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 08/19/2022 12:54 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 08/19/2022

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, Index No. 905064-22
INC.; AND SILVER LINING HOMECARE
AGENCY, INC., .

Petitioners,

For a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules

-against-

NEW YORK STATE DEPARTMENT OF HEALTH,
and MARY T. BASSETT, MD, MPH, in her official
capacity as Commissioner of health of the State of New
York,

Respondents.

MEMORANDUM OF LAW IN SUPPORT OF
RESPONDENTS’ ANSWER

LETITIA JAMES
Attorney General of the State of New York
Attorney for Respondents Mary T. Bassett and
NYS Department of Health
The Capitol
Albany, New York 12224

Stacey Hamilton
Assistant Attorney General,
of Counsel
Telephone: (518) 776-2288

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Table of Contents

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 1

ARGUMENT .................................................................................................................................. 6

POINT I .............................................................................................................................. 6

THE FOIL DETERMINATION MUST BE UPHELD .......................................... 6

A. A. The redactions applied to the responsive documentation
pursuant to POL §87(2)(d) were appropriate and in
compliance with FOIL. ................................................................... 7

B. The redactions applied to the responsive documentation
pursuant to POL § 87(2)(g) were appropriate and in
compliance with FOIL. ................................................................... 9

POINT II ........................................................................................................................... 11

PETITIONERS HAVE FAILED TO DEMONSTRATE A CLEAR
LEGAL RIGHT TO MANDAMUS TO COMPEL.............................................. 11

POINT III .......................................................................................................................... 12

PETITIONERS ARE NOT ENTITLED TO A STAY ......................................... 12

POINT IV.......................................................................................................................... 14

IN CAMERA INSPECTION IS THE PROPER PROCEDURE FOR
RESOLVING THE PRESENT FOIL DISPUTE ................................................. 14

POINT V ........................................................................................................................... 15

PETITIONERS ARE NOT ENTITLED TO ATTORNEYS’ FEES OR
OTHER COSTS .................................................................................................... 15

CONCLUSION ............................................................................................................................. 16

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Table of Authorities

CASES PAGE(S)

Deane v. City of New York Dept. of Bldgs.,
177 Misc.2d 687 (1998) ...........................................................................................................12

Gimprich v. Board of Educ. of City of New York,
306 N.Y. 401 (1954) ................................................................................................................12

Matter of Bass Pro, Inc. v Megna,
69 AD3d 1040 [3d Dept 2010] ................................................................................................15

Matter of Crain Communications v Hughes,
135 AD2d 351 [1st Dept 1987], affd 74 NY2d 626 [1989] .......................................................8

Matter of Daily Gazette Co. v City of Schenectady,
93 NY2d 145 [1999] ..................................................................................................................7

Matter of Encore Coll. Bookstores v. Auxiliary Serv. Corp.,
87 NY2d 410 (1995.) .................................................................................................................7

Matter of Gould v. New York City Police Dept.,
89 NY2d 267 (1996) ................................................................................................................10

Matter of Grace v. Chenango County,
256 AD2d 890 [3d Dept 1998] ................................................................................................16

Matter of Kaufman v New York State Dept. of Envtl. Conservation,
289 AD2d 826 [3d Dept 2001] ................................................................................................15

Matter of M. Farbman & Sons, Inc. v New York City Health & Hosps. Corp.,
62 NY2d 75 [1984] ..................................................................................................................14

Matter of MacKenzie v Seiden,
106 AD3d 1140 [3d Dept 2013] ..............................................................................................14

Matter of Mackey Auto, LLC v. N.Y. State Dep’t of Motor Vehicles,
60 Misc. 3d 1204(A) (Sup. Ct. Albany Co. 2018) ...................................................................12

Matter of Mazzone v. New York State Dept. of Transp.,
95 AD3d 1423 [3d Dept 2012] ................................................................................................15

Matter of Mental Hygiene Legal Serv. v. Delaney,
176 A.D.3d 24 (3d Dept. 2019) ...............................................................................................12

Matter of Miller v New York State Dept. of Transp.,
58 AD3d 981 [3d Dept 2009], lv denied 12 NY3d 712 ...........................................................16

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Matter of New York Tel. Co. v Public Serv. Commn.,
56 NY2d 213 [1982] ..................................................................................................................8

Matter of New York Times v. City of N.Y. Fire Dep’t,
4 N.Y.3d 477 (2005) ............................................................................................................9, 10

