Matter of Newsday, LLC v Suffolk County Dept. of Public Works
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Matter of Newsday, LLC v Suffolk County Dept. of Public Works 2012 NY Slip Op 30582(U) February 28, 2012 Supreme Court, Suffolk County Docket Number: 6621/2011 Judge: Paul J. Baisley Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT - STATE OF NEW YORK IAS. PART XXXVI SUFFOLK COUNTY PRESENT: HON. PAUL J. BAISLEY, JR., J.S.c. -----------------------------------------------------------------)( Application for a Judgment under A11ic1e78 of the CPLR and other relief by DECISION AND ORDER INDE)( NO.: 6621/2011 MOT. NO.: 001 MOT D NEWSDA Y. LLC. Petitioner, -againstTHE SUFFOLK COUNTY DEPARTMENT OF PUBLIC WORKS, Respondent. ----------------------------------------------------------------)( PETlTlON"ER'S ATTORNEY: LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44lh Street, Suite 510 New York, New York 10036 RESPONDENT'S ATTORNEY: CHRlSTOPHER M. GATTO, ESQ. Suffolk County Attorneys Office 100 Veterans Memorial Hwy. Hauppauge, New York i 1788 In this Article 78 proceeding, the petitioner, publisher of Long Island's largest daily newspaper, challenges an appeal determination by the respondent dated October 27,2010, and a second appeal determination by the respondent dated February 3, 20 II, denying the petitioner's various requests pursuant to the Freedom ofInfomlation Law (Public Officers Law Article 6; hereinafter "FOIL") for documents, etc.,_relating to the construction of the new replacement Suffolk County correctional facility at Yaphank, Ncw York. According to the petition, planning for the jail replacement facility project, which is one of the largest public works projects ever undertaken by Suffolk County, began in 2003, with estimated costs exceeding $285 million. Actual construction of the project began in 2007. In light of what the petitioner describes as the "mtcnse interest" of Suffolk County taxpayers In the project, and as part of its ongoing coverage of the issue, the petitioner submitted to the respondent three separate FOIL requests seeking records relating to (he selection of contractors and consultants, the awarding of contracts, and other communications concerning the construction of the new facility: the first, on June J J, 20 J 0, and the second and third, on November 4, 20 IO. The petitloner's first request sought access to "RFPs [requests for proposals], bidder lists, [and] rating sheets for all bidders on all aspects of the Jail Project 111 Yaphank." According to the respondent, on or about August 2, 20 10, 145 pages of records were produced 111 response to the first request; thc petitioner qucstioned the adequacy of the response. By letter dated August 26, 2010, the respondent denied the petitioner's first request with respect to all records not already provided, stating that the information requested in those records "is privileged and ofa highly sensitive nature." [* 2] N.''''.\'/!l\'. 1.1-(' I'. Suj/i)/k ("OllillY /)('/11. ofPll1J. Index No. 662112fJI / Works On September 23, 20 I0, the petitIoner filed ail administrative appeal from the August 26 letter denying its request, arguing, III its accompanying letter, that certain documents (namely, bid award recommendations concerning later phases of the project) provided subsequent to August 2 to petitIOner by the Judicial Facilities Agency ("JF A"), the public authority overseeing the project, demonstrated that the respondent's production was incomplete, and that the respondent was obligated to provide a specific explanation orlhe grounds for withholding any document not provided. The respondent subsequently requested in writing that the petitioner provide copies orthe documents whieh it had received from the JFA, but the petitioner rejected the respondent's request. By letter dated October 27, 2010, the respondent, by Christopher M. Gatto, Esq. oftbe Office orthe Suffolk County Allorney, denied the appeal, noting that after a diligent search, the respondent hdd disclosed to the petitioner all responsive documents, that the petitioner had failed to furnish the bId <Iwardrecommendations provided by the .lFA