Matter of Fenstermaker v Edgemont Union Free School Dist.
Annotate this CaseDecided on September 26, 2006
Supreme Court, Westchester County
In the Matter of the Application of Scott L. Fenstermaker, Petitioner,
against
The Edgemont Union Free School District, Nancy L. Taddiken, District Superintendent, and Susan Shirken, as District Records Access Officer, Respondents.
06-11632
Scott L. Fenstermaker, P.C., Petitioner pro se, 500 Fifth Avenue, 40th Floor, New York, New York 10110.
Kehl, Katzive & Simon, LLP, Attorneys for Respondents, 317 Madison Avenue, New York, New York 10110, By: Jeffrey A. Kehl, Esq.
Gerald E. Loehr, J.
In this proceeding pursuant to Article 78 of the Civil Practice Law and Rules
petitioner seeks a judgment:
Directing respondent Edgemont Union Free School District (the "School District") to
provide copies of all records requested in his FOIL request of January 31, 2006 (the "First FOIL
Request") at the lowest fee collected by the School Dsitrict on FOIL requests during the period
between the enactment of FOIL until the present;
Directing the School District to eliminate extraneous, irrelevant and superfluous
documents from its response to petitioner's First FOIL request; and
Directing the School District to comply with petitioner's FOIL request of June
8,2006 (the "Second FOIL Request") wherein he requested a copy of each FOIL application filed
with the School District since the enactment of its FOIL rules and regulations, such copies to be
provided at the lowest fee collected by the School District on FOIL requests during the period
between the enactment of FOIL and the present.
As a resident of the Edgemont School District and apparently concerned with the
District's [*2]"fraud-prevention" efforts, by letter dated January
31, 2006, petitioner made a request of the School District pursuant to the Freedom of Information
Law ("FOIL"). The request specified 60 categories of financial records which spanned the period
from January 1, 2001 to December 31, 2003.[FN1] In the letter, petitioner stated: "Naturally, I and
my fellow residents involved in this effort will be responsible for any and all costs reasonably
associated with this effort."
By letter dated February 8, 2006, respondent Shirken, in her capacity as the School
District's Records Access Officer, provided a written response. Requests numbered 41 and 42
were denied on the basis that they called for a narrative response and not for records. The 58
other requests were granted. Her reply also advised that some of the records which had been
requested would have to be redacted to delete personal information such has home addresses and
Social Security numbers (see Beyah v Goord, 309 AD2d 1049, 1050 [3d Dept 2003]).
The letter closed with the following:
"When the records have been assembled and boxed up, we will, as you ave
suggested, have them delivered to an outside contractor for duplication at your expense. I
encourage you to confer with Mr. Kehl [Respondents' counsel] for the for the purpose of
recommending a duplicating contractor for this purpose. We will require that it be an entity with
experience and established reputation in handling bulk duplicating projects efficiently and
without damage or disarrangement to the original materials being copied .... We will also require
that you make appropriate advance arrangements to ensure payment, as you will, I trust,
understand that we cannot permit a situation to develop in which public records might become
subject to a contractor's retaining lien for unpaid services.
"To the extent that access to any record has been denied, you may appeal such denial
in writing within thirty days after your receipt of this letter. Your appeal should be addressed to
Ms. Nancy L. Taddiken, Superintendent of Schools, at the above address."
Petitioner did not appeal this determination.
By letter dated February 15, 2006, petitioner responded in part;
"In the penultimate paragraph of your letter [of February 8, 2006], you make a
number of requests, or some may reasonably conclude, demands, about how, and by whom the
records will be copied. One of the reasons that I asked that communications be routed through
Mr. Kehl is to avoid any unnecessary confrontational episodes during this process, which I
anticipate will take a number of years. As far as what you 'will require,' we will comply with
what the law requires, not what you and your colleagues require. We have every intention of
using professional copying services equipped to adequately, professionally, and efficiently handle
this responsibility. I suggested, in the Request, that Mr. Kehl and I agree on such a service. I
again reiterate that suggestion, notwithstanding your 'requirements.'
* * *
[*3]
"As far as ensuring that proper payment
arrangements are made we will comply with your requirement that adequate payment
arrangements are made. We are confident that, at the conclusion of this matter, we will ultimately
be reimbursed by School District funds."