Matter of Niagara Envtl. Action v Niagara Falls,
63 NY2d 651 [1984] ................................................................................................................16

Matter of Scherbyn v. Wayne-Finder Lakes Bd. of Coop. Educ. Servs.,
77 N.Y.2d 753 (1991) ..............................................................................................................12

Matter of Smith v New York State Off. of the Attorney Gen.,
116 AD3d 1209 [3d Dept 2014] ................................................................................................7

Matter of Todd v Craig,
266 AD2d 626 [3d Dept 1999], lv denied 94 NY2d 760 [2000] .............................................16

Matter of Verizon New York, Inc. v New York State Pub. Serv. Commn.,
137 AD3d 66 [3d Dept 2016] ....................................................................................................8

People Home Health Care Service – Licensed, Inc. v. New York State Department
of Health,
Index No. 905459-21 (Sup. Ct. Albany Co. 2021) ..................................................................14

Xerox Corp. v. Webster,
65 N.Y.2d 131 (1985) ..............................................................................................................10

STATE STATUTES

New York State Finance Law
§ 163.....................................................................................................................................7, 11
§ 163(9) ......................................................................................................................................7
§ 163(9)(c)(iv) ..........................................................................................................................11

POL 87(2)(d) ....................................................................................................................................9

iii

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POL
§ 87.......................................................................................................................................7, 11
§ 87(2) ........................................................................................................................................8
§§ 87(2)(a)(b)(d)(g)(i) ................................................................................................................4
§ 87(2)(a)(b)(i) ...........................................................................................................................5
§§ 87(2)(b) and 87(2)(g) ............................................................................................................4
§§ 87(2)(b)(d)(g)(i) ....................................................................................................................4
§§ 87(2)(b)(d)(i) .........................................................................................................................3
§§ 87(2)(d) and 87(2)(g) ............................................................................................................5
§ 87(2)(g) .........................................................................................................................5, 9, 10
§ 87(2)(g)(i)-(iv) ......................................................................................................................10
§ 89(5) ....................................................................................................................................8, 9
§ 89(5)(1-a) ................................................................................................................................8
§ 89(5)(b)(1)...............................................................................................................................8
§ 89(5)(b)(2)...............................................................................................................................8
§ 89(5)(b)(3)...............................................................................................................................8

SFL.................................................................................................................................................11

SFL
§ 163(9)(c) ...............................................................................................................................11

State Social Services Law
§ 365-f(4-a)(b) .........................................................................................................................11

FOIL ....................................................................................................................................... passim

RULES

CPLR
Article 78 .................................................................................................................................15
§ 7803(1) ..................................................................................................................................12
§ 7805.................................................................................................................................12, 13

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PRELIMINARY STATEMENT

Petitioners bring this special proceeding, pursuant to Article 78 of the CPLR, to challenge

the New York State Department of Health’s (“DOH”) determination to redact certain records

provided to Petitioners pursuant to their Freedom of Information Law (“FOIL”) request. DOH

properly redacted the documentation provided to Petitioners pursuant to Public Officers Law

(“POL”) § 87(2)(d) and (g) and is in complete compliance with FOIL. Petitioners, fiscal

intermediaries who submitted offers to DOH’s Request for Offer (“RFO”) #20039 which were

rejected, should not be allowed to collaterally attack and stall the implementation of the contract

awards by the indirect means of a challenge to a FOIL determination. Petitioners are unable to

meet their burden to entitle them to the relief they seek. The FOIL appeal determination should

be upheld, and the Petition should be denied and dismissed in its entirety.

STATEMENT OF FACTS

Petitioners are fiscal intermediaries who submitted offers to DOH’s Request for Offer

(“RFO”) #20039 seeking bids for services pursuant to the Consumer Directed Personal

Assistance Program (“CDPAP”). Dkt. No. 1, pg. 2. None of the Petitioners were selected as

contract recipients. Id. On March 5, 2021, Petitioners collectively, through counsel, submitted a

FOIL request to DOH seeking: (1) complete copies of the 395 responses to RFO #20039

including the full Technical Offer and Administrative Offer that DOH received from each

bidder; (2) complete copies of the evaluation scores for each of the 395 bidders that responded to

the RFO; complete copies of all three completed evaluation documents for each of the 373 offers

that were evaluated by the Technical Team; (3) complete copies of all training materials that

were provided to the Technical Team that evaluated bids in response to the RFO; (4) complete

copies of correspondence between DOH and any bidder requesting clarification or additional

information during the compliance evaluation or screening to verify minimum qualifications; and
1

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(5) documents reflecting the application and evaluation process used by the DOH to identify and

select evaluators. Dkt. No. 4, Apx. 61 – 62. In this proceeding, Petitioners challenge DOH’s

responses to subdivisions (1) and (3) of the FOIL request. Dkt. No. 1, pg. 9.

