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FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024
NYSCEF DOC. NO. 8 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
2
FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/12/2024
John B. Pegram
496 1st Street
Brooklyn, NY 11215
bqrail@earthlink.net
February 6, 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: Freedom of Information Law Appeal
FOIL Request No. R002642-012824
Dear Mr. Warren:
I hereby appeal from the denial of my FOIL Request No. R002642-012824, which
was denied citing N.Y. Public Officers Law §87(2)(c). Contrary to the FOIL Unit’s
decision, there does not appear to be any basis for denial of my Request under that
section.
A. Chronology of Request, Clarification and Decision
On January 28, 2024, I made the following Request on the MTA’s FOIL Public
Portal:
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.
1
FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/12/2024
Very promptly, on January 30th, I received an acknowledgment message from the
MTA FOIL Unit by Email, the substance of which said:
We are writing to acknowledge receipt of the above referenced FOIL request.
This is to advise you that we are in the process of reviewing our files for the
records you requested and anticipate being able to furnish you with your
response within sixty (60) business days. Access to any record requested will
be determined in accordance with the Public Officers Law.
Later the same day, I received a denial Email from the MTA FOIL Unit, saying,
in pertinent part:
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.
A little later on the same day, January 30th, I posted a request for reconsideration
on the MTA FOIL Portal .
I have not received any response to my request for reconsideration, therefore, I
am filing this appeal.
B. Argument
I recognize and respect the provisions of N.Y. Public Officers Law §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….” I agree that
my present Request relates to a possible contract. I disagree, however, with the FOIL
Unit’s suggestion that the requested information might impair contract awards or
negotiations.
2
FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/12/2024
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 NYC Committee on Open Government (COOG) explained this Section in
FOIL-AO-17188 at page 1, as follows:
As you know, §87(2)(c) permits an agency to withhold records to the extent
that disclosure "would impair present or imminent contract awards or
collective bargaining negotiations." The key word in that provision in my
opinion is "impair", and the question in the context of the award of contracts
or, as in this situation, collective bargaining negotiations, involves whether or
the extent to which disclosure would "impair" the process by diminishing the
ability of the government to reach an optimal agreement on behalf of the
taxpayers. That a contract has not been signed or ratified, in my view, is not
determinative of rights of access or, conversely, an agency's ability to deny
access to records. Rather, I believe that consideration of the effects of
disclosure is the primary factor in determining the extent to which §87(2)(c)
may justifiably be asserted.
The COOG further 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 request was carefully limited to documents that presumably were provided to
all bidders. Therefore, I suggest that disclosure to me would not impair the pertinent
contract negotiations or awards. To the extent there may be some documents provided to
less than all bidders, they may be excluded from the response.
3
FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/12/2024
C. Conclusion
You should grant this appeal and direct that the MTA FOIL Unit produce any
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
4
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FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 8 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 2 FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/12/2024 John B. Pegram 496 1st Street Brooklyn, NY 11215 bqrail@earthlink.net February 6, 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: Freedom of Information Law Appeal FOIL Request No. R002642-012824 Dear Mr. Warren: I hereby appeal from the denial of my FOIL Request No. R002642-012824, which was denied citing N.Y. Public Officers Law §87(2)(c). Contrary to the FOIL Unit’s decision, there does not appear to be any basis for denial of my Request under that section. A. Chronology of Request, Clarification and Decision On January 28, 2024, I made the following Request on the MTA’s FOIL Public Portal: 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. 1 FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/12/2024 Very promptly, on January 30th, I received an acknowledgment message from the MTA FOIL Unit by Email, the substance of which said: We are writing to acknowledge receipt of the above referenced FOIL request. This is to advise you that we are in the process of reviewing our files for the records you requested and anticipate being able to furnish you with your response within sixty (60) business days. Access to any record requested will be determined in accordance with the Public Officers Law. Later the same day, I received a denial Email from the MTA FOIL Unit, saying, in pertinent part: 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. A little later on the same day, January 30th, I posted a request for reconsideration on the MTA FOIL Portal . I have not received any response to my request for reconsideration, therefore, I am filing this appeal. B. Argument I recognize and respect the provisions of N.Y. Public Officers Law §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….” I agree that my present Request relates to a possible contract. I disagree, however, with the FOIL Unit’s suggestion that the requested information might impair contract awards or negotiations. 2 FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/12/2024 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 NYC Committee on Open Government (COOG) explained this Section in FOIL-AO-17188 at page 1, as follows: As you know, §87(2)(c) permits an agency to withhold records to the extent that disclosure "would impair present or imminent contract awards or collective bargaining negotiations." The key word in that provision in my opinion is "impair", and the question in the context of the award of contracts or, as in this situation, collective bargaining negotiations, involves whether or the extent to which disclosure would "impair" the process by diminishing the ability of the government to reach an optimal agreement on behalf of the taxpayers. That a contract has not been signed or ratified, in my view, is not determinative of rights of access or, conversely, an agency's ability to deny access to records. Rather, I believe that consideration of the effects of disclosure is the primary factor in determining the extent to which §87(2)(c) may justifiably be asserted. The COOG further 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 request was carefully limited to documents that presumably were provided to all bidders. Therefore, I suggest that disclosure to me would not impair the pertinent contract negotiations or awards. To the extent there may be some documents provided to less than all bidders, they may be excluded from the response. 3 FILED: NEW YORK COUNTY CLERK 06/12/2024 03:31 PM INDEX NO. 155380/2024 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/12/2024 C. Conclusion You should grant this appeal and direct that the MTA FOIL Unit produce any 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 4