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FOIL Appeal Determination for 10-17-0F (Bond, Schoeneck & King, PLLC, Attn: Robert H. Feller, Esq.)

CERTIFIED MAIL: RETURN RECEIPT REQUESTED

July 6, 2010

Bond, Schoeneck & King, PLLC
Att'n: Robert H. Feller, Esq.
111 Washington Avenue
Albany, NY 12210-2211

re: Freedom of Information Law appeal # 10-17-0F
Freedom of Information Law request # 10-1169

Dear Mr. Feller:

Background

You made a request for access to "1. Any and all appraisals submitted in relation to New York State's proposed purchase of approximately 1,216.5 acres in the Catskill Forest Preserve commonly known as the Big Indian Plateau. ... [and] 2. Any other records provided to the Comptroller's office by DEC or anyone else in relation to the Comptroller's review of the proposed contract to purchased [sic] land identified [sic] in the enclosed letter [dated May 5, 2010 from C. Breeyear to R. Davies re contract W002539]. ..." by your letter dated May 17, 2010.

That request was acknowledged by the Records Access Officer's letter dated May 25, 2010 to you.

That request was denied in whole by a Real Estate Specialist 2's letter dated May 26, 2010 to you, which denial consisted of the withholding of the Division of Lands & Forests, Bureau of Real Property, file upon the ground that the withheld records were exempt pursuant to Public Officers Law § 87(2)(c): the letter recites, "since this is still an active project your request is being denied under Public Officer's Law §87(2)(c) (disclosure would impair present or imminent contract awards)".

You made an appeal from that denial by your letter dated June 21, 2010: the letter recites "Whether or not the request relates to an 'active project', such a fact, even if true, in and of itself is insufficient to withhold documents on the cited exemption [Public Officers Law § 87(2)(c)]. There must be a basis to reasonably believe that disclosure would impair a contract award. None was cited in Mr. Reynolds letter. ... Under these circumstances, it is hard to understand how any contract award can be characterized as either 'present or imminent' or how disclosure would impair any contract award since [Office of the State Comptroller] has already disapproved the purchase. Certainly, Mr. Reynold's letter does not explain how the exemption would still be applicable under these circumstances. Perhaps more important is the fact that the cited exemption has been held repeatedly not to apply unless there is a competitive bidding process. In other words, where there is only one bidder in the picture, as a matter of law, the purpose behind the exemption (i.e. preventing an impairment of a contract award) is not served by withholding documents. ... In this case, the 'active project' is a sole source transaction between New York State and Crossroads Ventures, the property owner. Hence, under well-established case law, the cited exemption is inapplicable".

That appeal was acknowledged by the FOIL Appeals Officer's letter dated June 22, 2010 to you.

Thereafter, I made inquiry to this Department's Central Office staff.

Based on the results of that inquiry, I am able to advise you that the withheld records consist of the following:

