Dear Mr.

Brooks:
This is in regard to your email, dated September 14, 2015, receipt of
which has already been acknowledged, wherein you requested,
pursuant to the Freedom of Information Law (Public Officers Law,
Article 6; hereinafter FOIL), copies of certain records of the State
University of New York Polytechnic Institute (SUNY Poly). Specifically,
you requested: email correspondence sent to and from Alain
Kaloyeros, Bob Geer and Michael Liehr regarding the AIM photonics
institute headquarters including, but not limited to the search keywords
of AIM Photonics Photonics Headquarters AIM Photonics
Headquarters Photonics HQ and photonics center between the dates
of July 1, 2015 and September 14, 2015.
Records within the scope of your request have been retrieved by SUNY
Poly staff. The records comprise 933 pages. I have reviewed the
records retrieved, and have determined that, pursuant to the provisions
of FOIL, authority exists to deny access to portions of these records.
FOIL provides that an agency shall make all records available for public
inspection and copying, except to the extent that records or portions
thereof fall within one or more of the grounds for denial set forth in
that statute.
The first of the grounds for denial relevant to your request is section
87(2)(a) of FOIL, which relates to records that are specifically exempted
from disclosure by state or federal statute. This provision authorizes
exempting from disclosure records that serve as the basis for or contain
legal advice provided by counsel to his or her client and would be
attorney-client privileged and confidential pursuant to 4503 of the Civil
Practice Law and Rules. Consequently, portions of the records reflecting
confidential and attorney-client privileged communications between
attorneys on staff and their clients have been redacted.
Section 87(2)(d) of FOIL authorizes an agency to withhold records or
portions thereof that would cause substantial injury to the competitive
position of an enterprise. Portions of the records retrieved in response
to your request include specific information concerning proposed
activities of the Advanced Institute for Manufacturing for Photonics
(Institute). In addition, other portions of the records contain
commercial or financial information indicating levels of expected
participation by various partners in the Institute. Further, the
application includes information concerning the preliminary plans for
the internal organization of the Institute. Finally, the records include a
number of drafts of the proposed Membership Agreement and other
governing documents of the Institute.

Given that the intent of the Institute is to improve the capabilities of

manufacturers in the United States to compete in the global
marketplace, disclosure of this information would provide competitors
with insight on the organization, the preliminary identification of
specific roles and responsibilities of staff members, and expected
activities of the Institute that could not be obtained from other sources,
thereby injuring the Institutes ability compete in that
marketplace. Similarly, disclosure of specific information concerning
participation by individual partners would provide their competitors
with information that could cause competitive damage to those
individual partners. Further, the premature disclosure of specific,
heavily negotiated terms of the Membership Agreement, including
those relating to the financing of Institute projects, the commitments of
each party, the manner in which ownership of intellectual property is to
be determined and managed, and other key commercial terms, would
have significant impact on the ability of the Institute and its partners to
negotiate effectively with others in the future and would likely cause
substantial competitive injury. Consequently, portions of the records
reflecting such information will be redacted from the copies provided in
response to your request.
In addition, section 87(2)(c) of FOIL authorizes an agency to withhold
records or portions thereof that would impair present or imminent
contract awards. Given the specificity of the plans included in the
records retrieved in response to your request, disclosure of those plans
and the type of financial and commercial information described above
would also significantly diminish the ability of the SUNY Poly to reach
optimal agreements on behalf of the Institute and in operating the
Institute. Consequently, these portions have been redacted from the
records provided in response to your request.
Further, section 87(2)(g) of FOIL authorizes an agency to withhold
records or portions thereof that are inter-agency or intra-agency
materials constituting expressions of opinions or recommendations of
agency staff, including, but not limited to, drafts of Q & As and press
releases (see, e.g., Smith v. New York State Office of Atty. Gen., 116
A.D.3d 1209, 984 N.Y.S.2d 190). The records retrieved include drafts of
documents prepared in connection with the announcement of the
Institute that represent opinions and recommendations and, as such,
have been redacted from the records provided in response to your
request.
Section 87(2)(g) also authorizes an agency to withhold expressions of
opinions or recommendations from entities with which the agency has a
consultative relationship and the courts have recognized that a Federal
agency could be deemed the equivalent of an outside consultant (see
Town of Waterford v. New York State Dept. of Environmental
Conservation, 18 N.Y.3d 652, 944 N.Y.S.2d 429). Here, the Institute

operates under a Cooperative Agreement with the Department of

Defense and that Agreement provides a structure for the coordinated
management of the Institute and Federal employees engaged in the
administration of the Cooperative Agreement express opinions and
recommendations regarding the operation of the Institute. Similarly,
the proposal that led to the award of the Cooperative Agreement was
drafted by SUNY Poly in consultation with other universities under the
terms of agreements that facilitated the collaboration that resulted in
the successful proposal. Opinions and recommendations expressed by
Federal employees in connection with the Cooperative Agreement and
by employees of universities that participated in the development of
the proposal have been redacted from the records provided in response
to your request.
An electronic file containing the records, redacted as described above, is
attached hereto.
In the event you do not agree with my determinations, pursuant to
sections section 87(2)(a), (c), (d), and (g) to deny access to certain
portions of these records, please be advised that you have the right,
within thirty (30) days of the receipt of this email, to appeal, in writing,
to FOIL Appeals Officer, State University of New York, State University
Plaza, Albany, New York 12246.
I trust that you will find this information to be of assistance.