Charles Weinstock, Petitioner v. EMPIRE STATE DEVELOPMENT (2023)

I. BACKGROUND

Respondent is the lead agency for the Pennsylvania Station Area Civic and Land Use Improvement Project, a mixed-use redevelopment plan for Pennsylvania Station and the surrounding midtown neighborhood in New York County. Over the past two years, petitioner submitted multiple record requests pursuant to New York Public Officers Law § 87(2), the Freedom of Information Law (FOIL), for information about the project. Respondent identified over 9,000 documents with potentially responsive material, disclosed 2,580 documents, and withheld the remainder pursuant to five statutory exemptions. NY Pub. Off. Law § 87(2)(b), (c), (d), (g), and (i). Petitioner appealed the denials, but conceded respondent's claimed exemption under New York Public Officers Law § 87(2)(i). On appeal, respondent affirmed all its other initial determinations.

In this proceeding pursuant to C.P.L.R. Article 78, petitioner originally claimed that respondent failed to provide a "particularized and specific justification" for the withheld records, Gould v. New York City Police Dept., 89 NY2d 267, 275 (1996); Jewish Press, Inc. v. New York City Dept. of Investigation, 190 AD3d 490, 490 (1st Dep't 2021), but now accepts respondent's verified answer as satisfying this procedural requirement. Petitioner's further withdrawal of his challenge to respondent's claimed exemption under Public Officers Law § 87(2)(b) and respondent's disclosure of all records withheld under § 87(2)(d) narrows the petition to respondent's remaining two claimed exemptions, under § 87(2)(c) and (g), plus petitioner's claim for attorneys' fees and expenses. NY Pub. Off. Law § 84(c)(iii). For the reasons explained below, the court grants the petition in part. C.P.L.R. § 7803(3).

II. STANDARDS OF REVIEW

In an Article 78 proceeding based on FOIL, "the standard of review is whether the denial of the FOIL request was affected by an error of law, for which review is limited to the grounds invoked by the agency in its determination." Barry v. O'Neill, 185 AD3d 503, 505 (1st Dep't 2020) (citations omitted). See C.P.L.R. § 7803(3); Aron Law, PLLC v. New York City Dept. of Educ., 192 AD3d 552, 552 (1st Dep't 2021); Jewish Press, Inc. v. New York City Police Dept., 190 AD3d at 490. Petitioner is entitled to attorneys' fees and expenses only if he substantially prevails in this proceeding. NY Pub. Off. Law § 89(4)(c)(ii); Madeiros v. New York State Educ. Dept., 30 NY3d 67, 79 (2017); Jaskaran v. City of New York, 210 AD3d 428, 428 (1st Dep't 2022); Jaskaran v. City of New York, 200 AD3d 418, 419 (1st Dep't 2021); Dioso Faustino Freedom of Info. Law Request v. City of New York, 191 AD3d 504, 505 (1st Dep't 2021).

II. FREEDOM OF INFORMATION LAW

Public Officers Law § 87(2) requires that a government agency:

shall, in accordance with its published rules, make available for public inspection and copying all records, except those records or portions thereof that may be withheld pursuant to the exceptions of rights of access appearing in this subdivision. A denial of access shall not be based solely on the category or type of such record and shall be valid only when there is a particularized and specific justification for such denial. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:

. . .

(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;

. . .

(g) are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations;

iv. external audits, including but not limited to audits performed by the comptroller and the federal government.

