Preview
FILED: ALBANY COUNTY CLERK 08/19/2022 12:54 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 16 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, et al.,
Petitioners, Index No. 905064-22
For a Judgment Pursuant to Article 78 of the N.Y. Civil ROSEMARIE HEWIG
Practice Law and Rules ("CPLR") AFFIRMATION
-against-
NEW YORK STATE DEPARTMENT OF HEALTH, et
al.
Respondents
Rosemarie Hewig, an attorney licensed to practice in the State of New York, affirms the
following under penalties of perjury pursuant to CPLR 2106:
1. I am an attorney admitted to practice before the courts of this State and am employed
as the Records Access Officer for the New York State Department of Health ("DOH").
2. I submit this affirmation in further support of Respondent's Answer.
3. This affirmation is based upon my own personal knowledge as the Records Access
Officer and a review of the records maintained by DOH.
4. The Full Record in this matter consists of the Administrative Record, the
Administrative Record Table of Contents ("TOC"), and the In Camera Record, the In Camera
TOC, and the Privilege Log. Only the In Camera Record isbeing provided solely to the Court. The
Privilege Log explicitly states documents that were withheld in their entirety; any document that
includes an exemption, but does not state itwas withheld, was released with redactions pursuant
to the indicated exemptions.
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FILED: ALBANY COUNTY CLERK 08/19/2022 12:54 PM INDEX NO. 905064-22
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Petitioners'
were received by August 31, 2021, counsel would deem their request constructively
denied. Dkt. No. 4, Apx. 67.
9. DOH was unable to respond to the FOIL request by August 31, 2021 due to the volume
of records that needed to be gathered, and the extensive review of the records that needed to be
conducted in order to determine whether exemptions to disclosure should be applied.
10. Treating the August 23, 2021 letter as an appeal asserting constructive denial, on
September 8, 2021, David J. Spellman, the DOH Records Access Appeals Officer, responded to
the appeal. Dkt. No. 4, Apx. 69. Mr. Spellman concluded that the response time was reasonable
and remanded the F OIL request to RAO to provide as many responsive records as were currently
Petitioners'
available in order to partially moot the appeal. Id. Mr. Spellman noted that request
required substantial time to review the application of various statutory exception, including the
trade secret exception, 395 times each. Id.
11. DOH released to Petitioner's counsel an initialpartial response to FOIL Request #21-
Petitioners'
03-235 on September 8, 2021.. Dkt. No. 4, Apx. 71. In addition, DOH advised counsel
that itestimated the next partial response would be provided by November 12, 2021. Id. DOH's
Petitioners'
September 8, 2021 response letter also advised counsel that any denial appeal should
be submitted only after the final response was received. Id.
12. Additional partial responses were provided on November 8, 2021, January 19, 2022,
and 2022. Dkt. No. Apx. 138 - 154 - 186 - 187.
February 11, 4, 139, 155,
13. Despite the advice regarding the timing of appeal rights DOH provided in the
Petitioners'
September 8, 2021 letter, counsel submitted appeal letters on October 22, 2021,
November 19, 2021, December 20, 2021, January 18, 2022, and February 25, 2022. .Dkt. No. 4,
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17. The evaluator comments regarding the bidder's strengths and weaknesses that were
redacted from the evaluation tools were determined to be exempted as intra-agency material for
deliberative use because they do not constitute finalagency determinations, but rather are opinions
intended to assist DOH staffin evaluating bids and making a final determination. See generally
Privilege Log. See also RAO In Camera Record pp. 34972-60164. Itis well established that
"subjective comments, opinions and recommendations written by committee members are not
redacted"
required to be disclosed and may be in order to encourage agency employees to provide
their candid opinions. Professional Standards Review Council of America Inc. v. New York State
Dept. of Health, 193 A.D.2d 937, 940 (1993).
18. Further, sections of technical bids that were deemed "trade secrets or ...derived from
information obtained from a commercial enterprise ...[which] ifdisclosed would cause substantial
enterprise"
injury to the competitive position of the subject under POL §87(2)(d) and §89(5) were
redacted.
19. DOH engaged in the trade secret process required under POL § 89(5) with every bidder
where the responsive records contained proprietary or trade secret material, which was the case
for almost all of the 395 bidders. As part of this process, an initialletter with responsive records
submitted by each bidder were either emailed or mailed via USPS to each bidder. The bidder then
had three response options: (1) the bidder could acknowledge that no privileges were claimed on
the material, (2) the bidder could do nothing, at which point DOH would not unilaterally claim
any trade secret or proprietary material and thus would not apply redactions under the POL §
87(2)(d), or (3) the bidder could identify portions of the responsive records that they request to be
redacted as trade secret material and provide a justification for the privilege being claimed. For
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rates. Redactions also included 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,
which are other bidding CDPAP FI entities seeking the same contract. Additionally, some bidders
also noted proprietary technology systems and training programs that were developed internally.
See generally Privilege Log. See also RAO In Camera Record pp. 00296-00308, 00321-00358,
00498, 00507, 00591-00656.
