Reclaim Lawsuit

FILED: NEW YORK COUNTY CLERK 01/02/2018 10:52 AM INDEX NO.
150019/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/02/2018
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
In the Matter of
Index No.
RECLAIM NEW YORK,
Petitioner,
VERIFIED PETITION
-against-
NEW YORK STATE URBAN

DEVELOPMENT CORPORATION dba
EMPIRE STATE DEVELOPMENT,
Respondent,
For a Judgment Under Article 78 of the Civil
Practice Law and Rules
Petitioner Reclaim New York for its petition under C.P.L.R. Article 78
against Respondent New York State Development Corporation dba Empire
State Development to compel compliance with the New York Free-

("ESD")
(" FOIL" com-

dom of Information Law, Public Officers Law §§ 84-90 ("FOIL"), and to
pel disclosure of documents relating to the services BBDO USA LLC
("BBDO") provided to ESD from December 2011 to December 2015, alleges as
follows:
Introduction
1. Reclaim New York promotes government transparency initiatives
and educates New York's citizens on how public officials are spending their
tax dollars.
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FILED: NEW YORK COUNTY CLERK 01/02/2018 10:52 AM INDEX NO. 150019/2018
2. Among its activities, Reclaim New York requests government agency
records to shine a light on how taxpayer dollars are spent.
3. ESD is a corporate governmental of the state that was estab-

agency
lished with the purported mission of economic encourag-

promoting growth,
ing new business, and helping to stabilize and diversify local economies.
4. To that end, upon information and belief, ESD agreed to spend at
least $246,500,000 in a contract with BBDO for advertising, marketing and
communications services over the course of four years-2012 to 2015.
5. Despite, however, being a public agency subject to FOIL, ESD refuses
to produce records of taxpayer paid services provided to ESD BBDO for ad-
by
media and communications for campaigns re-

vertising, marketing, branding,
to Taste START-UP Hurricane recon-

lating Masterbrand, NY, NY, Sandy
struction program (aka New York Rising), and New York State Tourism.
6. Without looking at the records of ESD's relationship with BBDO and
documents BBDO's New York taxpayers cannot eval-

reflecting performance,
uate how well ESD is spending their money.
7. Thus, petitioner sent FOIL requests to ESD on July 17, 2017, seeking
four narrow and concise categories of documents:
• ESD/BBDO contract;
• BBDO invoices;
• BBDO certifications; and,
• BBDO work plans.

quarterly
8. ESD has failed to provide most of the documents responsive to the
petitioner's FOIL requests as of the date of this petition, more than five
months after petitioner submitted its FOIL requests.
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9. Accordingly, petitioner files this lawsuit to compel ESD to comply
with the law and to produce the discrete set of public records the petitioner
requested.
Parties
10. Petitioner Reclaim New York is a non-partisan, non-profit organiza-
tion based in New York, New York and qualified as tax exempt under 26
U.S.C. § 501(c)(3) that educates New Yorkers on issues like affordability,
transparency, and empowers them, through training and civic engagement,
to reclaim ownership of their government.
"agency"
11. Respondent ESD is an within the meaning of Public Officers
Law § 86(3).
Jurisdiction and Venue
12. This Court has jurisdiction and venue is proper under CPLR 7804(b)
and 506(b) because all actions at issue in this case took place within New
York County and ESD's principal office is in New York County.
Statement of Facts
A. The FOIL Requests
13. Petitioner sent the FOIL requests at issue to respondent via elec-
tronic mail on July 17, 2017.
14. On July 24, 2017, ESD informed petitioner that it would require
twenty business days to review its records and notify petitioner of the results
of the search for responsive documents.
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15. On August 21, 2017, the twentieth business day later, ESD advised
petitioner that it was continuing to review documents responsive to each of
the FOIL requests
16. On August 23, 2017, petitioner submitted appeals for each of the
FOIL requests as denied because the dates given ESD to re-

constructively by
spond to the requests were unreasonable under the circumstances.
17. On September 7, 2017, ESD provided petitioner with four separate
boilerplate responses asserting that an agency only must provide records in a
time that is reasonable in view of the attendant and repre-

circumstances,
senting, among other things, that ESD required time to contact appropriate
gather and review review them for applicable FOIL ex-

personnel, materials,
emptions, and prepare a final response.
18. ESD somehow also already knew that the requested documents in
each category were subject to potential redactions under FOIL § 87(2).
19. ESD further indicated that it would provide petitioner with updates
or responses to each FOIL request by October 24, 2017.
20. On October 24, 2017, ESD emailed petitioner to advise that it was
continuing to review documents responsive to petitioner's FOIL requests and
that more time would be required to respond to each request.
B. BBDO Contract
21. Petitioner requested a copy of ESD's contract with BBDO for ad
agency services covering Masterbrand, Taste NY, START-UP NY, Hurricane
Sandy reconstruction program (aka New York Rising), and New York State
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(" Request" Re-

Tourism by email dated July 17, 2017 ("Contract Request") (ESD FOIL
quest 2252). (A true and correct copy of the Contract Request is attached as
Exhibit A.)
22. ESD acknowledged the Contract Request on and fur-