DOH acknowledged Petitioners’ FOIL request on March 8, 2021 and notified them that a

determination as to whether the request would be denied or granted would be provide within 20

days, or they would be notified if more time was needed to process the request. Dkt. No. 4, Apx.

63. On April 5, June 8, and August 11, 2021, DOH notified Petitioners that it was working on

their FOIL request and required more time to respond to the voluminous request. Dkt. No. 4,

Apx. 64 – 66. On August 23, 2021 Petitioners objected to DOH’s August11, 2021 letter

indicating that more time was needed to respond to the FOIL request. Dkt. No. 4, Apx. 67. On

September 8, 2021, DOH replied to Petitioner’s August 23, 2021 letter by providing a detailed

explanation as to the time required to respond to the FOIL request, and provided Petitioner with

a partial response to the request. Dkt. No. 4, Apx. 69 – 132.

On October 22, 2021 Petitioners submitted an appeal related to the redactions DOH

applied to the documentation provided to Petitioners on September 8, 2021. Dkt. No. 4, Apx.

135 – 137. On November 8, 2021, DOH responded to the administrative appeal by notifying

Petitioners that the September 8, 2021 partial response to the FOIL request did not provide

Petitioners with appeal rights as it was not a final determination. Dkt. No. 4, Apx. 138 – 139.

DOH pointed out that the September 8, 2021 partial response notified Petitioners that additional

records would be provided. Id. The DOH Records Access Appeals Officer (“RAAO”)

explained that the absence of an explanation as to the redactions applied was an oversight and

remanded the matter to the records access officer to provide a basis for the redactions. Id.

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On November 8, 2021, DOH provided a supplemental response to Petitioners’ March 8,

2021 FOIL request. Dkt. No. 4, Apx. 140 – 141. DOH’s cover letter explained that the

redactions applied to the documentation provided in the September 8, 2021 response were

pursuant to POL §§ 87(2)(b)(d)(i). Id. Said letter notified Petitioners that the documentation

being provided with the partial response was also redacted pursuant to POL §§ 87(2)(b)(d)(i).

Id. On November 19, 2021, Petitioners sent another letter to DOH seeking clarification of

DOH’s reply to their administrative appeal. Dkt. No. 4, Apx. 142 – 144. On November 30,

2021, DOH responded to Petitioners’ November 19, 2021 letter explaining that because records

responsive to the FOIL request were being provided on a rolling basis, the response was

incomplete and Petitioners’ appeal rights were not yet triggered. Dkt. No. 4, Apx. 145 – 146. In

said letter, DOH stated that its November 8, 2021 letter to Petitioners was not a denial of any

appeal. Id.

On December 20, 2021, Petitioners wrote another letter to DOH complaining about the

redactions applied to the documentation provided pursuant to the FOIL request, notifying DOH

that they intended to bring an Article 78 proceeding, and requesting that DOH issue a formal

ruling on their appeal. Dkt. No. 4, Apx. 147 – 148. In a January 3, 2022 letter to Petitioners,

DOH reiterated that more records would be forthcoming and that, because they are being

provided on a rolling basis, the response was not complete and Petitioners did not have appeal

rights. Dkt. No. 4, Apx. 149. The DOH RAAO notified Petitioners that he reviewed the

redactions and found them to be proper pursuant to § 87(2)(b) because disclosure would

constitute an unwarranted invasion of personal privacy. Id. He explained that the redactions

included Federal Employer Identification Numbers, names, personal email addresses, phone

numbers, etc. Id. He also found the redactions made pursuant to § 87(2)(d) proper, as the

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responsive material constituted 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. Finally, he also found redactions made pursuant to § 87(2)(i) proper to guarantee

the security of information technology assets, pointing out that these were paths that might be of

value to computer hackers. Id.

