For the reasons set forth below, the Petition is granted in part and denied in part. In addition, the Court grants the applications of the Construction Industry Council of Westchester and Hudson Valley, Inc., The Business Council of New York State, Inc., and the General Contractors Association of the City of New York, Inc., to serve Amicus Curiae briefs.

Petitioner filed separate requests under the Freedom of Information Law (Public Officers Law Art. 6, hereinafter, "FOIL") with five New York State agencies: the Dormitory Authority of the State of New York (hereinafter, "DASNY"), the Department of Environmental Conservation (hereinafter, "DEC"), the Office of Temporary and Disability Assistance(hereinafter, "OTDA"), the Department of Transportation (hereinafter, "DOT"), and New York State Insurance Fund (hereinafter, "NYSIF"). The Court will address each request separately.

DASNY

On November 14, 2016, Petitioner submitted a FOIL request to the DASNY Records Access Officer seeking the following information with regard to a DASNY project at the Louis Armstrong House Museum Education Center:

• A copy of the analysis conducted and utilized to reach the determination to require 20% Minority Business and 10% Woman Business Enterprise participation for this contract.

• All documents generated or in the possession of Agency which were relied upon or used in considering factors set forth in 5 NYCRR 142.2(d) for this contract.

(Petition, ¶ 41 & Ex. A attached)

On February 3, 2017, DASNY denied the request, citing Public Officers Law (hereinafter, "POL") § 87 (2) (c) because disclosure would impair present, or imminent, awards of contracts, as well as § 87 (2) (g), contending that the records requested "contain inter-agency and 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" (Petition, ¶ 44 & Ex. B attached). The denial further asserted that the records sought were "predecisional in nature, are integral to DASNY's deliberative process, and contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations or other subjective matter" (id., ¶ 45 & Ex. B attached).

On February 24, 2017, Petitioner timely appealed the denial, submitting a letter to Kay M. Edwards, Records Access Appeal Officer of DASNY (Petition, ¶ 46 & Ex. C attached). On March 10, 2017, DASNY denied the appeal (id., ¶ 48 & Ex. D attached).

In support of DASNY's response to the Petition, it submitted the affirmation of its General Counsel, Michael E. Cusack, Esq. (hereinafter, "Cusack Affirmation"), in which Mr. Cusack states that, on or about October 25, 2016, DASNY issued a Notice of Bidders for general construction work for City University of New York, Queens College, Louis Armstrong House Museum Education Center Construction project, and that, on or about December 8, 2016, the bids were publicly opened and thereafter reviewed (Cusack Affirmation, ¶¶ 4,5).

He further states that, on or about March 20, 2017, DASNY identified an apparent low bidder for general construction work on the project. However, as of May 25, 2017, the date of Mr. Cusack's affirmation, DASNY had not made a final award of the construction contract for the project. He further avers that DASNY's deliberative process with respect to contract award was continuing and the procurement process had not yet been completed (Cusack Affirmation, ¶¶ 6, 7). Mr. Cusack avers that Petitioner submitted its FOIL request to DASNY prior to the bid opening stage of the procurement process (id., ¶ 9). He further asserts that DASNY began a diligent search of its records to determine whether it possessed documents responsive to the FOIL request. In its search, DASNY identified certain intra-agency records that were potentially responsive. Copies of those documents have been supplied to the Court for in camera review (id., ¶¶ 10, 11 & Ex. 7 attached). However, DASNY also determined that, even assuming arguendo those records were responsive, they are exempt from disclosure for at least three reasons (id., ¶ 12).

13. First, while the bids have been submitted, DASNY's deliberative process continues, and the procurement is not yet the subject of a final agency determination. In fact, there has been no [c]ontract award.

14. The [r]ecords at issue constitute draft evaluations and estimates prepared by DASNY's consultant for DASNY's use as part of ongoing procurement-related discussions. They are relevant not only to [Minority and Women Business Enterprise (hereinafter, "MWBE")] goal-setting but to the overall evaluation of the [p]roject and are subject to revision.

15. Specifically, prior to issuance of the Notice to Bidders, DASNY's consultants at DASNY's direction reviewed and prepared the [r]ecords, which DASNY utilized in preparation of the MWBE goals and is utilizing in connection with other vital, pre-award anticipated construction cost evaluations and decisions, including sensitive price and non-price (i.e., scheduling) information critical to evaluation of all bids.