July 24, 2017,
ther responded twenty business days later to advise petitioner that it was
continuing to review documents responsive to the Contract Request, and that
a further response would be made on October 24, 2017. (A true and correct
copy of the email message string acknowledging and updating the Contract
Request is attached as Exhibit B.)
23. On August 23, 2017, petitioner appealed by email the constructive
denial of its Contract Request because the 99 days ESD required to provide a
further update or produce the BBDO contract was unreasonable under the
Appeal"
circumstances of the Contract Request (the "Contract Appeal"). (A true and
correct copy of the Contract Appeal is attached as Exhibit C.)
24. Later that ESD copied petitioner on a letter to BBDO purport-

day,
edly enclosing a copy of the BBDO contract documents and asking BBDO to
"submit a detailed justification for the portions of your proposals that you
wish to designate as trade secrets or proprietary information and therefore
disclosure"
withhold from under FOIL § 89(5). (A copy of the August 23, 2017
ESD letter to BBDO is attached as Exhibit D.)
25. On September 7, 2017, ESD responded to the petitioner's Contract
Appeal, asserting that an agency only must provide records in a time that is
reasonable in view of the attendant circumstances, and representing, among
other things, that ESD required time to contact appropriate personnel,
gather and review materials, review them for applicable FOIL exemptions,
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and prepare a final response. (A true and correct copy of the Contract Appeal
response is attached as Exhibit E.)
26. The Contract Appeal response ignored the fact that ESD had a copy
of the BBDO contract documents gathered when petitioner submitted its ap-
peal.
27. The Contract Appeal response also suggested that ESD was pro-
cessing FOIL requests in the order received and that petitioner needed to
wait its turn, even though the BBDO contract documents had already been
gathered and sent to BBDO.
28. The Contract Appeal response further failed to provide infor-

any
mation regarding the status of the contract documents purportedly in
BBDO's hands to be reviewed for trade secrets or proprietary information.
29. The Contract Appeal response repeated that petitioner needed to
wait for an update or response to the Contract Request until October 24,
2017.
30. On October 24, 2017, ESD advised that "ESD continues to review
request" no-
documents responsive to the attached FOIL and that "ESD will
you of the status of its review and endeavor to provide you with re-
tify any
sponsive documents and/or determination(s) made pursuant to FOIL on or
2017."
before December 6, Ex. B.
31. On December 6, 2017, ESD advised that it was in the final stages of
reviewing the contract documents and that "ESD will notify you of the status
of its review and endeavor to provide you with any responsive documents
and/or determination(s) made pursuant to FOIL on or before December 28,
2017."
Ex. B.
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32. On December ESD provided a copy of the BBDO con-

29, 2017, finally
tract, almost six months after the initial request.
C. BBDO Invoices
33. Petitioner requested copies of all "invoices submitted to ESD by
- 2015"
BBDO from January 1, 2011 December 31, along with all supporting
Request"
documentation BBDO provided with the invoices (the "Invoice Request")
(ESD FOIL Request 2253). (A true and correct copy of the Invoice Request is
attached as Exhibit F.)
34. ESD acknowledged the Invoice Request on July 24, 2017, and further
responded business days later to advise petitioner that it was continu-

twenty
ing to review documents responsive to the Invoice Request, and that a further
response would be made on October 24, 2017. (A true and correct copy of the
email message and the Invoice Request is at-

string acknowledging updating
tached as Exhibit G.)
denial of its Invoice Request because the 99 days ESD required to provide a
further update or produce the BBDO invoices was unreasonable under the
Appeal" cor-
circumstances of the Invoice Request (the "Invoice Appeal"). (A true and
rect copy of the Invoice Appeal is attached as Exhibit H.)
36. On September ESD responded to the petitioner's Invoice Ap-

7, 2017,
that an must provide records in a time that is rea-

peal, asserting agency only
sonable in view of the attendant circumstances, and representing, among
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and prepare a final response. (A true and correct copy of the Invoice Appeal
response is attached as Exhibit I.)
37. The Invoice Appeal response did not state with any specificity
whether any records had been located, the volume of the records requested,
the FOIL exemptions that may be applicable, the scope of the review, and the
nature of a final response that would need to be prepared.
38. The Invoice Appeal response also suggested that ESD was processing
FOIL requests in the order received and that petitioner needed to wait its
but failed to provide with information the vol-

turn, any specificity regarding
ume and nature of requests ahead of petitioner's Invoice Request.
39. The Invoice Appeal response repeated that petitioner needed to wait
for an update or response to the Invoice Request until October 24, 2017.
request,"
documents responsive to the attached FOIL that "[a]n initial search
returned approximately 12,000 invoices with multiple attachments for each
invoice" en-
and that "ESD will notify you of the status of its review and
deavor to provide you with any responsive documents and/or determination(s)
2018."
made pursuant to FOIL on or before May 1, Ex. G.
41. ESD's October 2017 response did not provide information re-
24, any
garding what needed to be reviewed in the BBDO invoices that would keep
ESD from disclosing the invoice records immediately.
42. ESD also has not provided any reasons why it will not disclose BBDO
invoices and related documents to petitioner as they are reviewed, rather
than, presumably, all at once on May 1, 2018.
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43. ESD, however, did invite petitioner to narrow or clarify its request at
any time.
44. On November petitioner asked ESD whether ESD has sum-

7, 2017,
maries of the contents of the invoices that could be disclosed.
45. The BBDO contract provided that all invoices from BBDO should be
submitted monthly along with a completed invoice summary.
46. to the BBDO ESD should have 48 in-

According contract, monthly
voice summaries from the four years of the contract that it can disclose to the
petitioner.
47. has not responded to petitioner's in-

ESD, however, inquiry regarding
voice summaries.
D. BBDO Certifications
48. Petitioner requested copies of all "certifications BBDO provided to
ESD from television and radio stations regarding advertising purchase plans
dates and times commercials aired with the outlets and pack-
including along
ages purchased as part of any advertising buy along with estimated number
listeners" Request"
of viewers and/or (the "Certifications Request") (ESD FOIL Request
2254). (A true and correct copy of the Certifications Request is attached as
Exhibit J.)
49. ESD acknowledged the Certifications Request on July 24, 2017, and
further responded twenty business days later to advise petitioner that it was
continuing to review documents responsive to the Certifications Request, and
that a further response would be made on October 2017. (A true and cor-
24,
rect of the email message and the Certi-

copy string acknowledging updating
fications Request is attached as Exhibit K.)
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denial of its Certifications Request because the 99 days ESD required to pro-
vide a further update or produce the BBDO certifications was unreasonable
under the circumstances of the Certifications Request (the "Certifications Ap-
peal" Ex-
peal"). (A true and correct copy of the Certifications Appeal is attached as
hibit L.)
51. On September ESD responded to the petitioner's Certifica-

