Preview
FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022
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 is being 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 it was withheld, was released with redactions pursuant
to the indicated exemptions.
1 of 7
FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022
5. In a letter dated March 5, 2021, counsel to Petitioners submitted a Freedom of
Information Law (“FOIL”) request for records pertaining to DOH’s Request for Offers (“RFO”)
#20039. This FOIL request included complete copies of (1) all 395 bid responses received by
DOH, (2) evaluation scoring documents for all 395 bids, (3) technical offer evaluation documents
for all 373 bids that were evaluated by the Technical Team, (4) all training materials for the
Technical Team, (5) all correspondence between DOH and any of the 395 bidders that requested
clarification or additional information related to their bidding qualifications, and (6) all
documentation related to evaluator selection. Dkt. No. 4, Apx. 61.
6. Petitioner’s FOIL request was submitted to DOH via email on Friday, March 5, 2021
at 6:48 p.m., which is after DOH business hours. Therefore, RAO began processing Petitioner’s
request on Monday, March 8, 2021 – the first business day the request was received. Petitioner’s
FOIL request was assigned FOIL #21-03-235.
7. Due to the voluminous quantity of responsive records requested, significant time was
required to gather, review and determine whether exemptions to disclosure should be applied
pursuant to FOIL. In particular, DOH has to submit certain portions of the responsive material to
the respective vendors pursuant to the trade secret process set forth in New York Public Officers
Law (“POL”) §89(5) to determine whether exemptions should be applied to protect trade secret
material contained in the records. Accordingly, multiple requests for extensions of time were made
to notify Petitioners that additional time would be needed before a final response could be
provided. Dkt. No. 4, Apx. 64 – 66.
8. In a letter dated August 23, 2021, Petitioners’ counsel complained that the amount of
time needed to respond to the FOIL request was unreasonable and indicated that, unless responses
2 of 7
FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022
were received by August 31, 2021, Petitioners’ 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 FOIL request to RAO to provide as many responsive records as were currently
available in order to partially moot the appeal. Id. Mr. Spellman noted that Petitioners’ 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 initial partial response to FOIL Request #21-
03-235 on September 8, 2021. . Dkt. No. 4, Apx. 71. In addition, DOH advised Petitioners’ counsel
that it estimated the next partial response would be provided by November 12, 2021. Id. DOH’s
September 8, 2021 response letter also advised Petitioners’ 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 February 11, 2022. Dkt. No. 4, Apx. 138 – 139, 154 – 155, 186 – 187.
13. Despite the advice regarding the timing of appeal rights DOH provided in the
September 8, 2021 letter, Petitioners’ counsel submitted appeal letters on October 22, 2021,
November 19, 2021, December 20, 2021, January 18, 2022, and February 25, 2022. .Dkt. No. 4,
3 of 7
FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022
Apx. 135 – 137, 142 – 144, 147 – 148, 151 – 153, 188 – 192.1 Only the February 25, 2022 appeal,
sent following the final responses, was properly submitted. Mr. Spellman issued a final
determination to this appeal on March 4, 2022, denying the appeal in its entirety and advising that
judicial review may be obtained pursuant to CPLR Article 78. Dkt. No. 4, Apx. 1 – 2.
14. As indicated in the responses, certain documents were withheld from disclosure in their
entirety and certain information was redacted from other records to remove material exempted by
the New York State Tax Law, material that would constitute an unwarranted invasion of personal
privacy, proprietary or trade secret material, intra-agency material, and material that would
compromise the security of information technology assets, as authorized by POL §87(2)(a), (b),
(d), (g), and (i).
15. The training agendas of training sessions for RFO evaluators were withheld in their
entirety. Training agendas were created by DOH staff and shared solely with evaluators, who are
also internal staff. As the contents do not represent instructions that affect the public, or any other
exception to the intra-agency exception, the training agendas are exempt from disclosure pursuant
to POL § 87(2)(g). 2
16. Additionally, Petitioners’ counsel requested the evaluation tools concerning each bid.
Dkt. No. 4, Apx. 61. These tools were released in response to the FOIL request; however, DOH
redacted the evaluators’ written comments, which represented the respective evaluators’ subjective
impressions of the bidder’s strengths and weaknesses and fall squarely within the intra-agency
exception at POL § 87(2)(g).
1
The September 8, 2021 response letter advised Petitioner’s counsel, in relevant part, as follows: “Please be advised
that this office will continue to produce documents responsive to your request on a rolling basis, in multiple
productions, and you will be given an opportunity to appeal after the final production of documents.”
