Motion-Secondary: Best Help Homecare, Inc., Careaide Direct Inc., Carefirst Cdpap, Corp, Easy Choice Agency Inc., Harbor Care Llc, Home Choice Llc, Safe Haven Home Care, Inc., Silver Lining Homecare Agency, Inc. v. New York State Department Of Health, Mary T. Bassett, Md, Mph

On July 05, 2022 a Motion-Secondary was filed involving a dispute between Best Help Homecare, Inc., Careaide Direct Inc., Carefirst Cdpap, Corp, Easy Choice Agency Inc., Harbor Care Llc, Home Choice Llc, Safe Haven Home Care, Inc., Silver Lining Homecare Agency, Inc., and Mary T. Bassett, Md, Mph, New York State Department Of Health, for Special Proceedings - CPLR Article 78 in the District Court of Albany County.

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FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
____________________________________

In the Matter of the Application of

BEST HELP HOMECARE, INC; CAREAIDE DIRECT
INC.; CAREFIRST CDPAP, CORP; EASY CHOICE
AGENCY INC.; HARBOR CARE LLC; HOME
CHOICE LLC; SAFE HAVEN HOME CARE, INC;
AND SILVER LINING HOMECARE AGENCY, INC.,

Petitioners,

-against-

NEW YORK STATE DEPARTMENT OF HEALTH, Index No.
and MARY T. BASSETT, MD, MPH, in her official
capacity as Commissioner of Health of the State of New RJI No.
York,

Respondents,

For a Judgment Pursuant to Article 78 of the N.Y. Civil
Practice Law & Rules (“CPLR”)

____________________________________

PETITIONERS’ MEMORANDUM OF LAW
IN SUPPORT OF THEIR VERIFIED PETITION

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TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

FACTUAL BACKGROUND ..........................................................................................................3

I. RFO #20039 Procurement Process was Inherently Flawed .................................................4

II. DOH’s Debriefing Process was Inadequate .........................................................................7

III. Respondents’ Redactions to Documents Violate FOIL .......................................................8

LEGAL ARGUMENT ...................................................................................................................13

I. Respondents’ Redactions to Technical Offers Exceed the Scope of Statutory
Exemptions ........................................................................................................................15

II. Technical Offer Evaluation Tools are not Exempt from Disclosure under FOIL .............18

III. Petitioners are Entitled to Attorney’s Fees and Costs Pursuant to FOIL § 89(4)(c)..........20

IV. Petitioners are Entitled to a Stay Pursuant to CPLR § 7805 ..............................................21

CONCLUSION ..............................................................................................................................23

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TABLE OF AUTHORITIES

CASES

Acme Bus Corp. v. Cnty. of Suffolk, 136 A.D.3d 896, 26 N.Y.S.3d 159 (2016) ...........................20

Cross-Sound Ferry Servs. Inc. v. Dep’t of Transp., 219 A.D.2d 346, 634 N.Y.S.2d 575
(1995) .................................................................................................................................14

Lee v. New York City Dep’t of Hous. Pres. & Dev., 162 Misc. 2d 901, 614 N.Y.S.2d 694
(Sup. Ct. 1994) .............................................................................................................21, 23

Lockheed Martin IMS Corp. v. State Dep’t of Fam. Assistance, 256 A.D.2d 847, 681
N.Y.S.2d 656 (1998) ..........................................................................................................17

Madera v. Elmont Pub. Libr., 101 A.D.3d 726, 957 N.Y.S.2d 129 (2012) ...................................19

Markowitz v. Serio, 11 N.Y.3d 43, 893 N.E.2d 110 (2008) ....................................................14, 15

Miracle Mile Associates v. Yudelson, 68 A.D.2d 176, 417 N.Y.S.2d 142 (1979) .........................16

Moody’s Corp. v. N.Y. State Dep’t of Tax’n & Fin., 141 A.D.3d 997, 35 N.Y.S.3d 785
(2016) .................................................................................................................................15

N.Y. Times Co. v. City of N.Y. Fire Dep’t, 4 N.Y.3d 477, 829 N.E.2d 266 (2005) .......................18

N.Y. York State Elec. & Gas Corp. v. N.Y. State Energy Planning Bd., 221 A.D.2d 121,
645 N.Y.S.2d 145 (1996) ...................................................................................................18

