PRELIMINARY STATEMENT

Agency deliberations are exempt from Freedom of Information Law (FOIL) disclosure.

The limited responsive documentation at issue in this proceeding falls squarely within well-

established FOIL exemptions that have been analyzed on a case-by-case basis by each of the

agencies identified in this proceeding: Dormitory Authority of the State of New York

(DASNY), New York State Department of Environmental Conservation (DEC), New York

State Office of Temporary and Disability Assistance (OTDA), New York State Department of

Transportation (DOT) and New York State Insurance Fund (NYSIF). In opposition to the

Petition, each of the named Respondent-agencies provide a detailed account of their actions in

this case, an identification of the documents at issue, and the documents themselves for the

Courts in camera review, in the cases where agency records have been withheld on the basis of

an exemption. In the case of Petitioners requests sent to DEC and NYSIF, neither of the

agencies have responsive documents.

The Petitioner submitted five FOIL requests, the Respondent-agencies responded

separately to those five requests, and the Petitioner disagrees with each of the decisions. The

Respondent-agencies assertion of the same FOIL exemption dealing with intra-agency

deliberations is not surprising, but rather is expected given the fact that in each of the five

demands, the Petitioner sought production of the analysis and documentation the agency used

in considering certain factors. The Petitioner sought documentation at the heart of the

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agencies internal deliberations, and the requests were rejected as exempt from disclosure

because they constituted non-final agency deliberations.1

The Respondents responded reasonably and in good faith to the requests of the Petitioner. For

the reasons set forth herein, and in the accompanying affidavits, the Petitioners Verified Petition

should be denied in its entirety.

STATEMENT OF FACTS
The Respondents received and carefully considered five separate FOIL requests that were

submitted by the Petitioner to the five separate Respondent-agencies. These FOIL requests used

nearly identical language to obtain documentation pertaining to the projects Goal Setting

Analysis. See Verified Petition, Ex. A, Ex. E, Ex. I, Ex. M, Ex. Q.

Despite the Petitioners lengthy recitation of statutory language in its demands and

subsequent appeal letters, the request to each agency itself was limited to the following demands,

which only changed to the extent of the pertinent percentages set out in the relevant project:

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.

1 Despite the efforts of the Petitioner to frame this proceeding as being about the MWBE goal setting
requirements and what it, a private limited liability company, deems to be a State agencys responsibilities
under these statutes and regulations, this proceeding is nothing more than a judicial review of the
Respondents responses to five separate FOIL requests. Pursuant to Article 78, a reviewing courts
consideration is necessarily limited to the facts and record adduced before the agency. Fanelli v New
York City Conciliation & Appeals Bd., 90 AD2d 756, 757 (1st Dept. 1982), aff'd 58 N.Y.2d 952 (1983);
see also Rizzo v. New York State Div. of Housing & Community Renewal, 6 N.Y.3d 104, 110 (2005);
Featherstone v. Franco, 95 N.Y.2d 550, 554 (2000). As such, this proceeding is limited to the
administrative record before each agency. Specifically, the Court is limited to reviewing the FOIL
requests, the FOIL responses, the FOIL appeals and the appeal responses. As explained more fully in
Respondents opposition to the Construction Industry Council of Westchester and Hudson Valley, Inc.s
motion for leave to file an amicus brief, the MWBE goal setting requirements are not at issue.

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 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.
See Verified Petition, Ex. A; see also Verified Petition, Ex. E, Ex. I, Ex. M, Ex. Q. Each of these

demands explicitly sought the deliberative analysis and employees consideration of factors in

formulating goals of the agency. See Verified Petition, Ex. A, Ex. E, Ex. I, Ex. M, Ex. Q.

Upon receipt of its respective request, each of the agencies responded to Petitioners

request. The Court is respectfully referred to the affirmations that have been submitted in

opposition to the Petition for a detailed account of each agencys response to the Petitioners

FOIL request. See Affirmation of Michael E. Cusack (DASNY); Affirmation of Deborah W.

Christian (DEC); Affirmation of Zachary M. Stevens (OTDA); Affirmation of Peter Cusick

(NYSIF); Affidavit of Jerry Morse (DOT).

Respondents, DEC and NYSIF do not have documents responsive to Petitioners request.

See Christian Aff., 9; Cusick Aff., 7. DEC identified responsive documents they provided to

Petitioner in response to a previous FOIL request. Christian Aff., 9, Exhibit E. After a diligent

search, NYSIF did not locate any documents responsive to Petitioners request. Cusick Aff., 7.

NYSIF noted in its response that had it located responsive documents, such documents would be

exempt because they pertained to contracts that had yet to be awarded. See Cusick Aff., 8.