16. DASNY is utilizing the [r]ecords as part of the process to obtain the best work at the lowest possible price for this [p]roject.

(id.)

Thus, DASNY determined that premature disclosure would impair its competitive position in finalizing a successful procurement award, particularly since any procurement might be subject to bid challenge. Until a final decision is made, confidentiality must be maintained as it is possible that the apparent low bidder will be replaced. Negotiations with other bidders would be harmed if anticipated price/schedule are leaked. DASNY therefore determined that the records were exempt from disclosure pursuant to POL § 87 (2) (c) (Cusack Affirmation, ¶¶ 18, 19).

Second, DASNY believes that the records are exempt from disclosure because they contain inter-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 (Cusack Affirmation, ¶ 20 & Ex. 8 attached). DASNY also asserts that it retained a consultant and directed that consultant to perform services DASNY would otherwise have performed for itself. The records, which were prepared by the consultant for the project on behalf of DASNY, contain information and advice necessary for DASNY to engage in the deliberative process of DASNY's decision-making. The records are not a final document and contain evaluations and estimates that are subject to revision (Cusack Affirmation, ¶¶ 21, 22; see POL § 87 [2] [g]).

Third, DASNY argues that, until the contract is finally awarded, DASNY has restricted all communications between DASNY personnel and prospective bidders in accordance with the New York State Procurement Lobbying Law (see State Financial Law, §§ 139-j and 139-k). Given DASNY's obligations under the Procurement Lobbying Law to restrict communications during the quiet period of an open, active procurement, DASNY asserts that it has a good faith reasonable basis to withhold underlying documents relevant to the pending procurement until at least after the contract is awarded (Cusack Affirmation, ¶¶ 24, 26).

POL § 87 (2) states that "[e]ach agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that" meet certain statutory exemptions listed in POL § 87 (2) (a) - (n). "The premise of FOIL is 'that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government' " (Matter of Newsday, Inc. v State Dept. of Transp., 5 NY3d 84, 88 [2005], cert dismissed 546 US 930 [2005], quoting Matter of Fink v Lefkowitz, 47 NY2d 567, 571[1979]). As such, FOIL "mandates that '[e]ach agency shall make available for public inspection and copying all records,' unless the records fall within a statutory exemption" (Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of NY at Farmingdale, 87 NY2d 410, 417 [1995] [emphasis in original], quoting POL § 87 [2]). Stated otherwise, "[w]hile agency records are presumptively available for public inspection and disclosure under FOIL, an agency may deny access to records which" fall within one of the listed exemptions (Matter of Capital Newspapers Div. of Hearst Corp. v City of Albany, 63 AD3d 1336, 1337 [3d Dept 2009] [internal citations omitted], affd as mod 15 NY3d 759 [2010]). Notably, "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government" (Matter of Capital Newspapers Div. of Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987]). While the party seeking an exemption bears "the burden of establishing that the records fall squarely within an exemption by providing a particularized and specific justification, a proper procedure for meeting this burden is to submit the records in question for [in camera] inspection by the court" (Matter of Miller v New York State Dept. of Transp., 58 AD3d 981, 983-984 [3d Dept 2009], lv denied 12 NY3d 712 [2009] [internal citations omitted]).

POL § 87 (2) (c) states that an agency may deny access to records, or portions thereof, that "if disclosed[,] would impair present or imminent contract awards..." Here, Respondent DASNY notes that Petitioner's FOIL request was made on November 14, 2016, while the solicitation still was pending and prior to the opening of bids on or about December 8, 2016 [*2](Cusack Affirmation, ¶¶ 5, 9). Moreover, as of the date of the affirmation, DASNY states that no final contract award had been made to the apparent low bidder and the deliberative/procurement process was ongoing (id., ¶¶ 6, 7). Petitioner's counsel asserts, upon information and belief, that bids have been received with respect to every contract that is the subject of this Petition and further, that in most cases, contracts have been awarded (Petitioner's Reply Brief, p. 14). No facts or particulars are provided, however, to support that belief. The records provided to the Court by DASNY involve detailed analysis by its consultant about the costs of the project (id.; ¶¶ 9-19; Respondents' Memorandum of Law, p. 7). Factual and opinion data that is being used in the negotiations leading to a contract are subject to confidentiality under POL § 87 (2)(c) (Matter of Murray v Troy Urban Renewal Agency, 84 AD2d 612, 613 [3d Dept 1981], affd 56 NY2d 888, 890 [1982]; cf. Matter of Cross-Sound Ferry Servs. v Department of Transp., 219 AD2d 346, 349 [the statutory exemption would be unavailable if the FOIL request had been made after the contract was awarded]; see also Matter of Acme Bus Corp. v County of Suffolk, 136 AD3d 896, 897-898 [2d Dept 2016]).