New York 1 News v. Off. of President of Borough of Staten Island, 166 Misc. 2d 270, 631
N.Y.S.2d 479 (Sup. Ct. 1995) ............................................................................................19

New York C.L. Union v. City of Saratoga Springs, 87 A.D.3d 336, 926 N.Y.S.2d 732
(2011) .................................................................................................................................20

R.W. Granger & Sons, Inc. v. State of N.Y. Facilities Dev. Corp., 207 A.D.2d 596, 615
N.Y.S.2d 509 (1994) ..........................................................................................................19

Rose v. Albany Cty. Dist. Attorney’s Off., 111 A.D.3d 1123, 975 N.Y.S.2d 258 (2013) ..............15

Steele v. NY State Dep’t of Health, 119 Misc. 2d 963, 464 N.Y.S.2d 925 (Sup. Ct. 1983)...........16

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) ....................................................................15, 16

Verizon New York, Inc. v. Bradbury, 40 A.D.3d 1113, 837 N.Y.S.2d 291 (2007) ........................16

Verizon N.Y. Inc. v. N.Y. State Pub. Serv. Comm’n, 46 Misc. 3d 858, 991 N.Y.S.2d 841
(Sup. Ct. 2014), aff'd, 137 A.D.3d 66, 23 N.Y.S.3d 446 (2016) .......................................13

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Washington Post Co. v. NY State Ins. Dep’t, 61 N.Y.2d 557, 463 N.E.2d 604 (1984) .................13

Yung Bros. Real Est. Co. v. Limandri, 26 Misc. 3d 1203(A), 906 N.Y.S.2d 784 (Sup. Ct.
2009) ..................................................................................................................................21

Zuckerman v. NY State Bd. of Parole, 53 A.D.2d 405, 385 N.Y.S.2d 811 (1976) ........................16

STATUTES AND RULES

New York’s Social Services Law (“SSL”) § 365-f .....................................................................4, 6

New York’s Freedom of Information Law (“FOIL”) ............................................................ passim

§ 84.....................................................................................................................................23
§ 87(2)(b) ..........................................................................................................9, 13, 14, 18
§ 87(2)(d) ...........................................................................................................9, 12, 15, 16
§ 87(2)(g) ...............................................................................................................11, 12, 14
§ 87(2)(i) ........................................................................................................................9, 13
§ 89(4)(b) ..............................................................................................................13, 14, 16
§ 89(4)(c) ...........................................................................................................................20
§ 89(5) ..........................................................................................................................16, 17
§ 89(5)(f) ............................................................................................................................16

State Finance Law (“SFL”)

§ 163(2) ..............................................................................................................................23
§ 163(2)(b) .........................................................................................................................23
§ 163(9)(c) .................................................................................................................1, 7, 22
§ 163(9)(c)(iv) ................................................................................................................7, 19

CPLR

§ 7801.................................................................................................................................13
§ 7803(1) ...........................................................................................................................13
§ 7803(3) ............................................................................................................................13
§ 7805.................................................................................................................................21

OTHER AUTHORITIES

Remarks as Prepared: Governor Hochul Delivers a Virtual Address to the People
of New York State; Aug. 24, 2021; https://www.governor.ny.gov/news/video-
audio-photos-remarks-prepared-governor-hochul-delivers-virtual-address-people-
new-york ..............................................................................................................................1

FOIL-AO-17927 Advisory Op. (Dec. 16, 2009) ..............................................................13

iii

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INTRODUCTION

In enacting New York’s Freedom of Information Law (“FOIL”), the State Legislature

found “that a free society is maintained when government is responsive and responsible to the

public, and when the public is aware of governmental actions.” N.Y. Public Off. L. (hereinafter,

“FOIL”) § 84. Further, “[t]he people’s right to know the process of governmental decision-

making and to review the documents … leading to determinations is basic to our society. Access

to such information should not be thwarted by shrouding it with the cloak of secrecy or

confidentiality.” Id. In that spirit, Governor Hochul recently heralded a “new era of

transparency” as one of the “hallmarks” of her new administration, including “an expedited

process to fulfill all FOIL requests as fast as possible.”1

This Article 78 proceeding, however, arises out of agency actions that are antithetical to

ideals of transparency and accountability. As described in this Memorandum of Law and the

accompanying Verified Petition, the New York State Department of Health (“DOH”) conducted

a procurement process that was mired in controversy; failed to inform Petitioners as required by

State Finance Law (“SFL”) Section 163(9)(c) of the reasons why their offers were not selected

and others were; and denied Petitioners access to this information again when Petitioners

requested it pursuant to FOIL.

