Aug 2


Ruling in iPost stadium lawsuit

Much more of conditions study is released, but judge, citing security concerns, keeps portions confidential

More details of an engineering study assessing the condition of Highmark Stadium, home of the Buffalo Bills, have been made public following a ruling in a lawsuit brought by Investigative Post.

The judge, however, ruled in favor of Erie County’s insistence that portions of the study  remain confidential because of security concerns.

Investigative Post filed a lawsuit against Erie County in state Supreme Court on Feb. 28 seeking the study after the county provided only a heavily redacted copy of the study in which 170 of its 182 pages were blacked out.

The county essentially argued that it was withholding information that could be used to plan a terrorist attack on the stadium. In denying a Sept. 27 request under the state Freedom of Information Law, officials insisted that releasing the report in full “could endanger the life or safety of any person who enters the stadium.”

Investigative Post, represented by the Cornell Law School First Amendment Clinic, disputed that contention.

“Mark Poloncarz and the Pegulas were making the public argument that the stadium was beyond repair, yet didn’t want to release the study that their claim was presumably based on,” said Jim Heaney, editor of Investigative Post.

“We believed the public had a right to know because the stadium is a public facility and taxpayers were likely to foot most of the bill to pay for a new stadium. As it turned out, the deal to build a new stadium involves more than $1 billion in public funds.”

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The county relented, to a degree, after the lawsuit was filed by agreeing to allow Investigative Post reporters, attorneys and a certified engineer to review an unredacted, updated version of the study in county offices. That review took place March 25. Investigative Post was not allowed to walk away with the unredacted study, however.

“Our attorneys concluded there was nothing in the study that should have been redacted,” said Jim Heaney, editor of Investigative Post. “Actually, it was surprising how much mundane information the county was trying to suppress.”

Lawyers for the county argued otherwise to Supreme Court Judge Donna Siwek. In a ruling handed down July 5, Siwek accepted the county’s security concerns.

“While iPost’s reasons for seeking disclosure of the redacted material are laudable, it has been noted that where records are accessible under FOIL, they should be made equally available to any person, regardless of one’s status or interest or the intended use of the records. Therefore, disclosure in this instance would permit disclosure to a different individual who might not share the same intent,” according to the judge’s decision.

“Recent events in Buffalo and elsewhere in the United States and throughout the world have only heightened awareness of both domestic and foreign terrorism and the associated public safety and security concerns.”

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Nevertheless, a copy of the stadium study was released to Investigative Post after the ruling with many fewer redactions.

The county had initially redacted some or all of 94 percent of the pages in the engineering report. The study provided Investigative Post in the wake of the judge’s ruling had 45 percent of pages redacted in whole or part, a fair number of them appearing to include photographs.

Included in what was released in the most-recent version of the report were costs associated with recommended work, which were largely absent in the original study provided to Investigative Post.

“We’re disappointed that the judge didn’t see fit to order the release of more of the study, but feel we were successful putting much more of the report on the public record,” Heaney said.

He noted that Poloncarz has consistently opted in favor of secrecy regarding the new Bills stadium. In addition to his attempted suppression of the engineering study, the county executive refused to make any meaningful public comments or communicate with the county Legislature during the course of negotiations.

Of late, Poloncarz has made the unusual demand that legislators who participate in negotiations involving a community benefits agreement tied to stadium sign a nondisclosure agreement.

Investigative Post

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