical or factual portions, if any, as well as any policy or determinations, would be available, unless a different ground for denial could properly be asserted” holds true here as well, 116. The documents sought by AGC NYS are no different from those consultant documents described in the Freeman Advisory Opinion. 117, MWBE goal specifications must be established for each contract in accordance with the MWBE Regulations §142.2 which mandates consideration of numerous factual issues. (‘See Para. 32). 118. This clear mandate of MWBE Regulation §142.2 requires the evaluation of dara - not agency conjecture or policy disconnected from such data, 119. Upon information and belief, Respondent NYSIF established the specifications for the identified contract, including the inclusion and establishment of the MWBE goal specification. 120. Petitioner AGC NYS timely commenced this Article 78 proceeding to force NYSIF to comply with its FOIL obligations and provide AGC NYS with documents responsive to the 7 See https://docs.dos.ny.gov/eoog/ftext/2015/F19250 htm, {c0013400.) 25NYSIF Request. 121. Article 78 is the appropriate method of review of agency determinations concerning FOIL requests. 122. NYSIF has not produced the records sought by AGC NYS and has failed to properly invoke any proper exemptions under FOIL, 123. NYSIF has failed to meet its burden to provide specific and particularized justification for withholding the requested records from disclosure under FOIL, 124. AGC NYS has exhausted its administrative remedies and has no other remedy at law. 125. AGC NYS has a clear right under POL §84 ef seg. to the records requested and is farther entitled to its counsel fees and costs in prosecuting this proceeding. See Matter of New York Civ. Liberties Union v. City of Saratoga Springs, 87 A.D.3d at 338, quoting Senate Introducer ‘Mem. In Support, Bill Jacket, L. 2006, ch. 492 at 5 [the counsel fee provision was added in recognition that persons seeking to force an agency to respond to a proper FOIL request “must engage in costly litigation” and the fee provision was amended “in order ‘to create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirem of FOIL”). AS AND FOR A FIFTH CAUSE OF ACTION PURSUANT TO CPLR ARTICLE 78 AGAINST RESPONDENTS DEC AND SEGGOS 126. Petitioner repeats and realleges each and every allegation contained in Paragraph Nos, “1” through “38” as if fully set forth herein. 127. OnNovember 29, 2016, AGC NYS submitted a FOIL request to the DEC Records sco019400.1} 26Access Officer (the “DEC Request”). A copy of the DEC Request is attached hereto as Exhibit a 128. The DEC Request sought the following information, required to have been kept in accordance with Executive Law §313 and 5 NYCRR 142.2(d), regarding a contract let by DEC for the Buffalo Lakeside Commerce Park, Parcel 4: A copy of the analysis conducted and utilized to reach the determination to require 15% Minority Business and 15% Woman Business Enterprise participation for this contract, Alll documents generated or in the possession of Agency’ which were relied upon or used in considering the factors set forth in 5 NYCRR. 142.2(d) for this contract. (See Ex. Q). 129. On December 20, 2016, the DEC acknowledged receipt of the DEC Request and stated that AGC NYS would be notified within twenty (20) business days regarding the availability of the records it sought. 130. Following multiple extensions of time, on January 27, 2017, the DEC denied the DEC Request (the “DEC Denial”) via email, stating that: Records responsive to your request have been denied pursuant to POL § 87(2)c, as the records, if disclosed, ‘would impair present or imminent contract awards or collective bargaining negotiations, and POL § 87(2)g, as they consist of deliberative inter-agency materials. A copy of the DEC Denial is attached hereto as Exhibit R. 131. On February 24, 2017, AGC NYS timely appealed the DEC Denial via letter to the FOIL Appeal Officer of the DEC (the “DEC Appeal”). A copy of the DEC Appeal is attached hereto as Exhibit S. {coors#00.3) 27132, promulgated in accordance with statute mandate agencies to set individual contract specifications establishing MWBE participation goals, taking into account the factual considerations specific to the contract as enumerated in 5 NYCRR §142.2(0) (see Para. 32), which factual information is not subject to any exception from FOIL; (2) if such contractual specifications were imposed absent such factual considerations, then the goals established in the identified contract were not properly established; and (3) if the contractual goal specifications had been based on a factual presentation of data, and even if involved figures were estimated or intended to reflect opinions, such records In the DEC Appeal, AGC NYS explained that (1) statute and the regulations must be disclosed in accordance with FOIL. 133. On or about March 20, 2017, the DEC denied the DEC Appeal (the “DEC Appeal Denial”). A copy of the DEC Appeal Denial is attached hereto as Exhibit T. 134, (see Ex. 1). 135. reference to contracts not yet awarded. The DEC Request was clear that it related only to contract let by DEC for the Buffalo Lakeside Commerce Park, Parcel 4, an awarded contract, and this e0018400.3) ‘The DEC Appeal Denial states that: A further review has indicated that the only records responsive to your request that can be located are those that were previously provided to you in response to your June 6, 2016 FOIL request for “Agency-Specific M/WBE Goals and Analysis” (FOIL request# W008086-060616) and those available on the Department's public website (www-dec.ny.gov) by clicking on "Doing business with DEC.” To the extent any responsive records pertaining specifically to a particular contract that has not yet been awarded could be located, it is likely that such records or portions thereof could be withheld in accordance with Public Officers Law §87.2(c) (disclosure would impair present or imminent contract awards) and/or Public Officers Law §87.2(g) (certain interagency or intra- agency materials), ‘The DEC Appeal Denial is noncompliant with FOIL, arbitrary and capricious in its, 28information, required to be compiled by statute and regulation, would not and could not impair a present or imminent contract award, even if the particular contract was not awarded, because an MWBE goal specification is not susceptible to a post-award (but pre-contract) amendment — such, would be a material deviation from an advertised bid specification that would invalidate the procurement in its totality. 136. The DEC Appeal Denial is noncompliant with FOIL, arbitrary and capricious in that it fails to identify specific documents, ambiguously referring to potential’ reasons for withholding unidentified documents. 137. The DEC Appeal Denial is noncompliant with FOIL, arbitrary and capricious in asserting that POL §87.2(g), establishing an exception for “certain interagency or intra-agency materials” is applicable, because statute, as well as the regulations promulgated in accordance with statute, mandate agencies to set individual contract specifications establishing MWBE participation goals, taking into account the factual considerations specific to the contract as enumerated in S NYCRR §142.2(¢) (see Para. 32), which factual information is not subject to any exception from FOIL, including POL §87.2(g), even if “entwined with opinion.” (See para, 69, supra). 138. Attached to the DEC Appeal Denial was fifty (50) pages of records that had previously been disclosed in response to a AGC NYS’ FOIL request (FOIL Request # W008086- 060616), ‘These records are, upon information and belief, also publicly available on the DEC's website. A copy of those records are attached hereto as Exhibit U. 139, ‘The DEC Appeal Denial confuses this issue further. The website cited in it (“Doing Business with DEC” located at http://www. dec.ny gov/about/61016.htm!) states that: DEC’s Minority/Women's Business Programs Unit (M/WBE) has established Minority/Women’s' Business Enterprise and Equal (co01s400.2) 29140. Employment Opportunity goals by contract type and geographic locations. Construction contracts valued at $100,000 or more and service and commodity contracts valued at $25,000 or more are required to demonstrate good faith efforts to meet these goals, However, other information on DEC’s website states in seeming direct contradiction that DEC has, rather than a program of establishing goals on a per-contract basis, shifted to a State-wide basis, meaning that the same goal will apply in Manhattan as in Ogdensburg, as follows: ® See In 2012, DEC received approval of updated goals for MWBEs from Empire State Development's Minority and Women's Business Development Program. Subsequent to this approval, there was additional clarification provided regarding the combined MWBE goals noted below. While the goals were structured on a regional basis in the past, the revised perspective is one that is based on statewide availability. Governor Cuomo has made increased MWBE utilization a priority of his administration, setting an overall goal to increase MWBE participation in State contracting to 30%. Construction contracts valued at $100,000 or more and service and commodity contracts valued at $25,000 or more require good faith efforts to meet MWBE goals and must include the MWBE and EEO goals in the awarding document (contract or purchase ordex). These documents must also include language for mandated reporting. DEC's new goals are effective immediately and will be used for all procurements/contracts advertised after January I, 2015. The goals are as follows: DEC’s “MWBE Goals & — Reporting —_ Responsibilities, hitp://www.dec.ny.gov/about/48854,html, e00194003) 30 located atAA y 24 tay fone ena ror) Commodities : (Statewide): 30% Non- Construction 30% Services (Statewide): Construction (Gtatewide): a 141. DEC did not certify that no documents relevant to the contract identified in the DEC Request were available. 142, Having been precluded from its rights via FOIL, Petitioner AGC NYS timely commenced this Article 78 proceeding to force DEC to properly respond to its DEC Request. See Matter of New York Civ. Liberties Union v. City of Saratoga Springs, 87 A.D.3d at 338, quoting Senate Introducer Mem. In Support, Bill Jacket, L. 2006, ch. 492 at 5 [the counsel fee provision was added in recognition that persons secking to force an agency to respond to a proper FOIL, request “must engage in costly litigation” and the fee provision was amended “in order ‘to create aclear deterrent to unreasonable delays and denials of access {and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL"). 143. DEC has violated FOIL by failing to disclose the records sought, to claim a proper exception to disclosure or to certify that it does not possess the requested document. See Legal Aid v. New York State Department of Corrections and Community Supervision, 105 A.D.34 1120 (Gd Dep't 2013). {c0029400.1) 31144. AGC NYS has exhausted its administrative remedies, and has no other remedy at law. 145, Respectfully, AGC NYS is entitled to the production of responsive records from DEC, or its certification that such records do not exist, as well as its counsel fees and costs in accordance with POL §89(4)(c). {c0019400.1} 32.WHEREFORE, Petitioner AGC NYS respectfully requests this Court issue an Order: (1) finding Respondents’ deniels of Petitioner’s FOIL requests to be contrary to FOIL, arbitrary and capricious and without basis in law or fact; @) directing that each of the Respondents provide Petitioner with records responsive to all requests in Petitioner's FOIL requests or certification that such records do not exist; (3) ordering, in the altemative, an in camera review of all responsive records in the event this would better inform the Court as to the nature of the records requested by Petitioner, as well as any need for redactions; (4) awarding counsel fees and costs to Petitioner and against each Respondents pursuant to POL §89(4)(c) in an amount to be determined at the conclusion of this proceeding; and (S) granting Petitioner such other and further relief as this Court may deem just and proper. Dated: April 11, 2017 Joe! M. Howard, III, Esq. Jennifer K. Harvey, Esq 4€0019400.1) 33Desiree S. Mumane, Esq. Attorneys for Petitioner P.O. Box 22222 540 Broadway Albany, New York 12201-2222 Telephone: (518) 426-4600 YERIFICATION STATE OF NEW YORK: ss. COUNTY OF ALBANY : Michael J. Elmendorf, Il, being duly sworn, deposes and says that deponent is the President and Chief Executive Officer of the Associated General Contractors of New York State, LLC, the Petitioner in the within action; that deponent has read the foregoing Verified Petition and knows the contents thereof; that the same is true to deponent’s own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes it to be true. ‘The grounds of deponent’s belief as to all matters not stated upon deponent’s knowledge are as follows: reviewing the books and records of the Associated General Contractors of New ‘York State, LLC. MICHAEL J. ENMENDORF, II ‘Sworn to before me this, \** day of April, 2017. Rue & Gr Notary Public OW STOREdnsdon Doe C497 L8ENCHOITIO DOCK KAREN A. BRUMMETT Notay Buble, State ot New York No OiBneoes a7 uated n Saratoga Gounty Commission Expires Boo 93°50 1% 34,EXHIBIT A—~ ASSOCIATED GENERAL CONTRACTORS oF New York StaTE ‘The New York State Chapter of the. Associated General Contractors of America November 14, 2016 Mr. Robert DiOrio Records Access Officer Dormitory Authority of the State of New York 515 Broadway Albany, New York 12207-2964 RE: Project M/WBE Goal Setting Analysis — Project QC700-006 Louis Armstrong House Museum Education Center To Whom It May Concem: Section 313, Subdivision 2-a(b) of Executive Law requires that “each contract solicitation set forth the expected degree of minority and women-owned business enterprise participation” based, in part, on: @ the potential subcontract opportunities available in the prime procurement contract; and Gi) the availability, as contained within the study, of certified minority business ‘enterprises to respond competitively to the potential subcontract opportunities. Furthermore, 5 NYCRR 142.2(4) provides that: In determining appropriate goals for a particular State contract, State agencies shall give consideration to the following factors: (1) the contract and subcontract scope(s) of work; ) the potential subcontract opportunities available in the prime contract; @) the relevant availability data contained within the disparity study with respect to the scope of the contract and potential subcontracting opportunities; ) the number and types of certified minority- and women-owned business enterprises found in the directory of certified minority- and women-owned businesses available to perform the State contract work; (6) the geographic location of the contract performance; (©) the extent to which geography is material to the performance of the contract; () the ability of certified minority- and women-owned enterprises located outside of the ‘geographic location of contract performance, notwithstanding the regional location of the certified enterprise, to perform on the State contract; (8) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; (9) the relationship of the monetary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and (10) the agency's annual agency-specific goal established pursuant to section 141.2 of these regulations. 10 Amun Dave, SUE 203 » Auman, New York 12205 518-456-1134 P + 518-456-1198 F « wawagenys.orgNovember 14, 2016 Page Two Accordingly, we request the following: ‘+ A copy of the analysis conducted and utilized to reach the determination to require 20% Minority Business and 10% Woman Business Enterprise participation for this contract. * All documents generated or in the possession of Agency which were relied upon ot used in considering the factors set forth in 5 NYCRR 142.2(d) for this contract. Please treat this as a formal Freedom of Information Law request. We stand ready to pay the customary copying charges associated with this request, Thank you. Very truly yours, WA Le Michael J. Elmendorf It President and CEO Associated General Contractors of New York StateEXHIBIT BNEWYORK | DASNY STATE OF SProRTUNITY. ANDREW M. CUOMO ALFONSO L. CARNEY, JR. GERRARD P. BUSHELL, Ph.D. Governor Chair President & CEO February 3, 2017 Michael J. Elmendorf I! President and CEO Asociated General Contractors of New York State 10 Airline Drive, Suite 203 Albany, New York 12205 meimendorf@aacnys.org Re: Louis Armstrong House Museum Education Center, MWBE Goal Setting Analysis. - Provide the analysis conducted and utilized to reach the determination to require 20% ‘Minority Business and 10% Woman Business Enterprise participation. Also, all documents generated or in DASNY’s possession which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d). + DA Tracking #F-16-190 (Please use this number on all future correspondence/checks) Dear Mr. Elmendorf: This letter is a follow-up to DASNY’s letter of December 13, 2016 and your November 14, 2016 letter, pursuant to the New York State Freedom of Information Law (Public Officers Law, Article 6, Sections 84-90), for records concerning the above-referenced project. The records are being denied pursuant to Public Officers Law 87(2)(c) as disclosure would impair present or Imminent contract awards. Additionally, the records are being denied pursuant to POL§87(2\(q), as the records contain inter-agency and intra-agency materials which are not i. statistical or factual tabulations or data; ji, instructions to staff that affect the public; il. inal agency policy or determinations; or iv. extemal audits. They are predecisional in nature, are integral io DASNY’s deliberative process, and contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations or other subjective matter. Please be advised, if you disagree with the above determination regarding your FOIL request, you have the Tight to file an appeal. Please submit such appeal in writing to Kay M, Edwards, DASNY’s Records Access Appeal Officer, within thirty (30) days after your receipt of this letter, Ms. Edward's address is 515 Broadway, Albany, New York 12207. If DASNY does not receive a notice of appeal within thiry-five (38) days from the date hereof, its file regarding the matter will be closed and the matter deemed concluded. Robert C, DiOrio Associate Records Access Officer ‘CORPORATE NEW YORK GIT BUFFALO OFFICE ‘DORMITORY AUTHORITY STATE OF NEW YORK HEADQUARTERS OFrice ‘39 Franuln soot Bis Bccaday ne Penn Paza, San Bato, NY14202-1100 Sey 2068 aay WE FINANCE, BUILD AND NewYork NY 101190008 | 7 716-888-9780 DELIVER. 