Underlying this proceeding is DOH’s Request for Offers #20039 (the “RFO”),

concerning New York State Fiscal Intermediaries for the Consumer Directed Personal Assistance

Program (“CDPAP”). Petitioners are fiscal intermediaries (“FIs”) that participate in the CDPAP,

a Medicaid program designed to permit chronically ill and/or physically disabled individuals

1
Remarks as Prepared: Governor Hochul Delivers a Virtual Address to the People of New York State;
Aug. 24, 2021; https://www.governor.ny.gov/news/video-audio-photos-remarks-prepared-governor-
hochul-delivers-virtual-address-people-new-york.

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(referred to as “consumers”) receiving home care services greater flexibility and freedom of

choice in obtaining such services from consumer-selected caregivers or personal assistants

(“PAs”). The FIs then act as intermediaries between consumers and PAs, providing services

under the CDPAP such as processing payroll, taxes and withholdings for PAs; maintaining

records regarding personnel and services rendered; complying with workers’ compensation,

disability and unemployment requirements; and monitoring consumers’ health and ability to

fulfill their responsibilities under the program.

Petitioners all submitted offers in response to the RFO but were not selected to receive

awards. The DOH selected only 68 offerors to receive contracts—a reduction of approximately

85 percent to the current number of FIs operating in New York. Petitioners and others that were

not selected would be forced to stop operating as FIs after DOH and OSC finalized the contracts.

Greatly concerned by the reduction in FI services for the specific populations they serve, and by

the threat to their own existence, Petitioners timely challenged the DOH’s awards under the RFO

by filing bid protests with the Office of the State Comptroller (“OSC”). The protests

demonstrate that the DOH’s evaluation process was fundamentally flawed because, among other

reasons, it was arbitrary and inconsistent, and failed to even ask for or consider vital information

about offerors.

To support their OSC protests and discern why Petitioners’ offers were not accepted and

others were, Petitioners filed a FOIL request seeking categories of documents that included the

other offers submitted (the “Technical Offers”) and the DOH’s evaluation and scoring of all

offers (the “Technical Offer Evaluation Tools”). After multiple delays, the DOH completed its

production approximately eleven months after Petitioners submitted their FOIL request. Despite

FOIL’s commitment to open government records with only narrowly construed and specifically

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justified exemptions, DOH’s production is deficient because of excessive redactions to many of

the Technical Offers and because of complete redactions to all substantive comments DOH

reviewers made on the Technical Offer Evaluation Tools.

Petitioners timely filed an administrative appeal with the DOH Records Access Appeals

Office, contesting the redactions, but on March 4, 2022 the DOH denied Petitioners’ appeal in its

entirety and notified Petitioners that they could obtain judicial review of the agency’s

determination pursuant to Article 78. Petitioners have timely filed their Article 78 proceeding,

seeking a remedy for the secrecy that has shrouded the entire RFO and FOIL process.

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

respectfully request that the Court order Respondents to produce substantially unredacted copies

of the Technical Offers and completely unredacted Technical Offer Evaluation Tools—to which

Petitioners are entitled under FOIL and the State Finance Law—and to stay the finalization of

contract awards by the DOH and OSC, pending this action. To the extent that Respondents

continue to claim exemptions for any portions of the Technical Offers, those exemptions and

redactions must be limited, each must be justified by specific reasons and an explanation of harm

that disclosure will cause, and they should be reviewed in camera by the Court.

FACTUAL BACKGROUND

Petitioners are FIs that were denied awards under RFO #20039 and filed bid protests with

the OSC. Seeking documents that would support their OSC protests and provide information

guaranteed under the State Finance Law, Petitioners—collectively and through counsel—

submitted a FOIL request to the DOH. Many of the documents that Respondents ultimately

produced are improperly redacted, and Respondents have issued a final determination that

wrongfully denies Petitioners access to the information they seek.