By April 3, 2006, respondents had identified and assembled 48 boxes of original
records for copying as well as having already copied several thousand pages of additional
material which needed to be copied so that the material could be returned to working files or
redacted. The parties agreed that they would use an outside copying service and anticipated
having to look to Manhattan in order to find a facility large enough to properly handle the job. It
was also agreed, at petitioner's request, that he could inspect the records before they were sent out
for copying in order to insure that he would not have to pay for the duplication of non-responsive
material. Rather than make this inspection, however, by letter dated April 7, 2006, petitioner
accused respondents of having created a situation "rife with bribes and kickbacks;" that he was
certain that respondents had already altered or destroyed certain of the requested records; that
counsel was operating under a conflict of interest in that he was responsible as counsel for
respondents' malfeasance; and that he was therefore demanding that the records be sent to a copy
service designated by him.
By letter dated April 10, 2006, respondents through counsel informed petitioner that
he would be billed $0.25 per page for the records that had already been copied; that the balance
of the requested records would be copied by a duplicating service of the School District's choice;
that petitioner could inspect the records before they were sent out for copying but they would not
be sent out at all unless and until petitioner paid for the copies that had already been made and
provided suitable security for payment for the copies to be made. By letter dated April 12, 2006,
petitioner was informed that the charges for the copies already made was $4,666.25.
On April 26, May 10, May 17, May 24 and June 1, 2006, petitioner made five
two-hour visits to the School District's office where, with an employee of the School District
present, he reviewed the records. No objection was then made that the records were
non-responsive, nor did petitioner pay for the copies already made.
Rather, by letter dated June 8, 2006, petitioner made a second FOIL request, this
time seeking a copy of each FOIL application filled with the School District since the enactment
of its FOIL rules and regulations.[FN2] By letter dated June 12, 2006, Shirken granted
the request on the condition that the $4,666.25 still outstanding for the copies made pursuant to
petitioner's first FOIL request be paid. The letter concluded with the following: 'To the extent
that access to any record has been denied, you may appeal such denial in writing within thirty
days after your receipt of this letter. Your appeal should be addressed to Ms. Nancy L. Taddiken,
Superintendent of Schools, at the above address." By letter dated June 17,2006, petitioner
appealed this determination. By letter dated June 29, 2006, the Superintendent affirmed Shirken's
June 12, 2006 determination. This article 78 proceeding followed.
[*4]
Petitioner's first request for relief seeks an order
directing the School District to provide copies of the records requested in his FOIL request of
January 31, 2006 at the lowest fee collected by the School District on FOIL requests during the
period between the enactment of FOIL and the present. As a preliminary matter, respondents
move to dismiss this claim on the basis that petitioner bas not exhausted his administrative
remedies.
Public Offices Law § 89(4)(b) provides:
"[A] person denied access to a record in an appeal determination under the
provisions of paragraph (a) of this subdivision may bring a proceeding for review of such denial
pursuant to article seventy-eight of the civil practice law and rules."
Respondents contend that petitioner having failed to appeal Shirken's determination
of February 8, 2006, petitioner has failed to exhaust his administrative remedies thereby
precluding article 78 relief.
While it is true that petitioner did not appeal the February 8 determination and that
determination provided that petitioner would have to make appropriate advance arrangements to
ensure payment for the copies, that is not the determination which petitioner is challenging. What
he is challenging is the determination that he must pay $0.25 per page. That determination was
not made until April 2006. Petitioner's failure to appeal the February 8 determination therefore
does not preclude article 78 relief with respect to this issue (Pennington v Clark, 307
AD2d 756 [4th Dept 2003]). Moreover, the April 10, 2006 letter which advised petitioner of the
price per page he was to be charged failed to also advise of the availability of an administrative
appeal. Having failed to do so, respondents cannot now argue that petitioner failed to exhaust his
administrative remedies with respect to this issue by not appealing (Matter of Barratt v
Morganthou, 74 NY2d 907, 909 [1989]). Moreover, the foregoing is true, notwithstanding
that the petitioner may have been aware of the availability of such an administrative review by
virtue of respondent's letter of February 8 (Orange County Pub. v Kiryas Joel Union Free
School Dist., 282 AD2d 604,606 [2d Dept 2001]). Respondents' motion to dismiss this claim
on exhaustion grounds is therefore denied.[FN3]
With respect to the merits, petitioner reiterates that he has offered to pay for the
entire cost of the copying. The gravamen of his claim is that inasmuch as the photocopying
service he regularly employs would have charged only $0.15 per page, respondents' unilateral
decision to use a service of their own choosing at a cost of $0.25 per page is arbitrary and
capricious.
Public Officers Law § 87(l)(b)(iii) authorizes an entity subject to FOIL to charge up
to $0.25 per page for copies of records (see also 21 NYCRR 1401.8[c] [l]). Moreover,
once an agency has determined the number of copies requested, it may require that the fee
therefor be paid prior to the reproduction of the records (Committee on Open Government
FOIL-AO-4076; 92 NY Jur 2d [*5]§ 57) and there is no authority
for the proposition that the individual who submitted the FOIL request has any right or say in
how or by whom the copies shall be made. Furthermore, even if there were, respondents' decision
to send the records to an independent copying service t a statutorily authorized price is more than
reasonable given the alternative: releasing these original School District records to a copying
service where petitioner would have had unsupervised access to them. Based thereon, petitioner's
first request for relief is denied.