The Court finds and concludes after conducting an in camera inspection of the withheld documents that the exemption under POL § 87 (2) (c) was properly asserted by DASNY. As the records are exempt from disclosure the Court will not address the claimed exemption under POL § 87 (2) (g) or the New York State Procurement Lobbying Law.

OTDA

On October 7, 2017, Petitioner submitted a FOIL request to the OTDA Records Access Officer (Petition, ¶ 60 & Ex. E attached). The OTDA request sought the following information regarding a contract let by OTDA for the West Street Apartments — 2016-031:

A copy of the analysis conducted and utilized to reach the determination to require 20% Minority Business Enterprise and 10% Woman Business Enterprise participation for this contract.

All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for this contract.

(Petition, ¶ 61 & Ex. E attached)

On January 27, 2017, the OTDA denied Petitioner's request, stating that:

To the extent OTDA has records responsive to your request, the records are being denied pursuant to [POL] § 87(2)(g), as the records contain inter-agency and intra-agency materials which are not 1) statistical or factual tabulations or data; 2) instructions to staff that affect the public; 3) final agency policy or determinations; or 4) external audits. They are pre-decisional in nature, are integral to the OTDA's deliberative process, and contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations, or other subjective matter.

(Petition, ¶ 63 & Ex. F attached)

On February 24, 2017, Petitioner timely appealed the OTDA denial via letter to the FOIL Appeal Officer of OTDA, explaining that the cited reasons for denial were improper including that, if the MWBE goals in the contract specifications were based on a factual presentation of data, and even if they contained estimates intended to reflect opinions, such records must be [*3]disclosed in accordance with FOIL (Petition, ¶ 65 & Ex. G attached). By letter dated March 15, 2017, OTDA denied Petitioner's appeal (id., ¶ 66 & Ex. H attached).

In opposition to the Petition, OTDA submitted the affirmation of Zachary M. Stevens, Esq., an attorney in OTDA's office of Legal Affairs (hereinafter, "Stevens Affirmation"). Mr. Stevens avers that OTDA performed a diligent search for any and all records responsive to the Petitioner's FOIL request (Stevens Affirmation, ¶ 9). The only document responsive to that request which could be located is an internal agency record, Form No.BCM-001, a copy of which has been supplied to the Court for in camera review (id., ¶ 10 & Ex. B attached). Mr. Stevens states that Form #BCM-001 is a non-final, intra-agency record created as part of the internal review of an agency procurement process and, in this particular instance, was used for a reservation of funds pursuant to the Homeless Housing & Assistance Program (hereinafter, "HHAP") (id., ¶¶ 3, 11).

Mr. Stevens asserts that Form #BCM-001 contains twenty sections, each of which addresses particular elements of the proposed procurement and that, in this instance, only one of the twenty sections is responsive to the Petitioner's FOIL request. Form #BCM-001 is circulated among OTDA management employees, who review the opinions and estimates of OTDA employees related to reserving or setting aside funds to pay for a contract or grant to be awarded at the conclusion of an agency or, in this case, a corporate, procurement. While the form does provide a section for the "final approval" of OTDA's Commissioner or Executive Deputy Commissioner, such approval only signifies that all OTDA management employees have reviewed the opinions and estimates provided on the form. It does not represent a final determination to award funds. Such a final determination only occurs after all HHAP programs requirements are met and the parties negotiate and execute a final award or final loan agreement (Stevens Affirmation, ¶¶ 12, 13).

Counsel further asserts that, since the document is circulated only among OTDA staff and was created before any final determinations were made with respect to the procurement, the record is pre-decisional for the purposes of, among other things, estimating or recommending MWBE goals for the specific project (Stevens Affirmation, ¶ 14). He further asserts that the document is protected by the inter-agency exception to FOIL pursuant to POL § 87 (2) (g) (id., ¶ 15).

