Cuomo still stonewalling on Buffalo Billion

Reporting, analysis and commentary
by Jim Heaney, editor of Investigative Post

The Cuomo administration has redoubled its efforts to suppress the release of documents that disclose how it is selecting developers and spending money on the Buffalo Billion program.

The Fort Schuyler Management Corp., charged with managing the program, is still refusing to release information sought by Investigative Post despite a legal opinion recently issued by the State Committee on Open Government that concluded the agency is subject to the Freedom of Information Law.

“In my opinion, it is cut and dried,” said Robert Freeman, the committee’s executive director. “It is, in essence, a governmental agency, that it is required to comply with FOIL.”

The Empire State Development Corp., which funds the Buffalo Billion work that Fort Schuyler manages, is now dragging its feet in providing information requested by Investigative Post under the FOI Law. I’ve filed an appeal of ESD’s effective denial of my request.

This is a continuation of the state’s yearlong battle to keep the details of the Buffalo Billion under wraps.

The governor continues to take bows, claiming, among other things, that the program has helped revitalize the local economy to the extent it should be considered “a national success story.”

Nevermind that job growth in Erie and Niagara counties last year lagged behind the nation and rest of New York State – up 2.2 percent across the U.S., 1.2 percent in New York, and 0.8 here at home.

As I reported in December, the SUNY Research Foundation and the Fort Schuyler Management Corp., one of its subsidiaries, have been engaged in a bizarre campaign in an attempt to deny me documents requested under the FOI Law.

I had requested documents that detail the selection of developers for the three big-ticket projects being funded by the Buffalo Billion, including a sprawling solar panel manufacturing plant on the city’s waterfront. The original specs and eventual contract awards raised the spectre of pay to play because LPCiminelli, headed by one of the governor’s biggest campaign contributors in Western New York, was awarded the lion’s share of the work.

Alain Kalayeros, the Albany nanotech guru who Cuomo has charged with managing the Buffalo Billion, stopped talking to me about a year ago when I started asking questions. He then flat out refused to provide documents I requested under the FOI Law, later explaining in an email that he does not “respond to perceived threats and terrorism.”

My subsequent story about his stonewalling created a stir statewide, which his minions were quick to respond to.

One of his lawyers first sent me a letter on Christmas Eve demanding the names and addresses of all my donors. He made this request – get this – under the FOI Law, which, of course does not apply to non-governmental entities. As it is, we list our major donors online.

Kaloyeros then spread the word that the information I was seeking was available at Fort Schuyler’s website. The implication was that they had been transparent all along and I hadn’t bothered checking out their site.

Trouble is, the website Kaloyeros was referring to was launched after my story was published and broadcast. Fort Schuyler’s previous website was nothing more than a splash page containing virtually no information.

What’s more, many of the key documents I had requested under the FOI Law are nowhere to be found on either version of the website.

After months of delay, Fort Schuyler formally rejected my FOI request on Dec. 29. Working with lawyers from the Gannett Co., owners of WGRZ, our primary partner, we subsequently filed an appeal, which Fort Schuyler, of course, rejected.

We then asked Freeman, of the state Committee on Open Government, for an advisory opinion as to whether Fort Schuyler was subject to the FOI Law.

The central issue: Was Fort Schuyler’s status as a 501(c)(3) non-profit corporation grounds to exempt it from complying with the FOI Law?

Freeman’s conclusion: Fort Schuyler functions as an arm of the government and “there is little doubt that a court will find that it is required to comply with FOI,” he said.

You can read his legal opinion here.

With the opinion in hand, the Gannett attorney handling the case for Investigative Post reached out to Fort Schuyler’s lawyer to see if they were prepared to talk. She received no response.

That’s typical of the state’s conduct in this affair, much like a child who closes his eyes and plugs his ears in the hope that the person in front of them will disappear. Except that Investigative Post isn’t going away. Our next step is litigation.

Empire State Development cannot credibly claim it is exempt from the FOI Law. In light of that, I filed an FOI request Feb. 19 seeking records that would, among other things, disclose how much LP Ciminelli and other Buffalo Billion developers are getting paid and who they’ve hired as subcontractors.

More than a month later, ESD has failed to turn over any documents. Instead, its lawyers have written twice saying they need more time to research their records. It’s the ploy governments across the state – and especially state government – use to avoid the timely release of public records.

The last time I heard from them, they said they’d update me again on March 26. That would be 25 business days since I submitted my request.

No dice, guys. I filed an appeal, giving ESD until March 30 to turn over the documents or state their legal justification for withholding them.

While I harbored no illusions about ESD’s willingness to honor my request in a timely fashion, I did hold out a wee bit of hope.

For starters, there’s tension between ESD and Fort Schuyler, or at least Kaloyeros. Some of it most likely involves a battle over turf; certainly there’s resentment over Kalayeros’ high-handed manner and dismissive attitude towards the locals.

Then there’s the fact Howard Zemsky was recently appointed president and CEO of ESD. Zemsky is a thoroughly decent fellow and I alerted him to my FOI request in the hope that he would nudge the bureaucracy he now leads into playing by the rules.

I’m not sure what, if anything Zemsky did, but I do know Andrew Cuomo ultimately calls the shots and the actions of his administration make it clear that Buffalo Billion records won’t be released without a long wait and a hard fight.

Which brings me back to the same questions I had when Fort Schuyler officials were refusing to release records. Is there something so damning in the records that they must be suppressed at all costs? Or is Cuomo and his crowd simply that arrogant and tone deaf?

We’ll find out in the weeks and months ahead.