In his second request for relief, petitioner seeks an order directing the School District
to eliminate extraneous, irrelevant and superfluous documents from the District's response to his
First FOIL Request. This smacks of bad faith. First, petitioner cites no authority for this
proposition. Moreover, it is undisputed that petitioner was given more than an ample opportunity
to review the literally hundreds of thousands of pages of records which he requested - and which
required over 177 hours to collect, copy and redact at an estimated cost in lost staff time to the
School District of over $14,500 - in order to cull out those records which he did not want copied.
He declined to do so, and in so doing manufactured and perpetuated an issue that could have and
should have been resolved then. The second request for relief is denied.
In his third request, petitioner seeks an order directing the School District to comply
with his Second FOIL Request and to provide such copies at the lowest fee collected by the
School District on FOIL requests from the enactment of FOIL to the present. As indicated above,
this request was granted on the condition that petitioner first pay the $4,666.25 outstanding for
the copies made with respect to petitioner's First FOIL Request.
The Committee on Open Government, the administrative agency charged with the
interpretation of the FOIL statute, has issued the following advisory Opinion:
"If an agency has prepared copies of records in good faith and the applicant fails or
refuses to pay the fee, I do not believe that the agency would be required to make available those
copies that have been prepared. In my view, it follows that an agency should not be required to
honor ensuing requests until the applicant has fulfilled his or her responsibility by tendering the
fee for copies previously made."
(Committee on Open Government FOIL Opinion dated August 27, 1996 [Beverly L.
Ouderkirk]). Again, petitioner has submitted no authority to the contrary. Thus, respondents'
decision with respect to petitioner's Second FOIL Request was neither arbitrary nor capricious
but reasonable and in accordance with the law. Based thereon, the third request for relief is
denied and the petition is dismissed.[FN4]
In its cross-motion, respondents' assert that this proceeding is frivolous and was filed
in bad faith and seeks that sanctions be imposed.
Pursuant to 22 NYCRR 130-1.1, the Court in its discretion may award to any party in
any civil [*6]action or proceeding costs in the form of
reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting
from frivolous conduct Frivolous conduct includes the filing of a proceeding that is completely
without merit in law and cannot be supported by a reasonable argument for an extension,
modification or reversal of existing law.
For the reasons stated above, the Court finds this proceeding to be frivolous. Each of
respondents' decisions challenged in this proceeding was supported by statute and administrative
rulings and petitioner cited no authority to the contrary. Accordingly, in addition to statutory
costs to be taxed by the Clerk of the Court (CPLR 8201; City of Buffalo v George Irish Paper
Co., [4th Dept 1969]; affd without opn 26 NY2d 869 [1970]), the School District is
awarded costs to be paid by petitioner for the actual expenses reasonably incurred and reasonable
attorney's fees incurred in defending this proceeding. Respondents' counsel shall submit an
affidavit of such expenses and attorney's fees on notice to petitioner to the Court by November 1,
2006. This constitutes the decision and order of this Court.
The Court considered the following papers in connection with this application: (1)
Notice of Amended Petition and Amended Petition dated July 8, 2006 with exhibits attached; (2)
Verified Reply dated July 23, 2006 with exhibits attached; (3) Respondents' Notice of Motion
dated July 24, 2006 together with Affidavits and exhibits attached; (4) Respondents'
Memorandum of Law; (5) Petitioner's Memorandum of Law; and (6) Reply Affidavit of Sheila
Y. Samuels.
Dated: White Plains, New York September 26, 2006
Hon. Gerald E. Loehr
Acting J.S.C.
Footnotes
Footnote 1: Typical of this request is the
following: "(1) Any and all records, in whatever form, reflecting accounts payable by the
Edgemeont Union Free School District for the period from January 1, 2001 through December
31, 2003."
Footnote 2: The School District enacted
FOIL regulations in the 1970's.
Footnote 3: Respondents also moved to
dismiss the petition based on petitioner not having filed a verified claim with the School District
pursuant to Education Law § 3813. Inasmuch as petitioner is seeking primarily equitable relief,
that section does not apply (Trehy v Commack Union Free School Dist., 93 AD2d 891 [2d Dept],
rev'd on other grounds 61 NY2d 658 [1983]),
Footnote 4: Inasmuch as the Court has
denied all of petitioner's substantive requests for relief, his request for attorney's fees is likewise
denied.
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