May 16
2024
A lot of time (422 days) and money ($50,493.50)
- Share on
Photo illustration by Garrett Looker.
Fifty-thousand, four-hundred ninety-three dollars. And fifty cents.
That’s how much a New York state agency paid an Albany law firm to review and redact records about the Tesla factory in South Buffalo before releasing them to Investigative Post. It took the agency 14 months to fulfill the Freedom of Information Law request.
“I think it’s outrageous,” said Paul Wolf, president of the New York Coalition for Open Government. “It’s outrageous to spend $50,000 on an outside attorney to process one FOIL request. And this is for a project that has already received $959 million in public funds.”
All told, the Fort Schuyler Management Corp. took 422 days and spent more than $50,000 to collect and release 4,222 pages of records about the factory New York taxpayers financed. Nearly every page was either partly or entirely redacted. Hundreds were merely sheets of black ink.
Fort Schuyler is the agency used by the state to fund and manage the Tesla facility and other Buffalo Billion ventures.
After learning last year that Fort Schuyler owned 100 acres of land adjacent to the Tesla factory, Investigative Post asked for records detailing plans for the property. State officials previously refused an interview request about the factory, so Investigative Post filed a FOIL request.
Fort Schuyler responded that it had no overall plan for the property but did have records detailing other projects at the factory, some of which — like a parking lot expansion — related to the land. Those documents led to Investigative Post stories about a never-before-publicized pot of state money Tesla uses to make improvements to the facility, as well as stories on the solar panels installed on the factory roof.
Read all of the documents here.
To review and release those records, Fort Schuyler hired the Albany-based law firm Hinman Straub, with most of the work done by a senior partner who charged $375 an hour.
Wolf, whose organization routinely files FOIL requests at all levels of government and advises other requestors, said he’s never heard of such an expensive attorney being involved in a FOIL review.
“Everything in that building should be accessible as far as records and information to the public,” he said. “And then to have to fight to get records for a year. And then for them to spend $50,000 on an attorney to do that. I’ve never heard of it. I’ve never heard of spending that amount of money to process one FOIL request.”
The attorney in question is James Potter, chair of Hinman Straub’s litigation department. Additional records obtained by Investigative Post show he billed for 127 hours at $375 per hour to work on the FOIL request. Paralegals in the firm logged 42 additional hours at $65 per hour. Potter declined an interview request for this story, directing Investigative Post to Steve Ference, a spokesperson for NY CREATES, another state economic development agency affiliated with Fort Schuyler.
In a statement, Ference said Fort Schuyler hired Hinman Straub because the agency’s records access officer died unexpectedly last year and the law firm had experience handling FOIL requests. Ference said “corporate operating revenues” and not taxpayer funds paid the firm for its work. The revenues are public funds, nonetheless.
“We are an organization that has voluntarily complied with FOIL because we believe in transparency. At the same time, it is important to protect data which is entrusted to us by other organizations,” Ference said. “We were forced to use external help to meet the FOIL obligations with which we voluntarily agree to comply and we made numerous requests to clarify and reduce your FOIL request to specific items.”
The extensive redactions were necessary, the agency said, to protect Tesla’s “trade secrets” and identities of individuals mentioned in the documents.
While Ference said Fort Schuyler “voluntarily” complies with FOIL, the state’s Committee on Open Government issued an advisory opinion in 2015 that the agency is a public body that must comply with the open records law.
In the course of reporting a story last year about how Tesla’s plans to manufacture its Solar Roof faltered — meaning unskilled desk jobs replaced the promised high-tech manufacturing jobs at the South Buffalo factory — Investigative Post learned of Fort Schuyler’s land holdings near and behind the facility.
Under the original Buffalo Billion plans, that land was meant to be home to other companies interested in locating near the state-owned factory once it ramped up production. Save for an empty office building and a Tim Hortons, that spin-off development never happened.
Investigative Post wanted to know what the state had planned for the land and asked in March 2023 for “emails, memos, letters, presentations, leases, agreements, contracts and any other records” related to nine properties owned by the state.
Fort Schuyler responded in July: The state had no plans for the 100 acres, but it did have a large volume of records related to other projects at the factory, some of which were taxpayer-funded. Fort Schuyler agreed to provide those records in response to the original FOIL request. The projects included expanding parking lots, adding a boiler, renovating the cafeteria and replacing equipment in the factory.
The state then further delayed its response to the records request. In a July email, Potter explained that “the unique subject of ‘future plans,’’ the very broad nature of the request, [and] the large number of potentially responsive documents” caused him and Fort Schuyler to take so long to process the request.
“FSMC is devoting significant resources to your request and will continue its efforts to get documents to you on an expedited basis,” Potter wrote at the time.
After another three months of delays, Investigative Post filed an appeal, maintaining the failure to produce the records amounted to denial of the request. An appeals officer with Fort Schuyler agreed, and the agency began releasing records on a rolling basis.
Those records first led to a story about a reserve fund the state has used to reimburse Tesla for upgrades and other projects at the factory.
Later batches of records revealed that Tesla had installed solar panels on the roof of the facility. When neither Tesla nor Fort Schuyler would say who manufactured the panels, Investigative Post filed another FOIL request seeking the company’s name. That request ultimately yielded a story about Tesla’s use of Chinese-made panels.
One year after originally filing the request for the land records, Investigative Post FOILed Fort Schuyler again to learn how much time and money it had spent processing the request. In addition to a breakdown of costs, that request revealed that Fort Schuyler received just eight requests in the year spanning February 2023 to March 2024, a fraction of what many other agencies receive.
In email correspondence over the past year, Potter noted that Fort Schuyler dedicated “significant resources” to complying with FOIL. Wolf pointed out that other state agencies handle FOIL requests in-house. He said he was surprised to learn that Fort Schuyler hired outside counsel to process the requests.
“For Fort Schuyler, to get just a handful,” he said, “it would seem to be something they could handle.”