FOIL's fundamental purpose is transparency: "To promote open government and public accountability." Abdur-Rashid v. New York City Police Dept., 31 NY3d 217, 224 (2018); Gould v. New York City Police Dept., 89 NY2d at 274. See Tuck-It-Away Assoc., L.P. v. Empire State Dev. Corp., 54 AD3d 154, 162 (1st Dep't 2008), aff'd sub nom. West Harlem Bus. Group v. Empire State Dev. Corp., 13 NY3d 882 (2009). In reviewing a FOIL denial, the court must "presume that all records of a public agency are open to public inspection and copying, and must require the agency to bear the burden of showing that the records fall squarely within an exemption to disclosure." Rauh v. de Blasio, 161 AD3d at 125 (quoting New York Comm. for Occupational Safety & Health v. Bloomberg, 72 AD3d 153, 158 (1st Dep't 2010)). Thus the statute must be construed liberally and its exemptions narrowly, "so that the public is granted maximum access" to government records. Rauh v. de Blasio, 161 AD3d 120, 125 (1st Dep't 2018) (quoting Town of Waterford v. New York State Dept. of Envtl. Conservation, 18 NY3d 652, 657 (2012).

A. Present or Imminent Contract Awards Exemption

Respondent withheld 270 documents pursuant to Public Officers Law § 87(2)(c), the present or imminent contract awards exemption, which respondent divided into six categories: (1) draft term sheets and related emails, (2) draft memoranda of understanding and related emails, (3) draft cost letters and related emails, (4) draft business terms or frameworks and related emails, (5) legal memoranda and analyses, and (6) a self-titled "non-final" financial analysis that respondent prepared with its consultants. Categories (1) through (5) consist of documents exchanged between respondent and nonparty Vornado Realty Trust, a real estate investor with ownership interests in five of the eight real property sites inside the project area. Category (6) consists of a report that respondent prepared with nonparty Ernst & Young Infrastructure Advisors, LLC, a financial advisory services firm, for respondent's contract negotiations with Vornado Realty Trust or its affiliates, which both parties refer to interchangeably as "Vornado."

Petitioner contends that the present or imminent contract awards exemption is inapplicable because respondent has not entered, nor is about to enter, a developer agreement with either Vornado or another developer of a property site inside the project area. Respondent concedes that it has not finalized its contract with Vornado and that negotiations with other developers have not begun, but maintains that a contract with Vornado is imminent and that disclosure of the withheld documents would impair respondent's future contract negotiations with other developers over the remaining three sites.

Although petitioner and respondent vigorously dispute whether respondent's prospective developer agreement with Vornado is "imminent," both parties overlook whether the agreement first qualifies as a "contract award." NY Pub. Off. Law § 87(2)(c). A "contract award" does not simply refer to any contract between respondent and Vornado, as this interpretation would render the term "awards" after "contract" in Public Officers Law § 87(2)(c) superfluous. See Walsh v. New York State Comptroller, 34 NY3d 520, 524 (2019); Anonymous v. Molik, 32 NY3d 30, 37 (2018); Lynch v. City of New York, 194 AD3d 416, 418 (1st Dep't 2021). For "awards" to add meaning to the statute, the term first must be construed in its context: "awards" must relate to a "contract" with the same agency that seeks to withhold its records. Second, because the statute does not provide a definition, the court looks to the "ordinary and accepted meaning," DeVera v. Elia, 32 NY3d 423, 435 (2018); Makhani v. Kiesel, 211 AD3d 132, 141 (1st Dept 2022); Breest v. Haggis, 180 AD3d 83, 88 (1st Dept 2019), of "contract awards."

Other New York statutes refer to "contract awards" as contracts procured through a competitive bidding process, when a government agency issues a request for proposals (RFP), solicits and evaluates bids from the private sector, and ultimately grants a government contract to the lowest bidder. NY Gen. Mun. Law §§ 101, 103, 104-b, 120-w; NY State Fin. Law §§ 135, 139-j, 139-k. Courts have used "awards" similarly in this context. Acme Bus Corp. v. Orange County, 28 NY3d 417, 425 (2016); L&M Bus Corp. v. New York City Dept. of Educ., 17 NY3d 149, 156 (2011); E.W. Howell Co., LLC v. City Univ. Constr. Fund, 149 AD3d 479, 480 (1st Dep't 2017); Awl Indus., Inc. v. Triborough Bridge & Tunnel Auth., 41 AD3d 141, 142 (1st Dep't 2007). Therefore the court interprets "contract awards" as agreements that result from a competitive bidding process initiated by a government agency. See Verizon New York, Inc. v. Bradbury, 40 AD3d 1113, 1115 (2d Dep't 2007).

