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FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/12/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
In the Matter of the Application of
JOHN B. PEGRAM,
Petitioner,
v. Index No. 155380/2024
METROPOLITAN TRANSPORTATION
AUTHORITY,
Respondent.
[Pegram v. MTA 3]
Petitioner's
Exhibit
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John B. Pegram
496 1st Street
Brooklyn, NY 11215
bqrail@earthlink.net
April 9, 2024
Via US Mail and
Via Email to rromain@mtahq.org
Mr. Patrick Warren
Chief Safety Officer
Metropolitan Transportation Authority
2 Broadway
New York, New York 10004.
Re: Request for Reconsideration re FOIL Request No. R002642-012824 &
Appeal of Denial of FOIL Request No. R003301-031724
Dear Mr. Warren:
I respectfully appeal from the FOIL Unit’s March 28, 2004 denial of my FOIL Request
R003301-031724 and request reconsideration of the February 27, 2004 denial on administrative
appeal of my earlier Request R002642-012824. Those denials were allegedly based solely on NY
Public Officers Law (POL) §87(2)(c).
This appeal and reconsideration request are a good faith effort to resolve the matter and
obtain the requested documents without resort to litigation.
I. Summary of Grounds for Appeal and Reconsideration
Both the FOIL Unit’s denial of my FOIL Request R003301-031724 and the denial on
appeal of my Request R002642-012824 failed to distinguish between (1) the requested
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documents, of the type that are typically provided to bidders and potential bidders before bidding
and negotiations, and (2) records or portions of records not disclosed to all bidders, whose
disclosure “would impair present or imminent contract awards."
Both the FOIL Unit’s denial of my FOIL Request R003301-031724 and the denial on
appeal of my Request R002642-012824 are invalid, because they denied access based solely on
the category or type of such record, and lacked the particularized and specific justification for
such denial for each document, as required by NY POL §87(2).
Consideration of my requests is not barred by Van Steenburg v. Thomas, 242 A.D.2d 802,
(3d Dept. 1997), as suggested in the FOIL Unit’s response to my second request (Exh. 8),
because the holding in that case related to the statute of limitations for and Article 78 review and
because the time period for an Article 78 review of my first request has not yet expired.
II. Chronology
A. The Existence of Responsive Documents
It is clear that documents of the type requested exist. (See Exh. 1-4). For example:
An MTA Contract Document Holders List, dated August 29, 2022, at
https://new.mta.info/document/93956, indicates that 54 companies had received
documents relating to this solicitation. (Exh. 1).
A later MTA document, at https://new.mta.info/document/114751, indicated that
documents relating to this solicitation would be available June 30, 2023. (Exh. 3).
B. First Request (R002642-012824) and Its Denials
When I became aware of this solicitation and the MTA announcements identified above,
I made my Request R002642-012824 on January 28, 2024 for:
A copy of each of the documents, including but not limited to plans, provided to bidders in
connection with C32520 Platform Screen Door Pilot Installation, Solicitation No.
0000402715.
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The MTA FOIL Unit promptly responded on January 30th, saying:
Regarding the above referenced FOIL request, please be advised that, as of this date, the
contract award process is not completed. Pursuant to N.Y. Public Officers Law
§87(2)(c), an agency may deny access to records that “if disclosed would impair present
or imminent contract awards or collective bargaining negotiations…”. In accordance
with this provision, your request is denied at this time. You may wish to resubmit your
request at a later date.
Believing that the FOIL Unit had overlooked the limited scope of the request, I posted a
message on the FOIL Records Access Center website, on the same day, saying, inter alia:
The request was carefully limited to “documents … provided to bidders. The response
(below) does indicate any basis for believing that there is any basis for saying disclosure
to me of such documents might “impair present or imminent contract awards.” The
requested documents are limited to ones provided to all bidders.
I did not receive any response to that message.
I filed an administrative appeal. (Exh. 6). I received a timely decision, by letter dated
February 27th, denying the appeal on substantially the same grounds as the FOIL Unit denial.
(Exh. 7). That letter did not address the distinction between the requested “documents provided
to bidders” and those submitted by bidders. It denied access based solely on the category or type
of requested records (present or imminent contract awards), and lacked the particularized and
specific justification for such denial, as is required by NY POL §87(2).