despltc the respondent's request, that absent such documcntation, there was no basis to conclude that there were any responsIve documents not previously provided, and that to the extent the petitioner's request could be construed to include the plans and speci fieat ions for the jail, the requested documents were exempt from disclosure pursuant to Public Officers Law *87(2)(f), which pennits denial of access to records which, if disclosed, could endanger the life or safety orany person. The petitioner's second and thlrd requests followed. The second request sought access to "all backup documentation for rating sheets of bidders on the replacement jail facility at Yaphank; all RFQs lrequcsts for quotes], RFEls [requests for expressions ofmterest], and waivers; all bid evaluatIon memos, and all memos and correspondence issued in connection with the award of all contracts related to the project," while the third request sought access to "all e-mails regarding the jail replacement facility project" and "all eon'cspondencc between Suffolk County and the New York State Commission ofConections on the jail replacement facility." By letter dated December 7, 20 I0, the respondent indicated that it was providing 12 pages of records in response to the second requcst and 98 pages of records in response to the portion ofrhe third request concerning correspondence bclween Suffolk County and the New York State Commission of Corrections. As to lhe portion nfthe third request concerning e-malls, the respondent indicated that the request was under review and would be avallable "within the next few days." The respondent also noted, \vithout further specification, that "certain" records or portions of records requested were exempt ti'om disclosure by applicatIon or Public Officers Law ~87(2)(a), (t), and (g), and that the requests were dellied to that extent. As to Public Officers Law *87(2)(a), which permits denial of access tn n:corus which are specifically exempted from disclosure by state or federal statute, the respondent JC1l.'rmmcdthat certain records or portions thereof were subject to the attorney-client or attorncy work product pnvileges: the respondent also determined that certain records or portions thereofwerl' subject to Public Orticcrs Law §87(2)(g), which permits denial of access to records that are interagency or Intra-agcncy matcrials but are not statistical or l~lctual tabulations or data, ltlstructions to slalTthat affect the public, final agency policy or determinations, or external audits, including but 1I0tlimitcd \0 audits performed by the comptroller and the federal govemmcnt. On January 5, 2011, the pelilioncr filed an administrative appeal from the portion of the Ikcclllbcr 7 !cuer Jenying its rcquests. The petitioner contcnded that the respondent had faded to make the requisite p:ll1iculanzcd showing for any record alleged to be exempt, and that as to any information legltimately exempt from disclosure, the respondent was still required to turn over the uOCull1Cnhwith any such information redacted. The pctitloner also noted that despite the -2- [* 3] N"!I:,-dm·.I.1.(" 1". Suj}iJfk C"""(I' ()cpl. of Pub. Works Inliex No. 602//2011 respondcllt's representations to the contrary, it had not received 12 of the 110 pages which were ro have been produced, nor had it received any of the e-maiis whieh were to have been produced "'within the next few days." The respondent subsequently produced an additional onc-page record in response to the second request and 136 pages of documents - many of them redacted emails - in response to the third request. By Ictter dated January 11,2011, the petitioner advised that, notwithstanding the fL1I1her roduction of records, it was adhering to its position regardmg thc p excmpl10lls "supposedly applicable to documents or p0l1ions thereof not provIded." By ktter dated February 3, 2011, the respondent, by Christopher M. Gatto, Esq., denied petitioner's second appeal, relying exclusively all the applicability of the statutory exemptions cited ill the December 7 letter. This proceeding followed. In its petilion, the petitioncr alleges that the respondent violalCd its