The Court finds and concludes, after conducting an in camera inspection of Form #BCM-001, that two of the 20 sections (Stevens Affirmation, Ex. B, §§ 17, 18), as well as the form instructions for those sections, are responsive to Petitioner's FOIL request. Respondent OTDA asserts that Form #BCM-001 is "pre-decisional for the purposes of, among other things, estimating or recommending MWBE goals for the specific project (Stevens Affirmation, ¶ 14). "The mere fact that some of the data might be an estimate or recommendation[, however,] does not convert it into an expression of opinion or naked argument for or against a certain position and such [information] is not excluded from disclosure" (Matter of Polansky v Regan, 81 AD2d 102, 104 [3d Dept 1981]; see Mulgrew v Board of Educ. of City School Dist. of City of New York, 87 AD3d 506, 507 [1st Dept 2011], lv denied 18 NY3d 806 [2012]). "Backup factual and statistical data to a final determination of an agency is not exempt from disclosure" (Matter of Professional Stds. Review Council of Am. v New York State Dept. of Health (193 AD2d 937, 940 [3d Dept 1993]; Matter of Dunlea v Goldmark, 54 AD2d 446, 448-449 [2d Dept 1976], affd 43 [*4]NY2d 754 [1977]). Moreover, such information is subject to disclosure even if it is not limited to objective information (Matter of Dunlea v Goldmark, supra at 449). Such a result is consistent with the Legislature's declaration in enacting FOIL, that "[t]he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society" (POL § 84; emphasis supplied). Therefore, the Court finds that the claimed exemption does not apply and that sections 17 and 18 of Form #BCM-001, along with the corresponding instructions, should have been disclosed to Petitioner pursuant to POL § 87 (2) (g) (i).

DOT

On June 8, 2016, Petitioner submitted a FOIL request to the DOT Records Access Officer, seeking the following with regard to contract number D263143:

A copy of the analysis conducted and utilized to reach the determination to require 12% Minority Business and 18% Woman Business Enterprise participation for this contract.

All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for this contract.

(Petition, ¶ 82 & Ex. I attached)

On January 27, 2017, DOT denied Petitioner's request, stating:

To the extent the Department has records responsive to your request, the records are being denied pursuant to [POL] §87(2)(g), as the records would consist of interagency and 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. They would be predecisional in nature, would be integral to [DOT's] deliberative process, and would contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations or other subjective matter.

(Petition, ¶¶ 85, 86 & Ex. J attached)

On February 24, 2017, Petitioner timely appealed the DOT denial by letter to the DOT FOIL Appeal Officer (Petition, ¶ 88 & Ex. K attached). By letter dated March 15, 2017, DOT denied Petitioner's appeal (id., ¶ 90 & Ex., L attached).

In opposition to the Petition, DOT submitted the affidavit of Jerry Morse, the DOT Records Access Officer (hereinafter, "Morse Affidavit"). Mr. Morse avers that a diligent search of DOT records revealed one responsive document identified as the Engineer's Estimate for Department Project Identification No. 0229.14 and Contract No. D263143 (Morse Affidavit, ¶ 5 & Ex. B attached for the Court's in camera review). Mr. Morse also certifies that a diligent search of DOT records failed to reveal any other documents responsive to Petitioner's FOIL request (id., ¶ 6).

Mr. Morse avers that, as set forth in DOT's Official Order No. 539 (Ex. C attached to his Affidavit) and Chapter 21 of DOT's Highway Design Manual (relevant sections are attached as Ex. D to his Affidavit), the Engineer's Estimate is an internal document utilized by DOT for numerous project and contract development purposes, and that this record is pre-decisional in nature and integral to DOT's deliberative process, including, but not limited to, the adjustments of the Department's MWBE goals for a particular contract (Morse Affidavit, ¶ 7).

Mr. Morse also avers that DOT's Highway Design Manual § 21.6.3 states the Engineer's [*5]Estimate sets forth the estimated cost of a project based on the quantity and unit price estimate for each item of work (pay item). The Engineer's Estimate also reflects the amount that DOT considers fair and reasonable and is willing to pay for performance of the contemplated work. It is a critical internal document which provides information for determining whether funds are available to build the project, serves as a basis for reviewing bids to determine whether contracts should be awarded, and provides a format for charging costs to appropriate fund sources (Morse Affidavit, ¶ 8 & Ex. C attached). He further avers that, because the Engineer's Estimate details all the items of work and subcontracting opportunities associated with the contemplated work, the document also is relied upon when considering adjustments to DOT's MWBE goals for a particular contract (id., ¶ 9). Mr. Morse further avers that, for the reasons set forth in DOT's Highway Design Manual § 21.6.5 and Official Order No. 539, the Engineer's Estimate consists of opinions, estimates, and recommendations that were prepared, at least in part, for the purpose of assisting DOT's decision maker in determining adjustments to DOT's MWBE goal for the project. Accordingly, DOT determined that the Engineer's Estimate was exempt from disclosure pursuant to POL § 87 (2) (g), as the record consists of intra-agency materials which are not: statistical or factual tabulations or data; instructions to staff that affect the public; final agency policy or determinations; or external audits (id., ¶ 10).

