Supreme Court, Albany County, September 14, 2023

Yale Law School Media Freedom & Information Access Clinic, Abrams Institute, New York City (David A. Schulz of counsel), and New Haven, Connecticut (Stephen Stich and Jennifer A. Borg of counsel), for petitioner.

Letitia James, Attorney General, Albany (Michael G. McCartin of counsel), for New York State Department of Corrections and Community Supervision, respondent.

McDowell Hetherington LLP, Houston, Texas (Michael D. Matthews, Jr., of counsel), and Fishkin Lucks LLP, New York City (Steven M. Lucks and Zachary W. Silverman of counsel), for equivant, formerly known as Northpointe, Inc., respondent.

Petitioner Martha Rayner brings this special proceeding under CPLR article 78, challenging the denial of a Freedom of Information Law (see Public Officers Law art 6 [FOIL]) request made to respondent New York State Department of Corrections and Community Supervision (DOCCS) (see NY St Cts Elec Filing [NYSCEF] Doc No. 1 [petition]). DOCCS and intervenor-respondent equivant, formerly known as Northpointe, Inc., oppose the petition.

Executive Law § 259-c (4) obliges the New York State Board of Parole (Board) to "establish written procedures for its use in making parole decisions as required by law." "Such written procedures shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release, and assist members of the state board of parole in determining which incarcerated individuals may be released to parole supervision" (id.). The Board "shall be guided by risk and needs principles, including the inmate's risk and needs scores as generated by a periodically-validated risk assessment instrument," in rendering parole decisions (9 NYCRR [*2]8002.2 [a]).

To meet these statutory and regulatory requirements, the Board has adopted a "risk assessment tool called Correctional Offender Management Profiling for Alternative Sanctions{**81 Misc 3d at 283} ('COMPAS') Re-entry" (petition ¶ 1).^[FN1] COMPAS was developed by equivant (see id. ¶ 13), which licenses its proprietary risk-assessment software to criminal justice agencies throughout the United States (see id. ¶¶ 15-18). DOCCS began using COMPAS in 1998, following the award of a competitive procurement to equivant (see id. ¶ 16).

In brief, the Board uses COMPAS to generate risk and needs scores through a computerized analysis of a reentry questionnaire (see id. ¶¶ 22-24). "For each risk, criminal involvement, or needs area, the score assigns offenders to one of ten groups, called 'deciles,' which correspond to the offender's risk level as predicted by the algorithm: low, medium, or high" (id. ¶ 25). "The range of scores COMPAS Re-entry associates with each decile—each decile's 'cut point'—is based on historical recidivism rates of a comparison class of individuals called the 'Norm Core Data Group,' divided into its own deciles based on its members' scores" (id. ¶ 26).

"This basic process is about all that's publicly known about COMPAS Re-entry in New York. The public does not know (1) how COMPAS Re-entry combines the questionnaire answers to generate the risk and needs scores, (2) each decile's cut point (i.e., what score is required to be assigned to each decile), (3) how deciles are assigned to the qualitative 'low,' 'medium,' and 'high' risk levels, and (4) the Norm Core Data Group used to generate the scores associated with each decile" (id. ¶ 28).

And "there are no published studies validating the predictive accuracy of COMPAS Re-entry in New York" (id. ¶ 29). "Northpointe and state agencies have published validation studies of other COMPAS instruments. They have also published records, for other COMPAS instruments, indicating how deciles are assigned to qualitative risk levels" (id. ¶ 30).

Petitioner, a clinical law professor at Fordham Law School, requested information from DOCCS about COMPAS to obtain "a meaningful explanation of the basis for the state's decisions to grant or withhold parole" (id. ¶ 4). Specifically, on January 4, 2022, petitioner requested the following five categories of DOCCS records under FOIL:

"1. Any and all documents providing the formulas for calculating the risk [*3]and needs scales used in New York's COMPAS instrument. Including:{**81 Misc 3d at 284}

"a. Risk Scores: the variable inputs, transformations (if any) of those variables, and the coefficients applied to those variables for the following: i. Risk of Felony Violence: ii. Arrest Risk: iii. Abscond Risk

"b. Criminogenic Needs Scales: the question inputs, how to score each question input (i.e., what number value is assigned to which answers), how they are combined to yield the scale score for the following: i. Criminal Involvement ii. History of Violence iii. Prison Misconduct iv. Reentry Financial v. Reentry Employment Expectations vi. Low Family Support vii. Negative Social Cognitions viii. Low Self-Efficacy/Optimism ix. Reentry Substance Abuse

"2. All documents indicating the decile cut-points for each: a. Risk Score (listed in 1.a. (i)-(iii) above); b. Criminogenic Needs Scales (listed in 1.b. (i)-(xii) above).