2
The exceptions to the intra-agency exemption are: (1) statistical or factual tabulations or data; (2) instructions to
staff that affect the public; (3) final agency policy or determinations; or (4) external audits.
4 of 7
FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022
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 final agency determinations, but rather are opinions
intended to assist DOH staff in evaluating bids and making a final determination. See generally
Privilege Log. See also RAO In Camera Record pp. 34972-60164. It is well established that
“subjective comments, opinions and recommendations written by committee members are not
required to be disclosed and may be redacted” 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] if disclosed would cause substantial
injury to the competitive position of the subject enterprise” 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 initial letter 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
5 of 7
FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022
this third option, DOH would provide a determination as to whether this justification was legally
sufficient for the claimed privilege.
20. While generally there is an opportunity to appeal the determination during this process,
for these particular records relating to the 395 bids for RFO #20039, DOH received approximately
133 different FOIL requests for the records at issue. Most of these FOIL requests covered
duplicative information. It would have been logistically impossible and impractical to engage in
this process 133 times with 395 bidders for the same information. Thus, instead of duplicating this
process for each new FOIL request, DOH engaged in the process for each unique material request
(i.e., the process occurred once for all administrative bids, the process occurred once for all
technical bids, etc.). This ensured that bidders were not inundated with 133 requests for duplicate
information, which would likely result in requests being missed or inconsistent responses, but
rather were only asked to justify privileges once for each set of documents. For this particular
request, DOH engaged POL § 89(5) process in responding to a different but similar FOIL request,
FOIL 21-02-373, and identical responsive materials were provided for FOIL 21-03-235.
21. Thus, while Petitioners did not have an opportunity to appeal the POL § 87(2)(d) trade
secret and proprietary material redactions during the determination process, their right to appeal
these redactions remained a part of their general appeal rights to the final determination for FOIL
21-03-235. This slight change in process ensured that appeal rights were preserved in a manner
that did not harm Petitioners, while also ensuring no harm was inadvertently done to any of the
bidders.
22. DOH determined that the applied trade secret or proprietary material redactions were
legally sufficient under POL § 87(2)(d). The redacted material included business names and
contact information for subcontractors, the number of employees and consumers served, and pay
6 of 7
FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022
7 of 7
Preview
FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022 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 is being 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 it was withheld, was released with redactions pursuant to the indicated exemptions. 1 of 7 FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022 5. In a letter dated March 5, 2021, counsel to Petitioners submitted a Freedom of Information Law (“FOIL”) request for records pertaining to DOH’s Request for Offers (“RFO”) #20039. This FOIL request included complete copies of (1) all 395 bid responses received by DOH, (2) evaluation scoring documents for all 395 bids, (3) technical offer evaluation documents for all 373 bids that were evaluated by the Technical Team, (4) all training materials for the Technical Team, (5) all correspondence between DOH and any of the 395 bidders that requested clarification or additional information related to their bidding qualifications, and (6) all documentation related to evaluator selection. Dkt. No. 4, Apx. 61. 6. Petitioner’s FOIL request was submitted to DOH via email on Friday, March 5, 2021 at 6:48 p.m., which is after DOH business hours. Therefore, RAO began processing Petitioner’s request on Monday, March 8, 2021 – the first business day the request was received. Petitioner’s FOIL request was assigned FOIL #21-03-235. 7. Due to the voluminous quantity of responsive records requested, significant time was required to gather, review and determine whether exemptions to disclosure should be applied pursuant to FOIL. In particular, DOH has to submit certain portions of the responsive material to the respective vendors pursuant to the trade secret process set forth in New York Public Officers Law (“POL”) §89(5) to determine whether exemptions should be applied to protect trade secret material contained in the records. Accordingly, multiple requests for extensions of time were made to notify Petitioners that additional time would be needed before a final response could be provided. Dkt. No. 4, Apx. 64 – 66. 8. In a letter dated August 23, 2021, Petitioners’ counsel complained that the amount of time needed to respond to the FOIL request was unreasonable and indicated that, unless responses 2 of 7 FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022 were received by August 31, 2021, Petitioners’ 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 FOIL request to RAO to provide as many responsive records as were currently available in order to partially moot the appeal. Id. Mr. Spellman noted that Petitioners’ 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 initial partial response to FOIL Request #21- 03-235 on September 8, 2021. . Dkt. No. 4, Apx. 71. In addition, DOH advised Petitioners’ counsel that it estimated the next partial response would be provided by November 12, 2021. Id. DOH’s September 8, 2021 response letter also advised Petitioners’ 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 February 11, 2022. Dkt. No. 4, Apx. 138 – 139, 154 – 155, 186 – 187. 