Crown Castle NG E. LLC v Town of Hempstead
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Crown Castle NG E. LLC v Town of Hempstead 2017 NY Slip Op 32581(U) November 28, 2017 Supreme Court, Nassau County Docket Number: 2063/2017 Judge: Karen V. Murphy Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] i. \ Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM, PART 8 NASSAU COUNTY PRESENT: Honorable Karen V. MurPhY Justice of the SuPreme Court x Index No. CROWN CASTLE NG EAST LLC, 206312017 Motion Submitted:. 09l0ll1'1 Plaintiff, Motionsequence: 001,002 -against- MTD| A/tD THE TOWN OF HEMPSTEAD, MARIE JEROME' as Records Access Officer/FOIL Officer of the TOWN OF HEMPSTEAD, FRANK A. AMORINI' As FOIL Appeals Officer of the TOWN OF HEMPSTEAD, and NASRIN G. AHMAD, as Town Clerk of the TOWN OF HEMPSTEAD, Defendant. The following papers read on this motion: Notice of Motion/Order to Show Cause. Answering Papers.......... XX XX RepIY.......... Briefs: Plaintiff X s/Petitioner's Defendant'slResPondent' s. ... Petitioner moves this Court for an Order overturning the determination of respondent Amorini, as FOIL Appeals officer of the Town of Hempstead (ToH),along wiih related declaratory and injunctive relief, pursuant to cPLR Articles 30 and 78, and New York State Public Officer Law, Article 6, known as the Freedom of Information Law (FOIL). Respondents oppose the relief sought by petitionel, and they cross-move to dismiss thii action in lti entirety, or in the altemative, if the cross-motion is deniec, respondents seek leave to file an answer. By way of background, there are presently pending against petitioner approximately thirty-two (32) criminal summonses in Nassau County District Court, [* 2] based upon petitioner's failure to obtain building permits for each ofthe telecommunicatton antennae it has erected at various sites within the TOH, in violation '7,2017. Town Code. The next appearance date in District court is December of In connection with the criminal proceedings, petitioner serwed the ToH with (CPL) $ 240.40. In demands to produce documents pursuant to criminal Procedure Law as sum, there are fifty-four (54) requests for documents that the TOH has objected to counsel being improper, *hi"h hur given rise to a motion now pending in District court. yet for the pirti-s have represented to this Court that the District Court motion has not been decided. Petitioner has made three FOIL requests upon the ToH dated october I1,12, and were 13, 2016, copies of which are annexed to the instant petition. The three requests acknowledgid as having been received by the ToH via letters each dated october 18' 20 16. By Gtter dated November 7 ,2016, the TOH Records Access Officer advised petitionei's counsel that his three FOIL requests "cannot be accommodated as the recofds you requested are included as part ofa criminal case currently at trial. As such, your request falls within the exception to the FOIL under $ 87(2XeXi)'" Petitioner appealed the denial of his FOIL requests to the FoIL Appeals officer' Frederick A. Amoiini, on December 7,2016. By letter dated December 12, 2016, Mr' Amorini denied petitioner's requests, citing FoIL $ 87(Z)(e)(i), as well as Pittari v. Pirro, (1979). 258 AD2d 202 (ldDept 1999) and Matter of Fink v. LeJkowitz,4T NY2d 567 Mr. Amorini's reasoning, based upon his cited references, was that petitioner is a defendant in a pending criminal proceeding and the disclosure of the lequested information would interfere with the adjudication of those proceedings and the statutory provisions controlling discovery in criminal matters, frustrate pending or tlreatened a investigations, or impede a prosecution by use of the requested information to construct def-ense. The crux of petitioner's requests under FOIL are set forth as follows: October 11,2016 (i) (ii) iiill (i") (v) Legislative history related to the ToH enactment ofthe local ordinances that the TOH uses to regulate wireless facilities' Any and all rules adopted by the TOH building inspector' tott building department and code enforcement records, including permits fees charged, certificated, and summons for structures within the public rights-of-waY. A-nnual reports submitted by the building inspector to the TOH Board Correspondence among TOH officials pertaining to criminal or civil ^ pror."ution of entities or persons operating