statutory obligations in responding to the FOIL requcsts by failing to conduct an adequate search for the requested documenls, f~\iling to produce documents whose disclosure was required, improperly redacting certain documents provided, and faillllg to set forth particularized justifications for thosc documents not provided. In addition to the Alticle 78 reliefrcquested, the petitioner seeks an award of its costs and attorneys' fees pursuant to Public Officers Law §89(4)(c). I\s pan of its answering papers, the respondent annexes an "Index of Documents Withheld or Redacted," which pUll10rts to identify each orthe documents Withheld by date, type, and description, and which ::;tatesthe nature ofthl' exemption claimed for each slich document, but which does not reveal the author or recipient of any document. Following service oftbe petitioner's reply, the respondent rcqucsted and obtained leave to submit a supplemental affirmation, in whIch it alleges that certain documents provided by the petitIOner for the first time in its reply -- documents previously requested by the respondent for the sok purpose of aiding its search for responsive records but which thc petitioncr had rcfused to provide clariiied the scope of the petitioner's requests and led to the discovery of hundreds of pages ofadditiomil responsive records, which it has S111CC dIsclosed. It appears thnt the respondcnt has now disclosed a tOlal ofsomc 600 pages ol'reeords in response to the petltioncr's scveral requests. Under FOIL, all records ora public agency are presumplively open to public inspection, withom regard 10 the necd or purposc of the applicant (Maffer of Beechwood Res/orOllvl? Can: Crr. Sigl/or, :) NY3d 435, 808 NYS2d 568 [2005]). II FOI l provides thc public with broad "access to thc records or govcnlmcl1l" (public Officers L~IW ~84). * * * An agency must "make available for public inspcction and COPY11lg rccords" unless it can Clalll1a specific e.'\cmption to disclosure tsee Public all ()n1Cl~r..., Law ~87[2 J; ~89[3]). llowever, the excmptlons arc to be narrowly Interpreted so that the public IS granted maximum access to the records 01" goverl1l1lent * * * (?/"/)a((/ 1/-ee l' ROII/aille, l) NY3d 454, 462, 849 NYS2d 489, 493-494 l20071). Within five business days of the rcccq1t or a request, an agency must either make the requested rccords available, deny the rcquest, or acknowledge receIpt of the request with a statemcnt indicating the approximate date when a detcnnination will be made (Public Officers Law §8913][a]). Ifa FOIL request is (Ma/{er -3- [* 4] {mi£,.I" No. 66!1/!lJll denied, the agency must show that the requcsted infonnation "falls squarely within a FOIL ~xemptiul1 by articulating a particularized and specific justification for denymg access" (Matter of Capital Nell'.~papers Div. o./Hearst CO/po v Bums. 67 NY2d 562, 566, 505 NYS2d 576, 578 [1986j). While typically an agency action IS r~viewed under an "arbitrary and capricious" standard, a court must apply a nil' different rule when reviewing the denial ora FOIL request- it is "to prcsume that all records ora pubilc agency arc open to public inspection and copying, and 11l11~t require the agcncy to beur the burdcn of shOWing that the records fall squarely within an exemption to disclosure" (MUlter q/New Yo!'k COIlI/i/ . .fhl' Occupational Sq/ety & ilealth v BloolJlbelg, 72 AD3d 153, 15~, ~92 NYS2d 377, 3~0 12010]). I kre. in rcsponse to thc petitioncr's claim that the respondent railed to conduct an adequatc search for thc requcsted documents and failed to produce documents whose disclosure was required, Christopher (iatto, Esq_, Ih~ respondent's FOil appeals officer, assel1s in his supplemental aflinnation thai the respondent "conducted an exhaustive search for records requested," and that it "fully complied with its FOil obligarions by at all timcs endeavoring to comply with petitioner's requests, locating and turning over hundreds of pages [of] non-exempt responsive records, ami claiming specl1lc ~xelllptions Correcords that have been withheld and/or redacted." The Court finds thiS asscrtion insufficient (see Matter qfDe Fahritis v McMaho/1, 301 AD2d 892, 