C. Second Request (R003301-031724) and Its Denial
Noting the concern in the denial of my first request, about “disclosure of documents
could result in an inequality of knowledge amongst the bidders” and citation there of Verizon
N.Y., Inc. v. Bradbury, and being aware that a reason for denial might be perceived unequal
disclosures to competing bidders, I filed the following revised, second request on March 17,
2024:
A copy of each of the documents, including but not limited to plans, provided to all
bidders in connection with C32520 Platform Screen Door Pilot Installation, Solicitation
No. 0000402715. To the extent there may be some documents provided to less than all
bidders, they may be excluded from the response. Please produce the requested
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documents within 20 days of the formal acknowledgment of the request, in accordance
with FOIL. This request is a follow-up to my prior request R002642-012824.
I received a response on March 28, 2024, stating:
This "follow-up" request mimics that of your previous FOIL request #R002642-012824,
asking for the same below-mentioned records, which was denied by the MTA FOIL
Office on January 30, 2024, on grounds that the records sought pertaining to Contract
C32520 fall within the scope of the impairment and imminent contract award FOIL
exemption, pursuant to NYPOL §87(2)(c), which states that an agency may withhold
records or portions of records when disclosure “would impair present or imminent
contract awards." You later appealed the FOIL Office's determination which was upheld
by the FOIL Appeals Office and your appeal was denied on February 27, 2024. For your
ease, I've attached a copy of that appeal decision in your FOIL Records Access Center,
which can be located under a tab labeled, "Attachments." As it pertain [sic.] to this
"follow-up" request, please be advised that to date, Contract C32520 is an active
procurement and the contract records sought are competitively-sensitive and will remain
withheld pursuant to the provisions under NYPOL §87(2)(c). Please be further advised
that by submitting a “follow up” FOIL request for the same procurement records that you
were informed were competitively-sensitive and denied access to would not permit
access to any of the procurement records if they currently remain in an active, ongoing
procurement status and the contract has not been awarded. See, Matter of Van Steenburg
v. Thomas, 242 A.D.2d 802, (N.Y. App. Div. 1997) ("petitioner made a second FOIL
request for, among other things, the previously denied reports, notes and log entries ...
Petitioner was, inter alia, informed that because such documents were previously
requested and denied ... his current request for these documents would not be
considered.") Accordingly, this request will now be closed.
III. Argument
A. The MTA Has Not Carried Its Burden of Showing that Disclosure
of the Requested Records Would Impair Contract Awards
The MTA’s denials of my requests have relied only on Public Officers Law (POL)
§87(2)(c), under which an agency may deny access to records that “if disclosed would impair
present or imminent contract awards or collective bargaining negotiations….” As explained in
several advisory opinions by the Executive Director of the NY Committee on Open Government
(COOG), “the key word in the quoted provision is ‘impair’, and the question involves how
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disclosure would impair the process of awarding a contract.” (FOIL-AO-18067; see FOIL-AO-
17188).
The purpose of this law, as applied to contract negotiations, is to assure fairness between
competing bidders, and between the agency and the bidders, by keeping confidential the
information known by less than all of the parties until negotiations are concluded. The COOG
explained in FOIL-AO-18737:
If there is no inequality of knowledge between or among the parties to negotiations, and
if records have been shared or exchanged by the parties, it is unlikely that disclosure
would impair contract awards or collective bargaining negotiations (see Community
Board 7 of Borough of Manhattan v. Schaffer, 570 NYS 2d 769, affirmed 83 AD 2d 422;
reversed on unrelated grounds, 84 NY 2d 148 (1994).
My requests were carefully limited to documents that presumably were provided to all
bidders and also known to the MTA. Therefore, there is not inequality of knowledge with respect
to the requested documents and disclosure to me would not impair the pertinent contract
negotiations or awards.
In the cases of my requests, the MTA has not even attempted to show how disclosure to
me of the requested documents would impair the process of awarding a contract. At best, the
MTA denials were mere speculation, but that will not suffice. “To meet its burden, the party
seeking exemption … cannot merely rest on a speculative conclusion that disclosure might
potentially cause harm.” Markowitz, supra, 11 NY3d at 51.
B. The MTA Has Not Provided a Particularized and
Specific Justification for Denying Access
In the case of both of my requests, the MTA appears to be asserting a categorical or
blanket exemption. For example, the most recent FOIL Unit response merely said that “Contract
C32520 is an active procurement and the contract records sought are competitively-sensitive.”
That does not satisfy the FOIL.
“Because the overall purpose of FOIL is to ensure that the public is afforded greater
access to governmental records, FOIL exemptions are interpreted narrowly.” Markowitz v. Serio,
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11 NY3d 43, 51, 862 NYS2d 833 (2008), citing Washington Post Co. v New York State Ins.
Dept., 61 NY2d 557, 564, 463 NE2d 604, 475 NYS2d 263 (1984).