Respondent (ESD) currently is negotiating a development agreement with Vornado for sites 4 through 8, pursuant to the project's General Project Plan (GPP):

It is expected that prior to development of Sites 4, 5, 6, 7, and 8, ESD will enter into a development agreement with the Site's developer, acquire a property interest in the Site, and ground lease the Site to the developer. Such agreements will include the material terms of the transaction, including PILOT, PILOST and PILOMRT. For each of Sites 4, 5, 6, 7, and 8 (which are currently owned, partially owned, or controlled by Vornado and other private entities), ESD would enter into these transactions with the developer of the Site.

For each of Sites 1, 2, and 3 (if any of those Sites are part of the preferred alternative in the federal review and approval process for the potential Penn Station expansion), it is expected that ESD would acquire a property interest in each Site, enter into a development agreement, and ground lease the Site to the developer, and it is expected that each such developer would be designated pursuant to a competitive Request for Proposals ("RFP") process.

Aff. of Charles Weinstock Ex. AA, at 21-22. According to the GPP, respondent's expected agreement with Vornado does not contemplate a competitive RFP process, unlike the agreements that will be negotiated for sites 1-3. In fact, respondent admitted that it "has no records responsive" to petitioner's request, id. Ex. D, at 2, regarding "the use of competitive bidding in the sale of any of the Project Sites." Id. at 1. Because Vornado faces no competition in negotiating the expected development agreement with respondent, the agreement does not constitute a contract award under Public Officers Law § 87(2)(c). Verizon New York, Inc. v. Bradbury, 40 AD3d at 1115.

Respondent relies on Murray v. Troy Urban Renewal Agency, Inc., 84 AD2d 612, 613 (3d Dep't 1981), aff'd, 56 NY2d 888, 890 (1982), where a government agency withheld an appraisal prepared by an independent consultant pursuant to Public Officers Law § 87(2)(c). Notably, Murray predated Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 (1985), which specifically allowed an agency to withhold records prepared by an independent outside consultant. Yet even Murray acknowledged that Public Officers Law § 87(2)(c) applied because the agency's solicitation of proposals and bids from the private sector established the basis for the agency's nondisclosure, holding that: "As long as the process of the agency will normally result in the award of a contract, the literal language of the statute is met." Murray v. Troy Urban Renewal Agency, Inc., 84 AD2d at 613, aff'd, 56 NY2d at 890 (emphasis added).

Here, respondent did not issue an RFP or otherwise engage in a "competitive bidding procedure" for any of Vornado's sites. Laborers' Intl. Union of N. Am., Local No. 17 v. New York State Dept. of Transp., 280 AD2d 66, 70 (3d Dep't 2001). Absent such a process, respondent erred in applying Public Officers Law § 87(2)(c), which warrants public disclosure of respondent's records. C.P.L.R. § 7803(3); Verizon New York, Inc. v. Bradbury, 40 AD3d at 1115; Laborers' Intl. Union of N. Am., Local No. 17 v. New York State Dept. of Transp., 280 AD2d at 70.

Even were the court to consider Vornado's development agreement an imminent contract award, however, respondent still fails "to establish the specific harm it would suffer if the documents were disclosed," Verizon New York, Inc. v. Bradbury, 40 AD3d at 1115, through "specific, persuasive evidence that disclosure will cause it to suffer a competitive injury." Markowitz v. Serio, 11 NY3d 43, 51 (2008). Respondent may "not merely rest on a speculative conclusion that disclosure might potentially cause harm." Id. In Murray v. Troy Urban Renewal Agency, Inc., 84 AD2d at 613, aff'd, 56 NY2d at 890, the agency withheld the appraisal report because it reflected the value of several parcels of real property the agency planned to sell. The Third Department held that the appraisal was exempt because "disclosure of such material will be likely to impair the competitive offers of the public as to redevelopment and/or purchase of the properties by unduly focusing upon information in the possession of [the agency] as influencing a fair price or offer." Id. Here, respondent is not considering any other offer, since Vornado is redeveloping its own properties.

