By: Denise M. Champagne//September 9, 2015
By: Denise M. Champagne//September 9, 2015//
The Oneida Indian Nation is suing the New York State Gaming Commission for not releasing documents related to how it reached its decision last year on applications for three proposed casinos.
Attorneys for the Nation filed an Article 78 challenge Friday in Supreme Court in Schenectady County, claiming the gaming commission is wrongfully withholding records the Nation requested and that it improperly denied its Freedom of Information Law request for the documents. The Oneidas are seeking to have the commission’s decision voided and access to the expert analysis and projections relied upon by the location board in choosing sites.
The Nation is represented by Arthur W. Wentlandt of the Syracuse law firm Mackenzie Hughes LLP and Marcie R. Ziegler and Edward C. Barnidge with the Washington, D.C. law firm Williams & Connolly LLP.
The gaming commission did not immediately return a call for comments.
According to the complaint, voters in November 2013 approved a state constitutional amendment to permit casino gaming, after which Gov. Andrew M. Cuomo authorized up to four destination casinos in three regions in upstate New York.
The location board was formed in accordance with the Upstate New York Gaming & Economic Development Act, signed into law by Cuomo on July 30, 2013, anticipating voter approval.
In March 2014, the location board issued requests for applications, receiving 17 by the end of June 2014. On Dec. 17, the location board announced it had selected three proposed casinos to apply to the gaming commission for commercial gaming facility licenses.
The Oneidas, who operate Turning Stone Resort Casino in the Oneida County town of Verona, claim the decision said the location board had “directed expert analysis or revenue projections, potential cannibalization of existing gaming facilities, potential impact of competing new casinos within a single region and qualitative factors that might affect the attractiveness of the new gaming facility, including development and operating experience and project design.”
One of the locations selected was for the proposed Lago Resort & Casino in the Seneca County town of Tyre, about 75 miles or a little more than an hour down the New York State Thruway from Turning Stone.
The location board detailed its evaluations and the reasons for its selections in a report issued Feb. 27. The Oneidas maintain the report did not include the expert analysis and projections on which the board allegedly based its decisions and, on March 20, filed a Freedom of Information Law request for that information.
Their request was denied in its entirety in a March 26 letter from Michelle Barbetta, the gaming commission’s records access and FOIL officer.
She wrote: “Public Officer’s Law Section 87 (2)(g) states that an agency has the discretion to deny public access to records which are inter-agency or intra-agency materials which are not (i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) final agency policy or determinations; or (iv) external audits.”
The Nation appealed and was denied again in a May 5 letter in which the gaming commission claimed materials it received from applicants or prepared itself with respect to expert analysis and projections were protected under FOIL’s exemption for trade secrets or commercially sensitive materials.
The gaming commission said most applicants invoke the exemption when applying and the materials of those that did not were available on its website (http://gaming.ny.gov). It also claimed its analysis and projections were “pre-decisional” and “intra-agency” materials to assist the board, exempt from disclosure under Public Officer’s Law Section 87(2)(g).
The Oneidas claim the documents requested are not intra-agency materials, exempt under the law, but fall into three of four categories the Legislature excluded from the intra-agency exemption.
“Documents that explain, directly or by reference, the reason for an agency’s decision are treated as ‘adopt[ed] and incorporate[ed]’ into the decision and are not exempt from disclosure under FOIL’s intra-agency exemption,” the petitions says, citing N.Y. 1 News v. Office of President of Borough of Staten Island, 166 Misc. 2d 270 (N.Y. Sup. Ct., New York County 1995).
The Oneidas claim the gaming commission’s decision to withhold the expert analysis and projects is not justified given the location board’s express reliance on them in reaching a decision on casino applicants. They further claim the location board’s and gaming commission’s own statements demonstrate the expert analysis sought by the Nation compile and discuss purely factual information and that such information is not protected.
The Oneidas also claim the instructions to the gaming commission’s retained experts on what they should prepare constituted unprotected instructions to staff that affects the public through the state’s economy, local communities and its workforce.
The Nation is also seeking legal fees and costs, should it prevail in its Article 78 challenge.