POL §87(2) specifically states, “A denial of access shall not be based solely on the
category or type of such record and shall be valid only when there is a particularized and specific
justification for such denial.” The NY Court of Appeals has said that the party asserting the
exemption must demonstrate that the requested documents "’fall[] squarely within a FOIL
exemption by articulating a particularized and specific justification for denying access'" Data
Tree, LLC v Romaine, 9 NY3d 454, 463, 880 NE2d 10, 849 NYS2d 489 (2007), quoting Capital
Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566, 496 NE2d 665, 505 NYS2d 576
(1986). Accord, Markowitz v. Serio, 11 NY3d 43, 50-51, 862 NYS2d 833 (2008).
The MTA has not provided a particularized and specific justification for denial of either
of my requests; therefore, those denials are invalid.
C. The Second Request Was Not Barred
The FOIL Unit relied on Van Steenburg v. Thomas, 242 A.D.2d 802, 661 N.Y.S.2d 317
(3d Dept. 1997) in denying my second request. That opinion is inapplicable.
Van Steenburg involved a second FOIL request, over a year after the first. The courts
construed the second request as an attempt to avoid the four-month statute of limitations
applicable to Article 78 petitions and concluded that the petition based on the second request was
time-barred. Id.at 802-803.
There are three principal differences from Van Steenburg in the appeal of my second
request. First, the question is not one of timeliness of a petition to a court. Second, factually, the
second request was made before the expiration of the four-month period from denial on February
27, 2024 in the administrative appeal of my first request. (Exh.7). The four-month period will not
expire until June 27, 2024. The denial of the first request remains petitionable. Third, my second
request was narrowed from the first, in an effort to avoid “the disclosure of documents could
result in an inequality of knowledge amongst the bidders” (see Exh 8), which was a ground for
denial on appeal of my first request. (See Exh. 7).
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IV. Conclusion
You should grant this appeal and direct that the MTA FOIL Unit produce all responsive
documents without delay, in accordance with the applicable law and rules.
If full production of the records is denied on appeal, please provide redacted copies, list
the withheld records and explain each of the reasons for denial fully in writing, as required by
law. Please provide documents in electronic form.
Please also send copies of all appeals and the determinations that follow to the
Committee on Open Government, Department of State, One Commerce Plaza, 99 Washington
Ave., Albany, New York 12231, coog@dos.ny.gov, in accordance with the FOIL.
Respectfully submitted,
John B. Pegram
cc: Committee on Open Government, coog@dos.ny.gov
paul.whitworth@mtahq.org
7
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FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/12/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of JOHN B. PEGRAM, Petitioner, v. Index No. 155380/2024 METROPOLITAN TRANSPORTATION AUTHORITY, Respondent. [Pegram v. MTA 3] Petitioner's Exhibit 5 FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/12/2024 John B. Pegram 496 1st Street Brooklyn, NY 11215 bqrail@earthlink.net April 9, 2024 Via US Mail and Via Email to rromain@mtahq.org Mr. Patrick Warren Chief Safety Officer Metropolitan Transportation Authority 2 Broadway New York, New York 10004. Re: Request for Reconsideration re FOIL Request No. R002642-012824 & Appeal of Denial of FOIL Request No. R003301-031724 Dear Mr. Warren: I respectfully appeal from the FOIL Unit’s March 28, 2004 denial of my FOIL Request R003301-031724 and request reconsideration of the February 27, 2004 denial on administrative appeal of my earlier Request R002642-012824. Those denials were allegedly based solely on NY Public Officers Law (POL) §87(2)(c). This appeal and reconsideration request are a good faith effort to resolve the matter and obtain the requested documents without resort to litigation. I. Summary of Grounds for Appeal and Reconsideration Both the FOIL Unit’s denial of my FOIL Request R003301-031724 and the denial on appeal of my Request R002642-012824 failed to distinguish between (1) the requested 1 FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/12/2024 documents, of the type that are typically provided to bidders and potential bidders before bidding and negotiations, and (2) records or portions of records not disclosed to all bidders, whose disclosure “would impair present or imminent contract awards." Both the FOIL Unit’s denial of my FOIL Request R003301-031724 and the denial on appeal of my Request R002642-012824 are invalid, because they denied access based solely on the category or type of such record, and lacked the particularized and specific justification for such denial for each document, as required by NY POL §87(2). Consideration of my requests is not barred by Van Steenburg v. Thomas, 242 A.D.2d 802, (3d Dept. 1997), as suggested in the FOIL Unit’s response to my second request (Exh. 8), because the holding in that case related to the statute of limitations for and Article 78 review and because the time period for an Article 78 review of my first request has not yet expired. II. Chronology A. The Existence of Responsive Documents It is clear that documents of the type requested exist. (See Exh. 1-4). For example: An MTA Contract Document Holders List, dated August 29, 2022, at https://new.mta.info/document/93956, indicates that 54 companies had received documents relating to this solicitation. (Exh. 1). A later MTA document, at https://new.mta.info/document/114751, indicated that documents relating to this solicitation would be available June 30, 2023. (Exh. 3). B. First Request (R002642-012824) and Its Denials When I became aware of this solicitation and the MTA announcements identified above, I made my Request R002642-012824 on January 28, 2024 for: A copy of each of the documents, including but not limited to plans, provided to bidders in connection with C32520 Platform Screen Door Pilot Installation, Solicitation No. 0000402715. 