The Court finds and concludes, after conducting an in camera inspection of the Engineer's Estimate (Morse Affidavit, Ex. B), that it is responsive to Petitioner's FOIL request. Respondent DOT asserts that the Engineer's Estimate is "pre-decisional in nature," consisting of "opinions, estimates[,] and recommendations" (Morse Affidavit, ¶¶ 7, 10). "The mere fact that some of the data might be an estimate or recommendation[, however,] does not convert it into an expression of opinion or naked argument for or against a certain position and such [information] is not excluded from disclosure" (Matter of Polansky v Regan, supra; see Mulgrew v Board of Educ. of City School Dist. of City of New York, supra). "Backup factual and statistical data to a final determination of an agency is not exempt from disclosure" (Matter of Professional Stds. Review Council of Am. v New York State Dept. of Health, supra; Matter of Dunlea v Goldmark, supra). Such a result is consistent with the Legislature's declaration in enacting FOIL, that "[t]he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society" (POL § 84; emphasis supplied). Moreover, such information is subject to disclosure even if it is not limited to objective information (Matter of Dunlea v Goldmark, supra). In that regard, any reliance on DOT's declaration in Official Order No. 539 (which predates the enactment of FOIL) (see Ex. C attached to Morse Affidavit), that the Engineer's Estimate and related computations is confidential information until the contract is awarded, is misplaced, and does not vitiate DOT's obligations under FOIL. Therefore, the Court finds that the claimed exemption does not apply and that the Engineer's Estimate should have been disclosed to Petitioner pursuant to POL § 87 (2) (g) (i).

NYSIF

Petitioner submitted a FOIL request, dated August 8, 2016, to NYSIF seeking:

• A copy of the analysis conducted and utilized to reach the determination to require 30% Minority Business and Woman Business Enterprise participation for [NYSIF Project No. [*6]2016-16-RE-CSA, Project Number 10NY049C07].

• All documents generated or in the possession of NYSIF which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for this contract

(Petition, ¶ 105 & Ex. M attached)

On January 27, 2017, NYSIF denied the request by email (id., ¶ 107 & Ex. N attached).

The NYSIF denial letter states that:

To the extent NYSIF has records responsive to your request, the records are being denied pursuant to POL[ ]§87(2)(g), as the records would consist of inter-agency and 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. They would be predecisional in nature, would be integral to NYSIF's deliberative process, and would contain opinions, evaluations, deliberations, policy formulations, proposals, conclusions, recommendations or other subjective matter.

(Petition, ¶ 108 & Ex. N attached)

On February 24, 2017, Petitioner timely appealed NYSIF's denial by letter to the NYSIF FOIL Appeal Officer (Petition, ¶ 110 & Ex. O attached). By letter dated March 15, 2017, NYSIF denied the appeal (Petition, ¶ 112 & Ex. P attached).

In opposition to the Petition, NYSIF submitted the affirmation of Peter Cusick, Esq., its Deputy Counsel (hereinafter, "Cusick Affirmation"). Mr. Cusick avers that he was designated to review and respond to Petitioner's appeal. He reviewed the original FOIL request, NYSIF's response, and the appeal. He concluded that NYSIF had conducted a diligent search for records which would be responsive to this FOIL request, and, following that diligent search, NYSIF did not locate any responsive records (Cusick Affirmation, ¶ 7).

Mr. Cusick further states that, if NYSIF had possessed any documents responsive to the FOIL request, those documents would have been exempt from disclosure pursuant to POL § 87 (2) (g). The FOIL request sought documents which would have constituted intra-agency communications which would have reflected the opinions and recommendations prepared by NYSIF personnel. Those communications would have been predecisional in nature and integral to the NYSIF deliberative process of determining MWBE participation for the contract (Cusick Affirmation, ¶ 8).