within the public rights-of-way' [* 3] ("i) Copies of all criminal or civil dispositions between the TOH and any third party in connection with a violation Chapter 86 of the Town Code' (vii)Anypriordetermination,finding,oropinionoftheTOHwithregardto permitting activity in the pubiic rights-of-way. October 12,2016 (i) (ii) (iii) Any and all correspondence between the ToH and the center for Municipal Solutions relating to petitioner, and relating to the criminal or civil enforcement of any third party operating within the TOH' Documents relating to the retention and payment of the Center for Municipal Solutions. Proof of the ToH prosecutor's authority to prosecute certain allegations charged against Petitioner. October 13, 2016 (i)ToH'sentirefileforthirty.three(33)specificallyidentifiedutilitypoles rii) located within the TOH Proof of the ToH code enforcement officer's authority to write certain charging docutnents. ,.,The Legislature enacted FoIL to provide the public with a means of access to govemmental re-cords in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy"' (Mattet of Aldetson v New iork Statico1"g" of Agriculture and Life Sciences at Cornell University,4 NY3d 225,230 120051, citing Matter of Newsday Inc- v. Sise,71 NY2d 146, 150 [19871' cert denied 486 US 1056 [1988]; see also, Matter of Hatbatkin v New York cia Department of Records and Information Services, 19 NY3d 373,379-380 l20l2l; Matter of Fappiano v New lork City Police Dept.,95 NY2d 738, 7a6 p00ll; Matter of Gould v New York City Potice Dept, 89 NY2d 267,274 [1996]). An agency's records "are presumptively open to public inspection, without regard to need or purpose of the applicant. consistent with these laudable goals, this court has firmly held that .FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of govemment"' (Maier of Buffalo News, Inc' v B uffalo Enlerprise Development Corporation, S4 NYzd 488, 492 ll9g4llcirations omittedl). Accordingly, .,[w]hen faced with a FoIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search" (Mafler of Beechwood Restoratiye care center v signot, 5 [* 4] v NY3d 435, aaO [2005]; see also Public Offtcers Law $$ 87[2]' 89[3]; Matter of Lesher Hynes, lg NY3d 57, 64 l20l2l). "Put another way, in the absence of specific statutory piotection for the requested material, the Freedom of Information Law compels disclosure, not concealme nt' (Matter of Westchester Rockland NewspaPerc v Kimball, s0 NY2d 575, 580 [l980]). The court of Appeals has emphasized that "[e]xemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure a carries the burden of demonsftating that the requested material falls squarely within FOIL exernption by articulating a particularized and specific justification for denying NY2^d_562, 566 access,, (M;fter of Capital Neispipers Div. of Hearst Corp. v Burns, 67 U9861; iee, Matter oiDan Tree, LLC v Romaine,g NY3d 454, 462-463 [2007])' wholly blanket-type statements and/or "[c]onclusory assertions that certain is needed" records fall within a statutory exemption are not sufficient; evidentiary support v to sustain an agency's burden with respect to a FOIL exemption (Matler of Dilworth Matter Il/estchester county Dept. of correction, 93 AD3d 722,724 [2d Dept 2012f; see, v Elmont of Konigsberg v Coughlin,68 NY2d 245,250-251 11986l; Matter of Madera Public Library, 101 AD3d 726,727 lzdDept?Ol?l). With respect to an investigation exemption, Public Officers Law $ 87(2)(e)(i) law excludes from lhe reach of a FOIL disclosure notice, those records "compiled for enforcement enforcement purposes and which, if disclosed, would . . . interfere with law investigations oi;rdi.iul proceedings" (Pittariv Pirro,258 N)2d202,204 l1dDept 19991; see also ilatter oi Leshe* Hyr"t, supra; Matter of Fink v Lefkowitz'-47.NY2d Dept', 27 4 AD2d 561 ,t7? 