Matter of Arbor E&T, L.L.C. v New York City Human Resources Admin.
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Matter of Arbor E&T, L.L.C. v New York City Human Resources Admin. 2012 NY Slip Op 32465(U) September 24, 2012 Sup Ct, New York County Docket Number: 102981/2012 Judge: Alexander W. Hunter Jr 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 OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: m N D E R W. HUNTER JR PART Justlcs 3-3 Index Number: 102981/2012 ARBOR E&T,LLC VS. I ' INDEX NO. MOTION DATE NYC HUMAN RESOURCES SEQUENCE NUMBER : 001 ARTICLE 7% MOTION SEQ. NO. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW Y O M : PART 33 Index No.: 102981/12 Arbor E&T, L.L.C. d/b/a/ Rescare Workforce Services, Petitioner, Decision and Judgment -against- New York City Human Resources Administration and the Office of the Mayor of New York City, Respondents. The application by petitioner for an order pursuant to C.P.L.R. Article 78, compelling respondent to perform the duties required by Public Officers Law 0 84 el seq. by producing documents requested in petitioner s Freedom of Information Law ( FOIL ) requests, is denied. Respondents cross-motion to dismiss the petition is granted. The Wellness, Comprehensive Assessment, Rehabilitation & Employment ( WeCARE ) program strives to assist cash assistance clients with medical andor mental health barriers to employment achieve their highest level of self-sufficiency. On September 8,20 10, respondent issued New York City Human Resources Administration (, HRA > a Request for Proposals (XFP ) seeking vendors to provide WeCARE program services to approximately 25,000 participants. The RFP required that proposals be received by December 2,201 1. The RFP stated that awards would be made to the reasonable proposer(s) whose proposal(s) are determined to be most advantageous to the City, taking into consideration the price and such other factors or criteria that are set ¬orth in the RFP. The RFP listed three criteria: 1) demonstrated quality and quality of successful relevant experience ; 2) demonstrated level of organizational capacity ; and 3) quality of proposed approach . On December 15, 2010, petitioner submitted its proposal to HRA. By letter dated April 13,2011, HRA notified all WeCARE proposers that the names of the evaluation committee members were inadvertently disclosed to one of the proposers and that a new committee had been selected. The letter also indicated that a statement regarding the scoring sheets concerning the experience section had also been mistakenly disclosed to one of the proposers. By letter dated February 2,2012, HRA informed petitioner that is was not selected for an award from the RFP. The next day, HRA published a notice in the City Record stating that the WeCARE contract had been awarded to FedCap Rehabilitation Services, Inc. The notice further indicated [* 3] that draft copies of the proposed contract would be available for public inspection from February 3,20 12 to February 16,20 12. On February 7,2012, petitioner went to inspect the draft proposed contract. However, the only documeni available for viewing was a printed boilerplate document. Petitioner learned that no actual draft contract had been prepared as of that date. On February 6,20 12, petitioner submitted a FOIL request to respondents seeking documents, records, and files related to the RFP issued by HRA for the WeCARE program, the resulting decisions, and contract awards. By letter dated February 10,2012, HRA acknowledged receipt of the request and indicated that a response would be provided by March 20, 2012. On March 6,20 12, petitioner wrote to respondents inquiring about the status of its FOIL requests. Respondent Office of the Mayor of New York City ( Mayor s Office ) failed to respond to either of petitioner s letters. By letter dated April 16,2012, HRA responded by producing almost 1,800 pages of responsive documents to petitioner. The partial denial letter also provided that other responsive documents were being withheld because disclosure would reveal non-final intra-agency documents ; that the requested documents are reflective of opinion, advice, and recommendation ; that the production of documents would impair present or imminent contract awards ; and that the requested documents are subject to attomey-client privilege. Petitioner asserts that respondent HRA s production of documents was highly deficient. Thereafter, petitioner appealed HRA s denial of its FOIL request by email on May 11,2012. On June 1, 20 12, HRA rejected petitioner s appeal. Thereafter, HRA produced additional documents to petitioner including redacted versions of the evaluation tools for the three bidders and the contract between HRA and the winning bidder of the WeCARE program for Region I. These subsequent productions totaled another 1500-2,000 pages of documents. Respondents assert that the FOIL request sent to the Mayor s Office was misdirected as general correspondence and was never forwarded to the FOIL Officer. The Records Access Officer did not learn of petitioner s request until after the commencement of the instant proceeding. Thereafter, the Mayor s Office began searching for responsive documents. Respondents contend that to date, one record has been found that is responsive, not exempt pursuant to Public Officers Law (j 87(2), and not duplicative. This record was produced via email on July 25,2012. Petitioner asserts that it is entitled to the disclosure of the requested documents pursuant to New York City Charter 6 334, which provides in pertinent part that: [algency contract files shall be open to public inspection with adequate protection for information which is confidential. Petitioner argues that in light of the legislative history and the statutory text, New York City Charter 8 334 must be read as providing greater access and fewer exceptions to access than that provided under Public Officers Law 5 84 et seq. Arbor also argues that it is entitled to the requested documents under FOIL. In the alternative, petitioner requests this court to order 2 I - [* 4] * respondents to produce an index of the withheld documents and submit the documents to the court for an in cameru irispection. Petitioner also seeks the payment of attorney s fees from respondent Mayor s Office since it failed to respond to the FOIL request. Respondents oppose the petition