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I. RFO #20039 Procurement Process was Inherently Flawed

FIs in New York currently contract with Medicaid Managed Care Organizations

(“MCOs”) under Managed Long-Term Care (“MLTC”) Plans, and county social services

departments to provide CDPAP services. However, in 2019, amendments to New York’s Social

Services Law (“SSL”) Section 365-f introduced a procurement process for FI contracts with the

DOH. The SSL amendments instructed the DOH to enter into contracts with eligible contractors

based on their ability to provide FI services, experience, cultural and language competencies

specific to the population served, and geographic distribution particularly in underserved areas,

among other factors. Section 365-f of the SSL placed no limit on the number of FIs to which

contracts could be awarded, and it did not include reducing the number of FIs as a goal of the

procurement process. The goal of the CDPAP remained the same: to permit consumers greater

flexibility and freedom of choice in obtaining home care services. The more qualified FIs that

contract with the DOH, the more flexibility and freedom of choice consumers will have in

obtaining services under the CDPAP. When the DOH issued the RFO for FI contracts, on

December 18, 2019, however, it revealed the DOH’s intent to award the fewest number of

contracts possible. See Appendix at 31.

Petitioners each timely submitted the required Administrative and Technical Offers in

response to the RFO. The Technical Offers included, as requested, narrative descriptions from

the offerors regarding their experience providing FI services, best practices in delivering FI

services, organizational structure, fiscal monitoring and oversight, and quality monitoring and

reporting. The DOH assembled a team of fifteen evaluators and randomly assigned three to

score each Technical Offer. The DOH instructed evaluators to assign a numeric score, on a scale

of 0 (not provided) to 5 (excellent), to offerors’ narrative responses for each RFO category. The

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ranking system contained generic descriptions of each score but no specific or concrete guidance.

For example, a score of 3 (good) meant “the offer demonstrated an adequate level of

performance and approach” whereas 4 (very good) meant “the offer clearly and concisely

demonstrated a high level of performance and approach.” In addition, evaluators were permitted,

but not required, to list the offerors’ strengths and weaknesses in each category. See Appendix at

40-60. The DOH purportedly averaged the raw scores for each criterion across the three

evaluators, multiplied the average score by the weight for each category or categories, and added

the weighted scores to find the total overall score for each offer.

The lack of any concrete guidance provided to the evaluators resulted in inconsistent

scoring of similar narratives—or even virtually identical narratives—from different offerors.

Questions that were easily suited for specific guidance (e.g., entering into administrative or

reimbursement agreements with MCOs; compliance with various legal requirements; ensuring

language competencies) were left to the whim of individual evaluators. In addition, many, if not

most, categories were ill suited for a subjective rating scale of 0 to 5, as the FI either complies

with requisite laws and regulations or it does not. Grading an offer based on how nicely it

described its process (and regardless of whether that description was, in fact, true), was an ill-

conceived and faulty evaluation approach. Petitioners maintain that the evaluation process was

inherently arbitrary, subjective, and unfair, enabling the awards to be determined by which

evaluators scored the offers.

In total, 395 FIs submitted offers, and DOH determined that 373 of those had met certain

minimum qualifications and were eligible for evaluation. Of those, the DOH selected only 68

FIs to receive contract awards pursuant to the RFO—a reduction of approximately 85 percent of

the current number of FIs. The DOH informed Petitioners Carefirst and Home Choice that their

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offers had been disqualified and had not even been evaluated because of certain clerical or

scanning errors that had occurred with their offer transmissions to the DOH. The DOH notified

the remaining Petitioners that they had not been selected as contract recipients. All FIs that were

not selected would be terminated from their participation in the CDPAP and their consumers

transferred to other FIs within 90 days of the DOH finalizing and the OSC approving the

contracts.

The 450 FIs operating in New York provide a broad range of cultural and language

competencies, consistent with the diversity of New York State. New FIs have formed because a

need has existed. Petitioners, for example, serve a multi-lingual and multi-cultural population of

consumers and FIs in the five Boroughs and Long Island, including in several underserved areas.

Many of Petitioners’ consumers are immigrants to the United States, and Petitioners have hired

employees who speak the same languages as the consumers they serve and have invested time

developing relationships within their communities to understand specific local health care needs.

Arbitrarily eliminating 85% of the current providers in New York without any analysis by the

DOH of network adequacy threatens to harm consumers, PAs, and the continued success of the

CDPAP.

