Julene Beckford
Associate Counsel
NYS Urban Development Corp.
d/b/a Empire State Development
633 Third Ave.
37th Floor
New York, NY 10017
Ms. Beckford:
I hereby appeal Empire State Development’s denial of my Nov. 27, 2017, request
under the Freedom of Information Law for access to the following documents:
-

Any proposals or bids submitted to Amazon for its HQ2 project
Any written or electronic correspondence with Amazon about the HQ2 project

The original request is included as an attachment to this letter, as is ESD’s email
denying said request on Dec. 1, 2017.
ESD’s Records Access Office denied the request under §87(2)(c) of the Freedom of
Information Law, which states agencies can withhold access if disclosure would
“impair present or imminent contract awards.”
The “imminent contract awards,” in this case, appears to be Amazon’s pending
decision on where to locate a second headquarters.
ESD, however, 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 fact, Amazon itself has stated publicly that bidders are “free to share any details
they would like to about their own bids,” according to the Seattle Times. (See:
https://www.seattletimes.com/business/amazon/cities-are-free-to-discuss-amazonhq2-bids-but-many-wont/)
While Amazon has required bidders to sign a confidentiality and non-disclosure
agreement, the agreement only applies to “certain aspects of the Project and
details regarding the company” and not the bids themselves, according to the HQ2
Request for Proposals. (See: https://images-na.ssl-imagesamazon.com/images/G/01/Anything/test/images/usa/RFP_3._V516043504_.pdf)

 New York’s bids, meanwhile, have already been submitted to Amazon, which is in
possession of them. Disclosing the 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.
Further, many public entities across the country have made the determination that
publicly disclosing their bids to Amazon would not impair their chances at receiving
the contract. Massachusetts, New Jersey, Toronto, New Hampshire, Washington
D.C., Chicago and Philadelphia are among the many entities that have publicly
released their bids.
FOIL, as you know, is based on a presumption of access. New York’s decision to
withhold its bids from the public does not meet the standard to prevent disclosure
under §87(2)(c). Access should be provided immediately.
As required by FOIL, the head or governing body of an agency, or whomever is
designated to determine appeals, is required 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, please be advised that the Freedom of Information Law directs that all
appeals and the determinations that follow be sent to the Committee on Open
Government.
Sincerely,

Jon Campbell
USA TODAY Network
Albany Bureau
150 State Street
Albany, NY 12208