"3. All documents indicating how deciles are assigned to the corresponding qualitative values (e.g., 'Low, Medium, High') for each Risk and Needs Scale.

"4. The Norm Core data group against which New York is scoring individual COMPAS assessments.

"5. All validation studies of NYCOMPAS instrument" (NYSCEF Doc No. 2, exhibit A).

DOCCS denied the FOIL request in its entirety on June 13, 2022 (see id., exhibit K). Initially, DOCCS determined that petitioner's "request for any and all records pertaining to the formulas for calculating the risk and needs scales used in New York's COMPAS instrument is overly broad . . . [and] fails to reasonably describe records as required by Public Officers Law § 89 (3) (a)" (id.). And insofar as DOCCS was able to identify records responsive to petitioner's request, the records were determined to be exempt from disclosure as trade secrets or material that would cause substantial competitive harm to equivant if disclosed (see id.).

Petitioner's administrative appeal was denied on July 21, 2022, for essentially the same reasons (see NYSCEF Doc No. 2, exhibit M).^[FN2]

{**81 Misc 3d at 285}Petitioner commenced this CPLR article 78 proceeding against DOCCS on November 15, 2022, challenging the denial of her FOIL request (see NYSCEF Doc Nos. 1-7).

In its answering papers in opposition to the petition, DOCCS relied on the affidavit of Eugenie Jackson, PhD, the statistician who leads equivant's research into risk and needs assessments (see NYSCEF Doc No. 14 [Dr. Jackson aff] ¶¶ 3-6). Dr. Jackson attests that the proprietary formulae, algorithms, risk and needs scales, and norming data incorporated into New York's customized implementation of COMPAS Re-entry (COMPAS-NY) are trade secrets that belong to equivant (see id. ¶ 10).

Prior to the return date, equivant moved for leave to intervene to protect its trade secrets (see NYSCEF Doc Nos. 18-20). Petitioner did not oppose intervention, but filed a lengthy memorandum taking the position that the technology underlying COMPAS-NY is not entitled to trade secret protection (see NYSCEF Doc No. 21). In reply, equivant presented additional arguments and evidence in support of its claim of trade secrecy (see NYSCEF Doc Nos. 22-25). By order dated April 27, 2023, the court ordered equivant joined as a respondent (see NYSCEF Doc No. 32).^[FN3]

Oral argument was held on August 24, 2023, DOCCS provided the court with responsive records for in camera inspection on August 31, 2023, and a copy of the certified transcript of oral argument was filed on September 13, 2023 (see NYSCEF Doc No. 44). This decision, order and judgment follows.

A. Legal Framework

Under FOIL, agency records presumptively are available for public inspection unless they fall within a specific exemption set forth in Public Officers Law § 87 (2) (see Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 462 [2007]; Matter of Aurigemma v New York State Dept. of Taxation & Fin., 128 AD3d 1235, 1236-1237 [3d Dept 2015]). Respondents "bear[ ] the burden of demonstrating that the requested material falls{**81 Misc 3d at 286} squarely within an exemption by articulating a particularized and specific justification for denying access" (Matter of MacKenzie v Seiden, 106 AD3d 1140, 1141 [3d Dept 2013] [internal quotation marks and citations omitted]; accord Aurigemma, 128 AD3d at 1237; see Matter of [*4]Rose v Albany County Dist. Attorney's Off., 111 AD3d 1123, 1125 [3d Dept 2013]).

At issue in this proceeding are the exemptions of Public Officers Law § 87 (2) (d), which authorize the withholding of records that "are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise." Public Officers Law § 87 (2) (d) encompasses at least two distinct types of confidential commercial information imparted to government agencies.

First, agency records are exempt from disclosure if they "contain bona fide trade secrets" (Matter of Verizon N.Y., Inc. v New York State Pub. Serv. Commn., 137 AD3d 66, 74 [3d Dept 2016], affg 44 Misc 3d 858 [Sup Ct, Albany County 2014, Ferreira, J.]). Although the term "trade secret" is not defined in FOIL (or elsewhere in New York's statutory law), courts generally follow section 757 of the Restatement of Torts in determining whether information is entitled to protection (see Ashland Mgt. v Janien, 82 NY2d 395, 407 [1993]; Verizon, 137 AD3d at 72-73).

Under the Restatement, a trade secret is " 'any formula, pattern, device or compilation of information which is used in one's business, and which gives [the business] an opportunity to obtain an advantage over competitors who do not know or use it' " (Ashland, 82 NY2d at 407, quoting Restatement of Torts § 757, Comment b). The factors to be considered in determining whether given information is one's trade secret are:

"(1) the extent to which the information is known outside of [the] business; (2) the extent to which it is known by employees and others involved in [the] business; (3) the extent of measures taken by [the business] to guard the secrecy of the information; (4) the value of the information to [the business] and [its] competitors; (5) the amount of effort or money expended by [the business] in developing the information; (6) the ease or difficulty with which the information could be properly acquired{**81 Misc 3d at 287} or duplicated by others" (id.).

