Matter of Chatham Towers Inc. v New York City Off. of Mgt. & Budget
Annotate this CaseDecided on December 15, 2009
Supreme Court, New York County
IN THE MATTER OF THE APPLICATION OF Chatham Towers, Inc., CHATHAM GREEN INC., SOUTHBRIDGE TOWERS, INC., JEANIE CHIN, DANNY CHEN, and JOHN OST, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,
against
New York City Office of Management And Budget, JEFFREY M. PERLMAN, in his official capacity, MARJORIE E. HENNING, in her official capacity, and ELIZABETH R. FINE, in her official capacity, Respondents.
111926/09
Attorneys for Petitioners:
Asian American Legal Defense and Education Fund
by Kenneth Kimerling, Esq.
99 Hudson Street
New York, New York 10013
(212) 966-5932
Dewey & LeBoeuf LLP
by Aldo A. Badini, Esq. and Aaron C. Lang, Esq. and Eric M. Levine, Esq.
1301 Avenue of the Americas
New York, New York 10019
Attorneys for Respondent: Corporation Counsel of the City of New York
by Michael A. Cardozo, Esq.
Of Counsel: Chris Reo, Esq. And Adam Stolorow, Esq.
100 Church Street, Rm. 6-141
Michael D. Stallman, J.
This court previously addressed, and dismissed, an application brought by the above petitioners to compel the New York City Police Department, New York City Department of Design and Construction and New York City Department of City Planning (together, the City) to subject the City's plan to build a state-of-the-art "Joint Operations Command Center" to statutory environmental review. See Matter of Chatham Towers, v New York City Police Department, Index No. 111875/08, 2009 NY Slip Op 51792U, *; 24 Misc 3d 1238A; 2009 NY Misc. LEXIS 2165, **).
In this proceeding, petitioners seek to compel respondent New York City Office of Management and Budget (OMB) to respond to petitioners' Freedom of Information Law (FOIL) request, by producing "any and all documents and other records prepared in connection with, concerning, or otherwise related to the planned Joint Operations Center at 109 Park Row in Manhattan ... ." Letter dated October 3, 2008, Petition, Ex. 3.
After seeking, and receiving, several adjournment dates concerning OMB's statutory time in which to reply to the FOIL request, OMB produced some documents, but refused to produce others, which are allegedly protected by sections 87 (2) (e), (f) and (g) of the Public Officers Law (POL). Specifically, OMB claimed that the withheld records would either disclose (1) non-routine law enforcement techniques (section 87 [2] [e]; (2) documents which could endanger the life and safety of any person (section 87 [2] [f]); or certain inter- or intra-agency communications (section 87 [2] [g]). See Respondents' Memorandum of Law, at 7.
Petitioners appealed the denial of the records to the applicable Records Appeal Officer, complaining that the rejection of their request was not made with requisite particularity or justification under the statute. Petitioners complained, among other things, that the denial of their request under POL § 87 (2) (g) (regarding inter- and intra-agency communications) was erroneous, because petitioners were challenging the "adequacy of the government's deliberations" in relation to the earlier proceeding, concerning the City's "failure" to follow the allegedly applicable land use procedures. Letter Dated April 7, 2009, Respondents' Ex. I.
On appeal, OMB was directed to provide, as responsive to the FOIL request, several further documents, but the majority of the OMB's previously withheld documents were found to be protected by the statute. Petitioners here seek the remainder of the documents, arguing that OMB's bare refusal to provide the documents, based merely on a conclusory formulaic reiteration of the statutory language, is insufficient to meet the requirements and intent of FOIL.
" All government records are presumptively open for public inspection unless specifically exempted from disclosure as provided in the Public Officers Law [citation omitted].'" Matter of City of Newark v Law Department of City of New York, 305 AD2d 28, 31 (1st Dept 2003); see also Matter of Professional Standards Review Council of America Inc. v New York State [*2]Department of Health, 193 AD2d 937 (3d Dept 1993). The statutory exemptions are "narrowly circumscribed." Matter of Citizens for Alternatives to Animal Labs, Inc. v Board of Trustees of State University of New York, 92 NY2d 357 (1998); see also Matter of New York Times Co. v New York State Department of Health, 243 AD2d 157 (3d Dept 1998). It is the burden of the party seeking an exemption to prove that the document falls within the statutory ambit, by articulating "particularized and specific justification ... ." Matter of M. Farbrman & Sons, Inc. v New York City Health and Hospitals Corporation, 62 NY2d 75, 83 (1984); see also Matter of DJL Restaurant Corporation v Department of Buildings of City of New York, 273 AD2d 167 (1st Dept 2000). "To meet its burden, the party seeking exemption must present specific, persuasive evidence that disclosure will cause it to suffer a competitive injury; it cannot merely rest on a speculative conclusion that disclosure might potentially cause harm." Matter of Markowitz v Serio, 11 NY3d 43, 51 (2008).
Particularly pertinent to the present matter is the rule that merely reiterating the terms of the statute in defense of nondisclosure is wholly insufficient to deny access to public documents. See Matter of DJL Restaurant Corporation v Department of Buildings of City of New York, 273 AD2d 167, supra. "[B]lanket exemptions for particular types of documents are inimical to FOIL's policy of open government." Matter of Gould v New York City Police Department, 89 NY2d 267, 275 (1996).
