Matter of Leyton v City Univ. of N.Y.

[*1] Matter of Leyton v City Univ. of N.Y. 2009 NY Slip Op 52089(U) [25 Misc 3d 1214(A)] Decided on October 8, 2009 Supreme Court, New York County Feinman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 8, 2009
Supreme Court, New York County

In the Matter of the Application of Rudolfo Leyton, YDANIS RODRIGUEZ, LYDIA SHESTOPALOVA, HENRY WILLIAMS and IGWE WILLIAMS, Petitioners,

against

The City University of New York ("CUNY"); THE CITY COLLEGE OF NEW YORK ("City College"), MATTHEW GOLDSTEIN as Chancellor of CUNY; GREGORY WILLIAMS as President of City College; PAUL OCCHIOGROSSO as City College Records Access Officer and FREDERICK SCHAFFER as CUNY Senior Vice Chancellor for Legal Affairs and General Counsel, Respondents.



112491/2007



For the Petitioners:

Ronald B. McGuire, Esq.

Box 199

511 Avenue of the Americas

New York, NY 10011

(201) 795-0342 (office)

(212) 591-1308 (messages)

For the Respondents:

Attorney General of the State of New York

By: Roderick L. Arz, Esq., Assistant Attorney General

120 Broadway, 24th Floor

New York, NY 10271

(212) 416-8633

Paul G. Feinman, J.

Petitioners bring this CPLR Article 78 proceeding seeking judicial review of the appeal that affirmed respondents' partial denial of petitioners' Freedom of Information Law ("FOIL") (see Public Officers Law art 6) requests. Petitioners also cross-move seeking in camera review of the documents, production of an exemption log, and attorney's fees and costs (Pets.' Mem. of Law in Opp. to Resp.'s Cross-Mot. to Dis. & in Supp. of Pets.' Cross-Mot. for in Cam. Rev., at 43-53). Respondents cross-move to dismiss for failure to state a cause of action (see CPLR 3211 [a] [7]), essentially arguing that the petition is moot because the respondents have produced all of [*2]the documents to which petitioners are entitled (Mem. of Law in Supp. of Cross-Mot. to Dis., at 5-10) and that respondents have fully complied with FOIL (Mem. of Law in Supp. of Cross-Mot. to Dis., at 10-13). For the reasons set forth below, the petition is denied in part and granted in part; respondents' cross-motion to dismiss is granted; and petitioners' cross-motion for attorney's fees/costs is denied.

Background

On January 30, 2007, petitioners, all of whom are students or alumni of respondent City College, submitted a FOIL request to City College seeking, among other things, documents pertaining to the Guillermo Morales/Assata Shakur Community and Student Center (Corrected Ver. Pet. ¶ 3-7; Re-Not. of Pet., Ex. C).[FN1] Petitioners requested that the documents be produced electronically (see Public Officers Law § 89 [3] [a]). On February 6, 2007, Paul Occhiogrosso, counsel to City College's President and the Records Access Officer, acknowledged receipt of the request, and on March 8, 2007, within the alleged 20 business days (see Public Officers Law § 89 [3] [a]), he wrote to petitioners again stating that an additional two weeks would be needed to respond because of the numerous sources (Re-Not. of Pet., Exs. D, K). On March 23, 2007, Occhiogrosso wrote to petitioners yet again, via facsimile, stating that he expected to respond to the request by March 30, 2007 (Re-Not. of Pet., Ex. D). Petitioners treated this letter as a denial and, that same day, sought to appeal to Frederick Schaffer, CUNY General Counsel and Senior Vice Chancellor for Legal Affairs (Re-Not. of Pet., Ex. E). On March 26, 2007, Jeanette Woloszyn, Assistant General Counsel to CUNY, wrote a letter to petitioners stating that they would endeavor to respond to the appeal within 30 business days (Re-Not. of Pet., Ex. F). Petitioners immediately responded, stating that if the documents were not produced by April 6, 2007, as required by Public Officers Law § 89 (5) (c) (2), they would deem respondents to have constructively denied the appeal (Re-Not. of Pet., Ex. F).