7, 2017,
tions Appeal, asserting that an agency only must provide records in a time
that is reasonable in view of the attendant circumstances, and representing,
other that ESD required time to contact appropriate person-

among things,
gather and review review them for applicable FOIL exemp-

nel, materials,
and prepare a final response. (A true and correct of the Certifica-

tions, copy
tions Appeal response is attached as Exhibit M.)
52. The Certifications Appeal response did not state with any specificity
53. The Certifications Appeal response also suggested that ESD was pro-
wait its turn, but failed to provide with any specificity information regarding
the volume and nature of requests ahead of petitioner's Certifications Re-
quest.
54. The Certifications Appeal response repeated that petitioner needed
to wait for an update or response to the Certifications Request until Octo-
ber 24, 2017.
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request" no-
tify any
2017."
before December 28,
56. ESD did not provide responsive documents on December 28, 2017,
but instead sent an email the next that "ESD continues to re-
day advising
request"
view documents responsive to the attached FOIL and that "ESD will
notify any
2018."
before February 12,
E. BBDO Quarterly Work Plans
57. Petitioner requested copies of all "quarterly work plans submitted to
- contract" Request"
ESD by BBDO under its 2011 2015 (the "Work Plans Request")
(ESD FOIL Request 2255). (A true and correct of the Work Plans Re-
copy
quest is attached as Exhibit N.)
58. ESD acknowledged the Work Plans Request on July 24, 2017, and
further responded twenty business days later to advise petitioner that it was
continuing to review documents responsive to the Work Plans Request, and
that a further response would be made on October 2017. (A true and cor-
24,
rect copy of the email message string acknowledging and updating the Work
Plans Request is attached as Exhibit O.)
denial of its Work Plans Request because the 99 days ESD required to pro-
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vide a further update or produce the BBDO work plans was unreasonable un-
Appeal"
der the circumstances of the Work Plans Request (the "Work Plans Appeal").
(A true and correct copy of the Work Plans Appeal is attached as Exhibit P.)
60. On September 7, 2017, ESD responded to the petitioner's Work Plans
Appeal, asserting that an agency only must provide records in a time that is
reasonable in view of the attendant circumstances, and representing, among
and prepare a final response. (A true and correct of the Work Plans Ap-
copy
peal response is attached as Exhibit Q.)
61. The Work Plans Appeal response did not state with any specificity
62. The Work Plans Appeal response also suggested that ESD was pro-
wait its turn, but failed to provide with any specificity information regarding
the volume and nature of requests ahead of petitioner's Work Plans Request.
63. The Work Plans Appeal response repeated that petitioner needed to
wait for an update or response to the Work Plans Request until October 24,
2017.
request" no-
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tify any
2017."
before December 28,
65. ESD did not provide responsive documents on December 28, 2017,
but instead sent an email the next that "ESD continues to re-
day advising
request"
view documents responsive to the attached FOIL and that "ESD will
notify any
2018."
before February 12,
Cause of Action: Article 78
Review of Wrongful Denial of FOIL Requests
66. Petitioner repeats and re-alleges paragraphs 1 through 65 as if fully
set forth in this paragraph.
67. Article 78 is the appropriate method of review of FOIL re-

agency
quest determinations.
68. Petitioner has a right under FOIL to the records requested.
69. Petitioner has sought and has been constructively denied production
of records government expenditures and the conduct of official busi-

reflecting
ness.
70. Respondent's failure to produce documents under the circumstances
of the requests is not justified under FOIL.
71. Respondent its actions has refused to perform its of disclo-

by duty
sure.
72. Respondent has failed to invoke exemptions from production un-

any
der FOIL and failed to produce any records sought by petitioner.
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73. Respondent has failed to provide any information to meet its burden
under FOIL to provide specific and particular reasons for withholding the
records requested.
74. By operation of FOIL, the ESD has denied the Contract Request, the
Invoice the Certifications and the Work plans Request (to-

Request, Request,
Requests"
gether, the "FOIL Requests").
75. Petitioner has exhausted its administrative remedies and has no
other remedy at law.
76. Petitioner has not made any prior application for the relief requested.
Relief Requested
77. Petitioner respectfully requests that this Court issue an order:
a. Declaring that (i) the respondent acted unlawfully in failing to
produce records in response to the FOIL and the re-

Requests; (ii)
spondent must release the requested records;
b. Directing respondent to produce to petitioner within five days of
the date of the order, the records requested in the petitioner's
FOIL Requests;
attorneys' lit-
c. Awarding attorneys fees and costs reasonably incurred in this
igation as allowed under FOIL; and
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d. Granting such other and further relief as this Court may deem
just and proper.
Dated: Albany, New York
January 2, 2018
Respectfully submitted,
Cameron J. Macdonald
Government Justice Center
100 State Street, Suite 410
Albany, New York 12207
(518) 434-3125
cam@govjustice,org
Counsel for Petitioner
15
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VERIFICATION
STATE OF NEW YORK )

:ss
COUNTY OF ALBANY )
Cameron J. Macdonald, being duly sworn, deposes and says:
I am the attorney for Reclaim New York, Petitioner in the above-captioned
action.
I have reviewed the foregoing Petition and know its contents to be true to
except as to the matters therein stated to be alleged on infor-

my knowledge,
mation and belief, and that as to those matters I believe them to be true
based on my review of pertinent documents and conversations with persons
with personal knowledge.
This verification is made by me rather than Petitioner Reclaim New York
because the Petitioner resides outside Albany County where I maintain my

office.
Cameron J. Macdonald
Sworn and. subscribed before me

this
~ of January, 2018
Notary Public
NISCHINTH D. SADHAK
Public, State of New York
Notary
No. 01SA6213816
Qualified in Saratoga County
Commission Expires November 23, RQ
16 of 47
Exhibit A
Reclaim New York
From: Reclaim New York

Sent: Monday, July 17, 2017 3:49 PM
To: esd.sm.foil
Subject: FOlL Request - Reclaim New York
Dear Records Access Officer,
Pursuant to the Freedom of Information Law, Article 6 of the Public Officers Law, I request a copy of the
following records from Empire State Development: an electronic copy of the contract ESD awarded to BBDO in
2011 that terminated in November 2015 which covered Masterbrand, Taste NY, START-UP NY, Hurricane
Sandy reconstruction program (aka New York Rising), and New York State Tourism. Please include any and all
amendments and addendums to the contract including any changes in scope and program of work.
The preferred method for sending this is by e-mail to foil2@reclaimnewyork.org.
As you know, the Freedom of Information Law requires that an agency respond to a request within five
business days of a request.
Thank you for your prompt consideration of my request. If you have any questions, or if I can be of any
assistance, please e-mail me at foil2@reclaimnewyork.org
Candice DiLavore
Program Manager
RECLAIM NEW YORK
597 5th 7th Floor
Avenue,
New York, NY 10017
O: 646.781.7800
@ReclaimNewYork
17 of 47
NYSCEF DOC. NO. 1 RECEIVED B
NYSCEF: 01/02/2018
Exhibit
Reclaim New York
From: esd.sm.foil <FOlL@esd.ny.gov>
Sent: Wednesday, December 6, 2017 5:04 PM

To: Reclaim New York
Cc: esd.sm.foil
Subject: (#2252 FOlL Request - Status Update
DiLavore)
Attachments: DiLavore FOlL Request #2252 - Reclaim New York .pdf
Categories: Related to Salesforce
Dear Ms. DiLavore,
Please be advised that ESD is in the final stages of reviewing the documents responsive to the attached FOIL request for
appropriate redactions. ESD will notify you of the status of its review and endeavor to provide you with any responsive
documents and/or determination(s) made pursuant to FOIL on or before December 28, 2017.
Thank you.
Records Access Officer

FOIL@esd.ny.gov .
From: esd.sm.foil
Sent: Tuesday, October 24, 2017 5:21 PM
York'
To: 'Reclaim New
Cc: esd.sm.foil
Subject: #2252 FOIL Request - Status Update
Dear Ms. DiLavore
Please be advised that ESD continues to review documents responsive to the attached FOIL request in accordance with
(" FOIL"
the Freedom of Information Law (Public Officers Law, Section 85 et; seg.) ("FOIL") and its rules concerning access to ESD's
records. ESD will notify you of the status of its review and endeavor to provide you with any responsive documents
and/or determination(s) made pursuant to FOIL on or before December 6, 2017.
Thank you.

FOIL@esd.ny.gov .
From: esd.sm.foil
Sent: Monday, August 21, 2017 5:23 PM
To: 'Reclaim New York'; esd.sm.foil
Subject: RE: (#2252 2253 2254 2255 DiLavore) FOIL Request - Status Update
Dear Ms. DiLavore
(" FOIL"
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and/or determination(s) made pursuant to FOIL on or before October 24, 2017.
Thank you

FOIL@esd.ny.gov .
From: Reclaim New York [mailto:foil2@reclaimnewyork.orgl

Sent: Tuesday, July 25, 2017 2:20 PM
To: esd.sm.foil
Subject: RE: (#2252 2253 2254 2255 FOIL Request - Acknowledgement
DiLavore)
ATTENTION: r
This email came r from ..
an external source. r Do not open
y. attachmentsP or click on links from unknown r
senders or
r a emails.
unexpected u
Records Access Officer,
Thank you for confirming receipt of the FOIL request I sent to Empire State Development. I look forward to hearing your
22nd
determination on or before August 22"'.
Candice DiLavore
Program Manager
RECLAIM NEW YORK
597 5th 7th Floor
Avenue,
New York, NY 10017
O: 646.781.7800
@ReclaimNewYork
From: esd.sm.foil [mailto:FOIL@esd.ny.govl .

Sent: Monday, July 24, 2017 9:53 AM
To: Reclaim New York <foil2@reclaimnewyork.org>
Cc: esd.sm.foil <FOIL@esd.ny.gov>.
Subject: (#2252 2253 2254 2255 FOIL Request - Acknowledgement

DiLavore)
Dear Mr. DiLavore
ESD is in receipt of the attached FOIL request seeking access to certain records of the New York State Urban
Development Corporation ("UDC") doing business as Empire State Development ("ESD").
ESD is considering your request in accordance with the Freedom of Information Law (Public Officers law, Section 84 et
seg.).) and its rules concerning access to the records of the Corporation. ESD will notify you of the results of its search for
responsive documents within twenty (20) business days.
Thank you.

FOIL@esd.ny.gov .
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IMPORTANT: This e-mail message and any attachments contain information intended for the exclusive use of
the individual(s) or entity to whom it is addressed and may contain information that is proprietary, privileged,
confidential and/or exempt from disclosure under applicable law. If you are not the intended recipient, you are
hereby notified that any viewing, copying, disclosure or distribution of this information may be subject to legal
restriction or sanction. Please immediately notify the sender by electronic mail or notify the System
Administrator by telephone (518)292-5180 or e-mail (administrator@esd.ny.gov) . and delete the message.
Thank you.
IMPORTANT: This e-mail message and any attachments contain information intended for the exclusive use of the
individual(s) or entity to whom it is addressed and may contain information that is proprietary, privileged, confidential
and/or exempt from disclosure under applicable law. If you are not the intended recipient, you are hereby notified that
any viewing, copying, disclosure or distribution of this information may be subject to legal restriction or sanction. Please
immediately notify the sender by electronic mail or notify the System Administrator by telephone (518)292-5180 or e-
mail (administrator@esd.ny.gov) and delete the message. Thank you.
20 of 47
Exhibit C
Reclaim New York

Sent: Wednesday, August 23, 2017 10:44 AM
To: julene.beckford@esd.ny.gov
Subject: FOlL Appeal - #2252
Dear Julene Beckford,
I sent a Freedom of Information Law request to the Records Access Officer for Empire State Development
(ESD), on July 17, 2017 (Request #2252).
I requested an electronic copy of the contract ESD awarded to BBDO in 2011 that terminated in November
2015 which covered Masterbrand, Taste NY, START-UP NY, Hurricane Sandy reconstruction program (aka New
York Rising), and New York. I asked that any and all amendments and addendums to the contract including any
changes in scope and program of work be included. I asked that these records be sent to
foil2@reclaimnewyork.org. .
I received an e-mail from the Records Access Officer on July 24, 2017 confirming receipt of my request and
informing me that I would be notified about the results of ESD's search for responsive documents within 20
business days.
On August 21, 2017, I received another email from the Records Access Officer indicating that ESD was still
reviewing documents responsive to my FOlL request. In this email, the Records Access Officer indicated they
would notify me of the status of the review and endeavor to provide me with any responsive documents
and/or determination(s) made pursuant to FOlL on or before October 24, 2017.
According to Article 6, Section 89(3)(a):
each entity subject to the provision of this article, within five business days of the receipt of a written
request for a record reasonably described, shall make such record available to the person requesting it,
deny such request in writing or furnish a written acknowledgement of the receipt of such request and a
statement of the approximate date, which shall be reasonable under the circumstances of the
request, when such request will be granted or denied (emphasis added)
In reference to Article 6, Section 89(3)(a) Robert Freeman, Executive Director of the Committee on Open
Government, advised:
The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure. They
are not intended to permit agencies to wait until the fifth business day following the receipt of a
request and then twenty additional business days to determine rights of access, unless itis reasonable
request."
to do so based upon the "circumstances of the request (FOll-AO-f15323)
In the FOlL request I submitted, the records are reasonably described. The records requested are not
complicated or voluminous. A delay of 99 days is unreasonable under the circumstances of the request, and I
am appealing the denial of my request.
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Section 89(4)(a) of the Freedom of Information Law, requires the head, chief executive, or governing body of
the entity, or whomever is designated to determine appeals, to respond within 10 business days of the receipt
of an appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as
required by law.
In addition, the Freedom of Information Law directs that all appeals and the determinations that follow be
sent to the Committee on Open Government, Department of State, One Commerce Plaza, 99 Washington
Avenue, Albany, New York 12231.
I look forward to your prompt response.
Candice DiLavore
Program Manager
RECLAIM NEW YORK
597 5th 7th Floor
Avenue,
New York, NY 10017
O: 646.781.7800
@ReclaimNewYork
22 of 47
Eg¶ORK Empire State
Exhibit D
q°"™=
Development
August 23, 2017
Mr. Dana Perry

EVP, CFO
BBDO New York
1285 Avenue of the Americas
New York, NY 10019
Dana.Perry@bbdo.com
Re: FOIL No. 2252
Dear Mr. Perry,
I am writing to notify you that Empire State Development ("ESD") has received a request
(" FOIL"
under the provisions of the Freedom of Information Law ("FOIL") for the following documents
related to your company:
"[A]n electronic copy of the contract ESD awarded to BBDO in 2011 that terminated in
November 2015 which covered Masterbrand, Taste NY, START-UP NY, Hurricane Sandy
reconstruction program (aka New York Rising), and New York State Tourism. Please .include
include
any and all amendments and addendums to the contract including any changes in scope and
ofwork."
work."
program of
ESD staff has provided the Records Access Office with the attached documents that
responds to the aforementioned FOIL request. In accordance with section 89(5) of FOIL, we are
now requesting that you submit a detailed justification for the portions of your proposals that you
wish to designate as trade secrets or proprietary information and therefore withhold from
disclosure.
Pursuant to FOIL, ESD cannot withhold entire documents from disclosure if those
documents contain any information that can be disclosed under FOIL. Only those portions of
documents containing information that is not otherwise available and, if released, would cause
your enterprise to suffer a competitive disadvantage, will be withheld. The mere overall claim
that material is trade secret, confidential, or proprietary is not sufficient enough to allow us to
withhold it according to the law.
Your written justification for trade secret protection must be as detailed and specific as
possible. Please refer to page numbers, letters, titles and sections of your proposal to identify
proprietary information. Submission should identify specific material for which trade secret
protection is being sought and should provide a detailed justification explaining why the
information is so unique that trade secret protection is appropriate - otherwise the material may
be released by ESD.
Empire State Development

633 Third Avenue, New York, NY 10017
(212} 803-3100 I www.esd.ny.gov
23 of 47
Pursuant to the Public Officers Law, Section 89(5)(b)(2), a commercial entity has ten
(10) business days to submit a written justification for trade secret protection. If we do not
receive a response from you within ten business days from the date of this letter, your proposal
will be subject to release as is.
Records Access Office

633 Third Avenue
New York, New York 10017
Email: foil@esd.ny.gov
Should you require additional information or wish to discuss this matter further, please do
not hesitate to contact me at (212) 803-3759. Please refer to the FOIL number above when
referencing this letter.
Sincerely,
Mariel Cohn, Esq.

Records Access Office
24 of 47
ORK Empire State EXhibit E
Development
September 7, 2017
Candice DiLavore
Program Manager
Reclaim New York
597 5th Avenue,
7th Floor
New York, NY 10017
Re: ESD FOIL Request #2252 - Appeal
Dear Ms. DiLavore:
On August 23, 2017, Empire State Development ("ESD") received your appeal concerning a
("FOIL")¹ for
July 17, 2017 request for records made pursuant to the Freedom of Information Law
"an electronic copy of the contract ESD awarded to BBDO in 2011 that terminated in November
2015 which covered Masterbrand, Taste NY, START-UP NY, Hurricane Sandy reconstruction
Tourism."
program (aka New York Rising), and New York State In your appeal you assert that your
"delay"
request has been constructively denied due to a that you deem "unreasonable under the
request."
circumstances of the
As indicated in your appeal, ESD's Records Access Officer ("RAO") acknowledged your
request by email on July 24, 2017 and stated that it would "notify you of the results of its search for
days."
responsive documents within twenty (20) business On August 21, 2017, ESD sent a second
responsive"
email message stating "that ESD continues to review documents to your FOIL request
and "will notify you of the status of its review and endeavor to provide you with any responsive
2017."
documents and/or determination(s) made pursuant to FOIL on or before October 24, All
ESD messages were sent in a timely manner pursuant to POL §89(3)(a).
The New York State Court of Appeals has stated:
There is no specific time period in which the agency must grant access to the records [in
response to FOIL requests]. Indeed, the time needed to comply with the request may be
dependent on a number of factors, including the volume of the request and the retrieval
methods.2
An agency responding to a FOIL request must provide responsive records in a time "which is
reasonable in view of the attendant circumstances."3
Please note that in order to fulfill your request, the RAO has to contact the appropriate staff
members, gather the materials, review them for applicable exemptions pursuant to FOIL and
prepare a final response. Moreover, please note that your request is one of many pending FOIL
requests, including a number of complex FOIL requests, which ESD is processing. A number of these
requests were received prior to your request. ESD is diligently working to prepare responses to all
1 Public Officers Law ("POL"), §84, etseg. .

2 Matter
of Data Tree, LLC v. Romaine, 9 NY 3d 454, 465 (2007)
3 Id.

(212i 803-3100 I www.esd.ny.gov
25 of 47
groTORK Empire State
°"°"™""
Development
FOIL requests and, to the extent that is reasonable given the nature of the request and the
materials, is responding to requests in the order that they were received. Given this context, the
time to process your request is not unreasonable.
The documents that you request are subject to potential redactions pursuant to exemptions
from disclosure under POL §87(2]. In the event ESD determines to make redactions pursuant to one
or more of these exemptions, you may appeal ESD's determination pursuant to FOIL.
Based on the foregoing, your appeal is moot I have confirmed that the RAO is actively
working to respond to your request and will provide you with an update or a response on or before
October 24, 2017.
Sincerely,
Julene Beckford
Associate Counsel and
Records Access Appeals Officer
cc: Robert J. Freeman, Executive Director, NYS Committee on Open Government

Mariel Cohn, Records Access Officer, Empire State Development

(212) 803-3100 I www.esd.ny.gov
26 of 47
Exhibit F
Reclaim New York

To: esd.sm.foil
following records from Empire State Development (ESD): an electronic copy of any and all invoices submitted
ESD by -
to BBDO from January 1, 2011 December 31, 2015. Please include any and all supporting
documentation BBDO provided along with these invoices.
Candice DiLavore
Program Manager
RECLAIM NEW YORK
597 5th 7th Floor
Avenue,
New York, NY 10017
O: 646.781.7800
@ReclaimNewYork
27 of 47
Exhibit G
Reclaim New York

Cc: esd.sm.foil
Subject: (#2253 FOlL Request - Status Update
DiLavore)
Attachments: DiLavore FOlL Request #2253 - Reclaim New York.pdf
Dear Ms. DiLavore,
(" FOIL"
records. An initial search returned approximately 12,000 invoices with multiple attachments for each invoice. As a
result, fulfilling your request will require significant time and review. Thus, ESD will notify you of the status of its review
and endeavor to provide you with any responsive documents and/or determination(s) made pursuant to FOIL on or
before May 1, 2018. Please note that you may narrow or clarify your request at any time.
Thank you.

FOIL@esd.ny.gov .
From: esd.sm.foil
Dear Ms. DiLavore
(" FOIL"
Thank you

FOIL@esd.ny.gov .
From: Reclaim New York [mailto:foil2@reclaimnewyork.orgl

To: esd.sm.foil
DiLavore)
ATTENTION: This email came - from - -

an external source. - Do not open
r- attachments- or click on links from unknown senders or
g P Ag D g
28 of 47
22nd
Candice DiLavore
Program Manager
RECLAIM NEW YORK
597 5th 7th Floor
Avenue,
New York, NY 10017
O: 646.781.7800
@ReclaimNewYork


DiLavore)
Dear Mr. DiLavore
Thank you.

FOIL@esd.ny.gov .
Thank you.
29 of 47
Exhibit H
Reclaim New York

ESD by -
I requested an electronic copy of any and all invoices submitted to BBDO from January 1, 2011
December 21, 2015. I asked that any and all supporting documentation BBDA provided along with the invoices
be included. I asked that these records be sent to foil2@reclaimnewyork.org. .
business days.
request."
In the FOIL request I submitted, the records are reasonably described. A delay of 99 days is unreasonable under the
circumstances of the request, and I am appealing the denial of my request.
30 of 47
required by law.
Candice DiLavore
Program Manager
RECLAIM NEW YORK
597 5th 7th Floor
Avenue,
New York, NY 10017
O: 646.781.7800
@ReclaimNewYork
31 of 47
FyJORK Empire State
°"™""" Exhibit I
Development
September 7, 2017
Candice DiLavore
Program Manager
Reclaim New York
597 5th Avenue,
7th Floor
New York, NY 10017
Dear Ms. DiLavore:
("FOIL")¹ for
"an electronic copy of the contract ESD awarded to BBDO in 2011 that terminated in November
2015 which covered Masterbrand, Taste NY, START-UP NY, Hurricane Sandy reconstruction
Tourism."
program (aka New York Rising), and New York State In your appeal you assert that your
"delay"
request has been constructively denied due to a that you deem "unreasonable under the
request."
circumstances of the
days."
responsive"
2017."
methods.2
requests were received prior to your request. ESD is diligently working to prepare responses to all

2 Matter
3 Id.

(212i 803-3100 I www.esd.ny.gov
32 of 47
°"°"™""
Development
October 24, 2017.
Sincerely,
Julene Beckford


(212) 803-3100 I www.esd.ny.gov
33 of 47
Exhibit J
Reclaim New York

To: esd.sm.foil
following records from Empire State Development (ESD): an electronic copy of any and all certifications BBDO
provided to ESD from television and radio stations regarding advertising purchase plans including dates and
times commercials aired along with the outlets and packages purchased as part of any advertising buy along
with estimated number of viewers and/or listeners.
Candice DiLavore
Program Manager
RECLAIM NEW YORK
597 5th 7th Floor
Avenue,
New York, NY 10017
O: 646.781.7800
@ReclaimNewYork
34 of 47
Exhibit K
Reclaim New York

Cc: esd.sm.foil
Subject: FW: (#2254 2255 FOlL Request - Status Update
DiLavore)
Attachments: DiLavore FOlL Request #2254 - Reclaim New DiLavore FOlL Request #2255 -
York.pdf;
Reclaim New York.pdf
Dear Ms. DiLavore
(" FOIL"
Thank you.

FOIL@esd.ny.gov .
From: esd.sm.foil
Dear Ms. DiLavore
(" FOIL"
Thank you

FOIL@esd.ny.gov .
From: Reclaim New York [mailto:foil2@reclaimnewyork.orqi

To: esd.sm.foil
DiLavore)
ATTENTION: r
y. attachmentsP or click on links from unknown r
senders or
r
unexpected a u
emails.
35 of 47
22nd
Candice DiLavore
Program Manager
RECLAIM NEW YORK
597 5th 7th Floor
Avenue,
New York, NY 10017
O: 646.781.7800
ReclaimNewYork


DiLavore)
Dear Mr. DiLavore
Thank you.

FOIL@esd.ny.gov .
Thank you.
36 of 47
Exhibit L
Reclaim New York

I requested an electronic copy of any and all certifications BBDO provided to ESD from television and radio
stations regarding advertising purchase plans including dates and times commercials aired along with the
outlets and packages purchased as part of any advertising buy along with estimated number of viewers and/or
listeners. I asked that these records be sent to foil2@reclaimnewyork.org. .
business days.
request."
In the FOlL request I submitted, the records are reasonably described. A delay of 99 days is unreasonable
under the circumstances of the request, and I am appealing the denial of my request.
37 of 47
required by law.
Candice DiLavore
Program Manager
RECLAIM NEW YORK
597 5th 7th Floor
Avenue,
New York, NY 10017
O: 646.781.7800
@ReclaimNewYork
38 of 47
ORK Empire State Exhibit M
Development
September 7, 2017
Candice DiLavore
Program Manager
Reclaim New York
597 5th Avenue,
7th Floor
New York, NY 10017
Dear Ms. DiLavore:
("FOIL")¹ for
the following:
[A]n electronic copy of any and all certifications BBDO provided to ESD from television and
radio stations regarding advertising purchase plans including dates and times commercials
aired along with the outlets and packages purchased as part of any advertising buy along
with estimated number of viewers and/or listeners.
"delay"
In your appeal you assert that your request has been constructively denied due to a that you
request."
deem "unreasonable under the circumstances of the
days."
responsive"
2017."
methods.2

2 Matter
3 Id.

(212} 803-3100 I www.esd.ny.gov
39 of 47
°"°"™""
Development
requests were received prior to your request ESD is diligently working to prepare responses to all
October 24, 2017.
Sincerely,
Julene Beckford


(212) 803-3100 I www.esd.ny.gov
40 of 47
Exhibit N
Reclaim New York

To: esd.sm.foil
following records from Empire State Development (ESD): an electronic copy of any and all quarterly work
plans submitted to ESD BBDO under its 2011- â€”2015 contract. These work plans should include
by quarterly
what advertising projects BBDO proposed to develop for all State or ESD sanctioned program in a given
quarter including specific goals for said project, recommendations for demographic targeting, messaging, and
markets as well as what support was needed from ESD.
Candice DiLavore
Program Manager
RECLAIM NEW YORK
597 5th 7th Floor
Avenue,
New York, NY 10017
O: 646.781.7800
@ReclaimNewYork
41 of 47
Exhibit 0
Reclaim New York

Cc: esd.sm.foil
Subject: FW: (#2254 2255 FOlL Request - Status Update
DiLavore)
Attachments: DiLavore FOlL Request #2254 - Reclaim New DiLavore FOlL Request #2255 -
York.pdf;
Reclaim New York.pdf
Dear Ms. DiLavore
(" FOIL"
Thank you.