5182573000 F risaseore7 F s18.257-3100 212-278-6000 F pi2arssi2i wrww.dasny.org“\G~19e ASSOCIATED GENERAL CONTRACTORS @ oF New York STATE ‘The New York tate Chapter ofthe ‘Asso Genel Covad of Amer ‘November 14, 2016 Mz. Robert DiOzio RECEIVED Records Access Officer Dormitory Authority of the State of New York NOV 142016 515 Broadway Albany, New York 12207-2964 DASNY Communications & Marketing RE: Project M/WBE Goal Setting Analysis ~ Project QC700-006 Louis Armstrong House Museum Education Center ‘To Whom It May Concern: Section 313, Subdivision 2-a(b) of Executive Law requires that “each contract solicitation set forth. ‘the expected degree of minority and women-owned business enterprise participation” based, in part, on: @ the potential subcontract opportunities available in the prime procurement contract; and Gi) the availability, as contained within the stady, of certified minority business enterprises to respond competitively to the potential subcontract opportunities, Furthermore, 5 NYCRR 142.2(4) provides that; In determining appropriate goals for a particular State contract, State agencies shall give consideration to the following factors: 2) the contract and subcontract scope(s) of work; @) the potential subcontract opportunities available in the prime contract; @) the relevant availability data contained within the disparity study with respect to the scope of the contract and potential subcontracting opportunities; (4) the number and types of certified minority and women-owned business enterprises found in the directory of certified minority- and women-owned businesses available to perform the State contract work; (G) the geographic location of the contract performance; ©) the extent to which geography is material to the performance of the contract; (7) the ability of certified minority- and women-owned enterprises located outside of the geographic location of contract performance, notwithstanding the regional location of the certified enterprise, to perform on the State contract; (@) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; 9) the relationship of the monetary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and (10) the agency's annual ageney-specific goal established pursuant to section 141.2 of these regulations. 10 Arun Dave, Sur 203 + Atgany, New York 12205 518-456-1134 P » 518-456-1198 F « vnvw.agenys.org‘November 14, 2016 Page Two Accordingly, we tequest the following: ‘+ A copy of the analysis conducted and utilized to reach the determination to require 20% ‘Minority Business and 10% Woman Business Enterprise participation for this contract, * All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(@) for this contract. Please treat this as a formal Freedom of Information Law request. We stand ready to pay the customary copying charges associated with this request, ‘Thank you. Very truly yours, WAAL Michael J. Elmendorf It President and CEO Associated General Contractors of New York StateEXHIBIT C—~ ASSOCIATED GENERAL CONTRACTORS. oF New York STATE February 24, 2017 Kay M. Edwards Records Access Appeal Officer Dormitory Authority of the State of New York 515 Broadway Albany, New York 12207 @ ‘The New York State Chapter of the Associated General Contractors of America Re: Appeal of Denial of November 14, 2016 Freedom of Information Law (“FOIL”) Dear Ms, Edwards: This letter is an appeal of Dormitory Authority of the State of New York denial of documents in response to AGC NYS” FOIL request, which was submitted to the Dormitory Authority of the State of New York Record Access Officer on November 14, 2016. A copy of this request is attached hereto as Exhibit A. Procedural History AGC’s FOIL request dated November 14, 2016 (see Ex. A) sought: * A copy of the analysis conducted and utilized to reach the determination to require 20% Minority Business and 10% Woman Business Enterprise participation for this contract. ‘* All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(4) for this contract. ‘The request was acknowledged by Dormitory Authority of the State of New York on November 18, 2016, which acknowledgment stated that AGC would be notified within twenty business days regarding the availability of the records it sought. Following multiple extensions, on February 3, 2017, the Dormitory Authority of the State of New York finally notified AGC that: To the extent we have records responsive to your request, the records are being denied pursuant to POL § 87(2)(g), as the records contain inter-agency and intra-agency materials which are not i. statistical or factual tabulations or data; ii instructions to staff that affect the public; iii, final agency policy or determinations; or iv, extemal audits. They are predecisional in nature, are integral to the Authority's deliberative Process, and ,§9N{Ri? SRiMiaR aos YER vSellbsEations, policy 518-456-1134 P'» 518-456-1198 F « wawagerys.orgFebruary 24, 2017 Page 2 formulations, proposals, conclusions, recommendations or other subjective matter. The asserted exception does not apply on the facts at hand. The Statutory Framework for the Documents Sought FOIL is based upon the policy that agency records are presumptively available to members of the public, unless the agency establishes that the records fall within one of the statute's exemptions, See In re Farbman & Sons, Inc. v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 79-80 (1984). The exemption in Public Officers Law Section 87(2)(g) applies to “predecisional information which is prepared in order to assist the decision-making process. . ..” In re Medulay v. Board of Edue.of the City of New York, 61 A.D.2d 1048 (2d Dep't 1978), aff'd 48 N.¥.24 659 (1979). Intra-agency records fall within the coverage of Section 87(2)(g) of FOIL, which states that an agency may withhold records that: “are inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data; ii, instructions to staff that affect the public; final agency policy or determinations; or iv. external audits, including but not limited to audits performed by the comptroller and the federal government...” The statutory language quoted above contains what is effectively a double negative. While inter-agency or intra-agency materials may be withheld, portions of those materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policies or determinations, or external audits must be disclosed, unless a different ground for denial may properly be asserted. Dormitory Authority of the State of New York has asserted no other basis. It is well established that there is no basis for withholding statistical or factual information, ie., mumerical figures, including estimates and projections even though they may have been advisory and subject to change. This issue was considered in Dumlea y. Goldmark, and it is directly on point with the instant report. 85 Misc. 24 198, 202-03, modified 54 A.D.2d 446, aff'd 43 N.Y.2d 754 (1977). In Dunlea, the records at issue contained three columns of numbers related to certain areas of expenditures which the state agency held were recommendations, rather than statistical or factual. Although the worksheets were merely estimates and subject to modification, they were nevertheless found to be “statistical tabulations” accessible under FOIL as originally enacted. At that time, FOIL granted access to “statistical or factual tabulations” [see original Law, §88(1)(d)]. Currently and consistently, §87(2)(@)(i) requires the disclosure of “statistical or factual tabulations or data.” As stated by the Appellate Division in Dunlea:February 24, 2017 Page 3 [i}tis readily apparent that the language statistical or factual tabulation ‘was meant to be something other than an expression of opinion or naked argument for or against a certain position. The present record contains the form used for work sheets and it apparently was designed to accomplish a statistical and factual presentation of date primarily in tabulation form. In view of the broad policy of public access expressed in Section 85 the work sheets have not been shown by the appellants as. being not a record made available in Section 88. 54 A.D.2d 446, 448. In so holding, it is important to understand the Third Department was aware that the records ‘were used in the deliberative process, stating that: [the mere fact that the document is a part of the deliberative process is intelevant in New York State because Section 88 clearly makes the back-up factual or statistical information fo a final decision available to the public, This necessarily means that the deliberative process is to be a subject of examination although limited to tabulations. In particular, there is no statutory requirement that such data be limited to ‘objective’ information and there no apparent necessity for such a limitation. Id. at 449, The use or assignment of numbers to opinion does not render the number subject the exception. Professional Standards Review Council v. NYS Department of Health, 193 A.D.24 937, 939 (Bd Dep’t 1993) (ratings prepared by staff for the purpose of evaluating RFP criteria, and consisting of essentially numerical figures assigned to opinions were required to be disclosed). Put another way, the argument that factual data entwined with opinion will render an entire report exempt similarly not tenable. In Ingram v, Axelrod, 90 A.D.2d 568, 569 (3d Dep't 1982), the Appellate Division held that: [rJespondent, while admitting that the report contains factual data, contends that such data is so intertwined with subjective analysis and opinion es to make the entire report exempt. After reviewing the report in camera and applying to it the above statutory and regulatory criteria, we find that Special Term correctly held pages 3-5 (‘Chronology of Events’ and “Analysis of the Records’) to be disclosable, These pages are clearly a ‘collection of statements of objective information logically arranged and reflecting objective reality’, [sic] (10 NYCRR 50-2[b)). Additionally, pages 7-11 (ambulance records, list of interviews, and reports of interviews) should be disclosed as “factual data’. ‘They also contain factual information upon which the ageney relies (Matter of Miracle Mile Assoc. v. Yudelson, 68 A.D.2d 176, 181 mot for ive to app den 48 N.Y.2d 706). [sic] Respondents erroneously claim that-an agency record necessarily is exempt if both factual data and opinion areFebruary 24, 2017 Page 4 intertwined in it; we have held that ‘{the] mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion’ (Matter of Polansky v. Regan, 81 AD.2d 102, 104; emphasis added). [sic] Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable. In short, even though statistical or factual information may be “intertwined” with opinions, the statistical or factual portions, if any, as well as any policy or determinations, would be available, unless a different ground for denial could properly be asserted. The Records Withheld in Contravention of FOIL, Executive Law Article 15-A established the Office of Minority and Women's Business Development (‘State Disadvantaged Business Development Agency” or the “Agency”) and empowered the director of that Agency to promulgate regulations. 1d. §§ 311(1), 313(1). The regulations promulgated pursuant to article 15-A, see N.Y.C.CRR. tit. 9, pts. 540-44 (1992), require all state agencies to submit plans setting annual and individual contract MWBE participation goals to the director of the Agency. See id. §§ 541.2, 543.2. “At no point does Article 15-A specify a quota or percentage set-aside of work on state contracts for M/WBEs. Rather, the statute employs less precise phrases such as “participation requirements,” id at § 313(5), or “fair share,” id. at § 313(1), to designate those portions of a particular state contract which are targeted for W/MBEs.” Harrison & Burrowes Bridge Constructors ¥. Cuomo, 743 F. Supp. 977, 981 (ND.IN.Y. 1990). Moreover: State agencies, such as the State DOT, which are covered by the regulations are required to submit to the Director of the Governor's Office of Minority and Women's Business Development an "agency goal plan" which sets the goal for the percentage of participation of MBE's and WBE’s on contracts issued by the agency along with a Justification for the goal. Id. at § 541.2(@). The director may accept, reject or modify the proposed agency goal plan. Id. at § 541.3, The contracting agencies must also aW icipati for each individual contract. When setting the individual contract goals the agency js to take into account: (1) the scope of the work: (2) the ‘number, type, and availability of WBEs and MBESs in the region of the Stale where the contract is to be performed: (3) the dollar value of the contract: (4) the percentage of minority group members and women in the population of the region where the contract will be performed; (5) the possi ts of past discrimination in reduc sarticipatic ‘of WBEs and MBEs in state contracts; and (6) the ability of other state agencies to meet their participation goals in a particular region of the state. Id. at § 543.2.February 24, 2017 Page 5 Jd. (emphasis supplied). ‘These requirements are further contained within 5 NYCRR 142.2(e), as referenced in the FOIL request (Ex. A), which states: @ In determining appropriate goals for a particular State contract, State agencies shall give consideration to the following factors: (1) the contract and subcontract scope(s) of work; @) the potential subcontract opportunities available in the prime contract; @) the relevant availability data contained within the disparity study with respect to the scope of the contract and potential subcontracting ‘opportunities; (4) the number and types of certified minority-and women-owned business enterprises found in the directory of certified minority- and women-owned businesses available to perform the State contract work; (GS) the geographic location of the contract performance; (6) the extent to which geography is material to the performance of the contract; (7 the ability of certified minority- and women-owned enterprises located outside of the geographic location of contract performance, notwithstanding the regional location of the certified enterprise, to perform on the State contract; (8) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; ©) the relationship of the monetary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and (10) the agency’s annual agency-specific goal established pursuant to section 141.2 of this Part. This analysis is based on consideration of each foregoing factual prong as listed above. Such information is not subject to the FOIL exception cited. Indeed, if the goals for the identified project were set based on a purely policy basis, devoid of factual analysis, then the requirements of the statute would not and could not have been complied with, AGC seeks the documents forming the basis of Dormitory Authority of the State of New York’s determination to set, for this individual contract, the MWBE goals at 20% Minority Business and 10% Woman Business Enterprise participation. Those goals can only be established following the procedure established in 5 NYCRR 142.2.February 24, 2017 Page 6 It is assumed that the goals were not based on loose projections, unverifiable calculations or “meant to be... an expression of... naked argument.” Dunlea, 54 A.D.2d at 448. If that were the ‘case, then the goals for this project were not properly established. The goals were presumably based on an analysis of a factual presentation of data, and even if involved figures were estimated or intended to reflect opinions, such records must be disclosed. Id. at 449. The denial of AGC’s November 14, 2016 FOIL request is hereby appealed in its entirety, and respectfully, for all the foregoing reasons, the records sought should be granted. “I always err on the side of disclosure and transparency.” ‘Vey truly yours, sa" AX a Michael J’ Elmendorf Ik President & CEO Associated General Contractors of New York State Enclosures cc: Committce on Open Government (Via U.S. Mail)ASSOCIATED GENERAL CONTRACTORS oF New York State ‘The New YorkState Chapter ofthe sssodned Gar Contacts OF Ameria ‘November 14, 2016 ‘Mg. Robert DiOrio Records Access Officer Donmitory Authority of the State of New York 515 Broadway Albany, New York 12207-2964 RE: Project M/WBE Goal Setting Analysis ~ Project QC700-006 Louis Armstrong House Museum Education Center ‘To Whom It May Concern: Section 313, Subdivision 2-a(b) of Executive Law requires that “each contract solicitation set forth the expected degree of minority and women-owned business enterprise participation” based, in part, on: @ the potential subcontract opportunities available in the prime procurement contract; and i) the availability, as contained within the study, of certified minority business enterprises to respond competitively to the potential subcontract opportunities, Furthermore, 5 NYCRR 142.2(d) provides that: In determining appropriate goals for a particular State contract, State agencies shall give consideration to the following factors: (1) the contract and subcontract scope(s) of work; 2) the potential subcontract opportunities available in the prime contract; @) the relevant availability data contained within the disparity study with respect to the seope of the contract and potential subcontracting opportunities; (4) the mumber and types of certified minority. and women-owned business enterprises found in the directory of certified minority- and women-owned businesses available to perform the State contract work; (G) the geographic location of the contract performance; (©) the extent to which geography is material to the performance of the contract; (D) the ability of certified minority- and women-ovmed enterprises located oulside of the geographic location of contract performance, notwithstanding the regional location of the certified enterprise, to perform on the State contract; (®) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; (9) the relationship of the monetary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and (10) the agency's annual agency-specific goal established pursuant to section 141.2 of these regulations. 