Matter of Siani v Clark

[*1] Matter of Siani v Clark 2009 NY Slip Op 50906(U) [23 Misc 3d 1123(A)] Decided on April 15, 2009 Supreme Court, Albany County Zwack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 15, 2009
Supreme Court, Albany County

In the Matter of the Application of Dominick J. Siani, Petitioner, (For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules re Public Officers Law, Article 6, §§ 84-90, Freedom of Information Law)

against

John B. Clark, Interim Chancellor; Jennifer LoTurco, Records Access Officer; Rose Marie Scrodanum, FOIL Appeals Officer; The State University of New York, Respondents.



10090-08



Appearances:

Dominick J. Siani

Petitioner Pro Se

39 Aberdeen Road

Smithtown, New York 11787

Andrew Cuomo

Attorney General of the State of New York

Attorneys For Respondent

Brian J. O'Donnell, Esq., of counsel

The Capitol

Albany, New York 12224-0341

Henry F. Zwack, J.

In this CPLR Article 78 proceeding, petitioner disputes a Freedom of Information Law (FOIL) denial and seeks all responsive documents as well as costs and disbursements, in addition to other relief. Respondents oppose the petition.

Petitioner submitted a FOIL request on September 17, 2008 to the State University of New York (SUNY) Records Access Officer, which is the subject of this proceeding. The FOIL request sought to obtain "all e-mails, memoranda and correspondence . . . by the SUNY FOIL Appeals Officer in performing her official duties . . . for the period from May 1, 2008 to the date in which the records are provided." The requested documents were only sought relating to FOIL appeals submitted by petitioner, and did not seek copies of correspondence directly with petitioner.

Petitioner extended the date for a response to the FOIL request and after the time passed with no response, petitioner filed an appeal. It is undisputed that the lack of a response constituted a constructive denial. Petitioner's appeal was denied by letter dated November 26, 2008 based upon the inter/intra agency exception to FOIL and based upon attorney-client privilege.

Respondents oppose the petition and have provided certain documents in response to petitioner's FOIL request (Documents labeled "Group 1"). Two other groups of documents have been withheld from petitioner and submitted to the Court for in camera review. Respondents contend that the documents in Group 2 are exempt from FOIL pursuant to attorney client privilege, and that the documents in Group 3 are exempt pursuant to attorney client privilege and the inter/intra-agency exemption.

In reply, petitioner submits multiple arguments, including that certain affidavits submitted with respondents' answering papers are invalid due to the fact that they were notarized by a party respondent, that there are factual inaccuracies in the affidavits, and that respondents violated FOIL by virtue of their withholding of the certain documents which have now been provided to petitioner.

It is well established that FOIL imposes a duty on the government to make its records available to the public and that there is a presumption that all records are subject to disclosure, unless they fall within a specific exemption from disclosure (Gould v New York City Police Dept., 89 NY2d 267, 274-75 [1996]). Exemptions exist for attorney-client privileged documents and for documents that fall into certain categories of intra/inter-agency materials (Pub. Off. Law § 87[2][a], [g]; CPLR § 4503). Public Officers Law § 87 provides that an agency may deny records or portions of records if they fall into specific categories, including

(a) those that "are specifically exempted from disclosure by state or federal statute; [*2]

(g) those that "are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations;

iv. external audits, including but not limited to audits performed by the comptroller and the federal government."

Regarding the inter/intra-agency exemption, case law has clarified that "factual data" is to be defined as "objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" (Gould, 89 NY2d at 277). Additionally, just because a document may constitute a non-final determination does not mean that it may not be subject to disclosure as factual data (Gould, 89 NY2d at 276).

Regarding the attorney-client privilege exemption, there are certain requirements for the privilege to apply which have been clarified by case law (see, e.g., People v Belge, 59 AD2d 307 [4th Dept 1977]). In general, "the privilege only applies if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c)for the purpose of securing either (i) an opinion or law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client."

(People v Belge, 59 AD2d at 309).

When there is a dispute as to whether a document falls into an exempt category, in camera inspection by the Court is an option (Gould, 89 NY2d at 276; Miller v New York State Dept. of Transportation, 58 AD3d 981 [3d Dept 2009]).

