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FOIL follies II: Brennan's request for business plan rejected

This is the second of four articles on Freedom of Information Law (FOIL) requests. The first concerned the Department of City Planning.

Yes, the Empire State Development Corporation finally released a memo attempting to back up its prediction that the Atlantic Yards Project would generate $1.4 billion in new city and state taxes.

But that wasn’t what Brooklyn Assemblyman Jim Brennan really asked for. Indeed, his FOIL request for the project’s “business plan”—the crucial estimate of overall costs and revenues—was rebuffed by the ESDC. Now he’s appealing that rejection.

Brennan had previously sponsored an unsuccessful bill to decrease the size of the project by 34% while adding affordable housing subsidies. “The purpose of my request is to enable the public to evaluate the relationship between the size of the project and the arena and the affordable housing,” he told me, noting that project proponents have justified the scale of the project because of the affordable housing.

Brennan would like to see a larger amount of affordable housing be guaranteed in the first phase of the project—currently, plans are for 550 of 2250 promised units--and a contractual commitment among the city, state, and developer Forest City Ratner.

Public disclosure

“So that is a critical public question: how much money do they think they’re going to make on their market-rate housing, and how much money do they think the arena is going to make,” he said. “How much money does the affordable housing need and where are they going to get it? Without that information, the public is shortchanged.”

(Examining the plan before a recent 8 percent reduction in square footage, New York Magazine estimated Ratner's profits at $1 billion.)

“The most significant thing that the ESDC is going to do, aside from eminent domain, is the zoning override, and the override affects several hundred thousand people,” Brennan said. “If it turns out that they only need half as much square feet of space in order to assure that the arena doesn’t go bust, or if the affordable housing doesn’t need money from market aspects of the project, then that is information that the public should have.”

Develop Don’t Destroy Brooklyn (DDDB) had in September 2005 requested such a document of the Metropolitan Transportation Authority (MTA), noting that the agency, in its Request For Proposals for the Vanderbilt Yard required that pro forma cash-flow statements, with documentation of fiscal assumptions for a 20-year period, be included as part of the bid. However, the MTA did not comply.

ESDC's rationale

Not all agency documents are subject to disclosure. Brennan said that the agency stated that, according to the law, it may deny access to records or portions thereof that "are inter-agency or intra-agency materials which are not... statistical or factual tabulations or data."

In other words, if they are statistical or factual dabulations or data, they should be disclosed. The ESDC's rationale, Brennan said, must be that the business plan is not a statistical or factual tabulation. He believes that it is.

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