10 Ameue Drove, Sure 203 + Anan, New York 12205 ‘518-456-1134 P » 518-456-1198 F « wwwwagenys.org‘November 14, 2016 Page Two Accordingly, we request the following: + A copy of the analysis conducted and utilized to reach the determination to require 20% ‘Minority Business and 10% Woman Business Enterprise participation for this contract. + All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(¢) for this contract, Please treat this as a formal Freedom of Information Law request. We stand ready to pay the customary copying charges associated with this request. ‘Thank you, ‘Very truly yours, WAL ‘Micheel J. Elmendorf It Presitient and CEO Associated General Contractors of New York StateEXHIBIT D¢ ¢ Newyork | DASNY ‘oproatuNTY. ANDREW lM. Como ALFONSO L., CARNEY, JR. GERRARD P, BUSHEL ‘Goversion Cha Prosident March 10, 2017 wi (melmendorf@aacnys.or Mr. Michael J. Eimendot IL President and. CEO Associated General Contractors of New York State. 49: Alrline Drive, Suite 203 Albany, New York 12205 Re: FOIL Request #F-16-190 Dear Mr. Elmendorf: DASNY has received your correspondence, dated February 24, 2017 (the “Appeat") appeating DASNY’s decision, to-withhold certain documents requested ina November 14, 2016 letter from Associated General Contracts of New York (‘AGC"), The Appeal is hereby denied for the reasons set forth below. Facts Underlying the Appeal By Istter dated November 14, 2016, AGC requested disclosure of the: following documents. and information pursuantto the Freedom.of Information Law ("FOIL"): (1) A:copy of the analysis conducted: and. uflized:to- reach the determination 10 require 20% Minority Business. and 10% Woman Business Enterprise participation for Project QC700-008, Louis Armstrong House Museum Education Center (the "Gontract”); ancl (2) All. documents generated or in DASNY's possession which were relied upon or used in considering ‘the factors set-forth in 6 NYCRR 142.2(d) for this Contract, By letter dated November 18, 2016, DASNY notified AGC that it was reviewing its fles to determine whether it possessed responsive documents. By letters dated, December 13 and January 12, 2017, DASNY. notified AGC that it was continuing to review ifs files and that DASNY expected to report on the status of its search within twenty (20) days. By letter dated February 3, 2017, DASNY notified, AGC that its request was denied on the basis that: (1).diselosure would impair present or imminent contract awards; and (2) the records contain inter-agency and intra-agency-materials which afe- not (i) statistical of factual tabulations or cata; (i) instructions to staff that affect the public; (i) final agensy policy or determinations; or (iv) external audits. DASNY took the position that CORPORATE HEADQUARTERS. | NEWVORKCITV.OFRCE | BUFFALO.ORFICE DDORWITORY AUTHORITY STATE OF NEW YORKC ‘SS Broxanay, ‘OnoPem Piaza, Sand cer. | 529 Frenldn Sheet ‘bay, NY 12207-2964 New verk, Nv tStte-cogs "| Bul NY'42024109 WE FINANCE, BUILD AND ‘TE peasraco0 Transeo 1 risapasra0 DELIVER. F pteasrsieo F2ezrssia F rysann gray wrenwdasny.orgC ¢ Heron | DASNY SPRORTUNITY. Page 2 the requested materials were, predecisional in nature, integral to DASNY's deliberative process, and contained opinions, evaluations, deliberations, policy’ formulations, proposals, conclusions, recommendations or other subjective matter, By correspondence dated February 24, 2017, AGC appealed DASNY's denial of documents in Fesponse to AGC's FOIL Request, However, the Appeal is denied for the reasons set forth below. Thess! Public Officers. Law-{’POL')§ 87 Imposes a broad duty on government agencies to disclose-and grant ‘access to its records. An agency: must either disclose the records. sought, deny the request and claim a specific exemption to disclosure, or carly that if does not possess the requested.docurent and that it could not be located after a diligent search. POL § 89(3)(a); See Matter of Beechwood Restorative Care Center v. Signor, 5 N.¥.3d 435435, 808.N.Y:S.24,568-(2005), POL § 87(2)(c) Exemptions POL § 87(2\¢) permits an. agency to deny access to those records, which if disclosed, would “impair present or imminent contract awards or collective bargaining negotiations.” Public agencies are not requited to engage in negotiations in a public forum, Unlike final or conditionally awarded contracts, where there are ‘ongoing discussions such that disclosure would impair an agency's ability to obtain the most favorable ‘agreement, materials. related to such negotiations are exempt from disclosure. See Orange Co. Publ, v. Metr. Transp. Authority, 2003 WL. 25668853 -(Sup. Ct. N:Y. Go. October 9, 2003), appeal dismissed, 22 AD.8d 290,N.Y. A.D. 1%, October 41, 2004. ‘The railonale behind this exclusion is. clear: premature disclosure of draft material, particulary inthe context of contractual negotiations, cain sefiously impair a public-agenicy's ably to conduict such negotiations effectively; to the detriment. of taxpayers. See:Murray v. Troy Utban Renewal Agency, 84 A.D.2d 612, 444 NLY.S:2d 249 (8d Dept. 1981), eifd, 56 N.Y.2d-888, 453 NLY.S:2d 400 (1982) (release of draft contract and underlying terms.could Impair ability to negotiate and’ award, thus they are exempt from disclosure); Cohalan ve Board of Education, 74 A:D.2d 812, 425 N.Y.S.24 367 (2d Dept. 1280) (draft collective bargaining agreements are exempt from disclosure). Furthermore, impaitment to contract awards on a diferent project from the one én which recprds: are sought may warrant an exemption. See Orange Co. Publ,, 2003 WL 125688853. As the Court Has stated, to "read in such a limitation would run counter to the very purpose of the exemption {6 allow the agency to obtain the best possible contracts for the benefit of the taxpayers.” Id. POL §87(2)(a)Exemptions, ‘Similarly, POL §87(2)(s) permits an agency.to withhold inter or inira-agency materials that are not final determinations but. which constitute part of consultative or deliterative progess-of goverment decision making. POL § 87(2)(9)ll) (Matter of' Mingo v. New York State Div, of Parole, 244. A.D.2d 781, 782, 666 N.Y.8.26 244 [1997], quoting Matter of Russo v. Nassau County Community Coll, 81 N.¥.2d 690, 689, 603 NY6.2d 294, 628 N.E.2d 15 [1993]; See Matter.of Xerox Corp, v. Town of Webster, 65.N.Y.2d 131, 132, 490 N.Y.8.2d 488, 480 N.E.2d 74 [1985] ). The. purpose of this exemption is. to: protest the consultative orNewyork | DASNY SGA Pages deliberative process -of government policy makers: by ensuring that.persons in an advisory role may express their opinions freely to:agency decisién makers. See, N.Y. Times Go. v, New York. City Fire Department, 195 Miso.2d 1, 754 N.Y.8.24 517 (2003)(opinions and recommendations of lower level employees given as part of deliberate process of government decision making are exempt from disclosure), Thus, reports containing advisory positions and opinions that are-nondinal. determinations have been deemed fo be exempt from disclosure. See e:g., Morgan v. New York State Department of Environmental Conservation, 9 A.D.3d 586, 779 N.Y'S.24 643, 644-645 (2d, Dept. 2004)(appraisal report containing advisory posttions and opinions ‘exempt as intra-agency material). Indeed, New York courts have long. recognized that-an agency often needs to rely upon the opinions, evaluations, deliberations, polloy formulations and recommendations of its own employees as an integral part of jis ‘deliberative process, To conduct this process. in public view would inhibit frank discussion of policy matters and likely impair the quality.of decisions, See Matter of Sea Crest Constr: Corp. v. Stubing, 82 A.D.2d 546; Xerox Corp. v. Town of Webster, 65'N.Y.2d 131, 400 N.Y.S.2d 488 (1985) (exempting as intra-agenoy materials real estate eppraisal:reports prepared for agency by outside:consulting firm), ‘The Requested:Documents’Are Exempt-Erom Disclosure: Here, AGG'seeks the MWBE-Goal Setting analysis used by DASNY in setting contractual terms that will be riegotiated by bidders on-current and future DASNY projects. It also appears that AGC seeks all underlying decuments generated by or in DASNY's possession which were relied upon or used in considering the factors, including’ the goals, set forth'in the Contract. AGC is:not merely seeking statistical data, it is seeking entrée. into the predecisional deliberations of DASNY in this particularly sensitive area. presumably to obtain the upper hand in current and future contract negotiations that AGC and its. contractor members will certainly. seek to:have with DASNY This.is a signifieant overstretch and is objectionable under both:POL 87(c)(2) and:(g) grounds, With respect to the analysis, even.assuming-arguendo, the analysis may be viewed as pertaining to a single contract that has been awarded, release of the analysis and the underlying documents may undercut DASNY’s ability to establish contractual tefths necessary to promote significant policy and legislative objectives, Le,, MWBE goal setting in the public construction context, and to negotiate the best possible deal on:behalf-of the public in.connection with this Key-objective.on projects-being currently negotiated by DASNY. Furthermore, disclosure of the analysis:and all documents relating to MWBE goal setting for this project would result in DASNY’s frank discussions-related to this Key-policy objective being conducted in the public view. The opinions,’ evaluations, deliberations, policy. formulations and recommendations of DASNY employees as an integral part of its deliberative process would ‘be improperly disclosed. Protection from disclosure in these. circumstances is precisely why the FOIL exemptions exist.ce: (Ge a NEWYORK Senay. DASNY Page 4 Accordingly, | find “that. the: FOIL. exemptions provided for in POL §§ 87(2)(0) and (2)(@\(ili) apply, DASNY is entitled to withholdithe requested materials from disclosure. ‘The ‘Appeallis denied. Very truly yours, Aer re = Kay M. Edwards: Records Access Appeals Officer M. Cusack D. Drescher Committee on Open GovernmentEXHIBIT EEXHIBIT A ASSOCIATED GENERAL CONTRACTORS ® oF New York State The New Yok Sate Chapter ofthe October 7, 2016 Records Access Officer NYS Office of Temporary and Disability Assistance 40 North Pearl, 16th floor Albany, NY 12243 RE: Project M/WBE Goal Setting Analysis ‘West Stroet Apartments ~ 2016-031 To Whom It May Concem: Section 313, Subdivision 2-a(b) of Executive Law requires “cach contract solicitation set forth the expected degree of minority and women-owned business enterprise participation based, in pat on @). the potential subcontract opportunities available in the prime procurement contract; and Gi) the availability, as contained within the sindy, of certified minority business enterprises to respond competitively to the potential subcontract opportunities,” Furthermore, 5 NYCRR 142.2(¢) provides that: 303235. In determining appropriate goals for a particular State contract, State agencies shall give consideration to the following factors: (Q) the contract and subcontract scope(s) of work; Q) the potential subcontract opportunities available in the prime contract; @) the relevant availability data contained within the disparity study with respect to the ‘oope of the contract and potential subcontracting opportunities: (@) the mumber and types of certified minorty- and women-owned business enterprises found in the directory of certified minority- and women-owned businesses available to perform the State contract work; () the geographic location of the contract performance; (©) the extent to which geography is material to the performance of the contract; ©) the ability of certified minority- and women-owned enterprises located outside of the geographic location of contract performance, notwithstanding the regional location of the certified enterprise, to perform on the State contract; @) the total dollar value of the work required by the State contract in relation tothe dollar ‘value of the subcontracting opportunities; @) the relationship of the monetary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and (20) the agency's annual agency-specific goal established pursuant to section 141.2 of these regulations, 210 Amune Drive, Sure 208 + Anan, New York 12205 ‘S1B-456-1134 P « 518-456-1198 F » wwwagerys.org ‘Ascacated Genenl Contractors of AmericaOctober 7, 2016 Page Two Accordingly, we request the following: — + A copyrof the analysis conducted and utilized to reach the determination to requte 15% Minority Business Enterprise and 15% Woman Business Enterprise participation for this contract, * All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(4) for this contract. Please treat this as a formal Freedom of Information Law request. We stand ready to pay the ‘customary copying charges associated with this request. Thank you. Very traly yours, W&A Ue Micheel J. Elmendorf I. President and CEO Associated General Contractors of New York State stas235.1EXHIBIT FNEWYORK | Office of Temporary aren. | and Disability Assistance ANDREW M. CUOMO ‘SAMUEL D. ROBERTS MICHAEL PERRIN Governor ‘Commissioner Executive Deputy Commissioner January 27, 2017 VIA EMAIL to: bryanna@agenys.org Ms, Bryanna Kiselauskas AGC NYS, LLC 10 Airline Drive, Suite 203 Albany, NY 12205 FOIL Request Number: 16-213 Dear Ms. Kiselauskas, This letter responds to your Freedom of Information Law request of October 07, 2016, in which you requested 1) a copy of the analysis conducted and utilized to reach the determination to require 15% Minority Business Enterprise and 15% Woman Business Enterprise participation for the West Street Apartments contract, and 2) all documents generated or in the possession of the Office of Temporary and Disability Assistance (OTDA), which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for this contract, To the extent OTDA has records responsive to your request, the records are being denied pursuant to New York State Public Officers Law § 87(2)(Q), as the records contain inter- ‘agency and intra-agency materials which are not 1) statistical or factual tabulations or data; 2) instructions to staff that affect the public; 3) final agency policy or determinations; or 4) extemal audits. They are pre-decisional in nature, are integral to the OTDA’s deliberative process, and contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations, or other subjective matter. i ‘Should you choose to appeal this decision, kindly send your written appeal to OTDA's Appeals Officer, Craig Crist, at 40 North Pearl Street, Albany, New York 12243 or via email to appealotficer@otda.ny.aov within 30 days in accordance with Public Officers Law § 89(4)(a). Ifyou have any questions, please do not hesitate to contact out Public Information Office at (518) 474-9516 or nyspio@otda.ny.gov. Sincerely, Bachary