Thereafter, over the course of several correspondences on April 9, 10, 11, 20, and 26, 2007, Mr. Occhiogrosso provided petitioners with responsive documents as he "complete[d his] review of them, by category" (Re-Not. of Pet., Ex. G). In total, Mr. Occhiogrosso provided petitioners with 397 pages of documents, some of which were redacted (Re-Not. of Pet. ¶¶ 21-23, Exs. G-H). He also explained to petitioners that 603 pages of documents were withheld because they were exempt from disclosure by virtue of the attorney-client privilege (see Public Officers Law § 87 [2] [a]) or pursuant to the inter-agency/intra-agency exemptions (see Public Officers Law § 87 [2] [g] [i]-[iii]), or because they were nonresponsive to petitioners' FOIL requests (Re-Not. of Pet., Exs. G-H).

On May 15, 2007, Schaffer denied petitioners' appeal, finding that "the 603 documents not produced or redacted were properly withheld [under the] attorney-client privilege[ or the] intra-agency communications [exemption]," that the delay was reasonable given the breadth of the documents sought, and that respondents were "not required to produce the document[s] by [*3]electronic means" (Re-Not. of Pet., Ex. K, at 4, 5). This proceeding ensued.

On October 14, 2008, respondents voluntarily submitted, for in camera review, 491 of the 603 documents initially withheld; these documents bear Bates stamp "CUNY1" to "CUNY491." Respondents also voluntarily submitted a detailed exemption log explaining why these documents had either been redacted or withheld (Resp.'s Mem. of Law in Fur. Supp. of Cross-Mot. to Dis, Ex. A). There were 126 documents that respondents did not submit for in camera review because respondents deemed them "either duplicative of documents already submitted[,] non-responsive to [p]etitioners' [FOIL] request" (Arz. Letter dated March 23, 2009), or "either partially or fully exempt from disclosure"(Arz. Letter dated March 31, 2009). On March 18, 2009, this court ordered that respondents also submit the additional 126 documents, which bear Bates stamps "CUNY492" to "CUNY617," for in camera review. Petitioners then demanded that respondents also provide the court with a supplemental privilege log to ensure that those 126 documents actually were duplicates or unresponsive (McGuire Letter dated March 30, 2009). Respondents voluntarily complied (Arz Letter dated March 31, 2009).

AnalysisCPLR Article 78 proceedings are the vehicle by which one challenges the determination of "a body or officer" (CPLR 7801 [1]; 7803 [3]). Judicial review of such administrative determinations "is limited to the grounds invoked by the agency" (Matter of Aronsky v Board of Educ., 75 NY2d 997, 1000 [1990]). The court may not substitute its judgment for that of the agency's determination but shall decide if the determination "can be supported on any reasonable basis" (Matter of Clancy-Cullen Storage Co. v Board of Elections of the City of New York, 98 AD2d 635, 636 [1st Dept 1983]). The test of whether a decision is arbitrary or capricious is " determined largely by whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact'" (Matter of Pell v Board of Educ., 34 NY2d 222, 232 [1974]), quoting 1 NY Jur Admin Law § 184). An action is arbitrary if it is without sound basis in reason or taken without regard to the facts (see Matter of Pell v Board of Educ., 34 NY2d at 232). The court is to dispose of an Article 78 proceeding in the same manner as it would a motion for summary judgment (see CPLR 409 [b]).

