This is (redacted) with Investigative Post in Buffalo – I hope you’re doing well!
I’m reaching out because I’m publishing a story this week about more stonewalling by state agencies for basic information about the Tesla factory in Buffalo. I’m hoping you might be able to comment for the piece.
Here’s the backstory: Last January (2023) I published this story about problems with Tesla’s Solar Roof, the product it, at one point, dedicated its Buffalo factory to. The Solar Roof is a series of interlocking glass shingles that act as individual solar cells. My story detailed how Tesla had so many issues manufacturing it that it eventually reduced its production and began using the factory for other purposes. My story also noted the lack of “spin off” development around the factory and pointed out that a state agency, Fort Schuyler Management Corporation, owned some 100 acres of land surrounding the factory, supposedly for that “spin off” development.
So, I wanted to know what was being planned for that property.
On March 8, 2023 I filed a FOIL request with Ft. Schuyler asking for emails, letters and other documents on the property it owned. More than a year later, Ft. Schuyler is still processing my request. After I appealed an effective denial after several months of delays, the agency began releasing documents in batches. One batch revealed the existence of a state spending account Tesla is allowed to use for various renovations.
Another batch revealed another fact: Tesla had installed solar panels on the roof of the factory. Given my past reporting on the struggles of Tesla’s solar operations, I was curious if these were Tesla panels, or another company’s panels. As I’ve sought an answer to that very basic question, I’ve been stone walled at every turn. Tesla won’t say. Fort Schuyler won’t say.
Finally, in January, I FOILed again. Here’s the language of the request and the response:
I am seeking the name of the manufacturer of the solar panels installed on the roof of the Buffalo Riverbend Tesla factory (1339 South Park Avenue), the name of the vendor who sold the solar panels and the name of the company that installed the solar panels. To that end, I request records that list the names of the solar panel manufacturer, the vendor and the installer. These records may include but are not limited to: Purchase orders, invoices, receipts, memos, inspection documents, legal agreements or waivers, lease documents or the file “Program Timeline Action Items.xlsm.” The panels were purchased circa 2020 and installed circa 2021.
In response to your request, we can confirm that Tesla Energy Operations, Inc. installed the panels on the roof of 1339 South Park Avenue. Your request for information concerning the manufacturer and supplier of the panels is denied. The records you have requested constitute a trade secret of Tesla and if disclosed would cause substantial injury to the competitive position of Tesla as provided in § 87 (2)(d) of the Public Officers Law. FSMC was not involved in contracting for or funding the purchase or installation of solar panels placed on the roof of the Tesla building. Tesla has numerous facilities and operations located throughout the world, and does business with numerous suppliers of similar products and services. It maintains strict confidentiality concerning the identify of its suppliers and vendors because disclosure of the identify of a supplier could have a negative impact on its ability to obtain competitive terms and prices from other suppliers.
This, of course, is part of a pattern. My editor Jim Heaney was previously stonewalled by the state over factory records, which eventually kicked off the Buffalo Billion scandal.
Here’s my question: What do you make of all this? Is this type of stonewalling typical of New York? Is this particularly egregious, in part because the state built this factory with $969 million in taxpayer money?
What should the public make of all this? It seems to me that the state-owned factory is in part a state secret. I’m wondering if it’s normal to be this secretive about something taxpayers paid for?
While it may not be the biggest deal who made the solar panels, this seems to represent a pattern of secrecy. I’m wondering if you agree with that?
Thanks for contacting me.
Below is a link to an opinion by the NY Committee on Open Government regarding the “trade secret” exemption under FOIL. I have quoted a key part of the opinion below.
https://docs.dos.ny.gov/coog/ftext/2015/f19237.htm
The concept and parameters of what might constitute a “trade secret” were discussed in Kewanee Oil Co. v. Bicron Corp., which was decided by the United States Supreme Court in 1973 (416 U.S. 470). Central to the issue was a definition of “trade secret” upon which reliance is often based. Specifically, the Court cited the Restatement of Torts, section 757, comment b (1939), which states that:
“[a] trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers” (id. at 474, 475).
In its review of the definition, the court stated that “[T]he subject of a trade secret must be secret, and must not be of public knowledge or of a general knowledge in the trade or business” (id.). The phrase “trade secret” is more extensively defined in 104 NY Jur 2d 234 to mean:
“…a formula, process, device or compilation of information used in one’s business which confers a competitive advantage over those in similar businesses who do not know it or use it. A trade secret, like any other secret, is something known to only one or a few and
kept from the general public, and not susceptible to general knowledge.
Six factors are to be considered in determining whether a trade secret exists: (1) the extent to which the information is known outside the business; (2) the extent to which it is known by a business’ employees and others involved in the business; (3) the extent of measures taken by a business to guard the secrecy of the information; (4) the value of the information to a business and to its competitors; (5) the amount of effort or money expended by a business in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. If there has been a voluntary disclosure by the plaintiff, or if the facts pertaining to the matter are a subject of general knowledge in the trade, then any property right has evaporated.”
My comments:
I fail to see how disclosing who installed the solar panels on the Tesla factory roof would violate a trade secret and if disclosed would cause substantial injury to Tesla. The disclosure may cause substantial embarrassment to Tesla but that is not a legitimate reason to deny a FOIL request. As the taxpayers of the state of New York have provided $969 million to Tesla for their Buffalo factory, it should not be a secret as to who provided the solar roof panels.
It is outrageous that providing information to you has taken over one year. This is sadly another example of how the public is improperly being kept in the dark by a broken FOIL system.
