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FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024
NYSCEF DOC. NO. 12 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
6
FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024
NYSCEF DOC. NO. 12
2 Broadway RECEIVED NYSCEF: 06/12/2024
NewYork, NY 10004
212 878-7000 Tel
Metropolitan Transportation Authority
State of NewYork
Via email: jbpegram@earthlink.net, bqrail@earthlink.net
April 29, 2024
John B. Pegram
496 1st Street
Brooklyn, NY 11215
Re: Freedom of Information Law ("FOIL") Appeal re:
MTA FOIL Request #R003301-031724 and “Request for
Reconsideration” re: MTA FOIL Request #R002642-021824
Dear Mr. Pegram:
I am writing in response to your FOIL appeal, dated April 9, 2024 and received by the MTA FOIL Appeals
Office on April 15, 2024, regarding the denial of your FOIL request #R003301-031724, which specifically
sought, “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.”
This same letter also included a “Request for Reconsideration” of MTA FOIL #R002642-021824.
You had previously submitted a separate FOIL request (FOIL #R002642-012824) asking for the same above-
mentioned records that you later again requested in FOIL request #R003301-031724. The first FOIL request
(#R002642-012824) was previously denied under §87(2)(c) of the FOIL statute, appealed, and then denied on
appeal on February 27, 2024. Per the FOIL statute, your administrative remedies for this FOIL request have
been exhausted, and as such, this “request for reconsideration” has no standing and is thereby moot. For
reference purposes, I will reiterate that as of the date of this letter, the subject contract remains not yet
finalized. Due to the active status of this procurement, and the relevance of the requested records to the
procurement process, the release of these records would inhibit "the interests of [the agency] in achieving the
optimum result in awarding a contract to a supplier of goods or services or in reaching a collective bargaining
agreement." See, Matter Verizon N.Y., Inc. v. Bradbury, 40 A.D.3d 1113, 1115 (2d Dept 2007) ("the
disclosure of documents could result in an inequality of knowledge amongst the bidders, depriving the agency
of the benefits of the competitive bidding process, and depriving the bidder with the resulting lesser
knowledge of a fair opportunity to be awarded the contract"). Further, the Committee on Open Government
(“COOG”) advised that, " ... §87(2)(c) is intended to ensure that government agencies are not placed at a
disadvantage at the bargaining table and to ensure that there is a ‘level playing field.’” See FOIL Advisory
Opinion No. 18737, Committee on Open Government. Disclosure of records pertaining to Contract C32520
would indeed impair a present or imminent contract award and cause substantial injury to the competitive
position of the subject enterprise. The records you seek pertaining to Contract C32520 fall within the scope
of this FOIL exemption and therefore, such records were properly withheld. The FOIL appeal decision from
February 27, 2024 still stands. I will also reiterate that you are free to submit a new FOIL request for these
records once the procurement is awarded.
The agenciss of the MTA
MTANewYork City Transit MTAMetro-North Railroad MTAConstruction & Developrnent
MTAI..ong laland Rail Road MTABridges and Tunnels MTABus Cornpany
FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 06/12/2024
Your current FOIL appeal re: FOIL request #R003301-031724 challenges the MTA FOIL Team’s March 28,
2024 decision to deny access to these same records that were previously requested in your FOIL request #
R002642-012824, denied, and then denied on appeal on February 27, 2024. FOIL request #R003301-031724
was denied pursuant to NYPOL §87(2)(c), echoing the previous decision’s grounds that the requested records
are part of an active procurement and "if disclosed would impair present or imminent contract awards or
collective bargaining negotiations." Due to the fact that the negotiation and evaluation processes related to
this active procurement are presently ongoing, and release of these records that are part of this active
procurement process prior to the completion of this process could impair the present or imminent contract
awards related to this procurement, I concur with the MTA FOIL Team’s decision to deny access to the
requested records that are part of this active procurement process. Additionally, by submitting a second
“follow-up” FOIL request for the same records that were previously denied does not remove the duplicative
nature of the latter FOIL request, nor the continued requests for reconsideration that are outside of the
procedures set forth by the FOIL statute. These attempts to circumvent the FOIL statute by submitting
repetitive, redundant, and reiterative FOIL requests to try and take another bite at the same apple cause the
wasteful and unnecessary repetition of agency efforts and resources, and are not permitted. 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.")
For the reasons stated above, your appeal of FOIL request #R003301-031724 and “request for
reconsideration” of FOIL request #R002642-012824 are both hereby denied.
This completes the MTA’s response to your FOIL appeal, and this FOIL appeal will now be closed.