13. Despite the advice regarding the timing of appeal rights DOH provided in the September 8, 2021 letter, Petitioners’ counsel submitted appeal letters on October 22, 2021, November 19, 2021, December 20, 2021, January 18, 2022, and February 25, 2022. .Dkt. No. 4, 3 of 7 FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022 Apx. 135 – 137, 142 – 144, 147 – 148, 151 – 153, 188 – 192.1 Only the February 25, 2022 appeal, sent following the final responses, was properly submitted. Mr. Spellman issued a final determination to this appeal on March 4, 2022, denying the appeal in its entirety and advising that judicial review may be obtained pursuant to CPLR Article 78. Dkt. No. 4, Apx. 1 – 2. 14. As indicated in the responses, certain documents were withheld from disclosure in their entirety and certain information was redacted from other records to remove material exempted by the New York State Tax Law, material that would constitute an unwarranted invasion of personal privacy, proprietary or trade secret material, intra-agency material, and material that would compromise the security of information technology assets, as authorized by POL §87(2)(a), (b), (d), (g), and (i). 15. The training agendas of training sessions for RFO evaluators were withheld in their entirety. Training agendas were created by DOH staff and shared solely with evaluators, who are also internal staff. As the contents do not represent instructions that affect the public, or any other exception to the intra-agency exception, the training agendas are exempt from disclosure pursuant to POL § 87(2)(g). 2 16. Additionally, Petitioners’ counsel requested the evaluation tools concerning each bid. Dkt. No. 4, Apx. 61. These tools were released in response to the FOIL request; however, DOH redacted the evaluators’ written comments, which represented the respective evaluators’ subjective impressions of the bidder’s strengths and weaknesses and fall squarely within the intra-agency exception at POL § 87(2)(g). 1 The September 8, 2021 response letter advised Petitioner’s counsel, in relevant part, as follows: “Please be advised that this office will continue to produce documents responsive to your request on a rolling basis, in multiple productions, and you will be given an opportunity to appeal after the final production of documents.” 2 The exceptions to the intra-agency exemption are: (1) statistical or factual tabulations or data; (2) instructions to staff that affect the public; (3) final agency policy or determinations; or (4) external audits. 4 of 7 FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022 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 final agency determinations, but rather are opinions intended to assist DOH staff in evaluating bids and making a final determination. See generally Privilege Log. See also RAO In Camera Record pp. 34972-60164. It is well established that “subjective comments, opinions and recommendations written by committee members are not required to be disclosed and may be redacted” 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] if disclosed would cause substantial injury to the competitive position of the subject enterprise” 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 initial letter 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 5 of 7 FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022 this third option, DOH would provide a determination as to whether this justification was legally sufficient for the claimed privilege. 20. While generally there is an opportunity to appeal the determination during this process, for these particular records relating to the 395 bids for RFO #20039, DOH received approximately 133 different FOIL requests for the records at issue. Most of these FOIL requests covered duplicative information. It would have been logistically impossible and impractical to engage in this process 133 times with 395 bidders for the same information. Thus, instead of duplicating this process for each new FOIL request, DOH engaged in the process for each unique material request (i.e., the process occurred once for all administrative bids, the process occurred once for all technical bids, etc.). This ensured that bidders were not inundated with 133 requests for duplicate information, which would likely result in requests being missed or inconsistent responses, but rather were only asked to justify privileges once for each set of documents. For this particular request, DOH engaged POL § 89(5) process in responding to a different but similar FOIL request, FOIL 21-02-373, and identical responsive materials were provided for FOIL 21-03-235. 21. Thus, while Petitioners did not have an opportunity to appeal the POL § 87(2)(d) trade secret and proprietary material redactions during the determination process, their right to appeal these redactions remained a part of their general appeal rights to the final determination for FOIL 21-03-235. This slight change in process ensured that appeal rights were preserved in a manner that did not harm Petitioners, while also ensuring no harm was inadvertently done to any of the bidders. 22. DOH determined that the applied trade secret or proprietary material redactions were legally sufficient under POL § 87(2)(d). The redacted material included business names and contact information for subcontractors, the number of employees and consumers served, and pay 6 of 7 FILED: ALBANY COUNTY CLERK 08/31/2022 01:03 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/31/2022 7 of 7