December 29, 2017 Jon Campbell USA TODAY Network Albany Bureau 150 State Street Albany, NY 12208 Re: ESD FOIL Request #2365 – Appeal Dear Mr. Campbell: Empire State Development (“ESD”) received your appeal on December 14, 2017, concerning your request for records made pursuant to the Freedom of Information Law (“FOIL”)1 on November 27, 2017 for “[a]ny proposals or bids submitted to Amazon for its HQ2 project” and “[a]ny written or electronic correspondence with Amazon about the HQ2 project.” On December 1, 2017, ESD’s Records Access Officer (“RAO”) responded to your FOIL request and informed you that responsive records have been withheld pursuant to Section 87(2)(c) of FOIL “as they contain information that ‘if disclosed would impair present or imminent contract awards.’” In your appeal you assert that “ESD…has not sufficiently made the case that disclosure of New York’s bids for the project would in any way impair its ability to win the Amazon contract.” In your appeal you rely on statements by Amazon that “bidders are ‘free to share any details they would like about their own bids.’” You also assert that the confidentiality and non-disclosure agreement that Amazon required bidders to sign “only applies to ‘certain aspects of the Project and details regarding the company’ and not the bids themselves.” You conclude that “[d]isclosing [New York’s] bids after they have already been submitted to the company – which is well aware of what is included in them – would not impair an imminent contract award.” Discussion Although there is a presumption of access under FOIL, specific exceptions exist in Section 87(2)(c) permitting an agency to withhold records or portions thereof that “if disclosed would impair present or imminent contract awards.” The Committee on Open Government has advised that “the key word in that provision…is ‘impair’, and the question under that provision involves whether or the extent to which disclosure would ‘impair’ the process by diminishing the ability of the government to reach an optimal agreement on behalf of the taxpayers…consideration of the effects of disclosure is the primary factor in determining the extent to which §87(2)(c) may justifiably be asserted.”2 With regard to ESD’s response to Amazon’s Request for Proposals (“RFP”), Amazon has yet to select a winning bidder. As has been publicly reported, ESD is one of many entities that 1 Public Officers Law (POL), §84, et seq. 2 NYS Committee on Open Government Advisory Opinion No. 10795 (Apr. 27, 1998). submitted a response to Amazon’s RFP.3 As specifically delineated in Amazon’s RFP, Amazon reserves its right to negotiate with any entity that responded to its RFP. The RFP states that “Amazon may select one or more proposals and negotiate with the parties submitting such proposals before making an award decision, or it may select no proposals and enter into no agreement.”4 Therefore, even though ESD has submitted its proposal to Amazon, terms will continue to be negotiated; ESD does not and cannot presume that any finality exists in the RFP process because an award has not been announced. To be sure, the management of information flow in a negotiation is of critical importance to its success. Information about ESD’s assumptions, valuations, interests, and objectives are closely guarded as they affect its ability to negotiate. Additionally, the release of this information could be used by ESD’s competitors in an effort to pursue Amazon and other businesses away from New York State. Premature release of this information would impair ESD’s ability to engage in meaningful contract negotiations. Despite your assertion that Amazon is not requesting that the bids themselves be kept confidential, that determination is not within Amazon’s purview; rather, it is up to the government entity to determine whether the disclosure would impair its ability to negotiate a contract. Once again, the purpose of the exception under Section 87(2)(c)is to prevent a government entity from losing its ability to negotiate a contract that is most favorable to New York State. Conclusion In making his determination, ESD’s RAO appropriately invoked an exemption under Section 87(2)(c) of FOIL. Therefore, your appeal is denied. Sincerely, Julene Beckford Associate Counsel and Records Access Appeals Officer cc: Robert J. Freeman, Executive Director, NYS Committee on Open Government Lesley Hall, Records Access Officer, Empire State Development 3 Amazon received “238 proposals from cities and regions in 54 states, provinces, districts, and territories across North America.” Amazon announces 238 proposals for HQ2 from across North America, Amazon.com, https://www.amazon.com/b?ie=UTF8&node=17044620011 (last visited Nov. 28, 2017). 4 Amazon HQ2 RFP, at 7, https://images-na.ssl-imagesamazon.com/images/G/01/Anything/test/images/usa/RFP_3._V516043504_.pdf (last visited Nov. 28, 2017).