A team of nine attorneys from the law firm Nixon Peabody is helping Erie County negotiate a new lease with the Buffalo Bills, but staff for County Executive Mark C. Poloncarz won't disclose the attorneys' hourly rates.
The law firm contends that it's a "trade secret," but the head of a state office responsible for advising the public and local governments on the open records law believes that the information should be revealed.
"I think that the denial is unjustifiable," said Robert J. Freeman, executive director of the state's Committee on Open Government.
The county blacked out the hourly rates and billing structure submitted by Nixon Peabody in documents requested by The Buffalo News under the state's Freedom of Information Law.
Those documents included the proposal submitted by the law firm to work on the lease negotiations and the retainer letter signed by the county and the legal team's lead attorney.
"We have been informed by Nixon Peabody that releasing the rate information contained within the retainer agreement would, in fact, cause it substantial injury to its competitive position," Second Assistant County Attorney Jeremy C. Toth wrote in response to The News' request. "Consequently, we have decided to honor their request and redact the rate information."
Poloncarz and County Attorney Michael A. Siragusa earlier this year chose Nixon Peabody from among 13 law firms that submitted proposals to serve as legal counsel to Erie County as it negotiates a new lease for Ralph Wilson Stadium.
The Nixon Peabody team -- which includes one attorney from the firm's Buffalo office, five based in New York City and three from its Rochester office -- emphasized its experience in negotiating and drafting agreements for the use and financing of stadiums, as well as real estate and construction law.
Included in the proposal was notice to the county that the firm considered the hourly rates charged by its partners and associates assigned to the team "trade secrets" that the company believes are protected from state laws that require local governments to disclose public documents.
The state Freedom of Information Law includes a provision that allows a government to keep secret information submitted to it by a company that "if disclosed would cause substantial injury to the competitive position" of the company.
Freeman, however, told The News he doesn't believe that hourly rates would fall under that exemption to the state open records law.
"In my opinion, due to the array of clients that are billed by a large law firm, the rates that they charge, from my perspective, could not be characterized as a secret," Freeman said.
Freeman also noted that the state's Court of Appeals has ruled that a company must show "specific, persuasive evidence" that disclosure of the information would cause it competitive injury and cannot rely only on speculation that it would be harmed if the information is disclosed.
The county provided no evidence from Nixon Peabody of why it would suffer competitive injury if its rates were disclosed, but Siragusa said firms that responded to the county's request for proposals provided the "reasoning behind their position."
"Many of the firms that responded provided significantly discounted rates," Siragusa said. "It's on that basis that they don't want those rates getting out because disclosing those rates would show other firms at what level of a reduction they may need to reduce their rates to get these types of high-profile deals for their firms."
Freeman also objected to the county's position that it was "obliged to deny access to those records" covered by the "trade secret" exemption. "The county is not obliged to withhold," he said. "It may withhold in certain circumstances, but it would not be required to do so."
The county has previously publicly disclosed hourly rates of law firms it has hired.
Siragusa said the county will make public information on the amount of money the county pays to Nixon Peabody. The firm, as of last week, had not yet sent a bill to the county for the work it has done so far, Siragusa said.
"The Nixon Peabody bid to handle the Buffalo Bills lease negotiations was one of the most competitive bids that we received, taken into account their experience with 10 other NFL stadium deals," he said.
"We intend to disclose every penny of taxpayer dollars that will be paid to Nixon Peabody. However, we can't release the hourly rates because the responding firms have claimed that doing so would damage their competitive position in the marketplace."
The News has filed an appeal with the county of its decision to deny access to the information.