On May 9, 2018, the Government Justice Center filed a petition on behalf of the Empire Center for Public Policy in the New York County Supreme Court in Empire Center for Public Policy, Inc. v. New York State Department of Financial Services, Index No. 154321/2018.

Among other things, the Empire Center performs research and produces public policy proposals for reforms aimed at reducing the state’s cost burdens and improving its climate for growth. In addition to reports on health care costs, taxes and government spending, the Empire Center recently published a report on New York’s tort liability system and its effect on New York’s business environment. One area of concern involves excessive liability under New York Labor Law Section 240, or “Scaffold Law.”

Almost four years ago, the New York State Department of Financial Services (DFS) put out a call for data from insurers it regulates regarding policies, premiums and claims affected by the Scaffold Law. To the Empire Center’s knowledge, DFS has not published a report based on the data it collected, nor has DFS disclosed its records regarding its data call review and analysis in response to the Empire Center’s FOIL requests.

Two years after the data call, the Empire Center made a Freedom of Information Law (FOIL) request for: (i) a copy of the DFS report, publication or other document containing analysis of the responses received to the Scaffold Law data call; and (ii) copies of the responses DFS received from insurers.

DFS responded that it had not yet completed its review or analysis. As such, any document relating to that review or analysis, if disclosed, would interfere with a law enforcement investigation. It would also comprise inter- or intra-agency materials that DFS could except from disclosure.

Regarding the submissions from insurers, DFS determined that submissions from all but one of the 21 responding insurers were excepted from disclosure as competitively sensitive information.

Assuming that the DFS review and analysis would progress to the point of DFS developing a final product of its investigation, including a document (or documents) that could be disclosed in a redacted form, or past the point where disclosing records could compromise an investigation, the Empire Center made new FOIL requests in April 2017 and August 2017.

In addition to requesting the DFS report, Empire Center asked for aggregate totals for quantitative data provided to DFS. DFS refused to consider the FOIL request or Empire Center’s appeal stating that that it had no obligation under the law to consider duplicative requests where there has already been a determination and there has been no change of circumstances.

Empire Center asserts that after almost four years DFS should possess records that can be, at the very least, produced in a redacted form with aggregate data disclosed. Aggregated data cannot convey an enterprise’s commercially sensitive information. Also, objective data does not disclose intra-agency deliberations and opinions. Further, law enforcement efforts cannot be adversely affected because limitations expired for insurance law violations.

The matter is expected to be fully briefed by June 21, 2018.

Click here to read the petition, affidavit and memorandum of law.