  • Property Deeds, Winding Mountain. Road Judgment, Proposed Deed to Emily Fisher, Ulster 229, Crossroads Ventures, LLC, +/- 1,220.1 Acres, Town of Shandaken, Ulster County, State of New York" dated October 14, 2008, prepared by Fountains Forestry for New York State Department of Environmental Conservation
  • Appraisal Report, Ulster 229, Crossroads Ventures, LLC, +/- 1220.1 Acres, Town of Shandaken, Ulster County, State of New York" dated October 14, 2008, prepared by Fountains Forestry for New York State Department of Environmental Conservation
  • Self-Contained Appraisal Report of Crossroads Ventures Property - Ulster 229, Portion of Belle Ayr Mountain ... Woodchuck Hollow, Winding Mountain, and Lost Clove Roads, Town of Shandaken, Ulster County, New York" dated October 14, 2008, prepared by Pomeroy Appraisal Associates, Inc. for New York State Department of Environmental Conservation
  • Appraisal Review dated March 5, 2009 re "Project: Ulster 229"
  • Appraisal Review dated March 6, 2009 re "Project: Ulster 229"
  • Appraisal Review Update dated August 19, 2009 re "Project: Ulster 229"
  • Real Property Declaration dated August 26, 2009 re "Project Identification No. Ulster 229"
  • Vendor Responsibility Questionnaire dated November 19, 2009 re Crossroads Ventures, LLC
  • Seller's Affirmation of Understanding and Agreement: Procurement Lobbying Law dated November 23, 2009 re Crossroads Ventures, LLC
  • Seller's Disclosure of Prior Non-Responsibility Determinations: State Finance Law 139-j and 139-k (Procurement Lobbying Law) dated November 23, 2009 re Crossroads Ventures, LLC
  • Vendor Responsibility Profile dated December 9, 2009 re Crossroads Ventures, LLC
  • Vendor Responsibility Questionnaire dated November 19, 2009 re E. Fisher
  • Seller's Affirmation of Understanding and Agreement: Procurement Lobbying Law dated November 23, 2009 re E. Fisher
  • Seller's Disclosure of Prior Non-Responsibility Determinations: State Finance Law 139-j and 139-k (Procurement Lobbying Law) dated November 23, 2009 re E. Fisher
  • Vendor Responsibility Profile dated December 11, 2009 re E. Fisher
  • letter dated December 14, 2009 from J. Keating to Office of State Comptroller re "W002539, CFP Ulster 229.01, .02, .03 & .04, CFE Ulster 229.06"
  • draft Land Purchase Agreement and Conservation Easement Purchase Agreement re "Project Designation: CFP Ulster 229"
  • letter dated December 14, 2009 from S. Gruskin to T. DiNapoli re "State Acquisition of DEC Project No. Ulster 229", with attachment:

A: "Documentation of Negotiations between DEC and Seller" [undated]

memo dated December 30, 2009 from R. Davies to C. Breeyear re "Response to Questions in Emails dated 12/24/09 and 12/28/09, 09000/ W002539 - Big Indian & Brisbane Mansion Parcels", with attachment:

[1]: letter dated July 17, 2009 from R. Gach to R. Davies re "Ulster 229 - Crossroads Ventures, LLC, Big Indians - 1,189 Acres Fee, 31.8 Acres CE, Town of Shandaken"
memo dated March 24, 2010 from R. Davies to C. Breeyear re "09000/ W002539 - Big Indian & Brisbane Mansion Parcels"

Also based on the results of that inquiry, I am able to advise you further that more responsive records have since been discovered, which consist of the following:

message dated December 14, 2009 at 12:31pm from J. Konz to S. Gruskin, E. Gordon, F. Sheehan, R. Davies re "Administrative Adjustment Doc for Big Indian", with attachment:

[1]: draft letter from S. Gruskin to T. DiNapoli re "State Acquisition of DEC Project No. Ulster 229", with attachment

message thread dated during December 14, 2009 at 12:31pm to December 14, 2009 at 2:55pm from J. Konz to F. Sheehan, R. Davies, E. Gordon, J. Konz, S. Gruskin, S. Ricci

re "Re: Administrative Adjustment Doc for Big Indian", with attachment:

[1]: draft letter from S. Gruskin to T. DiNapoli re "State Acquisition of DEC Project No. Ulster 229", with attachment
message thread dated during December 16, 2009 at 10:18am thru December 16, 2009 at 2:25pm from F. Sheehan to R. Davies, J. Keating, J. Konz re "Re: Fwd: 09000/ W002539 Big Indian & Brisbane Mansion Parcels (1,220.1 +/- acres)"

memo [undated] from R. Davies to T. Warner re "Response to 12/16/09 E-mail Questions, 09000/ W002539 - Big Indian & Brisbane Mansion Parcels", with attachments:

A: 2009 NYS Open Space Conservation Plan pages 78 thru 83

B: "Belleayre Mountain Ski Center UMP Draft Conceptual Plan"

C: Final 2007 FAD pages 42 thru 45

D: report "Ashokan Reservoir (1307-0004)" dated May 29, 2008 pages 353 thru 354
message dated December 21, 2009 at 3:27pm from J. Konz to P. Warner re "DEC Response to Email of 12/16/09", with attachments:

[1]: memo [undated] from R. Davies to T. Warner re "Response to 12/16/09 E-Mail Questions, 09000/ W002539 - Big Indian & Brisbane Mansion Parcels", with attachments

[2]: "Agreement in Principle" dated September 5, 2007 among State of New York and Crossroads Ventures, LLC, et al.