DASNY, OTDA and DOT withheld responsive documentation on the basis that the

documents sought consisted of non-final, intra-agency or inter-agency materials that were

exempt pursuant to POL 87(2)(g). See Cusack Aff., 20-32; Stevens Aff., 15; Morse Aff., 6.

Each of these agencies provided a detailed response to the Petitioner, which set forth the claimed

exemption. Id. The exemption was asserted based upon the nature of the request, labeled as a

request for Goal Setting Analysis, and the fact that the demand was explicitly seeking the

agencys analysis and the documents pertaining to the agency considering certain factors.
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Respondent DASNY further claimed that the documentation in its possession was also exempted

from disclosure because it involved a project that was still being negotiated. Cusack Aff., 9-

19. DASNY claimed that disclosure of the documentation sought would impair current or

imminent contract awards and was exempt from disclosure pursuant to POL 87(2)(c). Cusack

Aff., 19.

Each of the five agencies received and responded to the Petitioners demand for the

deliberative materials of the agencies. Each of the agencies provided a detailed account of their

respective actions, and each agency has provided to this Court every one of the responsive

documents that have been claimed exempt. See Affirmation of Michael E. Cusack (DASNY);

Affirmation of Deborah W. Christian (DEC); Affirmation of Zachary M. Stevens (OTDA);

Affirmation of Peter Cusick (NYSIF); Affidavit of Jerry Morse (DOT).

ARGUMENT
I. DOCUMENTATION RELATING TO THE DELIBERATIVE
PROCESS UTILIZED BY THE RESPONDENT-AGENCIES IS
EXEMPTED UNDER THE PUBLIC OFFICERS LAW.
The Court of Appeals has repeatedly held that the purpose of the intra-agency exception

is to allow individuals within an agency to exchange their views freely, as part of the deliberative

process, without the concern that those ideas will become public. See Matter of Town of

Waterford v. New York State Dept. of Envtl. Conservation, 18 N.Y.3d 652 (2012); Matter of New

York Times Co. v. City of NY Fire Dept., 4 N.Y.3d 477 (2005); Xerox Corp. v. Webster, 65 N.Y.2d

131 (1985). Courts applying the exemption have continually recognized its importance and the

underlying goal of the Legislature to ensure that the States agencies are not chilled in their

officers and employees expression of opinions, advice and criticism by the prospect of public

disclosure. See id.; Matter of Tuck-It-Away Assoc., L.P. v. Empire State Dev. Corp., 54 AD3d 154

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(1st Dept 2008); Asian Am. Legal Defense & Educ. Fund. v. New York City Police Dept., 41

Misc. 3d 471 (N.Y. Sup. Ct. 2013); Matter of Physicians Comm. for Responsible Medicine v.

Hogan, 29 Misc. 3d 1220(A), 1220A (N.Y. Sup. Ct. 2010).

The statute allows an agency to deny public access to 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; iii. final agency policy or determinations; or iv. external audits,

including but not limited to audits performed by the comptroller and the federal government.

POL 87(2)(g). The term inter-agency or intra-agency materials encompasses deliberative

materials or communications exchanged for discussion purposes not constituting final policy

decisions, and also includes the day-to-day communications of agency personnel advancing the

agencys work. See Russo v. Nassau County Community College, 81 N.Y.2d 690 (1993); Matter

of Miller v. New York State Dept. of Transp., 58 AD3d 981 (3d Dept 2009); Matter of Visiting

Nurse Serv. of NY Home Care v. New York State Dept. of Health, 2012 N.Y. Misc. LEXIS 5701,

*8-9 (Sup. Ct. Albany County 2012).

In 2012, Judge Ceresia addressed the application and scope of the intra-agency

exemption in the context of a request for agency records:

The intra-agency and inter-agency exemption broadly exempts all

intra-agency and inter-agency pre-decisional materials from
disclosure unless the material or portions of the material falls
within one of four specific types of excepted information:
statistical or factual tabulations or data, 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.