However, in the context of a FOIL, the "party claiming exemption from disclosure of a particular document requested pursuant to FOIL bears the burden of proving entitlement to the exemption" (Matter of Bahnken v New York City Fire Dept., 17 AD3d 228, 229 [1st Dept 2005], lv denied 6 NY3d 701 [2005]). Generally, administrative determinations are "entitled to varying degrees of judicial deference depending upon the extent to which the interpretation relies upon the special competence the agency" (Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42, 47 [1988]). When an agency makes a determination in a matter involving that agency's "special competence and expertise" (Jemrock Realty Co. LLC v Krugman, 64 AD3d 290, 300 [1st Dept 2009]), this court affords great deference to that determination (see Matter of Lewis Family Farm, Inc. v New York State Adirondack Park Agency, 64 AD3d 1009, 1013 [3d Dept 2009]) so long as it is rational (Matter of Gruber [New York City Dept. of Personnel—Sweeney], 89 NY2d 225, 231 [1996]; Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42, 47 [1988]). However, this Court is not required to "accord [any] deference to [agency] determination[s regarding] statutory construction" or pure questions of law (Matter of Belance v Manhattan Beer Distribs., 52 AD3d 1059, 1061 [3d Dept 2008], lv denied 11 NY3d 715 [2009]). The issue of [*4]whether a party invoking a FOIL exemption has met their burden is one of "pure legal interpretation" (Matter of Toys R Us v Silva, 89 NY2d 411, 419 [1996]) for this court to decide and, therefore, it is it is error to "apply[] the normal [A]rticle 78 arbitrary and capricious' standard of review" (Matter of Bahnken v New York City Fire Dept., 17 AD3d at 229; see Public Officers Law § 89 [5] [e]; Matter of Smith v Donovan, 61 AD3d 505, 508 [1st Dept 2009]).

To promote the policy of "open government" (Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359, 362 [2002]; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 565 [1986]; see Public Officers Law § 84) and "public accountability" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274 [1996]), FOIL "mandates all agencies to make records available to the public" (Matter of Empire Realty Corp. v New York State Div. of Lottery, 230 AD2d 270, 272 [3d Dept 1997]), unless " the material requested falls squarely within the ambit of [a] statutory exemption[]'" (Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 83 [1984], quoting Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]) under Public Officers Law § 87 (2). The agency claiming such an exemption bears the burden of proving its applicability (see Public Officers Law § 89 [4] [b]). Foil exemptions must be "narrowly interpreted" to effectuate the statute's purpose (Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 564 [1984]).

FOIL Exemptions

Despite the breadth of FOIL's applicability, several types of documents are nevertheless exempt from production. Among such documents are those falling under the inter-agency/intra-agency exemption (see Public Officers Law § 89 [2] [g] [iii]) and those subject to the attorney-client privilege (see Public Officers Law § 87[2] [a]; CPLR 4503 [a]).

1. The Inter-agency/Intra-agency Exemption

"The inter[-]agency and intra[-]agency exemption applies to records that are deliberative, i.e., communications exchanged for discussion purposes not constituting final policy decisions'" (Matter of Miller v New York State Dept. of Transp., 58 AD3d 981, 984 [3d Dept 2009], lv denied 12 NY3d 712 [2009]], quoting Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 699 [1993]; see Public Officers Law § 87 [2] [g]). "[T]he purpose of the [inter-agency/]intra-agency exemption [is] to permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure'" (Matter of Tuck-It-Away Assoc., L.P. v Empire State Dev. Corp., 54 AD3d 154, 166 [1st Dept 2008], quoting Matter of New York Times Co. v City of NY Fire Dept., 4 NY3d 477, 488 [2005]).

There are four exceptions to the inter-agency/intra-agency exemption (see Public Officers Law § 87 [2] [g] [i]-[iv]; Matter of Gould v New York City Police Dept., 89 NY2d 267, 276 [1996]) three of which are germane here. Neither (1) "statistical or factual tabulations or data," (2) "instructions to staff that affect the public," nor (3) "final agency policy or determinations" fall under the inter-agency/intra-agency exemption (see Public Officers Law § 87 [2] [g] [i]; [ii]; [iii]; United Policyholders v Serio, 298 AD2d 286, 286-287 [1st Dept 2002]). Thus, documents, or portions thereof, that contain such materials must be produced.