The DOH’s implementation of the RFO has been subject to widespread and persistent

criticism. In response to concerns regarding transparency, fairness, network adequacy, and

arbitrariness, the New York State Legislature has attempted to correct the flawed RFO process

through two amendments to SSL § 365-f. The first, in April 2021, required the DOH to conduct

a survey of qualified offerors and make a limited number of additional awards based on objective

criteria set forth in the revised statute. The second, in April 2022, provided for additional

contract awards for qualified offerors that meet certain legislatively prescribed size thresholds.

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Petitioners are smaller businesses and did not satisfy the criteria set forth in the April 2022

amendment (or, in the case of Carefirst and Home Choice, had been disqualified). Therefore,

they remain without a means to contract with DOH—and without the tools to meaningfully

challenge that given the DOH’s refusal to comply with its obligations under FOIL.

II. DOH’s Debriefing Process was Inadequate

State Finance Law § 163(9)(c) requires agencies to provide a debriefing to unsuccessful

offerors upon request. The debriefings:

shall include, but need not be limited to: (A) the reasons that the proposal, bid or offer
submitted by the unsuccessful offerer was not selected for award; (B) the qualitative and
quantitative analysis employed by the agency in assessing the relative merits of the
proposals, bids or offers; (C) the application of the selection criteria to the unsuccessful
offerer’s proposal; and (D) when the debriefing is held after the final award, the reasons
for the selection of the winning proposal, bid or offer. The debriefing shall also provide,
to the extent practicable, general advice and guidance to the unsuccessful offerer
concerning potential ways that their future proposals, bids or offers could be more
responsive.

SFL § 163(9)(c)(iv). Although Petitioners requested debriefings, the DOH’s process was wholly

inadequate. DOH failed to explain why the 68 successful offerors were selected, why Petitioners

were not selected, and how evaluators applied the selection criteria, including strengths and

weaknesses.

Initially, in response to Petitioners’ requests, the DOH provided what it termed “written

debriefings,” which included only the individual Petitioner’s score and rank (with the exception

of Carefirst and Home Choice) and brief information regarding the technical evaluation

generally. DOH subsequently provided Petitioners with their “Technical Proposal Score Tool”

summary, which contained their average numerical scores for each category. Petitioners

objected that the purported written debriefings were insufficient and cited the SFL requirements,

as well as the RFO’s representation that offerors would be provided with their strengths and

weaknesses.

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In March and April 2021, the DOH held a series of oral debriefings with offerors. The

debriefings proved to be an administrative formality and failed to provide Petitioners with

sufficient rationale for their non-awards and the selection of the 68 FIs. While the DOH verbally

shared certain evaluator notes on some Petitioners’ strengths and weaknesses in a limited number

of categories, DOH representatives instructed Petitioners to submit FOIL requests for the

additional information they sought.

Following the debriefings, Petitioners each submitted initial protests to the OSC. The

OSC protests challenged the DOH’s evaluation process for the RFO as fundamentally flawed,

citing three primary reasons: the DOH failed to make the statutorily required responsibility

determination for proposed contractors before providing awards, which resulted in contract

awards offered to unsuitable FIs, including those with criminal indictments and flawed histories;

the DOH arbitrarily reduced the population of FIs from approximately 450 to 68 without

considering if the selected FIs could adequately serve the approximately 139,000 consumers and

more than 100,000 PAs participating in the CDPAP; and the evaluation process was arbitrary

and subjective with fifteen different reviewers assigning scores of 0-5 for various categories

without any concrete guidance, resulting in highly inconsistent scoring and an inherently unfair

process.

III. Respondents’ Redactions to Documents Violate FOIL

On March 5, 2021, Petitioners collectively, through counsel, submitted a FOIL request to

the DOH Records Access Office, seeking documents relating to the RFO (the “FOIL Request”).

See Appendix at 61-62. The FOIL Request sought copies of, in relevant part, the full Technical

Offer that the DOH received from each bidder and the Technical Offer Evaluation Tool

documents containing narrative descriptions of the strengths and weaknesses of each offer and

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scoring by each evaluator. Petitioners sought these documents with the belief that they might

shed light on why the successful bidders were selected and Petitioners were not—as the SFL

guarantees. They also may reflect DOH’s flawed process in evaluating the offerors’ submissions

and may confirm that scoring was arbitrary, with similar or virtually identical narratives

receiving divergent scores.