Respondent also insists that disclosure of the withheld records will impair respondent's future contracts with the developers of sites 1, 2, and 3, but admits that respondent has not even commenced negotiations with the owners or developers of these sites. The negotiations are prospective and any contracts are eventual, not imminent, as respondent has yet to issue an RFP. See Murray v. Troy Urban Renewal Agency, Inc., 84 AD2d at 613, aff'd, 56 NY2d at 890.

Nor does respondent adequately explain how its draft agreements and correspondence with Vornado would impair future negotiations over sites 1, 2, and 3, which are unrelated to Vornado's properties. Verizon New York, Inc. v. Bradbury, 40 AD3d at 1115; Laborers' Intl. Union of N. Am., Local No. 17 v. New York State Dept. of Transp., 280 AD2d at 70. Respondent insists that, if negotiations are disclosed as they proceed to a final contract, they might impact other potential developers' participation in the project, yet respondent concedes that it cannot articulate how such an impact would occur. Again, respondent's position is but a "speculative conclusion that disclosure might potentially cause harm," Markowitz v. Serio, 11 NY3d at 51, and fails "to establish the specific harm it would suffer if the documents were disclosed." Verizon New York, Inc. v. Bradbury, 40 AD3d at 1115, through "specific, persuasive evidence that disclosure will cause it to suffer a competitive injury." Markowitz v. Serio, 11 NY3d at 51. Moreover, once Vornado has consummated a final agreement with respondent, which will be public, Vornado's draft agreements will be "no longer be considered 'competitively sensitive' and therefore exempt from FOIL disclosure under Public Officers Law § 87(2)(c)." Empire Golf Mgt., LLC v. Olivieri, 18 AD3d 334, 335 (1st Dep't 2005). See Laborers' Intl. Union of N. Am., Local No. 17 v. New York State Dept. of Transp., 280 AD2d at 70; Cross-Sound Ferry Servs. v. Department of Transp., 219 AD2d 346, 349 (3d Dep't 1995).

Consequently, respondent shall disclose all records withheld under Public Officers Law § 87(2)(c), except for the "non-final" financial analysis identified in category (6). The court addresses that analysis, which respondent withheld under both § 87(2)(c) and § 87(2)(g), below.

B. Intra-Agency and Inter-Agency Exemption

Respondent withheld a "non-final" financial analysis plus 4,427 other documents under Public Officers Law § 87(2)(g), the intra-agency and inter-agency exemption, which respondent divided into three categories: (1) communications between respondent and Ernst & Young or its subcontractor, nonparty BJH Advisors, regarding financial analyses, strategies, and projected revenues for the project; (2) communications between respondent and Ernst & Young, BJH Advisors, or other government officials and agencies, including the Metropolitan Transportation Authority, New York State Division of the Budget, New York State Governor's Office, New York City Mayor's Office, and New York City Economic Development Corporation, regarding financial analyses, strategies, presentations, and financing for the project; and (3) logistical and other communications between respondent and Ernst & Young or BJH Advisors regarding the project.

The intra-agency and inter-agency exemption allows an agency to withhold records prepared by an independent outside consultant, so long as the agency has retained that consultant, and it functions as the agency's employee or agent. Xerox Corp. v. Town of Webster, 65 NY2d at 133; Rauh v. de Blasio, 161 AD3d at 126; Tuck-It-Away Assoc., L.P. v. Empire State Dev. Corp., 54 AD3d at 162, aff'd sub nom. West Harlem Bus. Group v. Empire State Dev. Corp., 13 NY3d 882. The exemption encourages "people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure." Rauh v. de Blasio, 161 AD3d at 125 (quoting New York Times Co. v. City of New York Fire Dept., 4 NY3d 477, 488 (2005)). Thus records that reflect "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" are exempt from disclosure, Jewish Press, Inc. v. New York City Dept. of Investigation, 193 AD3d at 463 (quoting Gould v. New York City Police Dept., 89 NY2d at 277), in contrast to factual data or objective information, which must be disclosed. NY Pub. Off. Law § 87(2)(g)(i); New York Times Co. v. City of New York Fire Dept., 4 NY3d at 490; Gould v. New York City Police Dept., 89 NY2d at 277; Xerox Corp. v. Town of Webster, 65 NY2d at 133; Jewish Press, Inc. v. New York City Dept. of Investigation, 193 AD3d at 461.

