Mar 4
2022
iPost sues over suppressed stadium records
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Investigative Post filed a lawsuit Monday in state Supreme Court seeking the release of an engineering report that assessed the condition of Highmark Stadium.
Erie County Executive Mark Poloncarz and Pegula Sports and Entertainment have asserted the stadium is in need of replacement. But the county, which commissioned an engineering study completed in 2021, has refused to provide details.
The study, conducted by the engineering firm DiDonato Associates, identified problems with the upper deck and water and electrical systems while concluding that the 50-year-old stadium “remains in overall fair to good condition.”
Investigative Post requested a copy of the report via the state Freedom of Information Law on Sept. 27. The county responded by providing a heavily redacted copy of the study — 170 of its 182 pages were blacked out.
The county claimed releasing the report in full “could endanger the life or safety of any person who enters the stadium.” The county also claimed releasing the study would “most certainly impair an imminent contract award” involving negotiations for a new Bills stadium.
Investigative Post appealed the decision, but that appeal was rejected by the county, aside from providing a small number of charts and photographs. The county, in essence, argued that it was withholding information that could be used to plan a terrorist attack on the stadium.
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“Erie County Executive Mark Poloncarz and the Pegulas would have us believe the stadium is beyond repair, but the county won’t release the details of the engineering study on which they presumably base their claims,” said Investigative Post Editor Jim Heaney.
“This lack of transparency, this blatant violation of the Freedom of Information Law, is outrageous, especially given the amount of money state and county taxpayers are going to be asked to fork over to help build a replacement stadium for the Bills.”
Working with lawyers from the Cornell Law School First Amendment Clinic, Investigative Post argues in its lawsuit that Erie County has not — and cannot — justify its redactions to the study under the FOI Law.
To legally justify withholding information under FOIL’s life and safety exemption, the county must make a particularized showing of the danger to life and safety that would result from the study’s release. Investigative Post argues in its lawsuit that the county has not made the required showing.
Further, the county cannot invoke the life and safety exemption for information that is similar in detail and sensitivity to information already available to the public through other sources. On this point, the state has already released other studies related to the future of the Bills stadium, including a detailed condition assessment study completed in 2019.
“New York agencies cannot evade FOIL’s presumption of openness through speculative references to possible threats,” said Christina Neitzey, an attorney with the Cornell First Amendment Clinic. “This is especially true where information similar in detail and sensitivity to the study Investigative Post seeks is already available to the public.”
Representatives from Pegula Sports & Entertainment, the firm that oversees operations of the Bills and the Buffalo Sabres for owners Kim and Terry Pegula, have described renovating Highmark Stadium as “just not realistic.”
A 2014 study conducted by the private firm AECOM estimated that it would cost $540 million for the next round of renovations at Highmark Stadium. That study cited the need for various structural improvements and rebuilding of the stadium’s upper deck.
Last November, a study commissioned by the state pegged the cost of renovating Highmark Stadium at $862 million.
Following the release of the state study, Poloncarz expressed support for constructing a new stadium, saying renovation “probably does not make sense.”
This is the second time in recent months that Investigative Post has sued in an effort to obtain public records related to the stadium project.
We previously filed suit on Dec. 1 against the state’s Empire State Development Corp., after it rejected our FOI request for two studies commissioned by Pegula Sports and Entertainment.
One study considered options for a stadium location, the other the economic impact of the Bills, Sabres and other business holdings of the Pegulas in Buffalo and Rochester.
Investigative Post maintained in its lawsuit that the studies were public record, as they had been shared with the state. The state rejected our FOI request on the grounds that the studies, “if disclosed, would impair present or imminent contract awards.” But three weeks after being sued, the state abandoned that position and released the two studies.
“These documents were always public records and Empire State Development withheld them, gambling that no one would expend the time and money it takes to file a lawsuit to force their release. They lost that gamble,” said Michael Higgins, assistant director of the Civil Rights and Transparency Clinic at the University at Buffalo Law School.
The Bills are demanding a new 60,000-seat, open-air stadium in Orchard Park that would be financed in part by state and county taxpayers. The stadium would cost $1.4 billion, with taxpayers putting up as much as $1 billion.
Negotiations between the team and county and state officials have been conducted in secret. Poloncarz and representatives of Gov. Kathy Hochul have refused to brief members of the county and state legislatures, who must approve any agreement. By contrast, members of the NFL’s stadium committee have said the Bills have kept them updated on negotiations.
“It’s clear that Poloncarz and Hochul want to keep the public in the dark about anything having to do with the stadium until they’ve concluded negotiations,” Heaney said. “We’re standing up for the public’s right to know.”