in its entirety and cross-move to dismiss the proceeding pursuant to C.P.L.R. 321 1 (a)(l) and (7) on the grounds that: 1) petitioner failed to exhaust its administrative remedies; 2) the joinder of two separate causes of action against two respondents challenging two separate determinations in a single proceeding is improper; and 3) all responsive and non-exempt documents have already been produced. First, respondents argue that as to respondent Mayor s Ofice, petitioner failed to exhaust its administrative remedies before commencing the instant proceeding and as such, this court lacks subject matter jurisdiction and the petition must be dismissed. Respondents aver that although the Mayor s Office failed to timely respond to petitioner s request, petitioner failed to file an appeal of the Mayor s Offce s constructive denial pursuant to Public Officers Law §§ 89(3) and (4). Second, respondents assert that petitioner has improperly joined two separate claims against two separate respondents. Respondents contend that this misjoinder is improper and the petition should be dismissed or severed into two separate proceedings. Third, respondents argue that petitioner is attempting to circumvent the FOIL exemptions by invoking New York City Charter 8 334. Respondents note that this court has previously held in Fields v . Giuliani, 2001 WL 1649393 (Sup. Ct., NY County, Oct. 15,2001), that confidential documents pursuant to FOIL should also be deemed confidential under the New York City Charter. Since the responsive documents were withheld under FOIL, petitioner is not entitled to those same documents under the New York City Charter. Lastly, respondents oppose petitioner s request for attorney s fees since the awarding of attorney s ¬ees may only be granted if the party seeking fees is the substantially prevailing party. Respondents assert that it is premature at this juncture to award attorney s fees since petitioner is not a substantially prevailing party. In opposition to respondents cross-motion to dismiss, petitioner first argues that when an agency ignores a FOIL request, an Article 78 proceeding commenced to compel production cannot be dismissed on the basis of petititoner s failure to exhaust administrative remedies. Second, petitioner asserts that respondents were properly joined in this proceeding because petitioner s claim arises from two identical FOIL requests concerning the same government contract award. As such, this proceeding concerns the same transaction, occurrence, or series of transactions of occurrences with a common question of law of fact... . C.P.L.R. 1002(b) . Third, petitioner argues that when considering a motion to dismiss for failure to state a cause of action, only the petition is to be considered. When given every favorable inference, 3 [* 5] petitioner asserts that it has pled sufficient facts to support a cognizable legal claim. As such, respondents cross-motion to dismiss must be denied. It is well established that prior to commencing an action pursuant to C.P.L.R. Article 78 .. action, the petitioner must exhaust his or her administrative remedies. en s ChrAss n v. Rochester Pure Waters R &, 37 N.Y.2d 371 (1975); &ter Y, Gallman, 38 N.Y.2d 1 (1977). Ordinarily, petitioner s failure to avail itself to all administrative remedies requires dismissal of the instant petition as to respondent Mayor s Office. However, it is clear that respondent Mayor s Ofice has failed to act in accordance with Public Officers Law 0 84 et seq. by ignoring petitioner s FOIL request and therefore, petitioner is deemed to have exhausted its Matter of Newton v. Police Dept. Citv of administrative remedies to maintain this action. h, 183 A.D.2d 621 (1 Dept. 1992). Nevertheless, during the pendency of the litigation of the case at bar, respondent Mayor s Office has released a non-duplicative and non-exempt document to petitioner. The release of the responsive document has rendered that portion of petitioner s application moot. h Pnrdum Y. NYUu 42 N.Y.2d 958 (1977). , m, a, In an Article 78 proceeding, the only questions that may be raised are: 1) whether the body or officer failed to perform a duty enjoined upon it by law ; 2) whether the body or officer proceeded is proceeding or is about to proceed without or in excess of jurisdiction ; 3) whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.. , ; 4) whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence; and 5 ) a proceeding to review the final determination or order of the state review officer.. . C.P.L.R. 7803. The Court of Appeals has stated that FOIL was enacted to provide the public with a means of access to governmental recordsin order to encourage public awareness and understanding of and participation in government and to discourage secrecy. Matter of lucwsdav. Inc, Y . Sise, 71 N.Y.2d 146,150 (1987); see also, Public Officers Law 5 84. Government records not falling within an enumerated exemption under Public Officers Law 5 87(2) are presumptively open to the public. Matter of Gould v. New York Citv Police DeDt., 89 N.Y.2d 267 (1996). These statutory exemptions are to be narrowly construed and the agency has the burden of establishing that they apply to the requested documents. Matter of Fink v. Lefkowitz, 47 N.Y.2d 567 (1979). This court finds that respondent HRA properly withheld responsive documents that squarely fell within one or more statutory exemptions pursuant to Public Officers Law 87(2) and New York City Charter 5 334. A careful review of the June 1,2012 denial letter concerning petitioner s appeal indicates that the Appeals FOIL Officer specifically and methodically reviewed each category of documents requested by petitioner and provided the applicable statutory exemption. Although HRA did not itemize and label each and every document that was 4 [* 6] withheld, it provided petitioner with a description of the type of document that was withheld and the reasons for the non-release of those documents. &, Mar& v. Moreenthau, 1 A.D.3d 275 (lnt Dept. 2003). Accordingly, it is hereby ADJUDGED that the application by petitioner for an order pursuant to C.P.L.R. Article 78, compelling respondents to produce documents requested in petitioner s FOIL requests, is denied. Respondents cross-motion to dismiss the petition is granted. Dated: September 24,20 12 ALEXANDER P?. HN f& U m 5
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