State relents on Buffalo Billion records

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

I interrupt the state’s incessant stonewalling of my efforts to use public records to track the Buffalo Billion program to report some progress.

Cuomo administration officials, for more than a year, refused to release documents related to the selection of LPCiminelli to develop SolarCity’s sprawling plant in South Buffalo.

The SUNY Research Foundation and the Fort Schuyler Management Corp. went to great lengths to thwart my efforts to obtain records under the state Freedom of Information Law, as I documented in December.

Alain Kaloyeros and his associates at Fort Schuyler wouldn’t budge when the state Committee on Open Government issued a legal opinion in March that rejected their position that they aren’t subject to the FOI Law. Thus the stonewalling continued.

Their intransigence left Investigative Post little choice but to take Fort Schuyler to court, which we did on May 18 when we filed what’s known as an Article 78 petition. We did so with the moral and financial support of our partners at WGRZ. Essentially, we asked that a state Supreme Court judge rule on whether Fort Schuyler was subject to the FOI Law.

Then, and only then, did Kaloyeros and his crew budge.

Very quietly, they posted the documents we had requested a year earlier on their website. Without informing us, of course. I came across the records as I was wrapping up a story on the state’s lack of transparency involving the Buffalo Billion that published June 21 and 22 in newspapers across upstate.

The records show, among other things, that LPCiminelli’s proposal was ranked the best among three finalists for the work.

Posting of the documents took away our grounds for suing, so on July 17, we withdrew our legal action.

“Taxpayers should hail this victory in which a small, independent news organization stood up to the Cuomo administration and got it to back down from its lawless efforts to hide public records,” of said David Cay Johnston, president of Investigative Post.

We won the battle. But the larger issue – whether Fort Schuyler is subject to the FOI Law – is unresolved. That’s a battle for another day.

I can only speculate as to why Kaloyeros and Fort Schuyler relented and coughed up the records. But I can’t help but think they wanted to avoid a court case because it could have started a domino effect.

You see, Kaloyeros also controls a similar non-profit agency, the Fuller Road Management Corp., which the state has used to build nano-technology facilities in the Albany area.  The last thing Kaloyeros wants to risk is a court ruling that could lead to Fuller Road being forced to open its books.

Like I said, my speculation.

The Empire State Development Corp. has contracted with Fort Schuyler to develop facilities in Buffalo to accommodate SolarCity, Albany Molecular Research Inc. and IBM. That means many, but not all, Buffalo Billion records can be obtained via FOI through from ESD, which is clearly subject to the law.

Problem is, ESD under Howard Zemsky is dragging its feet in responding to FOI requests I submitted In February, March and April. It’s provided only a sliver of the documents I’ve requested.

Curiously, some of records I’ve requested have been subsequently posted on Fort Schuyler’s website. With the good stuff redacted, of course.

For example, in February I requested Fort Schuyler’s contract with LPCiminelli to develop the SolarCity plant. Some relevant documents were subsequently posted at Fort Schuyler’s website – but all references to how much LPCiminelli is getting paid have been redacted. Here’s one example.

Many other documents we’ve requested from ESD have not been released. They include procurement policies, invoices that show how much developers and subcontracts are getting paid, and quarterly reports detailing the degree to which minority employees and contractors are involved in the construction.

There’s a clear pattern involving both ESD and Fort Schuyler. They fail to voluntarily release Buffalo Billion documents. They do so only under pressure from Investigative Post – be it FOI requests, stories or legal action – and often after redacting key information.

Yet folks like Kaloyeros and Zemsky insist they’ve been transparent, which is, of course, nonsense.

We at Investigative Post are determined to follow the money, and that requires demanding transparency. We’ll continue to press our case with ESD, Fort Schuyler and any other state development agencies that attempt to shield their spending of tax dollars from public scrutiny.