* * *

In recent years, the courts have clearly established that agencies

are not obliged to demonstrate that particular records are
deliberative in order to assert the intra and inter-agency

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 exemption. FOILs intra and inter-agency exemption is not limited
solely to deliberative material or lengthy or profound policy
discussions but also exempts suggestions and criticisms offered
with little chance for reflection in moments of crisis (The New
York Times Co. v City of NY Fire Dept., 4 NY3d 477, 487, 488,
829 N.E.2d 266, 796 N.Y.S.2d 302 [2005]). The exemption covers
materials that are clearly not deliberative, such as dispatch calls
between fire department dispatchers and fireman (The New York
Times Co. v City of NY Fire Dept., 4 NY3d 477, 487 [2005]) and
e-mails discussing the scheduling of meetings (Tuck-It-Away
Associates. L.P. v Empire State Development Corp., 54 AD3d 154,
166, 861 N.Y.S.2d 51 [1st Dept., 2008] affd. 13 N.Y.3d 882, 921
N.E.2d 592, 893 N.Y.S.2d 825 [2009]). Intra and inter-agency
materials have been judicially construed to include all
communications exchanged by agency employees including
records of internal conversations about or in the course of the
agencys work (The New York Times Co. v City of NY Fire Dept.,
4 NY3d 477, 487, 488 [2005]; Matter of Bass Pro. Inc v Megna, 69
AD3d 1040, 1041-1042, 892 N.Y.S.2d 642 [3d Dept., 2010]; Tuck-
It-Away Associates. L.P. v Empire State Development Corp.,54
AD3d 154, 166, 861 N.Y.S.2d 51 [1st Dept., 2008]; Matter of
Mingo v New York State Div. of Parole, 244 AD2d 781, 782, 666
N.Y.S.2d 244 [3d Dept., 1997]).

Matter of Visiting Nurse Serv. of NY Home Care v. New York State Dept. of Health, 2012 N.Y.

Misc. LEXIS 5701, *10-11 (Sup. Ct. Albany County 2012). So long as the documents at issue

pertain to predecisional, nonfinal discussions and recommendations used to assist with the

formulation of determinations, these materials are exempted from disclosure. See Matter of

Smith v. New York State Off. of the Attorney Gen., 116 A.D.3d 1209, 1212 (3d Dept 2014).

A. THE DORMITORY AUTHORITY OF THE STATE OF NEW

YORK PROPERLY DENIED PETITIONERS FOIL REQUEST.
The Petitioner sought documents from DASNY pertaining to a project that was noticed

for bidding on October 25, 2016. Cusick Aff., 4. DASNY received multiple bids, which were

opened on December 8, 2016. Cusick Aff., 5. The Petitioners request for documentation was

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submitted on November 14, 2016 before the bids pertaining to the project were even opened

and reviewed. Cusick Aff., 4, 9.

The documents withheld by DASNY are intra-agency materials. While portions of the

documents involve the estimates and opinions of an outside consultant, consultant materials have

been held to qualify for the intra-agency exemption. Xerox Corp. v. Webster, 65 N.Y.2d 131,

132-133 (N.Y. 1985) (records may be considered "intra-agency material" even though prepared

by an outside consultant at the behest of an agency as part of the agency's deliberative process).

In Xerox Corp. v. Webster, the Court of Appeals held:

In connection with their deliberative process agencies may at times

require opinions and recommendations from outside consultants. It
would make little sense to protect the deliberative process when
such reports are prepared by agency employees yet deny this
protection when reports are prepared for the same purpose by
outside consultants retained by agencies. Accordingly, we hold that
records may be considered "intra-agency material" even though
prepared by an outside consultant at the behest of an agency as part
of the agency's deliberative process (see, Matter of Sea Crest
Constr. Corp. v Stubing, 82 AD2d 546, 549, supra; Matter of 124
Ferry St. Realty Corp. v Hennessy, 82 AD2d 981, 983).

Xerox Corp. v. Webster, 65 N.Y.2d 131, 132-133 (1985).

In his Affirmation, Attorney Cusack has set forth the relationship between DASNY and

the consultant, the purpose of the consultants work and the relevance of the consultants records

in the solicitation process. Cusack Aff., 14-19. The materials withheld are intra-agency

communications which should not be disclosed.

In its denial of the FOIL request, DASNY also advanced an exemption under POL 87(2)

(c), which allows for materials to be withheld when the disclosure of those materials would

impair present or imminent contract awards. Cusack Aff., 19; POL87(2)(c). Here, the

documentation involved detailed analysis by the agencys consultant about the costs of the

project, which at the time of the request was in the process of bidding. Cusack Aff., 9-19. As

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is evident from the Affirmation of Michael Cusack, disclosure of the documentation would have

certainly impaired the ability of DASNY to obtain the most favorable position in this public

works project, and would impact upon negotiations with other bidders in the event that there is a

bid challenge or other circumstances where a final decision is not reached with the current low

bidder. Cusack Aff., 9-19.

In response to the Petitioners request, DASNY proceeded reasonably and in accordance

with the law. There is no evidence to suggest that DASNY did not act in any manner other than

in good faith and while acting under a reasonable belief that the materials withheld were exempt

from disclosure.