19791; Mattei of Legal Aitt Society. v New York City Police 207,213 [1't Dept 2000]). In Matter of Lesher v Hynes, supra, the Court of Appeals construed Public Officers Law $ 87i2x€)(i) and discussed an agency's burden upon invoking that Tire exemption. Culaed Uy reference to relevant federal case law (e.g., NL7-.B v Robbins & Rinber Co., 437 US 214, 228-229 [1978]; 5 USC $ 552[afi, the Lesher Court ultimately concluded that the involved agency, the Kings County District Attorney's office, had sustained its FoIL exemption burden. In so holding, the court determined not that a "document-by-document" showing of interference with an investigation would supra). be required under Public officers Law $ 87[2][e]lll (Matter of Lesher v Hynes, an Rathei, and provided that a qualifuing, law enforcement or court proceeding existed, by: ag".rcy could perrnissibly demonstrate its entitlement to the investigation exemption 1[ laentifying general oi so-called "generic" document description categories, as v New ,,d-oiument-by-document" descriptions, (Matter of Legal Aid Society. opposea to Ciry, supra); and. (i) thereafter describing "the generic risks posed by disclosure of also these categories of documents" (Matter of Lesher v Hynes, supta, at 67 -68 see ' county District Attorney',s office, l0l AD3d 455 [1" Mauer o|-Ilhirley v New York ii* [* 5] v Pirro, Dept 20121,. Matter of Legal Aid society. v New York city, supra at, 213; Pittari in a law supra atzos;. rne court cautioned, however, that "not . . . every document simply enforcement'agency's criminal case file is automatically exempt from disclosure because kept there" (Matter of Lesher v Hynes, supra, at 67-68)' "agency Moreover, despite this lessened, "generic" standard ofparticularity, an factual must still fulfill its burden under Public officers Law $ 89tal[b] to articulate a vague basis for the exemption" (Matter of Lesher v Hynes, supra at 67). Relatedly, support allegations and/or ittorney affirmations alone, will not suffrce since, "evidentiary Dept.,42 is nJeded" (Matter of Dilworth, supra; Newsday LLC v Nassau County Police Misc3d 1215[A] [Supreme court, Nassau county 2014] see also, Matter of washington post Co. v Niw york State Ins. Ca, 61 NY2d 557,56'l ll984fi Matter of Madera v Etmont Public Library, supta; Matter of Loevy & Loevy v New York city Police Dept., v-City of 38 Misc3d 950, 954-955 [Supreme Court, New York County 2013]; Windham New York Police Departmeit,20l3 NY Slip Op 32418 [Supreme Court, New^York of County 20l3l). In sum, the applicable "burden requires identifying the types of content" documents, their general conient, and the risk associated with that type (Windham, supri, at7; see also, Mattet of Lesher v Hynes, supra at 67)' with these principles in mind, and cognizant of the requirements that statutory support exemptions rnust be "narrowly interpreted," and established with "evidentiary" (Matier of Data Tree, LLC v Romaine, suprs, at 462; Matter of Dilworth' supra' at -Court agrees that the respondents have failed to demonstrate their entitlement to iZ+;, the predicated upon Public Officers Law $ 87(2XeXi)' a statutory "*"*p1ion Here,therespondentssubmit,interalia,onlytheaffirmationofcounsel' in petitioner's second demand to produce, and a copy ofthe motion papers pending to dismiss irTassau County District Court,'Criminal Part, in support of their cross-motion the instant petition. These submissions are insufficient to sustain their burden. ..Access to records of a government agency under the Freedom of Information or Law (FOIL) (Public officer Law, art 6) is not affected by the fact that there.is_pending poteniial lit'igation between the person making the request and the agency" (Matter of 'Farbman v.-New York city Health and Hospitals corp.,62 NY2d 75, 78 [1984]). Accordingly, counsel's theory that this petition is "nothing more than an improper attempt b! brown Castle to ivoid the limited discovery rights permitted under Criminal charges" is P.ocedure Law $ 240.20 for purposes of constructing defenses to the criminal largely unavailing. There is no affidavit from either the prosecutor charged with prosecuting of the petitioner in the District Court, or from the TOH itself, as to how disclosure of any iequested materials, or types thereof, pose a risk to the pending prosecutions [* 6] Respondents' reliance upon Fink v' Le/kowitz (47 NY2d 567 [1979]) is misplaced. The respondents in that matter objected to disclosing certain portions of the proiecutor's manual that would reveal to the public the confidential methods and investigative techniques used to investigate nursing home fraud. Of note in the LeJkowitz decision is the Court's recognition that an "agency does not have carte blanche to withhold any information it pleases. Rather it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the court for an ii camera inspection, to exempt its records from disclosure" (Id' at 