As applicable in the instant matter, "[w]hen an agency is unable to locate documents properly required under FOIL, [POL] § 89 (3) requires the agency to certify that it does not have possession of a requested record or that such record cannot be found after diligent search" (Matter of De Freitas v New York State Police Crime Lab, 141 AD3d 1043, 1044 [3d Dept 2016], quoting Matter of De Fabritis v McMahon, 301 AD2d 892, 893 [3d Dept 2003] [internal quotation marks, brackets and citation omitted]; see Matter of McFadden v Fonda, 148 AD3d 1430, 1431-1432 [3d Dept 2017]).

Matter of De Freitas, in turn, quoted Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875 [2001]), which stated:

When an agency is unable to locate documents properly requested under FOIL, [POL] § 89 (3) requires the agency to "certify that it does not have possession of [a requested] [*7]record or that such record cannot be found after diligent search." The statute does not specify the manner in which an agency must certify that documents cannot be located. Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required. Here, the Department satisfied the certification requirement by averring that all responsive documents had been disclosed and that it had conducted a diligent search for the documents it could not locate (Matter of Gould v New York City Police Dept., 89 NY2d 267 , 279 [1986]. To the extent that some courts have held to the contrary, those decisions are not to be followed [citations omitted].

Here, Respondent NYSIF, in its response to the FOIL request, does not state it was unable to locate the documents requested. Its response was "[t]o the extent NYSIF has records responsive to your request, the records are being denied pursuant to POL § 87 (2) (g) " (Cusick Affirmation, Ex. B). Mr. Cusick's denial of Petitioner's appeal was similarly worded. There is no explicit statement that NYSIF was unable to locate the documents requested (id., Ex. D). However, in opposition to the Petition, Mr. Cusick does state in his affirmation that NYSIF "conducted a diligent search for records which would be responsive to the FOIL request, and following that diligent search, [NYSIF] did not locate any responsive records" (id., ¶ 7).

The Court concludes that, while NYSIF's response to the FOIL request was vague as to its inability to locate documents responsive to Petitioner's FOIL request, the Cusick affirmation stating that NYSIF conducted a diligent search and was unable to locate any responsive documents satisfied the certification requirements as set forth by the Court of Appeals in Matter of Rattley (supra) and, thus, this proceeding as to Respondent NYSIF is dismissed as moot.

DEC

Petitioner submitted a FOIL request to DEC's Records Access Officer on November 29, 2016 (Petition, ¶ 127 & Ex. Q attached).

The request sought the following information regarding a contract let by DEC for the Buffalo Lakeside Commerce Park, Parcel 4:

A copy of the analysis conducted and utilized to reach the determination to require 15% Minority Business and 15% Woman Business Enterprise participation for this contract.

All documents generated or in the possession of Agency which were relied upon or used in considering the factors set forth in 5 NYCRR 142.2(d) for this contract.

(Petition, ¶ 128 & Ex. Q attached)

On January 27, 2017, DEC denied Petitioner's FOIL request via email, stating that:

Records responsive to your request have been denied pursuant to POL § 87(2)[c], as the records, if disclosed, would impair present or imminent contract awards or collective bargaining negotiations, and POL § 87(2)[g], as they consist of deliberative inter-agency materials.

(Petition, ¶ 130 & Ex. R attached)

On February 24, 2017, Petitioner timely appealed the denial via letter to DEC's FOIL Appeal Officer (Petition, ¶ 131 & Ex. S attached). By letter dated March 20, 2017, DEC denied Petitioner's appeal, stating:

A further review has indicated that the only records responsive to your request that can be [*8]located are those that were previously provided to you in response to your June 6, 2016 FOIL request for "Agency-Specific [MWBE] Goals and Analysis" (FOIL request#W008086-060616) and those available on the Department's public website (www.dec.ny.gov) by clicking on "Doing business with DEC." To the extent any responsive records pertaining specifically to a particular contract that has not yet been awarded could be located, it is likely that such records or portions thereof could be withheld in accordance with [POL] §87[2](c) (disclosure would impair present or imminent contract awards) and/or [POL] §87[2](g) (certain interagency or intra-agency materials).