In its letters denying petitioners' FOIL requests, OMB failed to articulate specific and particularized reasons for withholding the requested documents, consisting of several documents, as well as e-mails, but merely quoted all of the statutory exemptions for each denied document. Petition, Ex. 8. In its Memorandum of Law, with regard to the inter- and intra-agency exemption (POL § 87 [2] [g]), OMB stated that the information is protected "pre-decisional and deliberative" in nature, as opposed to discoverable "statistical or factual tabulations" as available information under that provision. It states that it is exempted from producing materials under POL § 87 (2) (e), because revelation of this information will reveal "the very non-routine criminal investigative techniques or procedures" which the statute seeks to protect. Respondents' Memorandum of Law, at 24. Exemption under POL § 87 (2) (f) is denied based on the potential danger to "life and safety of any person" which disclosure might unleash. Id. at 25.
OMB points out that "[o]pinions and recommendations prepared by agency personnel may be exempt from disclosure under FOIL as predecisional material, prepared to assist an agency decision maker ... in arriving at his decision [internal quotation marks and citation omitted]." Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 132 (1985). This rule is meant "to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decisions makers [internal quotation marks and citation omitted]." Id. However, the final determinations themselves are not exempt. Id.
The problem with OMB's lengthy analysis as to what type of inter-and intra-agency communications may be exempt from review under such cases as Xerox, 65 NY2d 131, supra, or Matter of New York Times Company v City of New York Fire Department (4 NY3d 477 [2005]), for example, is that, in those cases, the reason for the refusal to produce responsive documents was not set forth solely by reference to the applicable statutory sections, as in the present case, but was set forth with specific descriptions of the type or category of information contained [*3]therein, in sufficient fashion to allow the petitioners to know, in at least a general fashion, what each document represented. Then, on that basis, the various agencies went on to explain why exposure of the specific documents would be inappropriate. Not so here.
For instance, in Matter of Xerox Corporation v Town of Webster (65 NY2d 131, supra), the documents sought were specified as "appraisal reports" produced by an outside consultant. Id. at 132. In Matter of New York Times Company v City of New York Fire Department (4 NY2d 477, supra), the petitioners knew that they were being deprived of, among other things, 911 calls from persons trapped in the World Trade Center towers, and internal communications within the Fire Department involving dispatchers. In Matter of Kheel v Ravitch (62 NY2d 1 [1984]), another case cited by OMB, the documents denied involved "[a] memorandum prepared by a public agency for internal use addressing a position it may take in pending or prospective collective bargaining negotiations ... ." Id. at 4.
In the present case, OMB has not provided even the barest such explanation for any of the exemptions it claims. We know that e-mails are involved, and "documents," but, what types of documents, to whom they were sent, and why, or any other type of description, has not been expressed. It is possible for OMB to be more precise in its description of the sought-for documents without revealing their contents. This proceeding involves the very issue of whether an agency may merely reiterate the provisions of the statute in defense of nondisclosure (see Matter of DJL Restaurant Corporation v Department of Buildings of City of New York, 273 AD2d 167, supra), or make a "blanket exemption[] for particular types of documents," as in Matter of Gould v New York City Police Department (89 NY2d at 275).
In a strikingly similar situation decided today by the Court of Appeals Matter of West Harlem Business Group v Empire State Development Corp., ___ NY2d___ (No. 200, December 15, 2009) the Court of Appeals stated: "At the outset , we noted that this litigation could have been avoided, or significantly limited, had [the agency] in the first instance complied with the dictates of FOIL....Here, the access officer relied on the statutory language of Public Officers law § 87... as the basis for his denial; however, [the] appeals officer merely parroted the same language in her appeal denial letter. This, without more, constituted a failure... to fully explain in writing' to WHBG the reasons for further denial' as required by FOIL (Public Officers Law § 89 [4] [a]; see Comm on Open Govt FOIL-AO-4075 [1986]."
As a result, this court finds that OMB's explanations for the denial of petitioners' FOIL requests are insufficient to support denial of the requests. Although an in camera review is often called for in an Article 78 proceeding, in order for the court to decide for itself what materials fit within what exemption, if such is the case (see Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, supra), in the present case the description of the information sought is so bare and formulaic, that this court needs further submissions from OMB before it can be decided whether the materials require in camera review. See e.g. Matter of New York Times Company v City of New York Fire Department, 4 NY3d 477, supra (where the record did not allow for [*4]determination of whether an exemption applied, Court ordered further submission of explanation for exemption); but see Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, supra (Court orders in camera inspection where only bare explanation offered by agency for claimed exemptions).
The agency alleges that they are sensitive internal documents, not subject to disclosure under exemptions to FOIL. Given the nature of the project, with which the Court is very familiar from prior litigation, including sensitive, security-related issues, the Court believes that it would be unwarranted and irresponsible under these circumstances to summarily order disclosure on a theory that respondent-agency defaulted on its FOIL response. This is very different from a wilful default to turn over discovery material in litigation.
Accordingly, it is
ORDERED and ADJUDGED that the petition is granted only to the extent of annulling the determination and remanding the FOIL request to respondents; and it is further
ORDERED that the matter of petitioners' FOIL request is remanded to respondents for
further review and reconsideration, consistent with this Court's decision, as set forth above.
Dated: December ___, 2009
New York, NY
ENTER:
____________________________
J.S.C.
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