Dec 23


iPost suit prompts release of stadium reports

Hochul administration relents in the face of our lawsuit and releases a portion of the documents Investigative Post sued to obtain under the Freedom of Information Law.

Since August, Investigative Post has been pressing Kathy Hochul’s administration to release two studies related to a proposed new stadium for the Buffalo Bills. 

The state’s response: We couldn’t possibly. The governor’s people told us the documents, “if disclosed, would impair present or imminent contract awards.”

Our response: We filed a lawsuit seeking their release under the state Freedom of Information Law.

In the face of that litigation, the Hochul administration Thursday released what appears to be one of the two studies, along with two other documents that may be a portion of the other report we’re suing to obtain.

Funny how a lawsuit can prompt the government to follow the law, albeit belatedly.

The response from our attorneys:

“These documents were always public records and Empire State Development withheld them, gambling that no one would expend the time and money it takes to file a lawsuit to force their release. They lost that gamble,” said Michael Higgins, assistant director of the Civil Rights and Transparency Clinic at the University at Buffalo Law School. 

Karim Abdulla, of Finnerty Osterreicher & Abdulla, said Thursday’s release “underscores the fact that ESD’s initial denial of access was and is insupportable, and that Investigative Post should have never been required to file a lawsuit to have the information released.”

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The lawsuit, filed Dec. 1 in state Supreme Court, sought the release of two studies commissioned by Pegula Sports and Entertainment and shared with Empire State Development, an arm of state government controlled by the governor.

One study considered the economic impact of the Bills, Sabres and other companies in Buffalo and Rochester owned by Terry and Kim Pegula. That study appears to have been released Thursday.

The other study considered costs and options for a new stadium in Orchard Park and downtown Buffalo, and renovation of the team’s current home in Orchard Park. It’s unclear whether another document posted on ESD’s website fulfills our FOI request.

The agency’s press office on Thursday failed to respond to inquires from Investigative Post about the documents released.

In our lawsuit and supporting documents, we challenged ESD’s original determination that the records were not public. We argued that disclosure would not impede negotiations because Pegula Sports and Entertainment has already shared the two studies with ESD. The only people being kept in the dark are taxpayers, who are expected to be asked to invest up to $1 billion in a new stadium.

“Releasing the studies will not impair a contract award because there are no competitors involved in the stadium negotiations,” our lawsuit contends.

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The manner in which the state disclosed the documents follows a strategy used when governments or corporations want to downplay the release of information. In this case, no announcement was made. Rather, a page on ESD’s website was added with a nondescript headline, followed by links to the documents.

Although Investigative Post filed FOI requests for the reports, then filed the lawsuit seeking their disclosure, the Hochul administration did not provide us the documents, but rather left it up to us to find them on ESD’s website. 

After posting links to the documents, an attorney for ESD contacted Higgins, one of our attorneys, asking us to drop the lawsuit. It is unclear, however, whether ESD has released all the documents we are seeking in their entirety.

Furthermore, the documents were released on a day when public attention isn’t focused on the news: It’s two days before Christmas. Likewise, governments often release information late on a Friday or over the weekend, when interest in the news often wanes, or on especially busy news days when other stories capture headlines. For example, the state released its own study of stadium options on election day this November.

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Erie County is also refusing to release a document requested by Investigative Post under the FOI Law. At issue is an engineering study of Highmark Stadium, the team’s current home. After the study was completed earlier this year, County Executive Mark Poloncarz said renovating the stadium would be cost prohibitive. Investigative Post requested a copy of the engineering report in a FOI request; the county responded by releasing the 235-page report redacted almost in its entirety.

The county said releasing details about the stadium could “endanger the life or safety of any person who enters the stadium.” The county also said releasing the engineering study would “impair an imminent contract award” in light of ongoing stadium negotiations. 

Investigative Post is contemplating legal action seeking release of that study.

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