After carefully comparing the unredacted versions of documents bearing Bates numbers "CUNY1" to "CUNY 491" with the redacted/withheld versions of those documents that respondents supplied to petitioners (Aff. in Opp. to Cross-Mot. to Dis., Ex. 2), this court finds that the documents, or portions thereof, for which respondents invoke the applicability of the [*5]inter-agency/intra-agency exemption are clearly deliberative, quintessentially so. The only exception is document bearing Bates stamp "CUNY18-5." This document is responsive to petitioners' FOIL requests and falls squarely within the "final agency policy" exception (Public Officers Law § 87 [2] [g] [iii]). Therefore, petitioners' motion is granted, in part, to the extent that respondents shall provide petitioners with an unredacted version of "CUNY18-5."

2. Attorney-Client Privilege

"The attorney-client privilege protects confidential communications between a lawyer and client relating to legal advice sought by the client; [the party] who asserts the privilege has the burden of proving" it (Matter of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003, 4 NY3d 665, 678 [2005]; see CPLR 4503). "Communications between an attorney and a client in the course of professional employment for the purpose of obtaining legal advice are privileged and not discoverable unless the privilege is deemed to have been waived by the client" (Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 372 [1st Dept 2008]).

Here, the question is whether the documents for which respondents invoked the attorney-client privilege were "made for the purpose of obtaining legal advice and directed to an attorney who has been consulted for that purpose" (New York Times Newspaper Div. of NY Times Co. v Lehrer McGovern Bovis, 300 AD2d 169, 171 [1st Dept 2002]; see Rossi v Blue Cross & Blue Shield of Greater NY, 73 NY2d 588, 593 [1989]). Upon consideration, this court finds that each and every document for which respondents invoked the attorney-client privilege represents a communication between an attorney and a client "for the purposes of facilitating the rendition of legal advice or services" (Plimpton v Massachusetts Mut. Life Ins. Co., 50 AD3d 532, 545-546 [1st Dept 2008]).[FN2] To the extent that respondents partially produced portions of those communications (i.e. "CUNY14"), such disclosure does not constitute a waiver of the attorney-client privilege because the fact "[t]hat nonprivileged information is included in an otherwise privileged lawyer's communication to its client . . . does not destroy the immunity" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 378 [1991]; see John Blair Communications v Reliance Capital Group, 182 AD2d 578, 579 [1st Dept 1992]). Rather, "the full content and context of the communication" was reviewed, and here, because the documents' "purpose was to convey legal advice to the client" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 378), they are not subject to disclosure, nor was the privilege waived (see Matter of Kaminester v Foldes, 43 AD3d 730, 731 [1st Dept 2007]) .

Further, with respect to documents "CUNY492" to "CUNY617," this court finds that: "CUNY492" to "CUNY502" are, as respondents contended, duplicates (Arz Letter dated March 31, 2009); "CUNY 503" to "CUNY506," "CUNY552" to "CUNY 554," and "CUNY 593" were properly withheld under the attorney-client privilege; and "CUNY507" to "CUNY551," "CUNY555" to "CUNY557" to "CUNY592," and "CUNY594" to "CUNY617" are entirely nonresponsive to petitioners' requests.

Finally, the court notes that respondents appear to have erroneously labeled documents [*6]"CUNY18-1," "CUNY18-2," "CUNY18-3," and "CUNY18-4," as internally deliberative and/or attorney work-product. While this characterization is not accurate, the documents are, nevertheless, wholly non-responsive to petitioners' requests, and as such, respondents' error is harmless. Thus, this court finds, as did Schaffer, that respondents have successfully met their burden of demonstrating the applicability of the various FOIL exemptions. Accordingly, the petition and cross-motion are granted to the extent that an in camera review was performed of the documents in question, and, after review, the petition to reverse respondents' decision is denied.