2 FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/12/2024 The MTA FOIL Unit promptly responded on January 30th, saying: Regarding the above referenced FOIL request, please be advised that, as of this date, the contract award process is not completed. Pursuant to N.Y. Public Officers Law §87(2)(c), an agency may deny access to records that “if disclosed would impair present or imminent contract awards or collective bargaining negotiations…”. In accordance with this provision, your request is denied at this time. You may wish to resubmit your request at a later date. Believing that the FOIL Unit had overlooked the limited scope of the request, I posted a message on the FOIL Records Access Center website, on the same day, saying, inter alia: The request was carefully limited to “documents … provided to bidders. The response (below) does indicate any basis for believing that there is any basis for saying disclosure to me of such documents might “impair present or imminent contract awards.” The requested documents are limited to ones provided to all bidders. I did not receive any response to that message. I filed an administrative appeal. (Exh. 6). I received a timely decision, by letter dated February 27th, denying the appeal on substantially the same grounds as the FOIL Unit denial. (Exh. 7). That letter did not address the distinction between the requested “documents provided to bidders” and those submitted by bidders. It denied access based solely on the category or type of requested records (present or imminent contract awards), and lacked the particularized and specific justification for such denial, as is required by NY POL §87(2). C. Second Request (R003301-031724) and Its Denial Noting the concern in the denial of my first request, about “disclosure of documents could result in an inequality of knowledge amongst the bidders” and citation there of Verizon N.Y., Inc. v. Bradbury, and being aware that a reason for denial might be perceived unequal disclosures to competing bidders, I filed the following revised, second request on March 17, 2024: A copy of each of the documents, including but not limited to plans, provided to all bidders in connection with C32520 Platform Screen Door Pilot Installation, Solicitation No. 0000402715. To the extent there may be some documents provided to less than all bidders, they may be excluded from the response. Please produce the requested 3 FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/12/2024 documents within 20 days of the formal acknowledgment of the request, in accordance with FOIL. This request is a follow-up to my prior request R002642-012824. I received a response on March 28, 2024, stating: This "follow-up" request mimics that of your previous FOIL request #R002642-012824, asking for the same below-mentioned records, which was denied by the MTA FOIL Office on January 30, 2024, on grounds that the records sought pertaining to Contract C32520 fall within the scope of the impairment and imminent contract award FOIL exemption, pursuant to NYPOL §87(2)(c), which states that an agency may withhold records or portions of records when disclosure “would impair present or imminent contract awards." You later appealed the FOIL Office's determination which was upheld by the FOIL Appeals Office and your appeal was denied on February 27, 2024. For your ease, I've attached a copy of that appeal decision in your FOIL Records Access Center, which can be located under a tab labeled, "Attachments." As it pertain [sic.] to this "follow-up" request, please be advised that to date, Contract C32520 is an active procurement and the contract records sought are competitively-sensitive and will remain withheld pursuant to the provisions under NYPOL §87(2)(c). Please be further advised that by submitting a “follow up” FOIL request for the same procurement records that you were informed were competitively-sensitive and denied access to would not permit access to any of the procurement records if they currently remain in an active, ongoing procurement status and the contract has not been awarded. See, Matter of Van Steenburg v. Thomas, 242 A.D.2d 802, (N.Y. App. Div. 1997) ("petitioner made a second FOIL request for, among other things, the previously denied reports, notes and log entries ... Petitioner was, inter alia, informed that because such documents were previously requested and denied ... his current request for these documents would not be considered.") Accordingly, this request will now be closed. III. Argument A. The MTA Has Not Carried Its Burden of Showing that Disclosure of the Requested Records Would Impair Contract Awards The MTA’s denials of my requests have relied only on Public Officers Law (POL) §87(2)(c), under which an agency may deny access to records that “if disclosed would impair