B. THE NEW YORK STATE OFFICE OF TEMPORARY AND

DISABILITY ASSISTANCE AND ITS COMMISSIONER HAVE
PROPERLY DENIED PETITIONERS FOIL REQUEST.
The New York State Office of Temporary and Disability Assistance (OTDA) received

the Petitioners request of October 7, 2016, Verified Petition, Ex. E, and denied the request on

January 27, 2017. Verified Petition, Ex. F. The Petitioner appealed the denial, Verified Petition,

Ex. G, arguing that factual aspects of any responsive documentation fell outside of any

exemption, and portraying its request as that of a request for factual data as opposed to

deliberative processes. See Verified Petition, Ex. G.

OTDA rejected the appeal, focusing on the language of the Petitioners demand which

explicitly sought the analysis conducted and documentation evincing the agencys

consideration of certain statutory factors which by statute then lead to a contract goal. Stevens

Aff., Ex. D. While the Petitioner attempts in the appeal and in this proceeding to claim that it

was merely seeking factual, non-exempt materials, that is not what the request sought. Stevens

Aff., Ex. A. The request sought analysis and a production of documents that would have

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disclosed the deliberative process of agency employees in the consideration of factors, that in

turn lead to goals. Id. The request was explicitly characterized as a request for goal setting

analysis, which sought the agencys analysis and documentation evincing the agencys

consideration of certain factors. Id.

In support of Respondents opposition, OTDA submits the Affidavit of Zachary M.

Stevens, Esq. who indicates that there is only one document responsive to the Petitioners

request. Stevens Aff., 10. That document, which has been provided for the Courts in camera

review, constitutes a non-final internal agency record that is created as part of the internal

review of an agency procurement process, which was created well before any final

determination to award funds within the procurement process. See Stevens Aff., 10-13.

Attorney Stevens avers that the withheld form was circulated amongst OTDA

management employees who were charged with reviewing the opinions and estimates of OTDA

employees. Stevens Aff., 13. The form was used in the context of internal preparation for the

procurement process specifically for the purpose of internally allocating funds for an

anticipated contract award. Stevens Aff., 11-13. This document was circulated amongst agency

employees prior to any final determination as to the procurement or the final determination as to

the goals. Id.

As is evident from Mr. Stevens affirmation, and from an in camera review of the

document, the form is squarely within the FOIL exemption for intra-agency materials. See

Matter of Visiting Nurse Serv. of NY Home Care v. New York State Dept. of Health, 2012 N.Y.

Misc. LEXIS 5701, *10-11 (Sup. Ct. Albany County 2012). It was prepared by and for agency

employees for the purpose of internally preparing for a contract award. The request was properly

denied by the Respondent, and there has been no evidence provided by Petitioner that would

9
suggest that the denial of the materials was done in any manner other than in good faith, and with

a reasonable belief that its materials should not be disclosed.

C. THE NEW YORK STATE DEPARTMENT OF

TRANSPORTATION AND ITS COMMISSIONER PROPERLY
DENIED PETITIONERS FOIL REQUEST.
The Department of Transportation denied the Petitioners request on the basis that its

responsive documentation was subject to FOILs intra-agency materials exemption. Morse Aff.,

5-7. After the Petitioner appealed the determination, DOT considered the denial and appeal

and again determined that the responsive document was exempt from disclosure based on the

intra-agency materials exemption. Verified Petition, Ex. L.

DOTs denial cited to the Petitioners phrasing of his request and to Petitioners attempt

to obtain the analysis and the consideration of DOT in its internal deliberations. Verified

Petition, Ex. L. Since the Petitioner sought the analysis and documents evincing DOTs

consideration of statutory factors, it was the Petitioner that placed its request squarely within the

inter-agency and intra-agency materials exemption. See Verified Petition, Ex. I.

In opposition to the Petition, DOTs Record Access Officer submits an affidavit which

sets forth his review of the responsive documentation and the basis for his belief that the

responsive document is subject to the FOIL exemption. The only responsive document that was

withheld is an Engineers Estimate, Morse Aff., 5, which is submitted to the Court for in

camera review. This Engineers Estimate is utilized for several internal contract and project

purposes, Id., 7, and consists of an engineers estimation of the costs of each item of work and

how much money the engineer believes would be reasonable to pay for the completion of each

item of work. Id., 8. The document serves as the basis for the agencys review of bids received

and serves as a format for charging costs to be applied to appropriate fund sources. Id., 8.

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Additionally, this document also details the items of work contemplated by this contract, and

therefore identifies the associated subcontracting opportunities. Id., 9. As attested to by Mr.