The DOH previously had made clear that both categories of documents—the Technical

Offers and the Technical Offer Evaluation Tools—would be subject to disclosure under FOIL.

The RFO had notified offerors that their offers would become State records available to the

public pursuant to FOIL. Offerors could “clearly and specifically designate” portions of their

offers that they believed constituted proprietary information exempt from FOIL. However, the

RFO noted: “Blanket assertions of proprietary material will not be accepted, and failure to

specifically designate proprietary material may be deemed a waiver of any right to confidential

handling of such material.” See RFO § 5.9 (Appendix at 20). Likewise, the DOH’s instructions

to evaluators had stated that their comments, including those addressing strengths and

weaknesses, were subject to public disclosure under FOIL. A document entitled “List of General

Rules in the Competitive Evaluation Process” stated: “All review tools and notes are subject to

FOIL.” The DOH’s “Technical Offer Instructions and Evaluation Tool” indicated: “Comments

made by evaluators are subject to public disclosure under the Freedom of Information Act

(FOIL). If included, comments should only address the strengths and weaknesses of the section

that is being scored.” Appendix at 42.

Nevertheless, Respondents have denied Petitioners access to the Technical Offers and

Technical Offer Evaluation Tools through their excessive and unlawful redactions to those

documents. The DOH acknowledged receipt of Petitioners’ FOIL Request on March 8, 2021.

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See Appendix at 63. Despite the fact that the Technical Offer Evaluation Tools were readily

available, having been compiled for and referenced during the debriefings, the DOH sent

multiple extension of time letters in April, June, and August 2021, claiming that it was reviewing

records for FOIL exemptions, legal privileges, and responsiveness. See Appendix at 64-66.

After Petitioners objected to the ongoing delay, the DOH agreed to begin producing materials in

September 2021. Id. at 67-72. The DOH produced additional materials, on a rolling basis, in

November 2021 and in January and February 2022.

To Petitioners’ dismay, many of the Technical Offer narratives that DOH produced were

heavily or entirely redacted. This includes full or extensive redactions of sections describing

offerors’ experience operating as FIs, their provision of cultural and language competencies

needed by the consumers they serve, their ability to process payroll and comply with various

laws concerning PAs, and their practices for monitoring the consumer-PA relationship. Such

information is clearly not exempt from disclosure and is essential to evaluating why the 68

successful offers might have been accepted over Petitioners’ offers. After initially offering no

justification for redactions of Technical Offers, the DOH, in response to Petitioners’ attempted

appeal dated October 22, 2021, gave only a broad, general explanation that “certain information”

was redacted pursuant to the following FOIL exemptions:

§ 87(2)(b) because disclosure “would constitute an unwarranted invasion of personal
privacy;” § 87(2)(d), as “trade secrets or [information] submitted to an agency by a
commercial enterprise or derived from information obtained from a commercial
enterprise and which if disclosed would cause substantial injury to the competitive
position of the subject enterprise;” and § 87(2)(i), to “guarantee the security of …
information technology assets.”

See Appendix at 141. The DOH did not identify which redactions on which documents were

supported by which purported explanations.

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There also were inconsistencies in the extent of the redactions across different Technical

Offers. In many instances, all or nearly all of the Technical Offer is redacted; in others whole

pages and sections are redacted; and some offers have limited redactions or none whatsoever.

See Appendix at 73-132 for representative examples.2 For example, the entire narrative portions

of the Technical Offers submitted by successful bidders Heart to Heart Home Care, Inc., High

Standard Home Care Inc., and Link Homecare are fully redacted. All but two sentences are

redacted from the Technical Offer narratives of awardee Horizon Home Care Services, Inc.; only

the executive summary of Apple Best Home Care Agency Inc.’s Technical Offer is visible; and

Infiniti Home Care’s Technical Offer narrative, which exceeds 100 pages, has only three closing

paragraphs not redacted. There are multiple other examples of entire pages and sections

redacted. At the same time, however, some offers have no redactions whatsoever—for example,

those submitted by Bena Home Care Agency Inc., First Chinese Presbyterian Community Affairs

Home Attendant Corporation, and HSM Personal Care Corp.—or have limited redactions.

