ESDC loses FOIL case on Columbia project’s files

Community groups gain access to withheld documents since Columbia University and ESDC hired same consultant. Columbia University hired AKRF, a prominent planning firm, to help gain agency approvals for its controversial expansion into Manhattanville. Two months later, the Empire State Development Corporation hired AKRF to conduct a blight study needed to determine if the use of eminent domain as part of Columbia’s plan was appropriate. Columbia paid AKRF’s consulting fees for preparing the blight study under an agreement between ESDC and Columbia.

Both the West Harlem Business Group and Tuck-It-Away Inc. filed FOIL requests, seeking documents in connection with Columbia’s expansion plan and its agreement with ESDC. ESDC denied both FOIL requests, stating the documents were exempt because all communications between agencies and independent consultants are protected under the intra/inter agency exemption. Both groups filed article 78 petitions.

The lower court found that the intra/inter agency exemption did not apply because the consultant’s work for ESDC could not be characterized as impartial since AKRF was working for Columbia to gain ESDC’s approval.

On appeal, the First Department agreed with the lower court. It found that the exemption was not applicable because AKRF could not have offered perfectly objective advice to ESDC since Columbia hired AKRF to help gain ESDC’s approval. Even though ESDC claimed AKRF had effectively implemented a “Chinese Wall” so that consultants working on the blight study did not confer with those working to secure ESDC approval, the First Department disagreed. It seriously doubted AKRF’s neutrality, and resolved the matter in favor of disclosure.

Matter of Tuck-It-Away Assoc., L.P. v. Empire State Dev. Corp., 2008 NY Slip Op 06279, (July 15, 2008) (Attorneys: Carter Ledyard & Millburn LLP, for ESDC; McLaughlin & Stern LLP, for WHBG and Tuck-It-Away).

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