Attorneys fees and litigation costs may be awarded to a prevailing petitioning party challenging a FOIL denial in a CPLR Article 78 proceeding (Pub. Off. Law § 89[4]). Public Officers Law § 89 provides as follows:

The court . . . may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, when:

i. the agency had no reasonable basis for denying access; or

ii. the agency failed to respond to a request or appeal within the statutory time.

It is well established that an award of fees and costs is discretionary and based upon the [*3]facts and circumstances of each case, and is not required to be awarded even if the statutory prerequisites are met (see Pub. Off. Law § 89[4][c]; Miller, 58 AD3d 981; Urac Corp. v Public Service Commn. of the State of New York, 223 AD2d 906, 907 [3d Dept 1996]; Powhida v City of Albany, 147 AD2d 236 [3d Dept 1989]).

First, regarding petitioner's claim regarding improper notarization of opposition affidavits, the Court recognizes that there are instances where a notary public is subject to a conflict of interest, but does not find that the affidavits in this proceeding present such a conflict (see, e.g., Alfieri v Guild Times Pension Plan, 446 FSupp2d 99, 111-112 [EDNY 2006]). While there may be a conflict of interest when a notary is also a party to an instrument being notarized, this Court is not aware of the application of this rule to prevent a party to a proceeding from notarizing another party's affidavit (see id.). The Court finds that any interest in the proceeding as a named respondent is distinguishable from interest in a legal instrument such as a deed that is being notarized.

The Court has reviewed the documents submitted for in camera review. Regarding the documents in Group 2, the Court finds that the first two pages of the Group 2 documents (numbered 17 and 18 at the bottom of the pages) are not protected by the attorney client privilege because they contain emails that are not between an attorney and client. Although attorneys are copied on the emails, the Court does not find this meets the requirement for constituting an attorney client communication (People v Belge, 59 AD2d at 309). An attorney's advice being relayed by a non-attorney to another non-attorney does not meet the requirement for privileged attorney client communication (see generally People v Belge, 59 AD2d at 309). The third page of the Group 2 documents is exempt as attorney client communication because it is between an attorney and client and meets all other requirements to be entitled to the privilege (see People v Belge, 59 AD2d at 309).

Regarding the documents in Group 3, the Court has considered petitioner's argument that all inter/intra-agency documents in this case must be disclosed pursuant to the exception that requires disclosure of records involving instructions to staff that affect the public. The Court does not concur with petitioner's reasoning to the extent that the documents reflect deliberations and non-final determinations (Tuck-it-Away Associates, LP v Empire State Dev. Corp., 54 AD3d 154, 166 [1st Dept 2008] ["it is clear from the communications in question that the agency had not yet determined how to respond to the inquiry . . . and that no final instructions were given as to how to respond to the inquiry"]). In any event, the Court finds that the documents in Group 3 are protected by the attorney-client privilege (People v Belge, 59 AD2d at 309).

The Court now considers petitioner's request for reimbursement of litigation costs, referenced as totaling $394. Petitioner, the Court notes, is pro se, and therefore is unable to seek attorney's fees. The Court does find that petitioner has substantially prevailed in this proceeding, and that the commencement of this proceeding was undisputedly the reason why petitioner was initially afforded the documents provided in Group 1, which [*4]was done apparently after obtaining counsel's advice. The Court has also considered the time and effort that it took for respondents to obtain the documents requested, but finds that there was delay beyond the statutory limits and beyond the extra time voluntarily afforded by petitioner. In light of these considerations, pursuant to Public Officers Law § 89(4) the Court awards petitioner costs, and petitioner is directed to submit a bill of costs on notice.

The Court has considered petitioner's other arguments and finds them to be without merit.

Accordingly, it is

ORDERED, that the petition is granted to the extent set forth herein and petitioner is awarded costs, for which a bill of costs must be submitted, on notice to respondents' counsel.

This constitutes the Decision, Order and Judgment of the Court. All papers including this Decision, Order and Judgment are returned to the petitioner, with the exception of the confidential packet provided by the Attorney General's office, which is returned to the Attorney General's office. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Petitioner is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:April, 2009

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice