iPost sues over suppression of records

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Investigative Post has sued a state development corporation so intent on withholding records involving the Buffalo Billion program that a leading state official likened efforts to obtain them under the Freedom of Information Law to an act of terrorism.

Investigative Post has asked the State Supreme Court to rule on whether the Fort Schuyler Management Corp. is subject to the state FOI Law. WGRZ and the Gannett Company are helping to finance the lawsuit that was filed Monday in Albany.

Fort Schuyler is managing the construction of three facilities that will house SolarCity, IBM and Albany Molecular Research Inc., which have been recruited to establish operations in the city under the Buffalo Billion program. The three projects are in line for $855 million in state assistance.

Investigative Post filed a FOI request in July 2014 seeking records related to the selection of LPCiminelli and McGuire Development to develop the facilities. Louis Ciminelli, the owner of LPCiminelli, has been a major contributor to Cuomo’s gubernatorial campaign and McGuire gave the Cuomo campaign a large donation several months after being awarded a Buffalo Billion contract.

Fort Schuyler, after a considerable delay, refused to release documents that detailed the process used to select LPCiminelli and McGuire. Officials contend Fort Schuyler is exempt from the FOI Law because it is a non-profit corporation. Rather than release the requested documents, Fort Schuyler officials produced a summary that cast the selection process in a favorable light and provided it to a competing news outlet.

Alain Kaloyeros, the nanotech guru anointed by Cuomo to manage the Buffalo Billion program through his role as vice president of Fort Schuyler, offered a further explanation to Investigative Post in an email in November, declaring: “We are not political operatives nor do we respond to perceived threats and terrorism.

The New York Committee on Open Government subsequently issued an advisory opinion in March that concluded Fort Schuyler functions as a government entity and is subject to the FOI Law. Fort Schuyler officials have continued to insist they are not subject to the law, thus prompting the legal action by Investigative Post.

“I think the bigger picture here is bringing transparency and sunlight to an issue of significant public interest and concern,” said Karim Abdulla, one of the attorneys retained by Investigative Post to pursue the case.

“We’re talking about the Buffalo Billion, we’re talking about hundreds of millions of dollars of public money that’s being spent and we don’t know how,” he said.

The lawsuit has statewide implications. The state under Cuomo is making greater use of non-profits like Fort Schuyler to manage economic development projects. Claiming these non-profits are exempt from the FOI Law provides the Cuomo administration a pretext for withholding records that detail the spending of large sums of taxpayer dollars.

Fort Schuyler manages projects in Syracuse and Utica, in addition to the Buffalo Billion. More projects could follow there and elsewhere, as Cuomo has said the Buffalo Billion is a model he’d like to emulate across upstate.

Joseph Finnerty, lead attorney on the case, said Fort Schuyler’s stonewalling reflects a growing trend of governments at all levels to withhold public records.

“It happens all the time and it’s getting worse and worse and worse. That’s why the media has to step up and challenge it,” Finnerty said.

Two spokesmen for Fort Schuyler did not respond to requests for comment.

Fort Schuyler is not the only state entity that has failed to provide Buffalo Billion documents under the FOI Law.

The Empire State Development Corp., which funds the Buffalo Billion work that Fort Schuyler manages, has provided only a few records to Investigative Post through FOI requests, the first of which dates to February. In addition to withholding records, ESD officials have refused to grant interview requests from Investigative Post since it filed the FOI requests.