FOIL@esd.ny.gov .
From: esd.sm.foil
Dear Ms. DiLavore
(" FOIL"
Thank you

FOIL@esd.ny.gov .
From: Reclaim New York [mailto:foil2@reclaimnewyork.orqi

To: esd.sm.foil
DiLavore)
ATTENTION: r
yr attachmentsr or click on links from unknown r
senders or
r
unexpected r r
emails.
42 of 47
22nd
Candice DiLavore
Program Manager
RECLAIM NEW YORK
597 5th 7th Floor
Avenue,
New York, NY 10017
O: 646.781.7800
ReclaimNewYork


DiLavore)
Dear Mr. DiLavore
Thank you.

FOIL@esd.ny.gov .
Thank you.
43 of 47
Exhibit P
Reclaim New York

I requested an electronic of any and all quarterly work plans submitted to ESD by BBDO under its 2011-
copy
2015 contract. These quarterly work plans should include what advertising projects BBDO proposed to
develop for all State or ESD sanctioned programs in a given quarter including specific goals for said project,
recommendations for demographic targeting, messaging, and markets as well as what support was needed
from ESD. I asked that these records be sent to foil2@reclaimnewyork.org. .
business days.
request."
In the FOlL request I submitted, the records are reasonably described. A delay of 99 days is unreasonable
under the circumstances of the request, and I am appealing the denial of my request.
44 of 47
required by law.
Candice DiLavore
Program Manager
RECLAIM NEW YORK
597 5th 7th Floor
Avenue,
New York, NY 10017
O: 646.781.7800
@ReclaimNewYork
45 of 47
¶gTORK
q°"™"n"
Empire State ‰ ~•.
~
Development X I U I L
September 7, 2017
Candice DiLavore
Program Manager
Reclaim New York
597 5th Avenue,
7th Floor
New York, NY 10017
Dear Ms. DiLavore:
("FOIL")¹ for
the following:
[A]n electronic copy of any and all quarterly work plans submitted to ESD by BBDO under
its 2011 - 2015 contract. These work plans should include what
quarterly advertising
projects BBDO proposed to develop for all State or ESD sanctioned program in a given
quarter including specific goals for said project, recommendations for demographic
targeting, messaging, and markets as well as what support was needed from ESD.
"delay"
In your appeal you assert that your request has been constructively denied due to a that you
request."
deem "unreasonable under the circumstances of the
days."
responsive"
2017."
methods.2

2 Matter
3 Id.

(212} 803-3100 I www.esd.ny.gov
46 of 47
°"°"™""
Development
requests were received prior to your request ESD is diligently working to prepare responses to all
October 24, 2017.
Sincerely,
Julene Beckford


(212) 803-3100 I www.esd.ny.gov
47 of 47

Reclaim Lawsuit

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Reclaim Lawsuit

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FILED: NEW YORK COUNTY CLERK 01/02/2018 10:52 AM INDEX NO.

SUPREME COURT OF THE STATE OF NEW YORK

RECLAIM NEW YORK,

NEW YORK STATE URBAN

EMPIRE STATE DEVELOPMENT,

For a Judgment Under Article 78 of the Civil

Practice Law and Rules

against Respondent New York State Development Corporation dba Empire

State Development to compel compliance with the New York Free-

(" FOIL" com-

pel disclosure of documents relating to the services BBDO USA LLC

("BBDO") provided to ESD from December 2011 to December 2015, alleges as

1. Reclaim New York promotes government transparency initiatives

2. Among its activities, Reclaim New York requests government agency

records to shine a light on how taxpayer dollars are spent.

3. ESD is a corporate governmental of the state that was estab-

lished with the purported mission of economic encourag-

4. To that end, upon information and belief, ESD agreed to spend at

least $246,500,000 in a contract with BBDO for advertising, marketing and

communications services over the course of four years-2012 to 2015.

5. Despite, however, being a public agency subject to FOIL, ESD refuses

media and communications for campaigns re-

to Taste START-UP Hurricane recon-

6. Without looking at the records of ESD's relationship with BBDO and

documents BBDO's New York taxpayers cannot eval-

uate how well ESD is spending their money.

four narrow and concise categories of documents:

• BBDO certifications; and,

• BBDO work plans.

8. ESD has failed to provide most of the documents responsive to the

months after petitioner submitted its FOIL requests.

9. Accordingly, petitioner files this lawsuit to compel ESD to comply

10. Petitioner Reclaim New York is a non-partisan, non-profit organiza-

U.S.C. § 501(c)(3) that educates New Yorkers on issues like affordability,

transparency, and empowers them, through training and civic engagement,

to reclaim ownership of their government.

Jurisdiction and Venue

York County and ESD's principal office is in New York County.

A. The FOIL Requests

tronic mail on July 17, 2017.

of the search for responsive documents.

petitioner that it was continuing to review documents responsive to each of

the FOIL requests

FOIL requests as denied because the dates given ESD to re-

spond to the requests were unreasonable under the circumstances.

17. On September 7, 2017, ESD provided petitioner with four separate

boilerplate responses asserting that an agency only must provide records in a

time that is reasonable in view of the attendant and repre-

gather and review review them for applicable FOIL ex-

emptions, and prepare a final response.

each category were subject to potential redactions under FOIL § 87(2).

or responses to each FOIL request by October 24, 2017.

continuing to review documents responsive to petitioner's FOIL requests and

that more time would be required to respond to each request.

21. Petitioner requested a copy of ESD's contract with BBDO for ad

agency services covering Masterbrand, Taste NY, START-UP NY, Hurricane

(" Request" Re-

22. ESD acknowledged the Contract Request on and fur-

continuing to review documents responsive to the Contract Request, and that

Request is attached as Exhibit B.)

23. On August 23, 2017, petitioner appealed by email the constructive

correct copy of the Contract Appeal is attached as Exhibit C.)

24. Later that ESD copied petitioner on a letter to BBDO purport-

wish to designate as trade secrets or proprietary information and therefore