Sincerely,
.
Harris Berenson
Deputy General Counsel
cc: Committee on Open Government
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FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 12 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 6 FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 12 2 Broadway RECEIVED NYSCEF: 06/12/2024 NewYork, NY 10004 212 878-7000 Tel Metropolitan Transportation Authority State of NewYork Via email: jbpegram@earthlink.net, bqrail@earthlink.net April 29, 2024 John B. Pegram 496 1st Street Brooklyn, NY 11215 Re: Freedom of Information Law ("FOIL") Appeal re: MTA FOIL Request #R003301-031724 and “Request for Reconsideration” re: MTA FOIL Request #R002642-021824 Dear Mr. Pegram: I am writing in response to your FOIL appeal, dated April 9, 2024 and received by the MTA FOIL Appeals Office on April 15, 2024, regarding the denial of your FOIL request #R003301-031724, which specifically sought, “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.” This same letter also included a “Request for Reconsideration” of MTA FOIL #R002642-021824. You had previously submitted a separate FOIL request (FOIL #R002642-012824) asking for the same above- mentioned records that you later again requested in FOIL request #R003301-031724. The first FOIL request (#R002642-012824) was previously denied under §87(2)(c) of the FOIL statute, appealed, and then denied on appeal on February 27, 2024. Per the FOIL statute, your administrative remedies for this FOIL request have been exhausted, and as such, this “request for reconsideration” has no standing and is thereby moot. For reference purposes, I will reiterate that as of the date of this letter, the subject contract remains not yet finalized. Due to the active status of this procurement, and the relevance of the requested records to the procurement process, the release of these records would inhibit "the interests of [the agency] in achieving the optimum result in awarding a contract to a supplier of goods or services or in reaching a collective bargaining agreement." See, Matter Verizon N.Y., Inc. v. Bradbury, 40 A.D.3d 1113, 1115 (2d Dept 2007) ("the disclosure of documents could result in an inequality of knowledge amongst the bidders, depriving the agency of the benefits of the competitive bidding process, and depriving the bidder with the resulting lesser knowledge of a fair opportunity to be awarded the contract"). Further, the Committee on Open Government (“COOG”) advised that, " ... §87(2)(c) is intended to ensure that government agencies are not placed at a disadvantage at the bargaining table and to ensure that there is a ‘level playing field.’” See FOIL Advisory Opinion No. 18737, Committee on Open Government. Disclosure of records pertaining to Contract C32520 would indeed impair a present or imminent contract award and cause substantial injury to the competitive position of the subject enterprise. The records you seek pertaining to Contract C32520 fall within the scope of this FOIL exemption and therefore, such records were properly withheld. The FOIL appeal decision from February 27, 2024 still stands. I will also reiterate that you are free to submit a new FOIL request for these records once the procurement is awarded. The agenciss of the MTA MTANewYork City Transit MTAMetro-North Railroad MTAConstruction & Developrnent MTAI..ong laland Rail Road MTABridges and Tunnels MTABus Cornpany FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 06/12/2024 Your current FOIL appeal re: FOIL request #R003301-031724 challenges the MTA FOIL Team’s March 28, 2024 decision to deny access to these same records that were previously requested in your FOIL request # R002642-012824, denied, and then denied on appeal on February 27, 2024. FOIL request #R003301-031724 was denied pursuant to NYPOL §87(2)(c), echoing the previous decision’s grounds that the requested records are part of an active procurement and "if disclosed would impair present or imminent contract awards or collective bargaining negotiations." Due to the fact that the negotiation and evaluation processes related to this active procurement are presently ongoing, and release of these records that are part of this active procurement process prior to the completion of this process could impair the present or imminent contract awards related to this procurement, I concur with the MTA FOIL Team’s decision to deny access to the requested records that are part of this active procurement process. Additionally, by submitting a second “follow-up” FOIL request for the same records that were previously denied does not remove the duplicative nature of the latter FOIL request, nor the continued requests for reconsideration that are outside of the procedures set forth by the FOIL statute. These attempts to circumvent the FOIL statute by submitting repetitive, redundant, and reiterative FOIL requests to try and take another bite at the same apple cause the wasteful and unnecessary repetition of agency efforts and resources, and are not permitted. 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.") For the reasons stated above, your appeal of FOIL request #R003301-031724 and “request for reconsideration” of FOIL request #R002642-012824 are both hereby denied. This completes the MTA’s response to your FOIL appeal, and this FOIL appeal will now be closed. Sincerely, . Harris Berenson Deputy General Counsel cc: Committee on Open Government