UL, Stevene Zachary M. Stevens, Esq. Office of Legal Affairs 40 Hoth Pear! Steet, Abary, NY 122430001 |wun.olda.ny govEXHIBIT GASSOCIATED GENERAL CONTRACTORS oF New York STATE February 24, 2017 VL TO_appeal ytda.ny.gov FOIL Appeal Officer NYS Office of Temporary and Disability Assistance 40 North Pearl, 16" Floor Albany, NY 12243 ‘The New York State Chapter ofthe Associated General Contractors of erica Re: Appeal of Denial of October 7, 2017 Freedom of Information Law (“FOIL”) Dear Mr. Crist: This letter is an appeal of Office of Temporary and Disability Assistance denial of documents in response to AGC NYS" FOIL request, which was submitted to the Office of Temporary and Disability Assistance Record Access Officer on October 7, 2016. A copy of this request is attached hereto as Exhibit A. Procedural History AGC’s FOIL request dated October 7, 2016 (see Ex. A) sought: © A copy of the anclysis conducted and utilized to reach the determination to require 15% Minority Business and 15% Woman Business Enterprise participation for the West Street Apartments contract. * All documents generated or in the possession of (OTDA), which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for this contract. ‘The request was acknowledged by Office of Temporary and Disability Assistance on October 7, 2017, which acknowledgment stated that AGC would be notified within twenty business days regarding the availability of the records it sought. Following multiple extensions, on January 27, 2017, Office of Temporary and Disability Assistance finally notified AGC that: ‘To the extent we have records responsive to your request, the records are being denied pursuant to POL § 87(2)(g), as the records contain inter-agency and intra-agency materials which are not i. statistical or factual tabulations or data; ii. instructions to staff that affect the public; final agency policy or determinations; or iv. external audits. They are predecisional in nature, are integral to the Authority’s deliberative 410 Amumve Dave, Suave 203 « Atsavy, New York 12205 518-456-1134 P » 518-456-1198 F + wwwagenys.orgFebruary 24, 2017 Page 2 process, and contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations or other subjective matter. ‘The asserted exception does not apply on the facts at hand. ‘The Statutory Framework for the Documents Sought FOIL is based upon the policy that agency records are presumptively available to members of the public, unless the agency establishes that the records fall within one of the statute’s exemptions. See In re Farbman & Sons, Inc. v. New York City Health é& Hosps. Corp., 62 N.Y.2d 75, 79-80 (1984). The exemption in Public Officers Law Section 87(2)(g) applies to “‘predecisional information which is prepared in order to assist the decision-making process. . ..” In re McAulay v. Board of Ecduc.of the City of New York, 61 A.D-2d 1048 (2d Dep't 1978), aff'a 48 N.Y.24 659 (1979). Intra-agency records fall within the coverage of Section 87(2\(g) of FOIL, which states that an agency may withhold records that: “are inter-agency or intra-agency materials which are not: statistical or factual tabulations or data; ii, instructions to staff that affect the public; iii. final agency policy or determinations; or iv, extemal audits, including but not limited to audits performed by the comptroller and the federal government...” The statutory language quoted above contains what is effectively a double negative. While inter-agency or intra-agency materials may be withheld, portions of those materials consisting of statistical or factual information, instructions to steff that affect the public, final agency policies or determinations, or extemal audits must be disclosed, unless a different ground for denial may properly be asserted. Office of Temporary and Disability Assistance has asserted no other basis. It is well established that there is no basis for withholding statistical or factual information, ie., numerical figures, including estimates and projections even though they may have been advisory and subject to change. This issue was considered in Dunlea v. Goldmark, and it is directly on point with the instant report. 85 Miso. 2d 198, 202-03, modified 54 A.D.2d 446, aff'd 43 N.Y.2d 754 (1977). In Dunlea, the records at issue contained three columns of numbers related to certain areas of expenditures which the state agency held were recommendations, rather than statistical or factual. Although the worksheets were merely estimates and subject to modification, they were nevertheless found to be “statistical tabulations” accessible under FOIL as originally enacted, At that time, FOIL granted access to “statistical or factual tabulations” [see original Law, §88(1)(d)]. Currently and consistently, §87(2)(@)@) requires the disclosure of “statistical or factual tabulations ot data.” As stated by the Appellate Division in Dunlea:February 24, 2017 Page 3 Otis readily apparent that the language statistical or factual tabulation ‘was meant to be something other than an expression of opinion or naked argument for or against a certain position. The present record contains the form used for work sheets and it apparently was designed to accomplish a statistical and factual presentation of data primarily in tabulation form. In view of the broad policy of public access expressed in Section 85 the work sheets have not been shown by the appellants as being not a record made available in Section 88, 54 A.D.2d 446, 448. In 50 holding, it is important to understand the Third Department was aware that the records were used in the deliberative process, stating that: {the mere fact that the document is a part of the deliberative process is irrelevant in New York State because Section 88 clearly makes the back-up factual or statistical information to a final decision available to the public. This necessarily means that the deliberative process is to be a subject of examination although limited to tabulations. In particular, there is no statutory requirement that such data be limited to ‘objective’ information and there no apparent necessity for such a limitation. Id. at 449, The use or assignment of numbers to opinion does not render the number subject the exception. Professional Standards Review Council v. NYS Department of Health, 193 A.D2d 937, 939 (3d Dep't 1993) (ratings prepared by staff for the purpose of evaluating RFP criteria, and consisting of essentially numerical figures assigned to opinions were required to be disclosed). Put another way, the argument that factual data entwined with opinion will render an entire report exempt is similarly not tenable. In Ingram v. Axelrod, 90 A.D.2d 568, 569 (3d Dep't 1982), the Appellate Division held that: {Flespondent, while admitting that the report contains factual data, contends that such data is so intertwined with subjective analysis and opinion as to make the entire report exempt. After reviewing the report, in camera and applying to it the above statutory and regulatory criteria, vwe find that Special Term correctly held pages 3-5 (‘Chronology of Events’ and ‘Analysis of the Records’) to be disclosable. These pages are clearly a ‘collection of statements of objective information logically arranged and reflecting objective reality’, [sic] (10 NYCRR 50.2[b)). Additionally, pages 7-11 (ambulance records, list of interviews, and reports of interviews) should be disclosed as ‘factual data’. They also contain factual information upon which the agency relies (Matter of Miracle Mile Assoc. v. Yudelson, 68 A.D.24 176, 181 mot for Ive to app den 48 N.Y.2d 706). [sic] Respondents erroneously claim that anFebruary 24, 2017 Page 4 agency record necessarily is exempt if both factual data and opinion are intertwined in it; we have held that ‘[the] mere fact that some of the data might be an estimate or a recommendation does not convert it into ‘an expression of opinion’ (Mailer of Polansky v. Regan, 81 AD.2d 102, 104; emphasis added). [sic] Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable. In short, even though statistical or factual information may be “intertwined” with opinions, the statistical or factual portions, if any, as well as any policy or determinations, would be available, unless a different ground for denial could properly be asserted. ‘The Records Withheld in Contravention of FOIL Executive Law Article 15-A established the Office of Minority and Women's Business Development (“State Disadvantaged Business Development Agency” or the “Agency") and empowered the director of that Agency to promulgate regulations. Id. §§ 311(1), 313(1). The regulations promulgated pursuant to article 15-A, see N.Y.C.CRR. tit. 9, pts. 540-44 (1992), require ail state agencies to submit plans setting annual and individual contract MWBE perticipation goals to the director of the Agency. See id. §§ 541.2, 543.2. “At no point does Article 15-A specify 2 quota or percentage set-aside of work on state contracts for M/WBEs. Rather, the statute employs less precise phrases such as “participation requirements,” id at § 313(5), or “fair share,” id. at § 313(1), to designate those portions of a particular state contract which are targeted for W/MBEs.” Harrison & Burrowes Bridge Constructors vy. Cuomo, 743 F. Supp. 977, 981 (N.D.N.Y. 1990). Moreover: State agencies, such as the State DOT, which are covered by the regulations are required to submit to the Director of the Governor's Office of Minority and Women's Business Development an "agency goal plan" which sets the goal for the percentage of participation of MBE's and WBE's on contracts issued by the agency along with a justification for the goal. Id. at § 541.2(a). The director may accept, reject or modify the proposed agency goal plan. Id at § 541.3. The contracting agencies must also establish a W/MBE participation goal for each indivi. jt. When setting the individual contract goals agency is into account: (1) the scope of the work: (2) the number, type, and availability of WBEs and MBEs in the region of the state where the contract is to be performed: (3) the dollar value of the contract: (4) centage of minorit embers and women in jopulation of the region the: ill be ds (5 the possi ts of. rimination in reducing the participation of WBEs and MBEs in state contracts: and (6) the ability of other state agencies to meet their participation goals in a particular region of the state. Id. at § 543.2,February 24, 2017 Page 5 Jd. (emphasis supplied). ‘These requirements are further contained within 5 NYCRR 142.2(0), as referenced in the FOIL request (Ex. A), which states: @ In determining appropriate goals for a particular State contract, State agencies shall give consideration to the following factors: () the contract and subcontract scope(s) of work; @ the potential subcontract opportunities available in the prime contract; @) the relevant availability data contained within the disparity study ‘with respect to the scope of the contract and potential subcontracting, opportunities; @) the number and types of certified minority-and women-owned business enterprises found in the directory of certified minority- and women-owned businesses available to perform the State contract work; (G) the geographic location of the contract performance; (©) the extent to which geography is material fo the performance of ‘the contract; (7) the ability of certified minority. and women-owned enterprises located outside of the geographic location of contract performance, notwithstanding the regional location of the certified enterprise, 10 perform on the State contract; (8) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; (9) the relationship of the monefary size and tem of the State contract to the monetary size and term of the project for which the State contract is awarded; and (10) the agency's annual agency-specific goal established pursuant to section 141.2 of this Part. ‘This analysis is based on consideration of each foregoing finctual prong as listed above. Such information is not subject to the FOIL exception cited. Indeed, if the goals for the identified project were set based on a purely policy basis, devoid of factual analysis, then the requirements of the statute would not and could not have been complied with. AGC seeks the documents forming the basis of Office of Temporary and Disability Assistance’s determination to set, for this individual contract, the MWBE goals at 15% Minority Business and 15% Woman Business Enterprise participation. Those goals cen only be established following the procedure established in 5 NYCRR 142.2.February 24, 2017 Page 6 It is assumed that the goals were not based on loose projections, unverifiable calculations or “meant to be. . . an expression of ... naked argument.” Dunlea, 54 A.D.2d at 448. If that were the case, then the goals for this project were not properly established. The goals were presumably based on an analysis of a factual presentation of data, and even if involved figures were estimated or intended to reflect opinions, such records must be disclosed. Id. at 449. The denial of AGC’s October 7, 2016 FOIL request is hereby appealed in its entirety, and respectfully, for all the foregoing reasons, the records sought should be granted. As Governor Cuomo himself has said, “I always err on the side of disclosure and transparency.” Vey taly yours, 1 X Coa \ 2 ‘Michael J. Elmendorf It President & CEO Associated General Contractors of New York State Enclosures cc: Committee on Open Government (Via U.S. Mail)EXHIBIT A ASSOCIATED GENERAL CONTRACTORS © oF New York STATE “The New York State Chapter ofthe Ootober 7, 2016 Records Access Officer NYS Office of Temporary and Disability Assistance 40 North Peatl, 16th floor Albany, NY 12243 RE: Project M/WBE Goal Setting Analysis ‘West Street Apartments 2016-031 ‘To Whom It May Concern: Section 313, Subdivision 2-a(b) of Executive Law requires “each contract solicitation set forth the expected degree of minority and women-owned business enterprise participation based, in part, on: 103235. @ ‘the potential subcontract opportunities available in the ‘prime procurement contract; and i) the availsbility, as contained within the study, of certified minority business ‘enterprises to respond competitively to the potential subcontract opportunites. Furthermore, 5 NYCRR 142.2(d) provides that: Jn determining appropriate goals for a particular State contract, State agencies shall give consideration to the following factors: (2) the contract and subcontract scope(s) of work; @) the potential subcontract opportunities available in the prime contract; ) the relevant availability data contained within the disparity study with respect to the scope of the contract and potential subcontracting opportunities; (@) the number and types of certified minotity- and women-owned business enterprises found in the directory of certified minority- and women-owned businesses available to perform the State contract work; (8) the geographic location of the contract performance; (©) the extent to which geography is material to the performance of the contract; () the ability of certified minority- and women-owned enterprises located outside of the seographic location of contract pecformance, notwithstanding the regional location of the cestified enterprise, to perform on the State contract; @) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; (9) the relationship of the monetary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and (10) the agency's anaual agency-specific goal established pursuant to section 141.2 of these regulations, 10 ue Dave, Sure 203 « Avasny, New Yor £2205 ‘518-456-1134 P « 518-456-1198 F « vwwwagenys.org ‘Asoccated Genenl Contractars of AmericaOctober 7, 2016 Page Two Accordingly, we request the following: * A copyrof the analysis conducted and utilized to reach the determination to require 15% ‘Minority Business Enterprise and 15% Woman Business Enterprise participation for this contract. + All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142,2(¢) for this contract. Please treat this as a formal Freedom of Information Law request. We stand ready to pay the customary copying charges associated with this request. ‘Thank you. ‘Very truly yours, Wy Le ‘Michael J. Elmendorf It President and CEO Associated General Contractors of New York State 103353EXHIBIT HNEWYORK | Office of Temporary gromen. | and Disability Assistance ANDREW M. CUOMO Governor March 15, 2017 ‘VIA E-Mail (bryanna@agenys \d First C! Mr. Michael J. Elmendorf Il President & CEO Associated General Contractors of New York State 10 Airline Drive, Ste. 203 Albany, NY 12205 : ‘SAMUEL D. ROBERTS ‘Commissioner Response to Appeal of FOIL Request Number: 16-213 Dear Mr. Elmendorf: Pursuant to § 89(4) of the Public Officers Law, this letter is in response to your appeal, dated February 24, 2017, from the denial of your Freedom of Information Law (FOIL) request of October 7, 2016, by letter from the Office of Temporary and Disability Assistance (OTDA) dated January 27, 2017. ‘Your aforementioned October 7, 2016 request is a two-page: letter that specifically demands the following concerning the "West Street Apartments- 2016-031": A copy of the analysis conducted and utilized to reach the determination to require 15% Minority Business Enterprise and - 15% Women Business Enterprise participation for this contract. All documents: generated-or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for this contract. In.response thereto, by the aforementioned letter dated January 27, 2017, from OTDA’s Office of Legal Affairs, you were informed of the denial of your FOIL request. In relevant part that letter states: To the extent that OTDA has records responsive to your request, the records are being denied pursuant to New York State Public Officers Law § 87(2)(g), as the records contain inter-agency and intra-agency materials which are not 1) statistical or factual tabulations or data; 2) instructions to staff that affect the public; 3) final agency policy or determinations; 4) external audits. They are re-decisional in nature, are integral to the OTDA’s deliberative process, and contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations, or other subjective matter. 