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Among the many controversies and complexities involved in Columbia University’s plan to expand its campus into West Harlem, a fight over the flow of information has emerged that may set a precedent for public development struggles to come.
Several businesses occupying property on which Columbia would like to build have been resisting takeover by using Freedom of Information Law (FOIL) requests, among other means – plus legal actions to enforce those requests – in preparation for an eminent domain battle they vow to take all the way to the U.S. Supreme Court.
The businesses seek access to communications between one development consultant and two of its clients. Alee King Rosen and Fleming, an environmental planning and engineering firm known as AKRF, has been hired by both Columbia, which must clear public process hurdles on the way to redevelopment; and the Empire State Development Corporation (ESDC), a state authority with the ability to label an area “blighted,” thus allowing the state to use its eminent domain powers to claim the area for redevelopment.
The issue is particularly contentious because Columbia’s 17-acre plan is competing with the rezoning proposal of the local community board, which also would allow the university to expand, but on different terms.
Attorneys representing the self-storage company Tuck-It-Away, at 131st Street and Broadway, along with the West Harlem Business Group – a clutch of companies that’s resisting being bought out – filed two briefs in state Supreme Court last week in favor of unveiling more than 100 previously unreleased documents. Some of the sought-after communications are between AKRF – an increasingly visible development consultant on city projects– and clients Columbia and ESDC. Nick Sprayregen, owner of Tuck-it-Away Storage, says he hopes the documents will reveal that there was a “conflict of interest at the very least,” that could delay the whole condemnation process.
Attorney Norman Siegel, the former New York Civil Liberties Union chief and candidate for public advocate, represents the businesses in their bid to uphold a June 27 state Supreme Court decision ordering the documents be made public. That decision was appealed by ESDC.
The case “opens serious and substantial questions about the status quo of how development goes on in New York,” Siegel said. That’s because AKRF wore two hats – one representing Columbia University and the other representing the very body Columbia was asking for approval of its plans, he said. “If AKRF was brought in to have a results-oriented process … as I said in the brief, you can’t serve two masters.”
ESDC is contesting Judge Shirley Kornreich’s ruling, saying some of the documents requested are protected because communications between itself and AKRF are confidential and exempt from Freedom of Information Law requests. FOIL offers exemptions for deliberative communications within a government agency, and in the past courts have recognized that since many government agencies use consultants to act on their behalf, exemptions should also be extended to consultants standing in the shoes of a government agency. ESDC argues in its appeal of the Tuck-It-Away decision that AKRF was retained to provide “accurate and objective information” and “AKRF’s reputation depends on using its good judgment” providing agency decision makers with unbiased information.
Of the “two masters” concept, ESDC said in its appeal: “That conclusion, however, reflects a misunderstanding of the nature of the environmental and land use approval process in New York. In fact, letting that decision stand would profoundly alter how environmental review is conducted by state and local agencies throughout New York State.”
That, said Siegel, is exactly the point.
He and co-counsel Philip van Buren argue that the information is fair game because the consultants’ relationship with the university makes it an advocate, not a consultant. Siegel said the case spotlights what he calls “a cozy relationship between developers and the politicians.” An AKRF spokesperson declined to comment on matters involving litigation.
“It’s not within the purposes of Freedom of Information to protect conversations with lobbyists,” added van Buren. He said that if the court upholds that principle in this case, “agencies are going to have to release a lot more stuff and are really going to have to prove that it’s really about protecting their deliberative process” when they claim information is protected.
Russ Haven, legislative counsel with the government watchdog group NYPIRG, said he thinks the outcome of this clash “will only become increasingly important” because of public contracting trends. “It looks like increasingly government is outsourcing a lot of projects and looking for assistance in decision making [from] consultants,” Haven said.
According to Siegel’s briefs, the history is that by June 2004, Columbia had hired AKRF to help plan and secure necessary approvals for its development project. Among other things, AKRF prepared a City Map Override Proposal to allow the sale of city land for Columbia University’s underground use, and an Environmental Impact Statement detailing the effect Columbia’s project would have on the neighborhood.
According to the brief, after Columbia hired AKRF as a consultant, ESDC agreed that the university could cover the ESDC’s preparatory costs for its potential participation in Columbia’s expansion plan. That agreement allowed the ESDC to later defray the costs of a blight study to Columbia. If the study found the area blighted, the ESDC would be authorized to take the property by the state’s power of eminent domain. A FOIL request made by the Columbia Spectator student newspaper revealed that Columbia paid ESDC $300,000 in Aug. 2004 for expenses related to the project.
The briefs argue that before ESDC hired AKRF, the consultant – most likely under contract with Columbia – performed preparatory work for a blight study. More than one year later, in Sept. 2006, the ESDC contracted the same consultant to execute a blight study on its behalf. The outline of that study is one of the documents being requested.
“If AKRF was an interested party…perhaps the whole process is tainted and they can’t go forward,” said Siegel. He said his clients hope their own FOIL requests will reveal how many more payments have been made. Columbia’s vice president of public affairs, La-Verna Fountain, declined to comment on the case.
Both Tuck-It-Away and the West Harlem Business Group separately requested documents from the ESDC under FOIL. After several requests and legal actions that resulted in the ESDC providing some documents, Judge Kornreich ordered the disclosure of 117 documents. Sprayregen of Tuck-It-Away said ESDC’s resistance to disclosure “really raises the question as to what they have to hide given that they are spending countless months and … tens of thousands dollars of taxpayers’ money fighting us.”
The development corporation’s senior vice president of communications, A.J. Carter, would not comment on the matter. “It’s something we’ll respond to in the proper forum, which is in court,” Carter said.
In her decision, Kornreich enumerated exceptions to the inter- or intra-agency exemption. “A document that has been disclosed to a third party, outside of the agency or agencies, generally is not covered by the agency exemption,” she wrote.
The judge denied the validity of ESDC’s claim that there was a “Chinese wall,” or ethical barrier, between the consultant’s work for Columbia and for ESDC. But ESDC’s appeal of the Tuck-It-Away decision maintains that “despite its role in the City’s environmental review process, AKRF is not Columbia’s advocate and thus does not represent its own or Columbia’s interest.”
“We’re saying no, Columbia hired AKRF for multiple services and representation in connection with the project,” says attorney van Buren.
Kornreich agreed, writing, “The rationale for the consultant exception falls apart where the consultant acts “in their own interest or on the behalf of any interest or on behalf of any person or group whose interest might be affected by the Government action addressed by the consultant,” quoting Department of the Interior et al. v. Klamath Water Users Protective Association, a Supreme Court case that formed the basis of her decision.
“Any doubts about the neutrality of AKRF must be resolved in favor of disclosure,” read the decision.
Bob Freeman, executive director of New York state’s Committee on Open Government, thought Kornreich made the right call. “The reasoning seems to be appropriate,” said Freeman, though he found it odd that the judge cited federal Freedom of Information law as precedent when there are state laws she could have relied on. It’s an interesting case but not necessarily a groundbreaking one, he said.
Siegel thinks this could play a part in changing the tenor of the city’s frequent land-use fights, however. Development projects are too often a David and Goliath matter, he said. “The playing field is not even. What FOIL does, it gives the David a slingshot with regards to getting information that the community’s entitled to.”