Petitioner relies on Tuck-It-Away Assocs., L.P. v. Empire State Dev. Corp., 54 AD3d at 164, aff'd sub nom. West Harlem Bus. Group v. Empire State Dev. Corp., 13 NY3d 882, which similarly involved respondent's nondisclosure of records prepared by Ernst & Young. When it prepared the records, however, Ernst & Young also was employed by Columbia University, which sought respondent's approval to proceed with a development project. Because Ernst & Young simultaneously served two clients, where one held a financial interest in the other's decisions, the First Department held that consultant "communications lose their exemption if there is reason to believe that the consultant is communicating with the agency in its own interest or on behalf of another client whose interests might be affected by the agency action addressed by the consultant." Id., 54 AD3d at 164.

Petitioner acknowledges that the intra-agency exemption typically protects consultant communications, but maintains that a cost-sharing agreement between respondent and Vornado shows that it is responsible for payments to Ernst & Young, which, according to petitioner, creates a conflict of interest that precludes respondent from invoking the exemption. Respondent maintains that Ernst & Young is not compromised by any conflict, because it lacks any relationship with Vornado in connection with the project.

The cost-sharing agreement provides that:

Developer Obligation to Pay Certain Costs of the Work. To advance the Work, Developer agrees to pay, in accordance with this letter agreement, the Developer Portion (as defined below) of the reasonable out-of-pocket costs that may be incurred in good faith on and after the date of this letter by ESD (the "Costs of the Work"). As of the date hereof, the Costs of the Work consist of all costs incurred by ESD in establishing and maintaining the Imprest Account (defined below) and all costs for legal services, environmental review, neighborhood conditions studies, appraisal services, architectural services for above-grade project site planning, and financial advisor services performed prior to and after the date of this letter. . . .

. . . .

As used in this letter agreement, "Developer Portion" shall mean (a) for Costs of the Work or the portion thereof that the provider thereof can reasonably allocate and separately invoice the portion thereof to the Development Parcels owned or controlled by Developer or its affiliates (a "Covered Development Parcel"), 100% and (b) for Costs of the Work for which the provider cannot reasonably allocate and separately invoice the portion thereof to the Covered Development Parcel, 50%. The parties understand and acknowledge that legal services performed in connection with the environmental review of the Project, and in defending against a lawsuit challenging ESD's approval thereof, cannot reasonably be allocated to particular parcels. Accordingly, the "Developer Portion" with respect to such legal services shall mean the fees charged for 50% of the hours spent, and 50% of the expenses incurred, in providing such services.

Reply Aff. of Charles Weinstock Ex. A ¶ 2. Vornado thus agreed to pay "costs for . . . financial advisor services performed prior to and after the date of this letter," which includes Ernst & Young's services to respondent. Id. The agreement does not, however, bar respondent from paying Ernst & Young directly for its services. Even though Vornado is contractually obligated to pay for financial advisor services, this provision is for respondent's sole benefit, allowing respondent to waive the provision's enforcement. W.W.W. Assoc. v. Giancontieri, 77 NY2d 157, 162 (1990); DLJ Mtge. Capital Corp., Inc. v. Fairmont Funding, Ltd., 81 AD3d 563, 564 (1st Dep't 2011); 28 Props. v. Akleh Realty Corp., 309 AD2d 632, 633 (1st Dep't 2003). Gabriella Green, respondent's Vice President of Planning and Real Estate, attests that respondent is in fact paying Ernst & Young directly for its work related to the project and not subjecting that work to the cost-sharing agreement with Vornado. Green thus establishes a waiver of Vornado's obligation to pay for Ernst & Young's consulting work.

