OTB denies release of ex-FBI's agent's internal assessment

Oct. 26—Western Regional Off-Track Betting Corp. has denied the newspaper's formal request for a copy of an internal report produced by an ex-FBI agent whose company is offering the public benefit corporation advice on complying with the law.

Last week, the newspaper submitted a request under New York's Freedom of Information Law, seeking copies of any compliance reports or recommendations produced for OTB by Core Consultancy, a firm in Buffalo headed by former FBI spokesperson and general counsel Paul Moskal.

In denying release of the information, OTB's FOIL officer Thomas Noce cited a provision of state law that allows public agency's to withhold from public disclosure items considered to be "attorney-client privilege." OTB contends that information provided by Moskal and his firm — 31 pages in all — are classified as part of "an attorney's work document."

While Moskal is an attorney, OTB's President and CEO Henry Wojtaszek said his assessment is considered part of the work being done by OTB's outside attorney, Buffalo defense lawyer Terry Connors.

Invoices obtained through a separate Freedom of Information request show, for professional services rendered through Aug. 10, 2021, Core Consultancy earned $48,750 for its "WROTB Compliance Program Ethics and Compliance Assessment."

In discussing OTB's position on the release of Moskal's written work, Wojtaszek, who is also an attorney, cited the "Koval" rule, a federal court decision that extended the parameters of attorney-client privilege to include other sources of expert advice, including materials developed by outside consultants.

Wojtaszek said Connors brought in Moskal's firm as a consultant to assist in ongoing litigation involving OTB. Wojtaszek said OTB would forward an affidavit from Connors affirming his position that documents produced by Moskal are part of ongoing litigation and, therefore, covered under the attorney-client privilege.

The New York State Committee on Open Government, which is a wing of state government that oversees matters related to freedom of information requests and local and state open government, has, in prior opinions, held that information considered "attorney-client privilege" can be withheld from public disclosure while also suggesting documents being sought may not be withheld in their entirety.

The committee has previously held that the standard for release involves redaction, meaning agencies are expected to review documents that have been requested to determine what pieces of information are considered "attorney-client privilege." The committee has, in prior opinions, held that redacted documents should be released once this process has been completed.

The newspaper filed a formal appeal with OTB, asking the agency to review paperwork responsive to its initial request, redact items considered "attorney client" privilege and release the redacted version of Moskal's work.

Under the rules of public information appeals, OTB is required to forward a copy of its response to the newspaper's appeal to the state Committee on Open Government.

Paul Wolf, president of the New York Coalition for Open Government, a private, non-profit group that advocates for greater transparency within local and state government, agreed with the committee on open government's position that public agencies like OTB are not allowed to simply withhold entire documents responsive to Freedom of Information Law requests.

"They have the burden of going through the report and redacting the items that are attorney client privilege," Wolf said.

OTB hired Connors in 2019 amid accusations of misconduct lodged by former New York state senator and one-time Wojtaszek political ally George Maziarz.

In May, Maziarz filed a lawsuit accusing Wojtaszek and other OTB officials of misusing public resources for their own benefit. The lawsuit cited the public agency's continued practice of providing fully paid health insurance to part-time members of the OTB board. The legality of the insurance remains a point of contention between OTB representatives and the offices of both the state comptroller and attorney general which have previously issued opinions stating that the practice is not allowed under state law.

Maziarz has also taken issue with the handling of tickets to events purchased by OTB as part of its promotional program. He asked the court to compel OTB to reimburse the public cost for tickets that, in state audit last fall, were described as being misused by OTB officials.

In an audit released last fall, New York State Comptroller Thomas DiNapoli encouraged OTB to "clean up its operation." Auditors found OTB purchased $120,000 worth of tickets with public money for Buffalo Bills and Buffalo Sabres games and other sporting events and concerts that were intended to be used for promotional purposes and instead ended up going to OTB officials, their relatives and associates.

OTB also faced a whistleblower lawsuit from former Chief Operating Officer Mike Nolan who alleged that he was mistreated by Wojtaszek and OTB board Chairman Richard Bianchi after he told them he agreed to cooperate with state and federal authorities who were investigating the agency. A federal judge earlier this month dismissed Nolan's lawsuit because it was not filed within a one-year window required under the law governing such claims. Nolan's attorney has confirmed for the newspaper that he intends to appeal the judge's decision.

Wojtaszek has said that Moskal has assisted OTB in undergoing a thorough review of its operation and that review has resulted in changes in the way the agency operates. Among Moskal's recommendations is a change in access by OTB officials to the agency's suites at Highmark Stadium, KeyBank Center and BlueCross Arena in Rochester. At Moskal's recommendation, OTB is now allowing only one representative to attend sports games, concerts and other events to serve as a "host" for individuals who received tickets as part of OTB's promotional program at Batavia Downs horse racing track and casino.

The Niagara Gazette and other news outlets, including the Buffalo-based independent news outlet Investigative Post, have previously reported that OTB is under investigation by the FBI and that a federal grand jury was convened in the case.

The FBI, as is standard practice for the bureau, has not confirmed or denied an investigation of OTB.

When asked if Moskal's work had anything to do with any ongoing state or federal investigations of OTB, Wojtaszek replied: "I don't know."