Second, even records that do not qualify for trade secret protection are exempt if "submitted to [the] agency by a commercial enterprise," and disclosure "would cause substantial injury to the competitive position of the subject enterprise" (Public Officers Law § 87 [2] [d]; see Verizon, 137 AD3d at 69). "[T]he party seeking [this] exemption must present specific, persuasive evidence that disclosure will cause it to suffer a competitive injury" (Matter of Markowitz v Serio, 11 NY3d 43, 51 [2008]).

B. Analysis

Respondents maintain that the formulae, algorithms, risk and needs scales, and norming data underlying COMPAS-NY are exempt from disclosure under Public Officers Law § 87 (2) (d) as bona fide trade secrets.

In her affidavit, Dr. Jackson explains that COMPAS-NY assesses risk and needs associated with reentry through application of the formulae, algorithms, risk and needs scales, and norming data incorporated into its flagship COMPAS product, as customized for DOCCS to reflect the specific characteristics of New York's offender population (see Dr. Jackson aff ¶¶ 13-14).^[FN4]

As the leader of equivant's research department, Dr. Jackson attests that COMPAS and the New York-specific refinements were developed by equivant through substantial effort (see id. ¶ 15; see also id. ¶ 25).

With regard to secrecy, COMPAS-NY and its "underlying data are generally unknown outside of equivant's business" and outside of DOCCS's, which is the "only customer" for COMPAS-NY (id. ¶ 19). In fact, the particular customizations in COMPAS-NY "are known only by the current and former equivant employees that developed them and [by DOCCS personnel]" (id. ¶ 20).

Additionally, equivant protects the secrecy of COMPAS by restricting access to its technology, both inside and outside of the company (see id. ¶¶ 19-21), opposing subpoenas directed at the production of COMPAS materials (see id. ¶ 22), and opposing {**81 Misc 3d at 288}the production of COMPAS materials in lawsuits against customers (as equivant did here) (see id. ¶ 23).^[FN5]

Finally, Dr. Jackson attests that COMPAS-NY is the product of substantial investments by equivant, beginning with its research and development of COMPAS, and then the design and implementation of the New York-specific refinements (see id. ¶ 24), which was "a tremendous effort by numerous employees that took countless hours" (id. ¶ 25; see also NYSCEF Doc No. 23). And given the magnitude of equivant's investments, it would be very difficult for a competitor to properly duplicate the functionality of COMPAS-NY (see Dr. [*6]Jackson aff ¶¶ 26-28).

In arguing that the foregoing evidence is insufficient to discharge respondents' burden of demonstrating that the formulae, algorithms, risk and needs scales, and norming data underlying COMPAS-NY are trade secrets, petitioner argues principally that the record of this proceeding "lacks the 'specific, persuasive evidence' of competitive harm that the law requires" (NYSCEF Doc No. 21 at 3-4 [citation omitted]).

Petitioner acknowledges, as she must, that respondents' invocation of the FOIL exemption for trade secrets obviates any need for a showing that disclosure of COMPAS-NY "would cause substantial injury to the competitive position of [equivant]" under Public Officers Law § 87 (2) (d). Nonetheless, petitioner insists that essentially the same showing is required under general principles of trade secret law.

In making this argument, petitioner relies on the Restatement factor calling for consideration of "the value of the information to the business and its competitors" (Verizon, 137 AD3d at 73 [internal quotation marks and citation omitted]). According to petitioner, "FOIL's trade-secret exemption requires proof of actual competition and competitive harm because New York's definition of a 'trade secret' requires such proof" (NYSCEF Doc No. 21 at 4).

The court is unpersuaded by petitioner's argument, which represents a misapplication of the law of trade secrets. Dr. Jackson's affidavit provides particularized and specific testimony that the formulae, algorithms, risk and needs scales, and norming data underlying COMPAS-NY—including the manner {**81 Misc 3d at 289}in which risk and needs scores are derived from the Board's questionnaire, the decile cut-off points used by COMPAS-NY, and the manner in which deciles are assigned to qualitative categories (see petition ¶ 28)—were developed, identified, gathered and/or analyzed by equivant, "a private, for-profit corporation" (NYSCEF Doc No. 5 [MOL (mem of law)] at 1), through substantial investments of time, money and effort.

To recoup these investments and continue its research and development into risk and needs assessment instruments, equivant licenses software incorporating its proprietary technology to DOCCS (see NYSCEF Doc No. 4, exhibit A [contract]).