754 NYS2d 117 [2003]). When an agency IS unable to locate a record properly requested under FOIL, Public Officers Law ~89(3) requires the agency to "certify that it docs not have possession of such record or that such record cannot be found aCter diligent search." While the statute docs not specify the manner in which the agency must so certify - and it has been noted that neither a detailed description of the search nor a personal statement from the person who actually conducted the search IS reqUired (see Marrer olRaltley II New York City Police Dept., 96 NY2d 873, 730 NYS2d 768 [200 I]) - the respondent's assertion herein falls short of meeting the statutory requirement (cf id.; Maller (?fGollld v New York CiZ)1 Police Dept., 89 NY2d 267, 653 NYS2d 54 [1996]; Matter o/New York EIII'lI. Law & Justice Project v Ci(v ujNew York, 286 AD2d 307, 730 NYS2d 285 [2001]; Matter (?lA!IIel"sII Dil/OII, 143 i\D2d 225, 532 NYS2d 22 [1988 D. Had the respondent satisfied the requirement, thc petitioner would have been obligated to articulate a "demonstrable (actual basis" to support Its contcntion that the additional requested documents existed and wcre within the t'cspondellt's control (lV/atter (~I'Gould v Nny York City Police Dept., supra at 279, 653 NYS2d at (0); as It is, the petltlolH.:rneed not do so. Instead, the Court finds that the petitlOllcr IS entitled to judgmcnt dircctlllg the respondcnt to once again review its files and to disclose any additional records in its possession which an: responsive to the petitioner's requests: as to any additional record nOI dIsclosed, the respondcnt shall, in accordance with Public Officers Law §87(2). provide reasons for the delllal of access or, in accordance with Public Officers law §89(3), certify that it docs not have posscssion or such rccord or that such record cannot be found after dihgent search, with such cCl1ification to inc!udL' an explanation of the efforts constituting the search. ;\s 10 the petitioner's objl.::ctionswith respect to records Withheld or redacted, the Court is tlilahle to dcknllllle, based on the mcager description of those rc(,;orc1s ontall1ed in the respondent's c "Index OrDOClltllCtltsWlthlll.:ld or Redacted," whether any such record f~lilswithin rhe scope orthe ~lssertcd statulMY excmptions. Accordingly, the Court directs that the respondcnt produ(,;cthose records 1'01' iII-COIl/em review (see i'vlarterof Could ]I New York City Police f)ept., slIpra; Matter oj' Fillk \' I.e/k()ll'ir=,47 NY2d 5(,7, 419 NYS2d 467 1.1 979}; .Matter (?/DJL Rest. COIjJ. \' Department of Bldgs. (?FCit.l' (!IN. r., 273 AD2d 167.710 NYS2d 564 [2000"1). The pctilloncr's request for an award ofanomeys' -4- fees and costs shall be held in abeyance [* 5] N<'\l:~d<l-".U.c \.. Sl~t}hlk e/JIlIIl)" Depl. II/dex No. 6621/]()11 II/Pub. Works pending completion of the ill-tamera review. Pursuant to Public Officers Law §89(4)(c), a co1ll1 may award such fees and costs to a litigant who has "substantially prevalled," and then only irthe agency had no reasonable basis for denying access or the agency failed to respond to a request or appeal within the statutory timc. "Only after a court finds that the statutory prercquisites have been satisfied may it excrcise its discretion to award or decline attorneys' fees" (Mafter of Beech1Vood ResTOrative C(lre CII". v Signor, supra at 441, 808 NYS2d at 571). Notwithstanding thc petitioner's clalllls, the Court finds that any dcterl1ll11ationas lO whether the stntulory prerequisites have bcen met must aw,lit further revlcw. Accordingly, It IS ORDERED that the n.:spondent shall, within 20 days after the date of this decisIOn and order, produce for il/-('amera review unredacted copies of each record which it seeks to withhold or to producc in redacted 101111, identifying each portion thereof which it claims is exempt from disclosure and the relevant exemption; and it IS further ORDERED that the entry of judgment shall be held in abeyance pending a further dctermlnatlO11by the Court consistent with this dceislOn and order. PAUlJ. BA!Sl£f, JR. Dated: February 28, 2012 J.S.C -5- _
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