[3]: 2009 NYS Open Space Conservation Plan pages 78 thru 83

[4]: "Final Scoping Document, Belleayre Mountain Ski Center, Unit Management Plan - DEIS, and Modified Belleayre Resort at Catskill Park, Supplemental DEIS" dated February 28, 2008

[5]: "Belleayre Mountain Ski Center UMP Draft Conceptual Plan"

[6]: report "Ashokan Reservoir (1307-0004)" dated May 29, 2008 pages 353 thru 354

[7]: Final 2007 FAD, New York City Filtration Avoidance Determination dated July 2007

memo dated March 24, 2010 from R. Davies to C. Breeyear re "09000/ W002539 - Big Indian & Brisbane Mansion Parcels", with attachments:

1: Office of the State Comptroller, Office of Budget and Policy Analysis Belleayre Resort Development Review dated August 2006

2: letter dated February 1, 2010 from E. Goldstein to S. Gruskin

3: "Valuation of Real Property In a Self-Contained Report, Subject Property: Vacant Land, Big Indian Plateau & Part of Former High Mountain Ski Area, Shandaken, New York, Ulster County, New York" dated January 12, 2008 prepared by Valuation Plus, Inc. for The Trust for Public Land

4: "Appraisal Report ... The Awosting Reserve, Towns of Gardiner, Shawangunk and Wawarsing, Ulster County, New York" dated August 25, 2005 prepared by American Property Counselors for The Trust for Public Land and New York State Office of Parks, Recreation and Historic Preservation

5: "Valuation of Real Property, A Complete Appraisal in a Self-Contained Report, Subject Property: Vacant Land, 'The Awosting Reserve', Towns of Gardiner, Shawangunk and Wawarsing, Ulster County, New York" dated September 19, 2005 prepared by Valuation Plus, Inc. for The Trust for Public Land

6: "Summary Report of A Complete Appraisal Of Property, Lands West of the Hudson (LAP #___), Property of __________, Town of Hunter, Town of Jewett, Greene County, New York" dated October 11, 2005 prepared by McGrath & Co., Inc. for New York City Department of Environmental Protection

7: "Real Property Appraisal, Summary Report Format, Fee Simple Valuation, Subject: NYCDEP LAP ID#___, Basin / Pa: Schoharie / 4, _____ Property" dated August 1, 2008 prepared by Thurston, Casale & Ryan, LLC for New York City Department of Environmental Protection

Discussion

paragraph (c)

Public Officers Law § 87(2)(c) provides that an agency may withhold records that "if disclosed would impair present or imminent contract awards ...".

It is noted that the letter dated May 5, 2010 from C. Breeyear to R. Davies, which was enclosed with your May 17, 2010 request letter, in returning the referenced contract unapproved, concludes, "You may resubmit this contract for further review if value factors change significantly"; which recitation supports the statement in the May 26, 2010 denial letter that "this is still an active project".

The leading decision in this area is Murray v. Troy Urban Renewal Agency, Inc., 84 A.D.2d 612, 444 N.Y.S.2d 249 (3rd Dept., 1981), aff'd, mem., 56 N.Y.2d 888, 438 N.E.2d 1115, 453 N.Y.S.2d 400 (1982), which stands for the propositions, first, that so long as the contractual process has been invoked by the agency the exemption is applicable even in a case in which the actual award of a contract might not occur in the immediate future, and, second, that the agency's anticipated reliance during the process on all of the information in its possession ipso facto establishes that the disclosure of such material would likely impair the process "by unduly focusing upon information in the possession of [the agency] as influencing a fair price or offer".