Attorney's Fees/Costs

Once a FOIL request has been made, "any person denied access to a record may" appeal to the agency's head "who shall within [10] business days . . . explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought" (Public Officers Law § 89 [4] [a]). Thereafter, the petitioner's remedy is to "commence a CPLR article 78 proceeding to review the denial" (Matter of Miller v New York State Dept. of Transp., 58 AD3d 981, 983 [3d Dept 2009], lv denied 12 NY3d 712 [2009]), at which point this court is afforded broad discretion in imposing attorney's fees and/or costs to the "substantially prevail[ing]" (Public Officers Law § 89 [4] [c]; see Todd v Craig, 266 AD3d 626 [3d Dept 1999], lv denied 94 NY2d 760 [2000]) so long as "the agency had no reasonable basis for denying access" (Public Officers Law § 89 [3] [c] [i]) or "the agency failed to respond to a request or appeal within the statutory time" (Public Officers Law § 89 [3] [c] [ii]; see Matter of Moreno v New York City Dept. of Correction, 47 AD3d 545, 545 [1st Dept 2008], lv denied 10 NY3d 711 [2008]).

Because the statutory prerequisites have not been met inasmuch as petitioners have not prevailed at all, let alone substantially, it would be error, as a matter of law, for this court to award attorney's fees or costs to petitioners (see Public Officers Law § 89 [3] [b]; Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, [2005]). Therefore, the branch of the petition and cross-motion seeking attorney's fees/costs is denied.

Electronic Production

Public Officers Law § 89 (3) (b) provides that an agencies "shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail, using forms, to the extent practicable."FOIL provides that "[w]hen an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so. When doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the agency shall be required to retrieve or extract such record or data electronically" (Public Officers Law § 89 [3] [a]). Here, contrary to petitioners' contention, FOIL does not "require[] agencies to produce documents electronically when requested by an applicant" (Re-Not. Pet. ¶ 33). The statutory language plainly makes the requirement subject to a number of conditions, namely, whether reasonable means of doing so are available, whether employing such means are practicable, and whether retrieving the documents by such means would save time (see Public Officers Law § 89 [3] [a]-[b]).

Here, the record readily demonstrates that respondents made significant efforts to assure full compliance with FOIL by only partially redacting the portions for which production was exempt. Twice, respondents voluntarily submitted thorough exemption logs, which were served [*7]upon petitioners, detailing, among other items, the contents, properties, and exemption/privilege-status of each of these documents. Mr. Occhiogrosso consistently kept petitioners abreast of the status of their request, and made reasonable attempts to comply in a timely fashion. Given the quantity of documents requested and the fact that many of them required partial redaction, it cannot be said that manual production of the documents was unreasonable or that electronic production would have been more time efficient. Thus, respondents sufficiently demonstrated, as Schaffer determined, that their decision to produce hard copies of the documents was reasonable (Re-Not. of Pet., Ex. K, at 5). Thus, it is

ORDERED that the petition is granted to the extent that respondents shall provide petitioners, within 10 days of notice of entry of this order, with the document bearing Bates stamp "CUNY18-5" and denied in all other respects; and it is further

ORDERED that respondents' cross-motion to dismiss is granted, and it is further

ORDERED, that petitioners' cross-motion for attorney's fees/costs is denied.

This constitutes the decision and order of the court.

Dated:____________________________________

New York, New YorkJ.S.C. Footnotes

Footnote 1: The parties here are also parties to an action pending in the United States District Court, Southern District of New York (see Williams v Williams, US Dist Ct, SD NY, 07 Civ 119, 2008, Griesa, J.) (Pets.'Aff. in Opp. to Cross-Mot. to Dis., Ex. 7). Petitioners readily admit that the FOIL requests at issue here were made in furtherance of the federal action (Pets.' Aff. in Opp. to Cross-Mot. to Dis. ¶ 5).

Footnote 2: Despite petitioners' contentions to the contrary, this court finds that the documents bearing Bates stamps "CUNY216" to "CUNY219" are subject to the attorney-client privilege despite the fact that respondents' exemption log did not list the senders' names.