40 North Peat! Steet, Albany, NY 12243-0001 |wwnwotdeny.gov¢ ( ‘Your appeal, dated February 24, 2017, is a six-page letter and attaches your original FOIL demand and sets forth the grounds for your appeal. Therein you argue, amiong other things, that ‘[{]he asserted exception does not apply on the facts at hand” and “fit is well established that there Is no basis for withholding statistical or factual information, i.e., numerical figures, Including estimates and projections even though they may have been advisory and subject to change.” (Appeal, p. 2). ‘The Statutory Framework for the Documents Sought Pursuant to Public Officers Law § 87(2)(g), an agency may withhold or redact portions of records that ‘are inter-agency or intra-agency materials which are not: (i) statistical or factual tabulations or data; (jl) instructions to staff that affect the public; (ji) final agency policy or determinations; or (iv) external audits, including but not limited to audits performed. by the comptroller and the federal government.” In applying POL § 87(2)(g), the New York State Court of Appeals has noted that “[oJpinions and recommendations prepared by agency personnel may be exempt from disclosure under FOIL as predecisional material, prepared to assist an agency decision maker ... in arriving at his decision." Xerox Corp, v. Webster, 65 N.Y.2d 131, 132 (1985) (intemal quotation marks and citations omitted). ‘The Court added that the purpose of this exemption is “to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers.” Id, Courts have held that the “interagency and intraagency exemption’ applies to records that are deliberative, i.e., communications exchanged for discussion purposes not constituting final policy decisions.” Miller v. N.Y, State DOT, 58 A.D.3d 981, 984 (3d Dep't 2009). The purpose of this exemption is to “permit people within-an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure." Id, This exemption is also designed to foster “the open exchange of ideas among governtnent policymakers’ by permitting persons in advisory positions to freely express their opinions to agency decision makers." Morgan ¥_N.Y. State Dep't of Envtl_ Conservation, 9 A.D.3d 686, 587 (3d Dep't 2004). Furthermore, Courts have also stated that "merely because a recommendation Is drafted in statistical form, a magical transformation does not occur and alter its nature. it remains only a recommendation.” Delaney v. Del Bello; 62 A.D.2d 261, 287 (2d Dep't 1978); Shaw v. Lerer; 112 Misc. 2d 260, 261 (NY. Sup. C1981); of Hur of US. v. Epi v. Corp., 83 AD.3d 1013, 1018 (8d Dep't 2008) (‘opinions and projections regarding the economic issues ... would be ‘exempt intra-agency materials, the historical, factual portions of the documents should otherwise bbe disclosed with the exempt projections redacted’). A copy of the analysis conducted and utilized to reach the determination to require 15% Minority Business Enterprise and 18% Woman Business Enterprise participation for the West Street Apartments contract. To the extent that records exist with respect to the analysis cohducted and utilized to reach the MWBE goals for the West Street Apartments contract, records reflecting such “consideration” would fall squarely within the exemption pursuant to Public Officers Law §87(2)(q) as these records would consist of opinions, estimates and recommendations that were prepared 40 Nort Pearl Stee, Albany, NY 12248-0001 | iwctda.ry.gov¢ ( ( by OTDA and are predecisional for the. purpose of estimating or recommending the MWBE goals for a specific project. All documents generated or in the possession of OTDA which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for the West Street Apartments contract. AGC seeks documents generated or in the possession of OTDA which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for the West Street Apartments contract. Consideration of the factors set forth in 5 NYCRR 142.2(d), would necessarily be part of the deliberative process utilized prior to the agency's final determination, Therefore, any underlying documents generated or in the possession of OTDA would consist of predecisional deliberations, estimates and recommendations that are exempt from disclosure under the Public Officers Law. Conclusion Accordingly, | find that OTDA's decision was consistent with the law. This decision constitutes the final determination by this ‘Office pursuant to § 89(4)(b) of the Public Officers Law with regard to your request for information under the FOIL. If you are dissatisfied with this decision, you may bring a proceeding for court review of this denial pursuant to Article 78 of the Civil Practice Law and Rules (CPLR). Pursisant to § 217 of the CPLR, an Article 78 proceeding must be commenced within four months of the date that you receive this letter. cc: Robert Freeman ‘Timothy Ruffinen Anthony Farmer 40 North Pear Stet, albany, NY 12248.0001 jw okte.y. ovEXHIBIT IASSOCIATED GENERAL CONTRACTORS © oF NEw York STATE ‘The New York State Chapter of the ‘sociated General Contraco of Aerie Tune 8, 2016 Records Access Officer NYS Department of Transportation 50 Wolf Road, 6th Floor Albany, New York 12232 RE: Project M/WBE Goal Setting Analysis ~ Project No. D263143 To Whom It May Concer: Section 313, Subdivision 2-a(b) of Executive Law requires that “cach contract solicitation set forth, the expected degree of minority and women-owned business enterprise participation” based, in part, on: () the potential subcontract opportunities available in the prime procurement contract; and (i) the availability, as contained within the study, of certified minority business enterprises to respond competitively to the potential subcontract opportunites Furthermore, 5 NYCRR 142.2(4) provides that: In determining appropriate goals for a particular State contract, State agencies shall give consideration to the following factors: (1) the contract and subcontract scope(s) of work; @) the potential subcontract opportunities available in the prime contract; 3) the relevant availability data contained within the disparity study with respect to the scope of the contract and potential subcontracting opportunities; (4) the number and types of certified minority- and women-owned business enterprises found in the directory of certified minority- and women-owned businesses available to perform the State contract work; (5) the geographic location of the contract performance; (6) the extent to which geography is material to the performance of the contract; (7) the ability of certified minority- and women-owned enterprises located outside of the geographic location of contract performance, notwithstanding the regional location of the certified enterprise, to perform on the State contract; (8) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; (9) the relationship of the monetary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and (10) the agency's annual agency-specific goal established pursuant to section 141.2 of these regulations, 10 Amnune Dao, Sure 203 » Any, New York 12205 ‘518-456-1134 P'« 518-456-1198 F + www.agenys.orgTune 8, 2016 Page Two Accordingly, we request the following: ‘* A copy of the analysis conducted and utilized to reach the determination to require 12% Minority Business and 18% Woman Business Enterprise participation for this contract. * All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(@) for this contract. Please treat this as a formal Freedom of Information Law request, We stand ready to pay the customary copying charges associated with this request. Thank you. Sincerely, ALLA Joseph Rogan, CDT Vice President — Building Services Associated General Contractors of New York StateEXHIBIT JC NEWYORK |), _partment of ‘STATE OF ‘ ANDREW mcuome if i jovernor seem | Transportation MATTHEW J. DRISCOLL Commissioner Cothy Cathoun Chief of Staff January 27, 2017 Joseph P. Hogan Associated General Contractors of New York State 10 Airline Drive, Suite 203 Albany, NY 12205 Re: Freedom of Information Law Request FMO-16-012916 Dear Mr. Hogan: This correspondence is in reference to your Freedom of Information Law (FOIL) Request FMO-16- 012931. By way of background, you requested a copy of the analysis conducted and utilized to reach the determination to require 12% Minority Business and 18% Woman Business Enterprise participation for contract D263143 and all documents generated or in possession of the Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(¢) for contract D263143, To the extent the Department has records responsive to your request, the records are being denied pursuant to Public Offices Law §87(2)(g), as the records would consist of inter- agency and intra-agency materials which are not: i. statistical or factual tabulations or data; i, instructions to staff that affect the public; ili. inal ageney policy or determinations; or iv, external audits. They would be predecisional in nature, would be integral to the Department's deliberative process, and would contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations or other subjective matter. ‘Under provisions of the Public Officers Law you may appeal this determination. If you desire to submit such an appeal, please forward a copy of the original request and a copy of this response letter with your ‘written appeal to: Chief Counsel FOL. Appeal New York State Departinent of Transportation 50 Wolf Road, 62 Floor Albany, NY 12232 You will be informed in writing of the decision within ten business days of our receipt of such an appeal. I the appeal is denied, you will be fully advised of the reason. Please indicate the FOIL, Request Number when corresponding with NYSDOT on this subject. Sincerely, Jerry Morse Records Access Officer 50 Wott Road, Abany, NY 12282 [ wonudotiny.govEXHIBIT K— ASSOCIATED GENERAL CONTRACTORS © A oF New York STATE ‘The New York State Chapter ofthe Assodated General Conaors of America February 24, 2017 MIA EMAIL TO_jerry.morse@dot.nv.gov_ Chief Counsel POLL. Appeal New York State Department of Transportation 50 Wolf Road, 6" Floor Albany, New York 12232 Re: Appeal of Denial of June 8, 2016 Freedom of Information Law (“FOIL”) Dear Mr. Morse: ‘This letter is an appeal of New York State Department of Transportation denial of documents in response to AGC NYS” FOIL request, which was submitted to the New York State Department of ‘Transportation Record Access Officer on June 8, 2016. A copy of this request is attached hereto as Exhibit A. Procedural History AGC’s FOIL request dated June 8, 2016 * A copy of the analysis conducted and utilized to reach the determination to require’ 12% Minority Business and 18% Woman Business Enterprise participation for contract D263143. * All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(@) for contract D263143, The request was acknowledged by New York State Department of Transportation on August 10, 2016, which acknowledgment stated that AGC would be notified by September 9, 2016 regarding the availability of the records it sought. Following multiple extensions, on January 27, 2017, New York State Department of ‘Transportation finally notified AGC that: To the extent we have records responsive to your request, the records are being denied pursuant to POL § 87(2\(g), as the records contain inter-agency and intra-agency materials which are not i. statistical or factual tabulations or deta; i. instructions to staff that affect the public; iii, final agency policy or determinations; or iv, extemal audits. They are predecisional in nature, are integral to the Authority's deliberative, process, and contain opinions, evaluations, deliberations, policy 10 Amuine Denve, Sure 203 « ALswny, New Yor 12205 ‘518-456-1134 P + 518-456-1198 F « vanw.agenys.crgFebruary 24, 2017 Page 2 are predecisional in nature, are integral to the Authority's deliberative process, and contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations or other subjective matter. ‘The asserted exception does not apply on the facts at hand, The Statutory Framework for the Documents Sought FOIL is based upon the policy that agency records are presumptively available to members of the public, unless the agency establishes that the records fall within one of the statute’s exemptions. ‘See In re Farbman & Sons, Inc. v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 79-80 (1984), The exemption in Public Officers Law Section 87(2)(g) applies to “predecisional information which is prepared in order to assist the decision-making process. . . .” In re MeAulay v. Board of Educ.of the City of New York, 61 A.D.2d 1048 (2d Dep't 1978), aff'd 48 N.Y.2d 659 (1979). Intra-agency records fall within the coverage of Section 87(2)(g) of FOIL, which states that an agency may withhold records that: “are inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data; instructions to staff that affect the public; final agency policy or determinations; or iv. extemal audits, including but not limited to audits performed by the comptroller and the federal government . . .” The statutory language quoted above contains what is effectively a double negative. While inter-agency or intra-agency materials may be withheld, portions of those materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policies or determinations, or extemal audits must be disclosed, unless a different ground for denial may properly be asserted. New York State Department of Transportation has asserted no other basis. It is well established that there is no basis for withholding statistical or factual information, ie., numerical figures, including estimates and projections even though they may have been advisory and subject to change. This issue was considered in Dunlea v. Goldmark, and it is directly on point with the instant report. 85 Misc. 2d 198, 202-03, modified 54 A.D.2d 446, aff'd 43 N.Y.2d 754 (1977). In Dunlea, the records at issue contained three columns of numbers related to certain areas of expenditures which the state agency held were recommendations, rather than statistical or factual. Although the worksheets were merely estimates and subject to modification, they were nevertheless found to be “statistical tabulations” accessible under FOIL as originally enacted, At that time, FOIL granted access to “statistical or factual tabulations” [see original Law, §88(1)(@)]. Currently and consistently, §87(2)(g)(i) requires the disclosure of “statistical or factual tabulations or data.”February 24, 2017 Page 3 As stated by the Appellate Division in Dunlea: [lt is readily apparent that the language statistical or factual tabulation was meant to be something other than an expression of opinion or naked argument for or against a certain position. The present record contains the form used for work sheets and it apparently was designed to accomplish a statistical and factual presentation of data primarily in tabulation form. In view of the broad policy of public aceess expressed in Seotion 85 the work sheets have not been shown by the appellants as being not a record made available in Section 88. 