While that decision involved the case of an agency's prospective sale of realty which it owned, the rationale has been applied equally in the case of an agency's prospective acquisition of realty owned by another. See Committee on Open Government advisory opinions FOIL-AO-15997 (June 2, 2006) and FOIL-AO-15090 (January 3, 2005), both citing Murray. It is simply not correct that the exemption is applicable only when there is ongoing competitive bidding, because of the impairment of an agency's ability to obtain an optimal contract on behalf of the taxpayers resulting from the potential for the premature release of records to create a de facto competitive bidding situation. See FOIL-AO-15090, supra.

paragraph (g)

Additionally, Public Officers Law § 87(2)(g) provides that an agency may withhold records that "are inter-agency or intra-agency materials which are not: statistical or factual tabulations or data; [or] instructions to staff that affect the public; [or] final agency policy or determinations; [or] external audits ...".

It is fundamental that the intra-agency exemption is not limited to records prepared by agency staff: it obtains equally in the case of records prepared by an agency's contractor. See Morgan v. New York State Department of Environmental Conservation, 9 A.D.3d 586, 779 N.Y.S.2d 643 (3rd Dept., 2004), involving records described as an "appraisal report" and a review thereof by agency staff. See also FOIL-AO-15997, supra.

Moreover, the exception to the exemption for "statistical or factual tabulations or data" does not compel disclosure of the objective information contained in an appraisal due to the exercise of professional judgment inherent in the selection of that information for analysis in the appraisal. See General Motors Corp. v. Town of Massena, 180 Misc.2d 682, 693 N.Y.S.2d 870 (Sup. Ct., St. Lawrence Co., 1999), cited in FOIL-AO-15997.

Moreover, the exception to the exemption for "final agency policy or determinations" does not compel disclosure of a record constituting a draft because a draft is nonfinal. See, e.g., McGraw-Edison Co. v. Williams, 133 Misc.2d 1053, 509 N.Y.S.2d 285 (Sup. Ct., Albany Co., 1986).

paragraph (a)

Additionally, Public Officers Law § 87(2)(a) provides that an agency may withhold records that "are specifically exempted from disclosure by state ... statute".

In defining the scope of disclosure, Civil Practice Law and Rules § 3101(c) provides that "The work product of an attorney shall not be obtainable"; and Civil Practice Law and Rules § 3101(b) provides that "privileged matter shall not be obtainable", and Civil Practice Law and Rules § 4503(a) provides that the confidential communication of an attorney is privileged. See Morgan, supra.

I take official notice that S. Gruskin and R. Davies and J. Konz are all attorneys admitted to the practice of law in this State and currently registered.

Determination

The denial from which this appeal was made is affirmed, and access to the withheld records is denied, upon the ground that the records are within the scope of the exemption at Public Officers Law § 87(2)(c) inasmuch as the disclosure of the records would impair a contract award, and additionally or alternatively upon the ground that the records are within the scope of the exemption at Public Officers Law § 87(2)(g) inasmuch as the records are inter-agency and intra-agency communications, between this Department and the Comptroller's office or within this Department or between this Department and its contractor, which are not within the scope of any exception to the exemption; and, to the extent that such records were authored by an attorney employed by this Department, additionally or alternatively upon the ground that such records are within the scope of the exemption at Public Officers Law § 87(2)(a) inasmuch as such records are specifically exempted from disclosure by State statute, namely, Civil Practice Law and Rules §§ 3101, (b) and (c), 4503(a).

With respect to those records discovered after the May 26, 2010 denial letter, access to the same is denied upon the foregoing grounds.

This determination is a final agency action.

Please take notice that, pursuant to Public Officers Law § 89(4)(b), you may obtain review of this determination by bringing a proceeding in court pursuant to Civil Practice Law and Rules Article 78.

Cordially,

/s/

James H. Eckl
FOIL Appeals Officer

cc: Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue

Albany, NY 12231-0001

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