Green further attests that, based on her conversations with Vornado, none of respondent's consultants or their subcontractors has contracted with Vornado in relation to the project. Although this evidence is inadmissible hearsay, petitioner presents no other evidence that Ernst & Young is compromised by a conflict of interest with Vornado. Therefore any inference that Ernst & Young has a conflict of interest would be speculation. Dashdevs LLC v. Capital Markets Placement, Inc., 210 AD3d 525, 526 (1st Dep't 2022); Dragons 516 Ltd. v. GDC 138 E 50 LLC, 201 AD3d 463, 464 (1st Dep't 2022); Carlyle, LLC v. Quik Park 1633 Garage LLC, 160 AD3d 476, 477 (1st Dep't 2018). Absent a demonstrated conflict of interest, Tuck-It-Away Assocs., L.P. v. Empire State Dev. Corp., 54 AD3d at 164, does not apply.

Although petitioner fails to establish that this proceeding falls under Tuck-It-Away Assocs., respondent nonetheless "failed to demonstrate the applicability of the . . . intra-agency exemption, since some or all of the materials may constitute 'factual tabulations or data' . . . , which do not fall within this exemption." Thomas v. Condon, 128 AD3d 528, 530 (1st Dep't 2015) (quoting NY Pub. Off. Law § 87(2)(g)(i)). See New York Times Co. v. City of New York Fire Dept., 4 NY3d at 490; Gould v. New York City Police Dept., 89 NY2d at 277; Xerox Corp. v. Town of Webster, 65 NY2d at 133. The court may not consider the applicability of this exemption and its exception, however, without an in camera review. Data Tree, LLC v. Romaine, 9 NY3d 454, 464 (2007); Xerox Corp. v. Town of Webster, 65 NY2d at 133; Jewish Press, Inc. v. New York City Dept. of Investigation, 193 AD3d at 461. Respondent insists that its financial analysis and underlying data are not factual data subject to disclosure because they constitute "opinions, ideas or advice," Gould v. New York City Police Dep't, 89 NY2d at 277, and its financial analysis report is "non-final." All these labels are conclusory and impossible to assess when respondent has not provided the documents to the court for review.

Moreover, the analysis or other use of projected, estimated, or recommended factual tabulations or data to support an opinion, an idea, or advice does not convert the facts and data themselves "into an expression of opinion subject to a FOIL exemption" or into other creative thought. Mulgrew v. Board of Educ. of City School Dist. of City of New York, 87 AD3d 506, 507 (1st Dep't 2011). Regarding any financial analysis, projection, or opinion, respondent does not explain how it could formulate such a report absent underlying factual data. If it is based on market performance over a past period, for example, petitioner is entitled to that data.

Consequently, respondent shall submit all records withheld under the intra-agency and inter-agency exemption for an in camera review within 20 days after entry of this order, for the court to determine whether these records include "statistical or factual tabulations or data," NY Pub. Off. Law § 87(2)(g)(i); New York Times Co. v. City of New York Fire Dept., 4 NY3d at 487-88; Gould v. New York City Police Dept., 89 NY2d at 277; Xerox Corp. v. Town of Webster, 65 NY2d at 133; Jewish Press, Inc. v. New York City Dept. of Investigation, 193 AD3d at 461, or material that formed the basis for or was adopted in a final agency policy or determination. NY Pub. Off. Law § 87(2)(g)(iii); Empire Ch. of the Associated Bldrs. & Contrs., Inc. v. New York State Dept. of Transp., 211 AD3d 1155, 1157 (3d Dep't 2022). See Sell v. New York City Dept. of Educ., 135 AD3d 594, 595 (1st Dep't 2016). Even respondent concedes that material that formed the basis for or was adopted in a final agency policy or determination is not exempt from disclosure. Respondent also may submit a privilege log of any proposed redactions of and explanations why numerical or other factual data are exempt from disclosure. Data Tree, LLC v. Romaine, 9 NY3d at 464.