Likewise, the DOH redacted all comments that evaluators had made regarding

offerors’—including Petitioners’—strengths and weaknesses from the Technical Offer

Evaluation Tools it produced, purportedly pursuant to Section 87(2)(g) of FOIL. See Appendix

at 156-85 for representative examples. That FOIL subsection exempts from disclosure certain

intra-agency and inter-agency materials.

On or about February 11, 2022, DOH informed Petitioners that DOH was sending its

fourth and final production and that Petitioners could appeal any denial of access to records. See

Appendix at 186-87. On February 25, 2022, Petitioners filed an administrative appeal by letter

to the DOH Records Access Appeals Office. See Appendix at 188-92. In their appeal,

2
Petitioners can provide additional examples or the entire file upon request.

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Petitioners reiterated that DOH’s redactions of Technical Offers and Technical Offer Evaluation

Tools were excessive and contrary to law, and they cited DOH’s obligation to provide

particularized, specific justifications for each redaction—that is, more than conclusory or generic

explanations or quoting the statutory language of the exemption—and evidence that disclosure of

commercial information will cause injury. Petitioners’ appeal requested that the DOH promptly

provide a new set of materials without the overbroad and unjustified redactions, beginning with

the Technical Offers submitted by the 68 successful bidders and the Technical Offer Evaluation

Tools for the 68 and the Petitioners.

On March 4, 2022, the DOH denied Petitioners’ administrative appeal in its entirety and

advised Petitioners that judicial review of the DOH’s decision could be obtained pursuant to

Article 78. See Appendix at 1-3. The DOH’s Records Access Appeals Officer stated that he had

“reviewed the redactions and they are all proper.” Id. at 1. He claimed that “some redactions

were properly made under POL § 87(2)(d) as the responsive material constitutes ‘trade secrets or

[information] submitted to an agency by a commercial enterprise or derived from information

obtained from a commercial enterprise and which if disclosed would cause substantial injury to

the competitive position of the subject enterprise.’” Id. Other records, he contended, contained

“opinions, ideas and advice that were exchanged internally within DOH” and were properly

redacted under § 87(2)(g), which exempts from disclosure certain intra-agency and/or inter-

agency materials. Id. at 1-2. Additionally, the Appeals Officer agreed with redactions made

under FOIL § 87(2)(a), (b), and (i) and recited the text of those exemptions. Id. The DOH again

declined to provide particularized, specific justifications for each redaction.

16 of 29
FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/05/2022

LEGAL ARGUMENT

Respondents’ wrongful denial of access to information warrants review under Article 78.

See FOIL § 89(4)(b) (a party denied access to a record in an administrative appeal determination

may bring an Article 78 proceeding for review). Respondents’ denial of Petitioners’

administrative appeal constituted final agency action. Petitioners have exhausted their

administrative remedies and have no adequate remedy at law. CPLR § 7801. In depriving

Petitioners of ac

Case Info

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Gerald Connolly Track Judge’s New Case

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Document Filed Date

July 05, 2022

Case Filing Date

July 05, 2022

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Parties

ADAMS , DEREK MICHAEL Attorney for the Plaintiff
Best Help Homecare, Inc. Plaintiff
CareAide Direct Inc. Plaintiff
Carefirst CDPAP, Corp Plaintiff
Easy Choice Agency Inc. Plaintiff
HAMILTON, STACEY ANN Attorney for the Defendant
Harbor Care LLC Plaintiff
Home Choice LLC Plaintiff
Mary T. Bassett, MD, MPH Defendant
New York State Department of Health Defendant
ROCK, ROBERT J. Attorney for the Defendant
Safe Haven Home Care, Inc. Plaintiff
Silver Lining Homecare Agency, Inc. Plaintiff
ROSEMARIE HEWIG Attorney
BRIAN CULNAN Attorney
DENNIS BUCKLEY Attorney
TARA KERSEY Attorney

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Motion-Secondary: Best Help Homecare, Inc., Careaide Direct Inc., Carefirst Cdpap, Corp, Easy Choice Agency Inc., Harbor Care Llc, Home Choice Llc, Safe Haven Home Care, Inc., Silver Lining Homecare Agency, Inc. v. New York State Department Of Health, Mary T. Bassett, Md, Mph

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