On January 12, 2022, DOH sent a letter to Petitioners notifying them that it required

more time to respond to the FOIL request. Dkt. No. 4, Apx. 150. On January 18, 2022,

Petitioners sent another letter to DOH objecting to DOH taking additional time to respond to the

request. Dkt. No. 4, Apx. 151 – 153. In said letter, Petitioners stated that if they did not receive

all Technical Offer Evaluation documents by January 21, 2022, they would treat DOH’s failure

to produce the requested materials as a constructive denial of the FOIL request. Id. On January

19, 2022, DOH provided another supplemental response to Petitioners’ FOIL request. Dkt. No.

4, Apx. 154- 155 - 185. DOH notified Petitioners that the documentation was redacted pursuant

to POL §§ 87(2)(b)(d)(g)(i). Id. DOH further notified Petitioners that additional records would

be produced in response to the FOIL request. Id.

On February 11, 2022, DOH sent its final supplemental response to the FOIL request to

Petitioners. Dkt. No. 4, Apx. 186 – 187. In the cover letter, DOH notified Petitioners that some

of the documentation was redacted pursuant to POL §§ 87(2)(a)(b)(d)(g)(i). Id. DOH further

notified Petitioners of their right to appeal if they believed they had been unlawfully denied

access to records. Id. On February 25, 2022, Petitioners submitted an appeal objecting to the

redactions applied to documentation provided by DOH responsive to the FOIL request,

subdivisions (1) and (3), asserting that POL §§ 87(2)(b) and 87(2)(g) did not provide justification

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for the redactions. Dkt. No. 4, Apx. 188 – 192. (Referencing Dkt. No. 4, Apx. 188 – 192).

Petitioners incorrectly state in this letter that POL § 87(2)(b) exempts from disclosure “records

that are trade secrets or are 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.” Dkt. No. 4, Apx. 188 –

192, pg. 3. In the paragraphs that follow this incorrect assertion, Petitioners reference and

discuss the “trade secrets” exception at POL §87(2)(d). Therefore, Respondents presume that

this is a typographical error on the part of Petitioners and that Petitioners are contesting the

reliance by DOH on POL §§ 87(2)(d)(g) as supported by the Petition (Dkt. No. 1, ¶ 81) and

Petitioners’ Memorandum of Law (Dkt. No. 5, pgs. 13 - 19.) Dkt. No. 4, Apx. 188 – 192,

Petitioners’ appeal, does not contain any arguments related to DOH’s assertions that it properly

redacted the documentation pursuant to POL § 87(2)(a)(b)(i), nor do they argue that they are

entitled to the information DOH indicated it redacted pursuant to POL § 87(2)(a)(b)(i).

On March 4, 2022, DOH replied to Petitioners’ administrative appeal. Dkt. No. 4, Apx. 1

– 3. The DOH RAAO notified Petitioners that he reviewed the redactions and found all of them

to be proper. Id. Regarding the redactions made pursuant to POL §§ 87(2)(d) and 87(2)(g), the

subject matter of the appeal and this proceeding, the RAAO found that redactions pursuant to

POL § 87(2)(d) were proper as the responsive material constituted 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 redactions made pursuant POL § 87(2)(g) were proper as

the documentation was intra-agency and/or inter-agency materials which were not subject to any

of the exceptions pursuant to POL § 87(2)(g).

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Petitioners commenced this action by filing a Verified Petition on July 5, 2022. Dkt. No.

1. An Order to Show Cause was executed by Judge Platkin and filed on July 6, 2022. Dkt. No.

7. Petitioners seek an Order compelling DOH to produce unredacted versions of the

documentation produced pursuant to subdivisions (1) and (3) of their FOIL request. Dkt. No. 4,

Apx. 188 – 192. (Subdivision (1) seeks complete copies of the 395 responses to RFO number

20039 including the full Technical Offer and Administrative Offer that the DOH received from

each bidder, and subdivision (3) seeks complete copies of all three fully completed evaluation

documents (the “Technical Offer Evaluation Tool”) for each of the 373 offers that were

evaluated by the Technical Team.) They further seek an Order compelling DOH to specifically

identify and justify each “exemption and redaction.” Dkt. No. 1, pg. 20. Petitioners request that

the Court conduct an in camera review of records DOH maintains are exempt from FOIL

disclosure. Dkt. No. 1, pg. 20. Also, Petitioners seek a stay of the implementation of the

contract awards pending resolution of this proceeding and attorneys’ fees and costs incurred in

connection with this litigation. Dkt. No. 1., pg. 20. It should be noted that there is another

Albany County Supreme Court Article 78 proceeding related to this subject matter, see index

number 910456-21, New York Advocates for Home Care, et al. v. New York State Department

of Health.

