Majority
Pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL), the petitioner, Solutions Economics, LLC (hereinafter SE), sought disclosure of certain documents submitted to the respondent, Long Island Power Authority (hereinafter LIPA), in response to its requests for proposals for its Long Island Cable Replacement project (hereinafter the LIRC project). In accordance with Public Officers Law § 89 (5), LIPA notified the companies which had submitted proposals that they would be given an opportunity to request continued confidential treatment of their submissions. Massachusetts
SE sought judicial review of LIPA’s determination via this CPLR article 78 proceeding. In the course of opposing this proceeding, LIPA produced several additional documents. Purportedly on the basis of new information revealed by these documents, SE, in its reply, raised the new contention that, in responding to its FOIL request, LIPA was required to search not only the documents it held, but also those created or held by Northeast Utilities Service Company (hereinafter ÑUSCO), which conducted procurement for the LIRC project on LIPA’s behalf. LIPA objected that this contention was improperly raised for the first time in reply. The Supreme Court concluded that LIPA had properly determined that the information SE requested was entitled to continued confidential treatment and declined to consider SB’s argument regarding ÑUSCO on the ground that it was untimely raised.
On appeal, SE has abandoned the majority of its claims and now seeks disclosure only of “pricing information” submitted by Mass Electric and ABB and withheld by LIPA at the request of Mass Electric and ABB. However, it still contends that LIPA was required to search not only its own records, but those created by ÑUSCO on its behalf or held by ÑUSCO for LIPA.
Although SB’s request for “pricing information” was arguably within the scope of SB’s initial FOIL request and its administrative appeal, it failed to raise this claim before the Supreme Court. Thus, this issue is not properly before this Court (see Matter of Cohn, 46 AD3d 680 , 681 [2007]; Fresh Pond Rd. Assoc. v Estate of Schacht, 120 AD2d 561 [1986]). To the extent that SE continues to contend that LIPA improperly withheld other financial data submitted by Mass Electric, or that it failed to conduct a diligent search, these contentions are without merit (see Matter of Rattley v New York City Police Dept., 96 NY2d 873 , 875 [2001]; Matter of Livingston v Hynes, 72 AD3d 968 , 968-969 [2010]; Matter of Curry v Nassau County Sheriff’s Dept., 69 AD3d 622 [2010]; Matter of New York Envtl. Law & Justice Project v City of New York, 286 AD2d 307 [2001]; Matter of Glens Falls Newspapers v Counties of Warren & Washington Indus. Dev. Agency, 257 AD2d 948 , 950 [1999]; Matter of Sorce v Noll, 250 AD2d 770 [1998]).
Cases cited
- In re the Estate of Cohn 46 AD3d 680 at 681 p. 594
- Fresh Pond Road Associates v. Estate of Schacht 120 AD2d 561 p. 594
- Rattley v. New York City Police Department 96 NY2d 873 at 875 p. 594
- Livingston v. Hynes 72 AD3d 968 at 968-969 p. 594
- Curry v. Nassau County Sheriff's Department 69 AD3d 622 p. 594
- New York Environmental Law & Justice Project v. City of New York 286 AD2d 307 p. 594
- Glens Falls Newspapers, Inc. v. Counties of Warren & Washington Industrial Development Agency 257 AD2d 948 at 950 p. 594
- Khan v. New York State Department of Health 96 NY2d 879 at 880 p. 595
- Scherbyn v. Wayne-Finger Lakes Board of Cooperative Educational Services 77 NY2d 753 at 758 p. 595
- Kearney v. Village of Cold Spring Zoning Board of Appeals 83 AD3d 711 at 713 p. 595
- Filipowski v. Zoning Board of Appeals 77 AD3d 831 at 832 p. 595
- Trident Realty L.P. v. Planning Board of the Inc. Village of East Hampton, Suffolk County 248 AD2d 545 p. 595
- Goldman v. A&E Club Properties, LLC 89 AD3d 681 at 683 p. 595
- Allstate Insurance v. Dawkins 52 AD3d 826 at 827 p. 595
- Leon Petroleum, LLC v. Board of Trustees 309 AD2d 804 at 806 p. 595
- Held v. Kaufman 91 NY2d 425 at 430 p. 595