54 A.D.2d 446, 448. In so holding, it is important to understand the Third Department was aware that the records ‘were used in the deliberative process, stating that: [the mere fact that the document is a part of the deliberative process is inrelevant in New York State because Section 88 clearly makes the back-up factual or statistical information to a final decision available to the public. This necessarily means that the deliberative process is to be 1a subject of examination although limited to tabulations. In particular, there is no statutory requirement that such data be limited to ‘objective’ information and there no apparent necessity for such a limitation, Id, at 449. The use or assignment of numbers to opinion does not render the number subject the exception. Professional Standards Review Council v, NYS Department of Health, 193 A.D.24 937, 939 (@d Dep't 1993) (ratings prepared by staff for the purpose of evaluating REP criteria, and consisting of essentially numerical figures assigned to opinions were required to be disclosed). Put another way, the argument that factual data entwined with opinion will render an entire report exempt is similarly not tenable. In Ingram v. Axelrod, 90 A.D.2d 568, 569 (3d Dep’t 1982), the Appellate Division held that: [respondent, while admitting that the report contains factual date, contends that such data is so intertwined with subjective analysis and opinion as to make the entire report exempt. After reviewing the report in camera and applying to it the above statutory and regulatory criteria, we find that Special Term correctly held pages 3-5 (‘Chronology of Events’ and ‘Analysis of the Records’) to be disclosable, These pages are clearly a ‘collection of statements of objective information logically arranged and reflecting objective reality’. [sic] (10 NYCRR 50.2{b)). Additionally, pages 7-11 (ambulance records, list of interviews, and reports of interviews) should be disclosed as ‘factual data’, They also contain factual information upon which the agency relies (Matter of Miracle Mile Assoc. v. Yudelson, 68 A.D.2d 176, 181 mot for Ive toFebruary 24, 2017 Page 4 app den 48 N.Y.2d 706). [sic] Respondents erroneously claim that an agency record necessarily is exempt if both factual data and opinion are intertwined in it; we have held that ‘[the] mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion’ (Matter of Polansky v. Regan, 81 AD2d 102, 104; emphasis added), [sic] Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable. In short, even though statistical or factual information may be “intertwined” with opinions, the statistical or factual portions, if any, as well as any policy or determinations, would be available, unless a different ground for denial could properly be asserted. ‘The Records Withheld in Contravention of FOUL Executive Law Article 15-A. established the Office of Minority and Women's Business Development (‘State Disadvantaged Business Development Agency” or the “Agency”) and empowered the director of that Agency to promulgate regulations. id §§ 311(1), 313(1). The regulations pronmulgated pursuant to article 15-A, see N.Y.C.CRR. tit. 9, ps, 540-44 (1992), require all state agencies to submit plans setting annual and individual contract MWBE participation goals to the director of the Agency. See id. §§ 541.2, 543.2, “At no point does Article 15-A specify a quota or percentage set-aside of work on state contracts for M/WBEs. Rather, the statute employs less precise phrases such as “participation requirements,” id at § 313(5), or “fair share,” id. at § 313(1), to designate those portions of a particular state contract which are targeted for W/MBEs.” Harrison & Burrowes Bridge Constructors vy. Cuomo, 743 F. Supp. 97, 981 (N.D.N.Y, 1990). ‘Moreover: State agencies, such as the State DOT, which are covered by the regulations are required to submit to the Director of the Governor's Office of Minority and Women's Business Development an "agency goal plan" which sets the goal for the percentage of participation of MBE's and WBE's on contracts issued by the agency along with a justification for the goal. Jd. at § 541.2(a). The director may accept, reject or modify the proposed agency goal plan. Id at § 541.3. The cont zencies must also establish a W/MBI ipation goal for each indivi t. When setting the individual cont cy is to take into account: (1) the scope of the work: (2) the and availabilit 3Es and MBES in the region of, state where the contract is to be performed: (3) the dollar value of the ts (4) the of minority group mem! men in 1¢ population of jon where the t will be performed; (5) sible effects discrimination in 1 ‘the partioipati of MBEs in state contracts: and (6) the ability of other stateFebruary 24, 2017 Page 5 agencies to meet their state. Id. at § 543.2, Id. (eraphasis supplied). ‘These requirements are further contained within 5 NYCRR 142.2(c), as referenced in the FOIL request (Ex. A), which states: @ In determining appropriate goals for a particular State contract, State agencies shall give consideration to the following factors: (1) the contract and subcontract seope(s) of work; @) the potential subcontract opportunities available in the prime contract; ) the relevant availability data contained within the disparity study with respect to the scope of the contract and potential subcontracting opportunities; (@) the number and types of certified minority-and women-owned business enterprises found in the directory of certified minority- and ‘women-owned businesses available to perform the State contract work; (9) the geographic location of the contract performance; (6) the extent to which geography is material to the performance of the contract; (7) the ability of certified minority- and women-owned enterprises located outside of the geographic location of contract performance, notwithstanding the regional location of the certified enterprise, to perform on the State contract; (8) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; () the relationship of the monetary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and (40) the agency’s annual agency-specific goal established pursuant to section 141.2 of this Part, This analysis is based on consideration of each foregoing factual prong as listed above. Such information is not subject to the FOIL exception cited. Indeed, if the goals for the identified project were sct based on a purely policy basis, devoid of factual analysis, then the requirements of the statute would not and could not have been complied with, AGC seeks the documents forming the basis of New York State Department of ‘Transportation’s determination to set, for this individual contract, the MWBE goals at 12% MinorityFebruary 24, 2017 Page 6 It is assumed that the goals were not based on loose projections, unverifiable calculations or “meant to be . . . an expression of. .. naked argument.” Dunlea, 54 A.D.2d at 448. If that were the ‘ease, then the goals for this project were not properly established. The goals were presumably based on an analysis of a, factual presentation of data, and even if involved figures were estimated or intended to reflect opinions, such records must be disclosed. Id. at 449. The denial of AGC’s June 8, 2016 FOIL request is hereby appealed in its entirety, and respectfully, for all the foregoing reasons, the records sought should be granted. “I always err on the side of disclosure and transparency.” Vegy tryly yours, Michael J. Elmendorf I President & CEO Associated General Contractors of New York State Enclosures co: Committee on Open Government (Via U.S. Mail)C EXHIBIT A ASSOCIATED GENERAL CONTRACTORS @® ew the oF New York STATE pein Yok Ste Copter o he June 8, 2016 Records Access Officer NYS Department of Transportation 50 Wolf Road, 6th Floor Albany, New York 12232 RE: Project M/WBE Goal Setting Analysis — Project No. D263143 ‘To Whom It May Concern: Section 313, Subdivision 2-a(b) of Executive Law requires that “each contract solicitation set forth the expected degree of minority and women-owned business enterprise participation” based, in part, on: @ the potential subcontract opportunities available in the prime procurement contract; and Gi) the availability, es contained within the study, of certified minority business ‘enterprises to respond competitively to the potential subcontract opportunities. Furthermore, 5 NYCRR 142.2(4) provides that: In determining appropriate goals for « particular State contract, State agencies shall give consideration to the following factors: (1) the contract and subcontract scope(s) of work; Q) the potential subcontract opportunities available in the prime contract; (3) the relevant availability data contained within the disparity stady with respect to the scope of the contract and potential subcontracting opportunities: @) the mumber and types of certified minority. and women-owned business enterprises found in the directory of certified minority- and women-owned businesses evailable to perform the State contract work (6) the geographic location of the contract performances © the extent to which geography is material to the performance of the contrac; @ the ability of certified minority- and women-owned enterprises located outside of the geographic location of contract performance, notwithstanding the regional location of the certified enterprise, to perform on the State contract, @) the total dollar value of the work required by the State contract in relation tothe dollar value of the subcontracting opportunities; (®) the relationship of the monctary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and 0) the agency's annual agency-specific goal established pursuant to section 141.2 of these regulations. 110 Ame Deve, Sue 208 + Auzany, New York 12205 518-456-1134 P » 518-456-1198 F + vwagenysorgSune 8, 2016 Page Two Accordingly, we request the following: ‘* A copy of the analysis conducted and utilized to reach the determination to require 12% ‘Minority Business and 18% Woman Business Enterprise participation for this contract. * All documents generated or in the possession of Agency which were relied upon or used in ‘considering the factors set forth in 5 NYCRR 142.2(d) for this contract. Please treat this as a formal Freedom of Information Law request. We stand ready to pay the customary copying charges associated with this request. ‘Thank you. Joseph: ‘Vice President — Building Services Associated General Contractors of New York StateEXHIBIT L¢ ( ( \_ partment of (ANDREW M. CUOMO : ‘Governor Transportation NEW YORK SPSSAoN. MATTHEW J, DRISCOLL Commissioner Cathy Calhoun Chi of taf March 15, 2017 Michael J. Elmendorf Il President & CEO Associated General Contractors of New York State 10 Airline Drive, Suite 203 Albany, NY 12205 Re: FOIL Appeal — FMO-16-012916 Dear Mr. Elmendorf On February 24, 2017, the New York State Department of Transportation (“NYSDOT” or “Department”) received your letter in which you you appeal of the Depariment’s response to the Freedom of Information Law (FOIL) request of Joseph P. Hogan dated Jume 8, 2016 (FMO- 16-012916). Mr. Hogan’s FOIL request sought: A copy of the analysis conducted and utilized to each the determination to require 12% Minority Business and 18% Woman Business Enterprise participation for Department Contract D263143; and All documents generated or in the possession of the Department which were relied upon or used in considering the factors set forth in S NYCRR 142,2(4) for Department Contract D263143. The Department’s Records Access Officer provided a response on January 27, 2017 stating that: “To the extent the Department has records responsive to your request, the records are being denied pursuant to Public Offices Law §87(2)(g)....” Your appeal contends that the asserted exemption does not apply to the records requested. The Division of Legal Affairs has conducted a de novo review of the FOIL request and the response thereto, and provides the following decision. ‘The Statutory Framework for the Documents Sought Pursuant to Public Officers Law § 87(2)(g), an agency may withhold or redact portions of records that “are inter-agency or intra-agency materials which are not: (i) statistical or factual ‘tabulations or data; (ii) instructions to staff that affect the publio; (ii) final agency policy ot determinations; or (iv) extemal audits, including but not limited to audits performed by the comptroller and the federal government.” In applying POL §87(2)(g), the New York State Court of Appeals has noted that “[o}pinions and recommendations prepared by agency personnel may be exempt from disclosure under FOIL as predecisional material, prepared to assist an agency decision maker ... in arriving at his decision.” Xerox Corp, v. Webster, 65 N.Y.2d 131, 132 (1985) (intemal quotation marks and citations omitted). The Court added that the purpose of this exemption is “to protect ‘SOW Road, Albany, NY 12282 | wave detny 008the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers.” /d. Courts have held that the “interagency and intraagency exemption applies to records that are deliberative, i.e., communications exchanged for discussion purposes not constituting final policy decisions.” Miller v, NY. State DOT, 58 A.D.3d 981, 984 (3d Dep't 2009). ‘The purpose of this exemption is to “pennit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure.” Id. This exemption is also designed to foster “the open exchange of ideas among government policymakers by permitting persons in advisory positions to freely express their opinions to agency decision makers.” Morgan v. N.Y. State Dep't of Envtl. Conservation, 9 A.D.3d 586, 587 Gd Dep't 2004), Furthermore, Courts have also stated that “merely because recommendation is drafted in statistical form, a magical transformation does not occur and alter its nature. It remains only a recommendation.” Delaney v. Del Bello, 62 A.D.2d'281, 287 (2d Dep't 1978); Shaw v, Lever, 112 Miso. 2d 260, 261 (N.Y. Sup. Ct. 1981); Master of Humane LS. v. Empire Si Dev_Corp., 53 A.D.3d 1013, 1018 (34 Dep't 2008) (“opinions and projections regarding the economic issues ... would be exempt intra-agency materials, the historical, factual portions of the documents should otherwise be disclosed with the exempt projections redacted”). A copy of the analysis conducted and utilized to reach the determination to require 12% Minority Business and 18% Woman Business Enterprise participation for Department Contract D263143. To the extent that records exist with respect to the analysis conducted and utilized to teach the MWBE goals for Contract D263143, records reflecting such “consideration” would fall ‘quately within the exemption pursuant to Public Officers Law §87(2)(g) as these records would consist of opinions, estimates and recommendations that were prepared by the Department and are predecisional for the purpose of estimating or recommending the MWBE goals for a specific Project. All documents generated or in the possession of the Department which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for Department Contract 263143, ‘Mr. Hogan’s FOIL request seeks documents generated or in the possession of the Department which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for Contract D263143. Consideration of the factors set forth in 5 NYCRR 142.2(@), would necessarily be part of the deliberative process utilized prior to the agency's final determination. Therefore, any underlying documents generated or in the possession of the Department would consist of predecisional deliberations, estimates and recommendations that * are exempt from disclosure under the Public Officers Law. Page 2 0f3Conclusion Accordingly, I find that the Department’s decision was consistent with the law. Please be advised that you may consider this response to be a final determination by the Department, Robert Freeman NYS Department of State Committee on Open Goyerament One Commerce Plaza 99 Washington Avenue, Suite 650 Albany, NY 12231 & ‘truly oe Janice A. McLachlan Acting Assistant Commissioner and Chief Counsel Page3 of 3EXHIBIT MC Kegyes” V5] — AssOcIATED GENERAL CONTRACTORS ® oF New York State, LLC pool lon Nek State Capt: tthe - August 8, 2016 Records Access Officer Office of the General Attomey ‘New York State Insurance Fund 199 Church Street New York, New York 10007 RE: Project M/WBE Goal Setting Analysis for NYSIF Project No. 2016-16-RE CSA Project Number 10NY049C07 ‘To Whom It May Concern: ‘Section 313, Subdivision 2-a(b) of Executive Law Tequites “each contract Solicitation set {orth the expected degree of minority and women-owned buctwe enterprise participation based, in part, on: © the potential subcontract opportmities availeble in the prime procurement contract; and ~~ @~ the availability, as contained within the study, of certified minority business enterprises to respond competitively to the Potential subcontract Furthermore, 5 NYCRR 142,2(4) provides that: In determining appropriate goals for a particular State Contract, State agencies shall give consideration to the following factors: () ‘the contract and subcontract seope(s) of work; @) the potential subcontract opportunites available in the prime contract; G) the relevant availability data contained within the disparity study with respect {ihe scope of the contract and potential subcontracting opportunities; (the number and types of certified minority and omen eed business EMerPrises found in the directory of cortified minority. and women-owned businesses available to perform the State contract works () the geographic location of the contract performances (© the extent to which geography is material io the performance ofthe contract; )_, the ability of certified minority. and women-owned enterprises loceted outbide of the geographic location of contract performance, notwithstanding the regional location of the certified enterprise, to perform on the Sine contract; 410 Amnuve Dave, Sure 203 + Assay, New Yorx 12205 ‘518-456-1134 P's 518-456-1198 F « vrmwwagenys.org(8) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; (9) the relationship of the monetary size and term of the State contract to the ‘monetary size and term of the project for which the State contract is awarded; and (10) ‘the agency's annual agency-specific goal established pursuant to section 141.2 of these regulations, Accordingly, we request the following: + A copy of the