But if petitioner's FOIL application were granted and equivant's technology opened to the public, it would be a simple matter for one of the State's information technology vendors to supply DOCCS with the functionality of COMPAS-NY at a much lower cost. After all, a software developer given access to the inner workings of COMPAS-NY would not have to invest "substantial money and effort" in developing the "scales, formulas, and analysis" used within the program to generate scores and qualitative assessments (Dr. Jackson aff ¶ 26).

Thus, continued secrecy of COMPAS-NY has real value to equivant and gives it a clear "advantage over competitors" that do not have access to the scales, norming data, and cut-off points incorporated into the program (Restatement of Torts § 757, Comment b; see also Restatement [Third] of Unfair Competition § 39 ["potential economic advantage over others"], Comment e ["advantage" need only be "more than trivial"]).

Moreover, petitioner's argument rests on the false premise that equivant "faces no competition with respect to the New York COMPAS Re-entry tool. The [Board] is, essentially, statutorily required to use the product, it is customized for New York, and [equivant] has not faced a competitive bid in New York since the 1990s" (MOL at 19; see petition ¶¶ 16-18).

New York law requires the Board to use risk and needs assessments in making parole decisions (see Executive Law § 259-c [4]; 9 NYCRR 8002.2 [a]), but there is no requirement that equivant's COMPAS-NY product be used for that purpose. And if other vendors could replicate the functionality of COMPAS-NY using equivant's formulae, algorithms, risk and needs scales, and norming data at a far lower cost, it seems doubtful that DOCCS would be allowed to continue with noncompetitive procurements (see State Finance Law § 163 [1] [h] [requiring agency to document "the basis upon which it determined the cost was reasonable"]).

{**81 Misc 3d at 290}The court therefore concludes that the value of the risk and needs assessment technology embodied in COMPAS-NY, both to equivant and to potential competitors, "is self-evident and its disclosure would almost assuredly complicate, if not compromise, [equivant's] competitive position" in New York (and perhaps in other states) (Matter of City of Schenectady v O'Keeffe, 50 AD3d 1384, 1386 [3d Dept 2008], lv denied 11 NY3d 702 [2008]).

Petitioner further argues that respondents' claim of trade secrecy is undermined by the fact that equivant and criminal justice agencies "have published information of the type that [DOCCS] has withheld" (MOL at 17). "For example, [equivant] and [New York State] have published documents indicating which deciles are assigned to which qualitative values for COMPAS Re-entry in other jurisdictions and another COMPAS tool used in New York, COMPAS-Probation" (id. at 7; see NYSCEF Doc No. 4, exhibit E).

But petitioner makes no claim that respondents have disclosed the inner workings of COMPAS-NY or the manner in which the program converts a completed parole reentry questionnaire into risk and needs scores with qualitative assessments. General disclosures about COMPAS-NY or detailed disclosures about other implementations of COMPAS (see NYSCEF Doc No. 4) do not [*8]disclose the inner workings of COMPAS-NY (see MOL at 5 ["the public knows only the outlines of COMPAS Re-entry in New York"]).^[FN6] There simply has been no showing that the material respondents seek to protect is known by others.

Petitioner also contends that equivant waived its claim of trade secrecy by failing to designate documents as confidential under its contract with DOCCS (see contract at 25-26). The court disagrees. Even assuming that equivant's alleged failure to designate amounted to a waiver of its right to insist that DOCCS invoke FOIL's trade secret exemption (see e.g. Matter of Lockheed Martin IMS Corp. v New York State Dept. of Family Assistance, 256 AD2d 847, 849 [3d Dept 1998]), DOCCS joins with equivant in arguing that COMPAS-NY's technology is a trade secret, and petitioner has no standing to assert waiver on DOCCS's behalf.{**81 Misc 3d at 291}

Based on the foregoing, the court concludes that the technology underlying COMPAS-NY is a bona fide trade secret belonging to equivant, and agency records containing such material are exempt from disclosure under Public Officers Law § 87 (2) (d).^[FN7] Any change to this rule based on the "uniquely important public interest" of parole oversight (MOL at 20-21) must come from the State Legislature.

Finally, DOCCS denied the first prong of petitioner's FOIL request, seeking "[a]ny and all documents providing the formulas for calculating the risk and needs scales used in New York's COMPAS instrument," as overly broad and insufficiently descriptive. Insofar as the request is directed at the risk and needs scales used in COMPAS-NY, it calls for the disclosure of exempt trade secrets. And to the extent that petitioner is seeking "any and all" documents concerning COMPAS-NY's risk and needs scales, the court agrees with DOCCS that the request is overly broad and insufficiently particularized.

Accordingly, it is ordered and adjudged that the petition is dismissed.