(id., ¶¶ 133, 134 & Ex. T attached)

In opposition to the Petition, DEC submitted the affirmation of Deborah W. Christian, Esq. (hereinafter, "Christian Affirmation"), an attorney working for DEC. Ms. Christian avers that she performed a review of Petitioner's FOIL request. She states that her review indicated that, despite a diligent search, no responsive records could be located other than those that had previously been provided to the Petitioner in response to its June 6, 2016 FOIL request for "Agency-Specific [MWBE] Goals and Analysis" (FOIL Request # W008086-060616) and those that were available on the Department's public website (Christian Affirmation, ¶ 9 & Ex. E attached). She avers that she informed Petitioner that no additional responsive records could be located but that, to the extent any responsive records pertaining to a particular contract that has not yet been awarded could be located, it was likely that such records could be withheld in accordance with POL § 87 (2) (c) and/or POL § 87 (2) (g). She states this was relevant because the contract for the "Buffalo Lakeside Commerce Park, Parcel 4" project (D009346) had not been awarded as of the date of Petitioner's November 29, 2016 FOIL request because the date for receipt of bids for that contract was January 10, 2017 (id., ¶ 9). She further avers that, prior to the award of a contract, POL § 87 (2) (c) enables agencies to deny access to records to the extent that disclosure would "impair present or imminent contract awards." (id.)

As applicable in the instant matter, "[w]hen an agency is unable to locate documents properly required under FOIL, [POL] § 89 (3) requires the agency to certify that it does not have possession of a requested record or that such record cannot be found after diligent search" (Matter of De Freitas v New York State Police Crime Lab, supra, quoting Matter of De Fabritis v McMahon, supra [internal quotation marks, brackets and citation omitted]; see Matter of McFadden v Fonda, supra).

Matter of De Freitas, in turn, quoted Matter of Rattley v New York City Police Dept., supra, which stated:

When an agency is unable to locate documents properly requested under FOIL, [POL] § 89 (3) requires the agency to "certify that it does not have possession of [a requested] record or that such record cannot be found after diligent search." The statute does not specify the manner in which an agency must certify that documents cannot be located. Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required. Here, the Department satisfied the certification requirement by averring that all responsive documents had been disclosed and that it had conducted a diligent search for the documents it could not locate (Matter of Gould v New [*9]York City Police Dept., 89 NY2d 267 , 279 [1986]. To the extent that some courts have held to the contrary, those decisions are not to be followed [citations omitted].

The Court concludes that Respondent DEC, in its response to the FOIL request, did not state its inability to locate documents response to Petitioner's FOIL request. Both Ms. Christian's letter denying Petitioner's appeal and her affirmation submitted in opposition to the Petition, however, state that no responsive records could be located other than those previously provided in response to Petitioner's June 6, 2016 FOIL request. The Court concludes that DEC's response satisfied the certification requirement as set forth by the Court of Appeals in Matter of Rattley (supra) and, thus, the proceeding as to Respondent DEC is dismissed as moot.

Counsel Fees

Petitioner has also requested an award of counsel fees. An award of counsel fees may be made in a FOIL proceeding where a petitioner "has substantially prevailed" and when the agency "had no reasonable basis for denying access" to the records or documents in question (POL § 89 [4] [c]). "[E]ven when these statutory prerequisites are met, the decision to grant or deny counsel fees still lies within the discretion of the court" (Matter of Henry Schein, Inc. v Eristoff, 35 AD3d 1124, 1126 [3d Dept 2006]). Although Respondents OTDA and DOT have been directed to release a few documents, the Court concludes that, under the circumstances of this Petition, they had a reasonable belief in law for withholding the records, and, thus, an award of counsel fees is not justified.

Accordingly, it is hereby,

ORDERED AND ADJUDGED that the Petition is granted in part and dismissed in part, as provided herein, without costs. Specifically, the Court holds that Sections 17 and 18 of the OTDA document, together with the form instructions for those sections, and the DOT document, are not exempt from disclosure pursuant to FOIL and shall be released by Respondent OTDA and Respondent DOT, as applicable. The DASNY document is exempt from disclosure under POL § 87 (2) (c). The Petition is dismissed as to Respondent NYSIF and Respondent DEC.

This constitutes the Decision, Order and Judgment of the Court. The original Judgment is returned to the counsel for Respondents, who is directed to enter it without notice and to serve Petitioner with a copy thereof with notice of entry. The Court will transmit a copy of the Decision, Order and Judgment and the supporting papers upon which it is based to the Albany County Clerk. The signing of this Decision, Order and Judgment, and delivery of a copy hereof shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.

SO ORDERED