Wednesday, February 01, 2017

P.C. Richard goes to court after Empire State Development doesn't deliver FOIL documents in Site 5 dispute

Guess what--it's not just journalists like me who have trouble getting responsive documents after filing Freedom of Information Law (FOIL) requests with Empire State Development (ESD), the state authority overseeing/shepherding Atlantic Yards/Pacific Park.

It's also a big-firm attorney for P.C. Richard, who's just gone to court to get those documents.

The electronics store last year sued to stall the planned eminent domain proceeding regarding its store at Site 5, across from the Barclays Center, claiming that original project developer Forest City Ratner promised the company space in the replacement building. That has put on hold developer Greenland Forest City Partners' plans for a massive two-tower project.

The attorney, Robert H. Baron of Cravath, Swaine & Moore, has now sued to get ESD to deliver some documents requested via FOIL but not delivered.

Getting the runaround

P.C. Richard filed a broad FOIL request on 5/19/16 regarding Atlantic Yards documents. After a 6/9/16 email from ESD, lawyers for P.C. Richard spoke with Lesley Hall, ESD’s Records Access Officer, who said a narrowed request limited to Site 5 could produce produce responsive documents faster, according to documents filed in the suit (see below),

On 6/29/16, P.C. Richard produced an amended FOIL request. ESD then responded on a monthly basis, over the next seven months, saying it was working on the request. (I've gotten that kind of response too.)

So P.C. Richard went to court. "The Subpoena is substantially identical to the Amended FOIL Request. Compliance with the Subpoena therefore should impose no burden upon ESD beyond what ESD claims it has already been doing since no later than October 3, 2016," the lawyer wrote.

A judge is considering the request. In an order issued 1/25/17, Supreme Court Justice Sylvia Ash ordered ESD to show up in court 3/29/17 to explain why the proposed order should not be granted.

It's not clear to me if that deadline helps or hurts P.C. Richard. It initially sought documents on or before 2/6/17, in advance of a 2/15/17 deadline to complete depositions. The usefulness of the documents, then, depend on whether that that deadline stands or is extended. (I queried Baron, but didn't hear back.)







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