Morse, the Engineers Estimate consists of opinions, estimates and recommendations that were

prepared to assist the Agencys decision makers to make determinations as to the levels of

M/WBE participation in the project. Id., 10.

Since this document was prepared by and circulated amongst agency employees, it falls

into the FOIL exemption for intra-agency materials. DOT does not have any responsive

documentation other than the one document that has been provided for in camera review. There

is no evidence that the DOT responded to the Petitioners request in any way other than in good

faith and in accordance with the law.

II. PETITIONERS CLAIMS AGAINST RESPONDENTS DEC AND NYSIF

MUST BE DISMISSED AS MOOT BECAUSE NEITHER AGENCY HAS
DOCUMENTS RESPONSIVE TO PETITIONERS REQUEST.

By its express terms, Public Officers Law does not require an agency to disclose

documents that it does not possess or maintain. POL 89(3). Accordingly, where an agency

cannot locate documents responsive to a FOIL request, it need only certify that a diligent search

was conducted and responsive documents were not located. Rattley v. New York City Police

Dept, 96 N.Y.2d 873, 875 (2001). The agency need not provide a detailed description of the

search or a statement from the person who actually conducted it. Id. Where an agency certifies

that it conducted a diligent search and located no responsive documents, any Article 78

proceeding must be dismissed as moot. See, e.g., id.; DeFreitas v. New York State Police Crime

Lab, 141 A.D.3d 1043, 1044 (3d Dept. 2016).

11
 NYSIF conducted a diligent search and could locate no responsive documents. See

Cusick Aff., 7. DEC conducted a diligent search and could locate no responsive documents

that were not already provided to Petitioner. See Christian Aff., 9, Exhibit E.

Both DEC and NYSIF submit sworn statements indicating that a diligent search was

undertaken and responsive documents were not located. See generally Christian Aff., Cusick

Aff. Where a petitioner receives an adequate response to a FOIL request during the pendency

of his or her CPLR Article 78 proceeding, the proceeding should be dismissed as moot because a

determination will not affect the rights of the parties. DeFreitas, 141 A.D.3d at 1044. The

claims against DEC and NYSIF are moot. Id.; Rattley, 96 N.Y.2d at 875.

III. IN THE EVENT THAT THE COURT DETERMINES THAT

ANY OF THE DOCUMENTATION SHOULD HAVE BEEN
DISCLOSED, ATTORNEYS FEES ARE NOT APPROPRIATE.
A petitioner may only recover fees under POL 89(4)(c) if it can establish that it has (1)

substantially prevailed, (2) the record sought was of clearly significant interest to general

public, and (3) the agency lacked reasonable basis in law for withholding record. POL 89(4)

(c).

As set forth above and in the affidavits submitted by the Respondents, each of the

Respondents acted reasonably in its denial of the Petitioners requests and in the review of their

appeals. The Petitioner, by phrasing its request in such a manner so as to seek the internal

analysis and deliberations of each of the agencies, provided the Respondents with a reasonable

basis to assert the intra-agency and inter-agency materials exemption in response to the requests.

Whether this Court ultimately determines that specific pages should not have been withheld or

portions thereof should have only been redacted, there certainly was a reasonably basis in law for

each of the Respondents to assert the inter-agency exemption and withhold disclosure.

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 Further, there is absolutely nothing in the Record that would suggest that the records

sought were of a nature that they constituted a significant interest to the general public. The

records sought were the internal deliberations of five separate agencies in their respective

consideration of an agency goal of participation for five separate construction projects. The

documents provided to the Court for its in camera review involve a complex consultant report

that sets out the construction estimates of a construction project, an internal Engineering Report

and a form that is intended to internally reserve funds for an anticipated contract award. The

general public has no interest in these internal agency documents, let alone a significant interest.

The Petitioners request for attorneys fees should be rejected in its entirety.

CONCLUSION

For the foregoing reasons, for those set forth in the Answer, and for those set forth in the

Respondents affirmations and affidavit in opposition to the Petition, the Respondents

respectfully request that the Petition be denied in its entirety.

Dated: May ___, 2017 ERIC T. SCHNEIDERMAN

Albany, New York Attorney General of the State of New York
The Capitol
Albany, New York 12224-0341

By: _____________________________________
Brian W. Matula, Esq.
Assistant Attorney General, of Counsel
Telephone: (518) 776-2599
Fax: (518) 915-7738 (Not for service of papers.)
Email: Brian.Matula@ag.ny.gov

Kelly L. Munkwitz, Esq.

Deputy Bureau Chief, Litigation Bureau
Telephone: (518) 776-2626
Fax: (518) 915-7738 (Not for service of papers.)
Email: Kelly.Munkwitz@ag.ny.gov

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