analysis conducted and utilized to reach the determination to require 30% Minority Business and Woman Business Enterprise participation for this contract. * All documents generated or in the possession of NYSIF which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for this contract Please treat this as a formal Freedom of Information Law request. We stand ready to pay the customary copying charges associated with this request. IS CG Michael NEImendorf I President and CEO Associated General Contractors of New York State Thank you.EXHIBIT NFrom: Freedom of Information Dater January 27,2017 45:09 PM EST { To: Mike Elmendorf ‘Subject: RE: FOIL and/or PPPL request ‘TO: Michael J. Elmendorf i ‘This is the New York State Insurance Fund's (*NYSIF") response to your FOIL request submitted by email ‘on August 8, 2016, seeking two categories of records related to "NYSIF Project No. 2016-16-RE-CSA Project Number 10NY049C07.” To the extent NYSIF has records responsive to your request, the records are being denied pursuant to POLS87(2}(g), as the records would consist of inter-agency and intra-agency materials which are not i statistical or factual tabulations or data; i. instructions to staff that affect the public; ii. final agency policy oF determinations; or iv. external audits. They would be predecisional in nature, would be integral to NYSIF’s deliberative process, and would contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations or other subjective matter. Ifyou disagree with this determination, you may appeal in writing to General Attorney William O'Brien, at 199 Church Street, New York, NY 10007. POL§89(4) requires that any such appeai be made in writing within 30 days of this determination, ‘Thank you,[NYSIF FOIL From: Mike Elmendorf {mailto:melmendorf@agenvs.ors) ‘Sent: Monday, August 08, 2016 2:29 PM ‘To: Freedom of Information ‘Subject: FOIL and/or PPPL request Please see the attached FOIL request. Original to follow via US Mall. Thank you. Mike Elmendorf President and CEO AGC NYS 10 Airline Drive, Suite 203, Albany, New York 12205 818-456-1134 Phone 518-456-1198 Fax smendort@aacnys.or www.agenys.org ‘The ew York Seat Chapter ofthe Assedeted Genre Contractors of Amero Have you downloaded the NEW AGC NYS App? If not, you're missing out! Click here to download the IOS version or here for the Android platform. a= goEXHIBIT O— /ASSOCIATED GENERAL CONTRACTORS © oF New York STATE ‘The New York tate Chapter ofthe Assclaed General Contractors of America February 24, 2017 VIA EMAIL TO _freedominfo@nysif,com FOIL Appeal Officer General Attomey William O"Brien New York State Insurance Fund 199 Church Street New York, New York 10007 Re: Appeal of Denial of August 8, 2016 Freedom of Information Law (“FOIL”) Dear Mr. O'Brien: This letter is an appeal of New York State Insurance Fund denial of documents in response to AGC NYS’ FOIL request, which was submitted to the New York State Insurance Fund Record Access Officer on August 8, 2016. A copy of this request is attached hereto as Exhibit A. Procedural History AGC’s FOIL request dated August 8, 2016 (see Ex. A) sought: * A copy of the analysis conducted and utilized to reach the determination to require 30% Minority Business and Woman Business Enterprise participation for this contract. * All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for this contract. The request was acknowledged by New York State Insurance Fund on August 12, 2016, which acknowledgment stated that AGC would be notified within twenty business days regarding the availability of the records it sought, Following multiple extensions, on January 27, 2017, New York State Insurance Fund finally notified AGC that: To the extent we have records responsive to your request, the records are being denied pursuant to POL § 87(2)(g), as the records contain inter-agency and intra-agency materials which are not i. statistical or factual tabulations or data; ii, instructions to staff that affect the public; iii, final agency policy or determinations; or iv. external audits. They are predecisional in nature, are integral to the Authority’s deliberative process, and contain opinions, evaluations, deliberations, policy 10 Aue Dane, Sire 208 + Aza, New You 12205 518-456-1134 » 518-456-1198 F « wwr.agenys.r9February 24, 2017 Page 2 formulations, proposals, conclusions, recommendations or other subjective matter, The asserted exception does not apply on the facts at hand. The Statutory Framework for the Documents Sought FOIL is based upon the policy that agency records are presumptively available to members of the public, unless the agency establishes that the records fall within one of the statute’s exemptions. See In re Farbman & Sons, Inc. v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 79-80 (1984). The exemption in Public Officers Law Section 87(2)(g) applies to “predecisional information which is prepared in order to assist the decision-making process, ..." In re Mcdulay v, Board of Educ.of the City of New York, 61 A.D.2d 1048 (2d Dep't 1978), aff'd 48 N.Y 24 659 (1979). Intre-agency records fall within the coverage of Section 87(2)(g) of FOIL, which states that an agency may withhold records that: “are inter-agency or intra-agency materials which are not: statistical or factual tabulations or data; i. instructions to staff that affect the public; . final agency policy or determinations; or external audits, including but not limited to audits performed by the comptroller and the federal government .. .” The statutory language quoted above contains what is effectively a double negative, While inter-agency or intra-agency materials may be withheld, portions of those materials consisting of statistical or factual information, instructions to staff that affect the publio, final agency policies or determinations, or external audits must be disclosed, unless a different ground for denial may properly be asserted. New York State Insurance Fund has asserted no other basis, It is well established that there is no basis for withholding statistical or factual infomation, i.c,, numerical figures, including estimates and projections even though they may have been advisory and subject to change. This issue was considered in Dunlea v. Goldmark, and itis directly on point with the instant report. 85 Misc. 2d 198, 202-03, modified 54 A.D.2d 446, aff'd 43 N.Y.2d 754 (1977). In Dunlea, the records at issue contained three columns of numbers related to certain areas of expenditures which the state agency held were recommendations, rather than statistical or factual. Although the worksheets were merely estimates and subject to modification, they were nevertheless found to be “statistical tabulations” accessible under FOIL as originally enacted. At that time, FOIL granted access to “statistical or factual tabulations” [see original Law, §88(1)(d)]. Currently and consistently, §87(2)(g)@) requires the disclosure of “statistical or factual tabulations or data.” As stated by the Appellate Division in Dunlea:February 24, 2017 Page 3 [Ut is readily apparent that the language statistical or factual tabulation was meant to be something other than an expression of opinion or naked argument for or against a certain position. ‘The present record. contains the form used for work sheets and it apparently was designed ‘to accomplish a statistical and factual presentation of data primarily in tabulation form. In view of the broad policy of public access expressed in Section 85 the work sheets have not been shown by the appellants as being not a record made available in Section 88. 54.A.D.2d 446, 448. Jn so holding, it is important to understand the Third Department was aware that the records ‘were used in the deliberative process, stating that: [t]he mere fact that the document is a part of the deliberative process is inrelevant in New York State because Section 88 clearly makes the back-up factual or statistical information to a final decision available to the public. This necessarily means that the deliberative process is to be ‘a subject of examination although limited to tabulations. In particular, there is no statutory requirement that such data be limited to “objective” information and there no apparent necessity for such a limitation. Id. at 449, The use or assignment of numbers to opinion docs not render the number subject the exception, Professional Standards Review Council v. NYS Department of Health, 193 A.D.24 937, 939 Bd Dep't 1993) (ratings prepared by staff for the purpose of evaluating REP criteria, and consisting of essentially numerical figures assigned to opinions were required to be disclosed). Put another way, the argument that factual data entwined with opinion will render an entire report exempt is similarly not tenable. In Ingram v. Axelrod, 90 A.D.2d 568, 569 (3d Dep't 1982), the Appellate Division held that: Eespondent, while admitting that the report contains factual data, contends that such data is so intertwined with subjective analysis and opinion as to make the entire report exempt, After reviewing the report in camera and applying to it the above statutory and regulatory criteria, we find that Special Term correctly held pages 3-5 (‘Chronology of Events’ and ‘Analysis of the Records”) to be disclosable. ‘These pages are clearly a ‘collection of statements of objective information logically arranged and reflecting objective reality’. [sic] (10 NYCRR 50.2[b)). Additionally, pages 7-11 (ambulance records, list of interviews, and reports of interviews) should be disclosed as “factual data’, They also contain factual information upon which the agency relies (Matter of Miracle Mile Assoc. v. Yudelson, 68 A.D.2d 176, 181 mot for Ive to app den 48 N.Y.2d 706). [sic] Respondents erroneously claim that an agency record necessarily is exempt if both factual data and opinion areFebruary 24, 2017 Page 4 intertwined in it; we have held that ‘{the] mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion’ (Matter of Polansky v, Regan, 81 AD.2d 102, 104; emphasis added). [sic] Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable. In short, even though statistical or factual information may be “intertwined” with opinions, the statistical or factual portions, if any, as well as any policy or determinations, would be available, unless a different ground for denial could properly be asserted, ‘The Records Withheld in Contravention of FOIL, Executive Law Article 15-A established the Office of Minority and Women's Business Development (“State Disadvantaged Business Development Agency” or the “Agency”) and empowered the director of that Agency to promulgate regulations. Jd §§ 311(1), 313(0). The regulations promulgated pursuant to article 15~A, see N.Y.C.CRR. tit. 9, pts, 540-44 (1992), require all state agencies to submit plans setting annual and individual contract MWBE participation goals to the director of the Agency. See id. §§ 541.2, 543.2. “At no point does Article 15-A specify a quota or percentage set-aside of work on state contracts for M/WBEs. Rather, the statute employs less precise phrases such as “participation requirements,” id at § 313(5), or “fai share,” id. at § 313(1), to designate those portions of a particular state contract which are targeted for W/MBEs.” Harrison && Burrowes Bridge Constructors ¥. Cuomo, 743 F. Supp. 977, 981 (ND.N.Y. 1990). Moreover: State agencies, such as the State DOT, which are covered by the regulations are required to submit to the Director of the Governor's Office of Minority and Women's Business Development an "agency goal plan" which sets the goal for the percentage of participation of MBE's and WBE's on contracts issued by the agency along with a justification for the goal. Id. at § 541.2(a). The director may accept, reject or modify the proposed agency goal plan, Id at § 541.3. The contracting agencies must also establish a W/MBE participation goal reach individual contract, setting the individual Ie is to take into account: (1 9 of the work: (2) the er, type, and availabilit 3Fs and in the regi e state where the contract is to be performed: (3) the dollar value of the contract; (4) the percentage of minority group members and women in lation of the regi: ‘the contract will be the possible effects of past discrimination in reduci ici of WBEs and MBEs in state contracts: and (6) the ability of other state agencies to meet their participation goals in a particular region of the state. Id. at § 543.2,Bebruary 24, 2017 Page 5 Id. (emphasis supplied). ‘These requirements are further contained within 5 NYCRR 142.20), as referenced in the FOIL request (Ex. A), which states: @ In determining appropriate goals for a particular State contract, State agencies shall give consideration to the following factors: (1) the contract and subcontract scope(s) of work; @) the potential subcontract opportunities available in the prime contract; ) the relevant availability data contained within the disparity study ‘with respect to the scope of the contract and potential subcontracting opportunities; (4) the number and types of certified minority-and women-owned business enterprises found in the directory of certified minority- and women-owned businesses available to perform the State contract work; (S) the geographic location of the contract performance; (©) the extent to which geography is material to the performance of the contract; (7) the ability of certified minority- and women-owned enterprises located outside of the geographic location of contract performance, notwithstanding the regional location of the certified enterprise, to perform on the State contract; (8) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; (9) the relationship of the monetary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and (10) the agency's annual agency-specific goal established pursuant to section 141.2 of this Part. This analysis is based on consideration of each foregoing factual prong as listed above. Such information is not subject to the FOIL exception cited, Indeed, if the goals for the identified project were set based on a purely policy basis, devoid of factual analysis, then the requirements of the statute would not and could not have been complied with, AGC seeks the documents forming the basis of New York State Insurance Fund’s determination to set, for this individual contract, the MWBE goals at 30% Minority Business and Woman Business Enterprise participation. Those goals can only be established following the procedure established in 5 NYCRR 142.2.February 24, 2017 Page 6 It is assumed that the goals were not based on loose projections, unverifiable calculations or “meant to be... an expression of. .. naked argument.” Dunlea, 54 A.D.2d at 448. If that were the case, then the goals for this project were not properly established. The goals were presumably based on an analysis of a factual presentation of data, and even if involved figures were estimated or intended to reflect opinions, such records must be disclosed. Jd, at 449. The denial of AGC’s August 8, 2016 FOIL request is hereby appealed in its entirety, and respectfully, for all the foregoing reasons, the records sought should be granted, “T always ert on the side of disclosure and transparency.” ‘ery gruly yours, cle Michael J. Elmendorf Il President & CEO Associated General Contractors of New York State Enclosures ec: Committee on Open Government (Via U.S. Mail)¢ EXHIBIT A ASSOCIATED GENERAL CONTRACTORS ® oF New York State, LLC sso Gun Cates nia August 8, 2016 Records Access Officer Office of the General Attomey ‘New York State Insurance Fund 199 Chureh Street New York,New York 10007 RE: Project M/WBE Goal Setting Analysis for NYSUF ‘Project No, 2016-16-RE CSA Project Number 10NY049C07 ‘To Whom It May Concem: © the potential subcontract opportunities available in the prime procurement contract; and Gi) the availability, 2s contained within the study, of certified minority business enterprises to respond competitively to the Potential subcontract opportunities, Furthermore, 5 NYCRR 142.2(4) provides that: In determining appropriate goals for a particular State Contract, State agencies stall give consideration to the following factors: (1) the contract and subcontract scope(8) of work; (9) the extent to which geography is material the performance of the contract, ©) {ie ability of ceritied minoxty- and women-owned enterprises located aint of the geographic location of contract performance, notwithstanding the reaional location of the certified enterprise, to perform on the Sean contract; 10 Anne Oe, Sue 20» Ay ow You 2205 Sosesine 8 51856 118 Smogon@) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; ©) the relationship of the monetary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and 0) the agency's annual agency-specific goal established pursuant to section 141.2 of these regulations, Accordingly, we request the following: ‘+ A copy of the analysis conducted and utilized to reach the determination to require 30% Minority Business and Woman Business Enterprise participation for this contract. * All documents generated or in the possession of NYSIF which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(4) for this contract. Please treat this asa formal Freedom of Information Law request. We stand ready to pay the customary copying charges associated with this request. ‘Thank you. President and CEO 1 Associated General Contractors of New York StateMike Elmendorf Monday, August 08, 2016 2:29 PM ‘feedominfo@nysifcom FOIL and/or PPPL request NYSIFFOILO80816.pdf Please see the attached FOIL request. Original to follow via US Mall. Thank you. Mike Elmendorf President and CEO AGC NYS. 10 Airline Drive, Suite 203 Albany, New York 12205 618-456-1134 Phone 818-456-1198 Fax Imendor 18 The New York State Chote ofthe Assocated Genero Conaotors ef Amer Have you downloaded the NEW AGC. YS App? IT not, you're missing out! Click here to download the 10S version or here for the Andtold platform. 