present or imminent contract awards or collective bargaining negotiations….” As explained in several advisory opinions by the Executive Director of the NY Committee on Open Government (COOG), “the key word in the quoted provision is ‘impair’, and the question involves how 4 FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/12/2024 disclosure would impair the process of awarding a contract.” (FOIL-AO-18067; see FOIL-AO- 17188). The purpose of this law, as applied to contract negotiations, is to assure fairness between competing bidders, and between the agency and the bidders, by keeping confidential the information known by less than all of the parties until negotiations are concluded. The COOG explained in FOIL-AO-18737: If there is no inequality of knowledge between or among the parties to negotiations, and if records have been shared or exchanged by the parties, it is unlikely that disclosure would impair contract awards or collective bargaining negotiations (see Community Board 7 of Borough of Manhattan v. Schaffer, 570 NYS 2d 769, affirmed 83 AD 2d 422; reversed on unrelated grounds, 84 NY 2d 148 (1994). My requests were carefully limited to documents that presumably were provided to all bidders and also known to the MTA. Therefore, there is not inequality of knowledge with respect to the requested documents and disclosure to me would not impair the pertinent contract negotiations or awards. In the cases of my requests, the MTA has not even attempted to show how disclosure to me of the requested documents would impair the process of awarding a contract. At best, the MTA denials were mere speculation, but that will not suffice. “To meet its burden, the party seeking exemption … cannot merely rest on a speculative conclusion that disclosure might potentially cause harm.” Markowitz, supra, 11 NY3d at 51. B. The MTA Has Not Provided a Particularized and Specific Justification for Denying Access In the case of both of my requests, the MTA appears to be asserting a categorical or blanket exemption. For example, the most recent FOIL Unit response merely said that “Contract C32520 is an active procurement and the contract records sought are competitively-sensitive.” That does not satisfy the FOIL. “Because the overall purpose of FOIL is to ensure that the public is afforded greater access to governmental records, FOIL exemptions are interpreted narrowly.” Markowitz v. Serio, 5 FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/12/2024 11 NY3d 43, 51, 862 NYS2d 833 (2008), citing Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 564, 463 NE2d 604, 475 NYS2d 263 (1984). POL §87(2) specifically states, “A denial of access shall not be based solely on the category or type of such record and shall be valid only when there is a particularized and specific justification for such denial.” The NY Court of Appeals has said that the party asserting the exemption must demonstrate that the requested documents "’fall[] squarely within a FOIL exemption by articulating a particularized and specific justification for denying access'" Data Tree, LLC v Romaine, 9 NY3d 454, 463, 880 NE2d 10, 849 NYS2d 489 (2007), quoting Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566, 496 NE2d 665, 505 NYS2d 576 (1986). Accord, Markowitz v. Serio, 11 NY3d 43, 50-51, 862 NYS2d 833 (2008). The MTA has not provided a particularized and specific justification for denial of either of my requests; therefore, those denials are invalid. C. The Second Request Was Not Barred The FOIL Unit relied on Van Steenburg v. Thomas, 242 A.D.2d 802, 661 N.Y.S.2d 317 (3d Dept. 1997) in denying my second request. That opinion is inapplicable. Van Steenburg involved a second FOIL request, over a year after the first. The courts construed the second request as an attempt to avoid the four-month statute of limitations applicable to Article 78 petitions and concluded that the petition based on the second request was time-barred. Id.at 802-803. There are three principal differences from Van Steenburg in the appeal of my second request. First, the question is not one of timeliness of a petition to a court. Second, factually, the second request was made before the expiration of the four-month period from denial on February 27, 2024 in the administrative appeal of my first request. (Exh.7). The four-month period will not expire until June 27, 2024. The denial of the first request remains petitionable. Third, my second request was narrowed from the first, in an effort to avoid “the disclosure of documents could result in an inequality of knowledge amongst the bidders” (see Exh 8), which was a ground for denial on appeal of my first request. (See Exh. 7). 6 FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/12/2024 IV. Conclusion You should grant this appeal and direct that the MTA FOIL Unit produce all responsive documents without delay, in accordance with the applicable law and rules. If full production of the records is denied on appeal, please provide redacted copies, list the withheld records and explain each of the reasons for denial fully in writing, as required by law. Please provide documents in electronic form. Please also send copies of all appeals and the determinations that follow to the Committee on Open Government, Department of State, One Commerce Plaza, 99 Washington Ave., Albany, New York 12231, coog@dos.ny.gov, in accordance with the FOIL. Respectfully submitted, John B. Pegram cc: Committee on Open Government, coog@dos.ny.gov paul.whitworth@mtahq.org 7