571)' Moreover, respondents fail to articulate how disclosure ofthe requested materials would emasculate Criminal Procedure Law $ 240.20 (see Pittari, supra), especially with regard to legislative history, ToH building department records, and the other requests contained in the October 11 and 12, 2016 demands noted above, plus item(ii) in the october 13,2016 demand. The only request that may possibly touch upon this concem voiced by the Pittari Court is the October 13,2016 demand for the TOH's entire file for thirty+hree (33) specifically identified utility poles located within the ToH, which apparently form the basis of the prosecution of crown castle in District court; ye1, riipondents do not particularly address that request for the 33 files, nor do respondents staie with any particularity the risk associated with disclosure of those files. Respondents simply rely :upon Pittari in a general sense, but the PrTari court's determination was not oithe blanket variety; specifically, the Pittari Court found that ,.FOIL disclosure of materials pertaining to the arrest and prosecution of a defendant in a pending criminal proceeding would interfere with the adjudication of the criminal proceeding" (Id. at 207). Here, respondents make no such assertion with regard to any of the specific documents requisted by petitioner. Moreover, it is undisputed that Criminal Procedure Law $ 240.20iequires the prosecution to disclose numerous items of discovery upon the demand of the defendant in a pending criminal matter. In fact, respondents do not even request that this Court conduct anin camera inspection of any of the documents demanded pursuant to FOIL. In view ofthe fact that petitioner has substantially prevailed upon its application, this Court further determines that, pursuant to Freedom of Information Law $ 89 (+)(c)(i), petitioner is entitled to reasonable attorneys' fees, plus costs and disbursements of this action that were reasonably incurred. The court denies respondents' fequest that they be permitted an opportunity to submit an answer. The TOH claims that it should be permitted to interpose an answer in order to assert "additional defenses for rejecting Crown Castle's FOIL request." Yet, the TOH contradicts its own position that it should be permitted to answer when it states that [* 7] based on FOIL its motion to dismiss the instant petition "was directed to a single defense of Crown Castle's claims'" $ 87(2)(eXi), which it believes is dispositive ,,it is also a bedrock principle of administrative law that a 'court, in Moreover, is_ authorized to dealing with a determination . . . which an administrative agency alone by the make,inust judge the propriety of such action solely by the grounds invoked Service agency"' (t4oti, of Natiinal Fuel Gas Distrihution Corporation v. Public_ quoting Matter of io*^irrio, o.thi State of New York,l6 NY3d 360, 368 l20l1l 753'758 U99Il' Scherbyn v. l{ayne-Finger Lukes Bd- Of Coop Educ' Sem$,77 NY2d see quoting Matter of Montauk Improvement v. Proccacino,4l NY2d 913 ' 913 119771; Police Lko nlaner oTLLw Offices of Adam D. Perlmuttet, P'C' v' New York City Department,l23 AD3d 500, 501 [l't Dept 2014])' Here,theToHanditsFolLofficersinvokedasingleclaimedexemptionto disclosing the requested documents, that is, FOIL $ 87(2XeXi)' Respondents' properly be contempiated alternative grounds for denying petitioner's requests would not single ground before this court vra an answer that attempts to expand upon the agency's for denial of the FOIL requests (see Malter of Perlmutter, supra)' Accordingly, that branch ofthe petition seeking to compel respondents to produce Order is to copies of the ,."oid, ,"qu"rted by petitloner is granted. Compliance with this be accomplished on or before December 7 ' 2017 ' of As determined herein, reasonable attomeys' fees, plus costs and disbursements this action that were reasonably incurred are awarded to petitioner' Any other reliefnot specifically addressed is hereby denied' Respondents'cross-motionisdeniedinitsentirety(MotionSequence2). Petitionerisdirectedtosubmitajudgmentonnotice,accompaniedbyan affirn-ration as to reasonable attomeys' fees, and a bill of costs' The foregoing constitutes the Order of this Court' Dated: November 28, 2017 Mineola, NY ENTEffiHD NOv co 28 Liln-?sdlt 201/ Ro,? 3 ^#,, r,
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