Albany, New York
August 19, 2022 ,
Rosemarie Hewig
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FILED: ALBANY COUNTY CLERK 08/19/2022 12:54 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 16 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, et al., Petitioners, Index No. 905064-22 For a Judgment Pursuant to Article 78 of the N.Y. Civil ROSEMARIE HEWIG Practice Law and Rules ("CPLR") AFFIRMATION -against- NEW YORK STATE DEPARTMENT OF HEALTH, et al. Respondents Rosemarie Hewig, an attorney licensed to practice in the State of New York, affirms the following under penalties of perjury pursuant to CPLR 2106: 1. I am an attorney admitted to practice before the courts of this State and am employed as the Records Access Officer for the New York State Department of Health ("DOH"). 2. I submit this affirmation in further support of Respondent's Answer. 3. This affirmation is based upon my own personal knowledge as the Records Access Officer and a review of the records maintained by DOH. 4. The Full Record in this matter consists of the Administrative Record, the Administrative Record Table of Contents ("TOC"), and the In Camera Record, the In Camera TOC, and the Privilege Log. Only the In Camera Record isbeing provided solely to the Court. The Privilege Log explicitly states documents that were withheld in their entirety; any document that includes an exemption, but does not state itwas withheld, was released with redactions pursuant to the indicated exemptions. 1 of 4 FILED: ALBANY COUNTY CLERK 08/19/2022 12:54 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/19/2022 Petitioners' were received by August 31, 2021, counsel would deem their request constructively denied. Dkt. No. 4, Apx. 67. 9. DOH was unable to respond to the FOIL request by August 31, 2021 due to the volume of records that needed to be gathered, and the extensive review of the records that needed to be conducted in order to determine whether exemptions to disclosure should be applied. 10. Treating the August 23, 2021 letter as an appeal asserting constructive denial, on September 8, 2021, David J. Spellman, the DOH Records Access Appeals Officer, responded to the appeal. Dkt. No. 4, Apx. 69. Mr. Spellman concluded that the response time was reasonable and remanded the F OIL request to RAO to provide as many responsive records as were currently Petitioners' available in order to partially moot the appeal. Id. Mr. Spellman noted that request required substantial time to review the application of various statutory exception, including the trade secret exception, 395 times each. Id. 11. DOH released to Petitioner's counsel an initialpartial response to FOIL Request #21- Petitioners' 03-235 on September 8, 2021.. Dkt. No. 4, Apx. 71. In addition, DOH advised counsel that itestimated the next partial response would be provided by November 12, 2021. Id. DOH's Petitioners' September 8, 2021 response letter also advised counsel that any denial appeal should be submitted only after the final response was received. Id. 12. Additional partial responses were provided on November 8, 2021, January 19, 2022, and 2022. Dkt. No. Apx. 138 - 154 - 186 - 187. February 11, 4, 139, 155, 13. Despite the advice regarding the timing of appeal rights DOH provided in the Petitioners' September 8, 2021 letter, counsel submitted appeal letters on October 22, 2021, November 19, 2021, December 20, 2021, January 18, 2022, and February 25, 2022. .Dkt. No. 4, 2 of 4 FILED: ALBANY COUNTY CLERK 08/19/2022 12:54 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/19/2022 17. The evaluator comments regarding the bidder's strengths and weaknesses that were redacted from the evaluation tools were determined to be exempted as intra-agency material for deliberative use because they do not constitute finalagency determinations, but rather are opinions intended to assist DOH staffin evaluating bids and making a final determination. See generally Privilege Log. See also RAO In Camera Record pp. 34972-60164. Itis well established that "subjective comments, opinions and recommendations written by committee members are not redacted" required to be disclosed and may be in order to encourage agency employees to provide their candid opinions. Professional Standards Review Council of America Inc. v. New York State Dept. of Health, 193 A.D.2d 937, 940 (1993). 18. Further, sections of technical bids that were deemed "trade secrets or ...derived from information obtained from a commercial enterprise ...[which] ifdisclosed would cause substantial enterprise" injury to the competitive position of the subject under POL §87(2)(d) and §89(5) were redacted. 19. DOH engaged in the trade secret process required under POL § 89(5) with every bidder where the responsive records contained proprietary or trade secret material, which was the case for almost all of the 395 bidders. As part of this process, an initialletter with responsive records submitted by each bidder were either emailed or mailed via USPS to each bidder. The bidder then had three response options: (1) the bidder could acknowledge that no privileges were claimed on the material, (2) the bidder could do nothing, at which point DOH would not unilaterally claim any trade secret or proprietary material and thus would not apply redactions under the POL § 87(2)(d), or (3) the bidder could identify portions of the responsive records that they request to be redacted as trade secret material and provide a justification for the privilege being claimed. For 3 of 4 FILED: ALBANY COUNTY CLERK 08/19/2022 12:54 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 08/19/2022 rates. Redactions also included 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, which are other bidding CDPAP FI entities seeking the same contract. Additionally, some bidders also noted proprietary technology systems and training programs that were developed internally. See generally Privilege Log. See also RAO In Camera Record pp. 00296-00308, 00321-00358, 00498, 00507, 00591-00656. Albany, New York August 19, 2022 , Rosemarie Hewig 4 of 4