ARGUMENT

POINT I

THE FOIL DETERMINATION MUST BE UPHELD

The only issue subject to review in this proceeding is whether DOH complied with FOIL in

responding to Petitioners’ FOIL request. While Petitioners’ memorandum of law asserts that “the

procurement process was inherently flawed” and submits three pages of argument on that point; and

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asserts that “DOH’s debriefing process was inadequate” and submits another page of argument on

that point, neither has any relevance whatsoever to this proceeding (Dkt. No. 5, pgs. 4 – 8). Further,

Petitioners make reference to, and rely on, New York State Finance Law § 163(9) in their petition

and memorandum of law. Dkt. No. 1, 3, 5. New York State Finance Law §163 has no relevance

whatsoever to this FOIL matter. Petitioners continuously assert in their motion papers that some of

the documentation related to the RFO indicated that certain documentation generated would be

subject to FOIL. Dkt. No 1, 3, 5. That DOH notified bidders and/or employees that documentation

would be subject to FOIL has no relevance, nor bearing, on whether any documentation is subject to

redaction pursuant to POL § 87 or § 89.

“The purpose of FOIL, found in article 6 of the Public Officers Law, is to shed light on

government decision making, which in turn both permits the electorate to make informed choices

regarding governmental activities and facilitates exposure of waste, negligence and abuse” (Matter

of Encore Coll. Bookstores v. Auxiliary Serv. Corp., 87 NY2d 410, 416 (1995.)). Where a

governmental agency seeks to avoid disclosure, it bears the burden of demonstrating the applicability

of a statutory exemption (see Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 158-

159 [1999]). “‘While FOIL exemptions are to be narrowly read, they must of course be given their

natural and obvious meaning where such interpretation is consistent with the legislative intent and

with the general purpose and manifest policy underlying FOIL’” (Matter of Smith v New York State

Off. of the Attorney Gen., 116 AD3d 1209, 1210-1211 [3d Dept 2014] [some internal quotation

marks omitted] [quoting Matter of Hanig v State of N.Y. Dept. of Motor Vehs., 79 NY2d 106, 110

(1992)], lv denied 24 NY3d 912).

A. The redactions applied to the responsive documentation pursuant to POL
§87(2)(d) were appropriate and in compliance with FOIL.

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POL § 89(5)(1-a) provides that an entity who submits any records to any agency may, at any

time, identify those records, or portions thereof, that may contain critical infrastructure information

and request that the agency that maintains such records except such information from disclosure

pursuant to POL § 87(2). Upon the request of any person for a record excepted from disclosure

pursuant to POL § 89(5), the agency is required to inform the person/entity that requested the

exception of the agency’s intention to determine whether such exception should be granted or

continued. POL § 89(5)(b)(1). The entity that requested the exception has 10 business days to

submit a written statement of the necessity for granting or continuing the exception. POL §

89(5)(b)(2). Within seven business days of receipt of such written statement, or the expiration of the

period prescribed for submission of such statement, the agency shall issue a written determination

granting, continuing, or terminating such exception. POL § 89(5)(b)(3).

POL § 87(2)(d) provides that records that are trade secrets or are 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 are exempt from disclosure pursuant to FOIL. “[T]he policy behind Public Officers Law

§ 87 (2)(d) is simply to protect businesses from the deleterious consequences of disclosing

confidential commercial information, so as to further the State’s economic development efforts and

attract business to New York” (Matter of Verizon New York, Inc. v New York State Pub. Serv.

Commn., 137 AD3d 66, 71 [3d Dept 2016] [internal quotation marks omitted]). “The importance of

trade secret protection and the resultant public benefit are well recognized” (Matter of New York Tel.

Co. v Public Serv. Commn., 56 NY2d 213, 219 [1982]; see also Matter of Crain Communications v

Hughes, 135 AD2d 351, 351-352 [1st Dept 1987], affd 74 NY2d 626 [1989]).