C. Attorneys' Fees

Finally, petitioner seeks reasonable attorneys' fees for his time spent and expenses incurred in this proceeding and the underlying administrative appeals. Under Public Officers Law § 89(4)(c), the court:

(i) may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, and when the agency failed to respond to a request or appeal within the statutory time; and (ii) shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access.

Respondent maintains that petitioner, although an attorney, is not entitled to attorneys' fees because he represents himself. If petitioner substantially prevails, however, he is entitled to fees as an attorney himself, Kohler-Hausmann v. New York City Police Dept., 133 AD3d 437, 438 (1st Dep't 2015); Gedan v. Town of Mamaroneck (NY), 170 AD3d 833, 834 (2d Dep't 2019), and for his retained co-counsel. Since petitioner has obtained disclosure of categories (1) - (5) of the records withheld under Public Officers Law § 87(2)(c), petitioner substantially prevailed with respect to those records. Thus he is entitled to his reasonable attorneys' fees and expenses incurred in this proceeding and in the underlying agency appeal regarding the records withheld under the imminent contract awards exemption. Madeiros v. New York State Educ. Dept., 30 NY3d at 79; Jaskaran v. City of New York, 210 AD3d at 428; Jaskaran v. City of New York, 200 AD3d at 419; Dioso Faustino Freedom of Info. Law Request v. City of New York, 191 AD3d at 505.

Petitioner is entitled further to reasonable attorneys' fees and expenses for his efforts in obtaining the records withheld under Public Officers Law § 87(2)(d), the trade secrets exemption, because respondent disclosed those records in response to the petition. Jaskaran v. City of New York, 210 AD3d at 428; Jaskaran v. City of New York, 200 AD3d at 419; Dioso Faustino Freedom of Info. Law Request v. City of New York, 191 AD3d at 505. Respondent candidly admits that the petition prompted a second review of the records, V. Answer ¶ 142, which led to further disclosures and ultimately resulted in respondent's waiver of this exemption and full disclosure. Jaskaran v. City of New York, 210 AD3d at 428; Jaskaran v. City of New York, 200 AD3d at 419; Dioso Faustino Freedom of Info. Law Request v. City of New York, 191 AD3d at 505. The court will determine whether petitioner is entitled to attorneys' fees and expenses for seeking the records withheld under Public Officers Law § 87(2)(g) after reviewing the records. Thomas v. Condon, 128 AD3d at 530.

IV. CONCLUSION

For the reasons explained above, the court grants the petition in part. C.P.L.R. § 7808(3). Within 20 days after entry of this order, respondent shall disclose all records withheld under Public Officers Law § 87(2)(c), except the records in respondent's category (6), identified above, which respondent shall submit to the court in camera, for a determination of whether those records must be disclosed. Respondent also shall submit all records withheld under Public Officers Law § 87(2)(g) to the court in camera within 20 days after entry of this order. Respondent may provide a privilege log of any proposed redactions of and explanations why numerical or other factual data are exempt from disclosure.

The court reserves its decision on whether respondent is entitled to withhold its records under Public Officers Law § 87(2)(g) and on the full extent to which petitioner is entitled to attorneys' fees and expenses until after the court completes the in camera review. Moreover, if further evidence emerges that Ernst & Young is compromised by a conflict of interest with Vornado, the court may reassess whether respondent may claim the exemption under § 87(2)(g) for communications involving Ernst & Young or its subcontractor BJH Advisors.

The parties agree to share the expenses of a referee appointed by the court to review and recommend any disclosure of respondent's records withheld under Public Officers Law § 87(2)(g). Therefore, within 10 days after entry of this order, the parties shall submit to the court information identifying (a) one or more referees to whom the parties mutually agree or, if the parties cannot agree, (b) up to three referees each party proposes. This decision constitutes the court's order.

DATED: May 11, 2023

_____________________________

LUCY BILLINGS, J.S.C.

Lucy Billings, J.