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Group NY Arc i Compt endretum Appeai - Ste Vist Regiseaton at -ma: contacs@ysifcomer ax S18- 57-4209, Spaces lined; walling wil NOT be alowed | Sottne Term/Complefln Tue: Phase 1A Werk (defined in fc 15) aust be compete by Api 7.2017, with seaaPmey ca May 4 2017, Phase 4 must bo camplcod for occupancy on September 30, 2018, nd te ulaceet ic $ Worcs o be compte as specie, i fei de To: Alan Ange, Contact Meagement Spec 3, NYSIF—Prcaremeat Un, 199 Ch Sees, [New York, NY 10007 ‘ie data comfndex tr refaton=Scarch ConkadView&CUID=CeTEth 2EXHIBIT PNew York State Insurance Fund March 15, 2017 Via Regular Mail and Email (bryanna@agenys.org) Associated General Contractors of New York State 10 Airline Drive, Suite 203 Albany, New York 12205 Attn: Michael J. Elmendorf II President & CEO Re: FOIL Appeal of Associate General Contractors of New York State Mr. Elmendorf: Ihave been designated to serve as the Appeals Officer regarding your appeal dated February 24, 2017, of a Freedom of Information Law (Public Officers Law, Article 6) (“FOIL”) determination by the New York State Insurance Fund conceming an information request of Associated General Contractors of New York State (“AGC”), Underlying FOIL Request On August 8, 2016, you submitted a Freedom of Information Request on behalf of AGC to NYSIF. The subject line of your written request referenced “Project M/WBE Goal Setting Analysis for NYSIF Project No. 2016-16-RE CSA Project Number ONY049CO7” and requested the following: * Accopy of the analysis conducted and utilized to reach the determination to require 30% Minority Business and Women Business Enterprise participation for this contract. ‘+ All documents generated or in the possession of NYSIF which were relied upon or used in considering the factors set forth in 5 NYCRR. 142.2(d) for this contract, ‘As you recounted in your FOIL. appeal, NYSIF acknowledged this request on August 12, 2016, and responded to your request on January 27. 2017. NYSIF denied access to your request on the following grounds: To the extent NYSIF has records responsive to your request, the records are being denied pursuant to POL§87(2)(g), as the records would consist of inter-agency and intra-agency materials which are not i, statistical or factual tabulations or data; ii, instructions to staff that affect the public; ii. final agency policy or determinations; or iv. external audits. They would be predecisional in nature, would be integral to NYSIF's deliberative process, and would contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations of other subjective matter, Peter Cusick, Deputy General Attorney 199 Church Street « New York, NY 10007 (212) 312-7995 + Fax (212) 312-9199 « E-mail: peusick@aysifcomAppeal Determination ‘Your letter dated February 24, 2017, appeals the determination of the NYSIF FOIL office which denied access to the extent NYSIF has any responsive records. Your appeal argues that the statistical or factual portions of the requested records, as well as any policy or determinations, should be available. After reviewing the original information request of AGC, the NYSIF FOIL determination, your appeal, and the relevant law, I am further denying access to the requested information. The Statutory Framework for the Documents Sought Pursuant to Public Officers Law-§ 87(2)(g), an agency may withhold or redact portions of records that “are inter-agency or intra-agency materials which are not: (j) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (ii) final agency policy or determinations; or (iv) external audits, including but not limited to audits performed by the comptroller and the federal government,” In applying POL §87(2)(e), the New York State Court of Appeals has noted that “[o]pinions and recommendations prepared by agency personnel may be exempt from disclosure under FOIL as predecisional material, prepared to assist an agency decision maker ... in arriving at his decision.” Xerox Corp. v, Webster, 65 N.Y.2d 131, 132 (1985) (internal quotation marks and citations omitted). The Court added that the purpose of this exemption is “to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers.” Id. Courts have held that the “interagency and intraagency exemaption applies to records that are deliberative, i., communications exchanged for discussion purposes not constituting final policy decisions.” Miller v. N.Y. State DOT, 58 A.D.3d 981, 984 (3d Dep’t 2009). The purpose of this exemption is to “permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure.” Jd. This ‘exemption is also designed to foster “the open exchange of ideas among government policymakers by permitting persons in advisory positions to freely express their opinions to agency decision makers.” Morgan v. N.Y. State Dep't of Envtl, Conservation, 9 A.D.3d 586, 587 (3d Dep't 2004). Furthermore, Courts have also stated that “merely because a recommendation is drafted in statistical form, a magical transformation does not occur and alter its nature. It remains only a recommendation.” Delaney v_ Del Bello, 62 A.D.2d 281, 287 (2d Dep’t 1978); Shaw v. Lerer, 112 Miso. 2d 260, 261 (N.Y. Sup. Ct. 1981); Matter of Humane Socy. of U.S. v. Empire State Dev. Corp., 53 A.D.3d 1013, 1018 (3d Dep’t 2008) (“opinions and projections regarding the economic issues ... would be exempt intra-agency materials, the historical, factual portions of the documents should otherwise be disclosed with the exempt projections redacted”). Page 2 0f3of the analysis conducted and utilized to reach the determination to require 30% Minority Business and Woman Business Enterprise participation for Contract 2016-16-RE, To the extent that records exist with respect to the analysis conducted and utilized to reach the WBE goals for Contract 2016-16-RE, records reflecting such “consideration” would fall ‘squarely within the exemption pursuant to Public Officers Law §87(2)(g) as these records would consist of opinions, estimates and recommendations that were prepared by NYSIF and are predecisional for the purpose of estimating or recommending the MWBE goals for a specific project. All documents generated or in the possession of NYSIF which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for Contract 2016-16-RE AGC seeks documents generated or in the possession of NYSIF which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for Contract 2016-16-RE. Consideration of the factors set forth in 5 NYCRR 142.2(d) would necessarily be part of the deliberative process utilized prior to the agency’s final determination. Therefore, any underlying documents generated or in the possession of NYSIF would consist of predecisional deliberations, estimates and recommendations that are exempt from disclosure under the Public Officers Law. Conclusion Accordingly, I find that NYSIF’s decision was consistent with the law. Please be advised that you may consider this response to be a final determination by NYSIF. Very truly yours, Ve Peter Cusick Deputy General Attomey cc: Committee on Open Government (with copy of appeal) William OBrien, NYSIF General Aitomey Page 3 of 3EXHIBIT Q~ ASSOCIATED GENERAL CONTRACTORS oF New York STATE “The New York State Chapter ofthe Assoited General Conracors of America November 29, 2016 Records Access Officer NYS Department of Environmental Conservation 625 Broadway Albany, New York 12233-1500 RE: Project M/WBE Goal Setting Analysis Buffalo Lakeside Commerce Park, Parcel 4 To Whom It May Concer: Section 313, Subdivision 2-a(b) of Executive Law requires that “each contract solicitation set forth the expected degree of minority and women-owned business enterprise participation” based, in part, on: (@ the potential subcontract opportunities available in the prime procurement contract; and i) the availability, as contained within the study, of certified minority business enterprises to respond competitively to the potential subcontract opportunities. Furthermore, 5 NYCRR 142.2(4) provides that: In determining appropriate goals for a particular State contract, State agencies shall give consideration to the following factors: (1) the contract and subcontract scope(s) of work; ) the potential subcontract opportunities available in the prime contract; G) the relevant availability data contained within the disparity study with respect to the scope of the contract and potential subcontracting opportunities; (4) the number and types of certified minority- and women-owned business enterprises found in the directory of certified minority- and women-owned businesses available to perform the State contract work; (G) the geographic location of the contract performance; (©) the extent to which geography is material to the performance of the contract; (2) the ability of cestified minority- and women-owned enterprises located outside of the geographic location of contract performance, notwithstanding the regional location of the certified enterprise, to perform on the State contract; (8) the total dollar value of the work required by the State contract in relation to the dollar value of the subcontracting opportunities; (9) ‘the relationship of the monetary size and term of the State contract to the monetary size and term of the project for which the State contract is awarded; and (10) the agency's annual agency-specific goal established pursuant to section 141.2 of these regulations. 10 ARUN Drive, Sure 203 + Anse, New York 12205 ‘518-456-1134 P'» 518-456-1198 F + waw.agenys.org‘November 29, 2016 Page Two Accordingly, we request the following: ‘+ A copy of the analysis conducted and utilized to reach the determination to require 15% Minority Business and 15% Woman Business Enterprise participation for this contract. © All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(¢) for this contract. Please treat this as a formal Freedom of Information Law request. We stand ready to pay the customary copying charges associated with this request. Thank you. SRA CSE Michael J. Elmendorf II President and CEO Associated General Contractors of New York StateEXHIBIT Rew ¥¢ BC Support Date: January 27, 2017 at 3:40:22 PM EST To: Subject: Freedom of Information Law Request :: W015173-112916 ~-- Please respond above this line — (et 18)402-9522 | F: /w.clec.ny.gov 4/27/17 Dear Mr. Elmendorf: This is in response to your November 29, 2016 Freedom of Information Law (FOIL) request seeking the following records related to the Project, MABE Goal Setting Analysis for the Buffalo Lakeside Commerce Park, Parcel 4: * A ccopy of the analysis conducted and utilized to reach the determination to require 15% Minority Business and 15% Woman Business Enterprise participation for this contract * "All documents generated or in the possession of the Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.(2)d for this contract Records responsive to your request have been denied pursuant to POL § 87(2)c, as the records, if disclosed, would impair present or imminent contract awards or collective bargaining negotiations, and POL § 87(2)q, as they consist of deliberative inter-agency materials. You have the right to appeal the Department's denial. Any such appeal must be submitted in writing and within thirty days of the date of this email or letter. Please direct any appeal to: FOIL Appeals Officer Office of General Counsel New York State Department of Environmental Conservation 625 Broadway Albany, NY 12233-1500 If I can be of further assistance, please contact me and reference FOIL W015173-112916.Sincerely, Aldie K. Levine, Esq, Records Access Officer, Office of General Counsel ‘New York State Department of Environmental Conservation 625 Broadway, Albany, NY 12233, : (518) 402-9522 | F: (518) 402-9028 | access recorde@dec,nv.gov wuwwdecnv.goy | |EXHIBIT Sy ' 7 , ASSOCIATED GENERAL CONTRACTORS oF New York STATE February 24,2017 VIAE TO __access.records@dec.ny.gov FOIL Appeal Officer Office of General Counsel New York State Department of Environmental Conservation 625 Broadway Albany, New York 12233-1500 ® “The New York State Chaptor ofthe Associated General Contractors of America Re: Appeal of Denial of November 29, 2016 Freedom of Information Law (“FOIL”) Dear Ms. Aldie: This letter is an appeal of New York State Department of Environmental Conservation denial of documents in response to AGC NYS* FOIL request, which was submitted to the New York State Department of Environmental Conservation Record Access Officer on November 29, 2016. A copy of this request is attached hereto as Exhibit A. Procedural History AGC’s FOIL request dated November 29, 2016 (see Ex. A) sought: * A copy of the analysis conducted and utilized to reach the determination to require 15% Minority Business and 15% Woman Business Enterprise participation for this contract, * All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142,2(d) for this contract. ‘The request was acknowledged by the New York State Department of Environmental Conservation on December 20, 2016, which acknowledgment, stated that AGC would be notified within twenty business days of the Department’s initial written acknowledgment of your request regarding the availability of the records it sought. Following multiple extensions, on January 27, 2017, New York State Department of Environmental Conservation finally notified AGC that: To the extent we have records responsive to your request, the records are being denied pursuant to POL § 87(2)(g), as the records as the records, if disclosed, would impair present or imminent contract awards ‘or collective bargaining negotiations, and POL § 87(2)g, as they consist of deliberative inter-agency materials. 210 Arsuine Deve, Surre 203 « Ausanv, New York 12205 ‘518-456-1134 P « 518-456-1198 F + wwu.ngenys.orgFebruary 24, 2017 Page 2 ‘The asserted exception does not apply on the facts at hand. ‘The Statutory Framework for the Documents Sought FOIL is based upon the policy that agency records are presumptively available to members of the publio, unless the agency establishes that the records fall within one of the statute’s exemptions. See In re Farbman & Sons, Inc. v. New York City Health & Hosps. Corp., 62 N.¥.24 75, 79-80 (1984). The exemption in Public Officers Law Section 87(2)(g) applies to “‘predecisional information which is prepared in order to assist the decision-making process. . ..” In re Medulay v. Board of Eddwc.of the City of New York, 61 A.D.2d 1048 (2d Dep't 1978), aff'd 48 N.Y.2d 659 (1979). Intra-agency records fall within the coverage of Section 87(2)(g) of FOIL, which states that an agency may withhold records that: “are inter-agency or intra-agency materials which are not: i, statistical or factual tabulations or data; instructions to staff that affect the publ final agency policy or determinations; or iv, external audits, including but not limited to audits performed by the comptroller and the federal government...” The statutory language quoted above contains what is effectively a double negative. While inter-agency or intra-agency materials may be withheld, portions of those materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policies or determinations, or extemal audits must be disclosed, unless a different ground for denial may properly be asserted. New York State Department of Environmental Conservation has asserted no other basis. It is well established that there is no basis for withholding statistical or factual information, . numerical figures, including estimates and projections even though they may have been advisory and subject to change. This issue was considered in Dunlea v. Goldmark, and it is directly on point with the instant report. 85 Misc. 2d 198, 202-03, modified 54 A.D.2d 446, aff'd 43 N.Y.2d 754 (1977). In Dunlea, the records at issue contained three columns of numbers related to certain areas of expenditures which the state agency held were recommendations, rather than statistical or factual. Although the worksheets were merely estimates and subject to modification, they were nevertheless found to be “statistical tabulations” accessible under FOIL as originally enacted, At that time, FOIL granted access to “statistical or factual tabulations” [see original Law, §88(1)(d)]. Currently and consistently, §87(2)(2)@) requires the disclosure of “statistical or factual tabulations or data.” As stated by the Appellate Division in Dunlea: [i]t is readily apparent that the language statistical or factual tabulation was meant to be something other than an expression of opinion or