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Here, Petitioner made a broad FOIL request seeking (in relevant part) complete copies of the

395 responses to RFO 20039 including the full Technical Offer and Administrative Offer that the

DOH received from each bidder; and complete copies of all three fully completed evaluation

documents for each of the 373 offers that were evaluated by the Technical Team including narrative

descriptions of the strengths and weaknesses of each offer, in each category evaluated, and scoring

by each evaluator. Dkt. No. 4, Apx. 61. As set forth more fully in the Affirmation of Rosemarie

Hewig, DOH RAO, , after engaging in the POL § 89(5) process noted above with respect to each of

the entities that submitted offers to DOH and requested that DOH except them from disclosure

pursuant to POL § 87(2)(d), DOH provided responsive documentation to Petitioners with appropriate

redactions pursuant to POL § 87(2)(d). Dkt. No. 4, Apx. 73 – 132.

As set forth more fully in the Hewig Affirmation, DOH determined that the applied trade

secrets or proprietary material redactions were appropriate pursuant to POL 87(2)(d). The redacted

material includes business names and contact information for subcontractors, the number of

employees and consumers served, pay rates, business plan summaries with detailed descriptions of

programs utilized for specific tasks required to ensure statutory compliance, and excerpts of training

materials, all of which could put bidders at a competitive disadvantage if released to Petitioners who

are competitors of the bidders. Ex. A, ¶ 22. Thus, DOH properly determined that the records and

portions of records withheld were exempt from disclosure pursuant to POL § 87(2)(d).

B. The redactions applied to the responsive documentation pursuant to POL §
87(2)(g) were appropriate and in compliance with FOIL.

POL § 87(2)(g) exempts intra-agency materials from disclosure to “permit people within an

agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect

of public disclosure.” Matter of New York Times v. City of N.Y. Fire Dep’t, 4 N.Y.3d 477, 488

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(2005). “Opinions 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) (citing Matter of

McAulay v. Board of Educ., 61 A.D.2d 1048 [2d Dep’t 1978]). “Such material is exempt 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. (citing Matter of Sea Crest

Constr. Corp. v. Stubing, 82 A.D.2d 546, 549 [2d Dep’t 1981]). Notwithstanding the above, the

exception does not apply to intra-agency material that bears: (i) statistical or factual tabulations of

data; (ii) instructions to staff that affect the public; (iii) final agency policy or determinations; and

(iv) external audits. POL § 87(2)(g)(i)-(iv).

As set forth more fully in the Hewig Affirmation, the redacted material includes opinions,

ideas and advice exchanged internally within DOH as part of evaluators’ comments contained in

internal documents. Dkt. No. 4. The redactions do not include material subject to any of the

exceptions noted in § 87(2)(g)(i)-(iv). Dkt. No. 4. In Matter of The New York times Co., the court

recognized that POL § 87(2)(g) permits an agency to withhold from disclosure more than “formal,

lengthy or profound policy discussions.” Matter of New York Times v. City of N.Y. Fire Dept., 4

N.Y.3d 477, 488 (2005). The exemption extends to all “opinions, ideas, or advice exchanged as part

of the consultative or deliberative process of government decision making.” Matter of Gould v. New

York City Police Dept., 89 NY2d 267, 277 (1996).

These records are pre-decisional internal documents intended to aid the decisionmakers in

determining which offers to the RFO to accept or reject. Dkt. No. 4. As such, they do not reflect

final agency determinations or positions. Thus, they fall squarely within the intra-agency exemption

to FOIL pursuant to § 87(2)(g). Petitioners offer nothing more than conclusory assertions that this

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FILED: ALBANY COUNTY CLERK 08/19/2022 12:54 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 08/19/2022

material was improperly redacted by DOH. In fact, Petitioners rely exclusively on the fact that

documentation within the RFO included instructions that informed the reader generally of the FOIL

law for their argument that this material is subject to disclosure. Dkt. No. 5, pgs. 18 -19. As stated

earlier, that DOH notified bidders and/or employees that documentation would be subject to FOIL

has no relevance, nor bearing, on whether any documentation is subject to redaction pursuant to POL

§ 87 or § 89. The act of informing a party of its right to request documents pursuant to FOIL does

not constitute a waiver of an agency’s obligation to later review the request and apply exemptions

and redactions where legally required. Petitioners cite no law to support their argument to the

contrary.

To the extent Petitioner argues that they are entitled to the redacted information pursuant to

New York State Finance Law (“SFL”) § 163(9)(c)(iv), that argument is without merit. Dkt. 5, pg.

Case Info

Judge

Gerald Connolly Track Judge’s New Case

Case No.

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Document Filed Date

August 19, 2022

Case Filing Date

July 05, 2022

County

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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