New York Times Co. v City of N.Y. Off. of the Mayor

[*1] New York Times Co. v City of N.Y. Off. of the Mayor 2020 NY Slip Op 50035(U) Decided on January 15, 2020 Supreme Court, New York County Edmead, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 15, 2020
Supreme Court, New York County

The New York Times Company, Plaintiff,

against

The City of New York Office of the Mayor, Defendant.



158472/2019



For the Petitioner: DAVID E. MCCRAW and AL-AMYN SUMAR, The New York Times Company, 620 Eighth Avenue, New York, New York;

For the Respondent: JAMES JOHNSON, Corporation Counsel for the City of New York, 100 Church Street, New York, New York.
Carol R. Edmead, J.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 12, 13, 21, 22 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER).

Upon the foregoing documents, it is

ORDERED that the petition for relief, pursuant to CPLR Article 78, of Petitioner The New York Times Company (Motion Seq. 001) is granted and Respondent The City of New York Office of the Mayor is directed to disclose all outstanding materials sought in Petitioner's May 6, [*2]2019 FOIL request within thirty (30) days; and it is further

ORDERED that the Clerk of the Court is to enter judgment accordingly; and it is further

ORDERED that Petitioner's application for reasonable attorney's fees is granted; and it is further

ORDERED that the issue of the amount of reasonable attorneys' fees is hereby severed and referred to a Special Referee to Hear and Determine; and it is further

ORDERED that counsel for Petitioner shall serve a copy of this order with notice of entry on all parties and the Special Referee Clerk, Room 119M, within 30 days of entry to arrange a date for the reference to a Special Referee.

MEMORANDUM DECISION

In this Article 78 proceeding, Petitioner The New York Times Company seeks an order to compel Respondent The City of New York Office of the Mayor to produce a certain document pursuant to Freedom of Information Law (FOIL) § 84. For the following reasons, this petition is granted.

BACKGROUND FACTS

The dispute that underlies this proceeding concerns a FOIL request sent by Petitioner to Respondent for a letter sent to Respondent by New York City's Conflict of Interest Board ("Conflict Board"). The letter was the end result of an investigation originally opened by the City's Department of Investigation ("DOI") in 2016, which looked into Mayor Bill de Blasio's ("the Mayor") fundraising for Campaign for One New York ("CONY"), a nonprofit group founded in 2013 to advance the Mayor's political initiatives [FN1] . The DOI found that the Mayor had potentially violated conflicts of interest laws by soliciting contributions for the nonprofit from individuals with business before the City (NYSCEF doc No. 2 at 1).

The DOI formally closed its investigation into CONY in October 2018, according to a closing memorandum that has been partially released to the public in response to FOIL requests. The investigation found that the Mayor's office occasionally acted inconsistently with fundraising guidelines; for instance, the Mayor solicited contributions for CONY from real estate developers with pending projects before the City (id. at 7). The DOI referred its findings to the Conflict Board, which has not publicly disclosed whether it took action against the Mayor. However, the Conflict Board advised reporters for Petitioner that while the Mayor's conduct went against general guidance regarding solicitation in the City Charter, it did not violate any specific Conflict Board rule (id.). The Conflict Board's only recourse was thus to send a private warning letter to the Mayor.

On May 6, 2019, Petitioner, whose reporters have published various stories on this matter, sent a FOIL request to Respondent for a copy of the warning letter sent by the Conflict Board. On June 14, Respondent denied the request on the grounds that the letter was exempt from disclosure pursuant to New York City Charter § 2603(k), which protects records of the Conflict Board, and Public Officers Law § 87(2)(g), an exemption created for inter-agency records (id. at 8).

Petitioner appealed the denial on July 3, 2019, and the FOIL appeals officer for Respondent upheld the denial on both grounds (id.). Petitioner then commenced the proceeding [*3]before this Court.

DISCUSSION

The legal standards that govern FOIL disputes in New York have been well documented by the Court of Appeals:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies. The statute, enacted in furtherance of the public's vested and inherent "right to know," affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information to "make intelligent, informed choices with respect to both the direction and scope of governmental activities" and with an effective tool for exposing waste, negligence and abuse on the part of government officers.To implement this purpose, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted. This presumption specifically extends to intra-agency and inter-agency materials Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access"

(Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 565 [1986], citations omitted).

Given that the Court generally presumes all records are open and statutory exemptions to FOIL requests are to be construed narrowly, the standard of review of an Article 78 proceeding challenging an agency's denial of a FOIL request is more stringent than the general standard applicable to most Article 78 petitions (see Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d 153, 158 [1st Dept 2010]).

Section 2603(k) of the City Charter

Respondent argues that despite the broad standards for disclosure under FOIL, the letter sought by Petitioner is exempt under § 2603(k) of the City Charter, a provision protecting the confidentiality of Conflict Board records which provides that the "records, reports, memoranda and files of the board shall be confidential and shall not be subject to public scrutiny." Petitioner and Respondent dispute whether the statutory language "of the board" refers to records that the Conflict Board controls or possesses, or whether it applies more globally to any records originally created by the Conflict Board. The Court of Appeals addressed this question in a different context in Newsday Inc. v Empire State Development Corp. (98 NY2d 359 [2002]), where it held that the analysis turns on which agency possesses the document sought. In that case, a state agency tried to claim confidentiality over court-ordered subpoenas that had been served on the agency. The Court held that

"[H]ad the subpoenas remained in the exclusive possession of the court on whose behalf they were issued, they would have been immune from compulsory disclosure under FOIL. That, however, would not have been due to the fact that it was the court that produced them, but because the judiciary is expressly excluded from agency status under FOIL The immunity of the subpoenas from FOIL when once possessed by a court, however, does not run with those records. When they were served upon ...a FOIL-defined [*4]agency, they were fully subject to FOIL disclosure in the absence of any showing that some statutory exemption applies"

(Id. at 362-63).

A plain reading of § 2603(k), as well as the Court's reasoning in Newsday, support the conclusion that "of the board" pertains to documents in the possession of the Conflict Board. The exception thus may apply if Petitioner had made a FOIL request to the Conflict Board for the letter. However, the Conflict Board is not the Respondent here and the Mayor's office is claiming a confidentiality exemption to a document that it merely received.

Petitioner also points out that the City Charter has explicitly codified when records of the Conflict Board sent to other agencies are still protected from disclosure. For instance, § 2603(f) holds that DOI reports sent to the Conflict Board are confidential, meaning that the DOI's original investigation report to the Conflict Board regarding the Mayor's activities is likely protected from full disclosure. However, the City Council has not enacted any similar statute protecting warning letters from disclosure by recipients.

While Respondent points out that the Conflict Board has referred to the warning letters as "non-public and confidential," (NYSCEF doc No. 3 at 2), the Conflict Board is not the entity from which the letter is sought, so the Conflict Board's opinion of the confidentiality of the letter is not relevant to the Court's reading of § 2603(k). Furthermore, in the past Respondent has willingly disclosed letters of advice issued by the Conflict Board (id. at n. 1). Given that Respondent committed no apparent violation of § 2603(k) when it released letters in the past, it cannot now claim that it is compelled to confidentiality.

Public Officers Law § 87(2)(g)

Notwithstanding the applicability of § 2603(k) to the letter at issue, Respondent argues the document is nevertheless protected by Public Officers Law § 87(2)(g). This exemption, also known as the "deliberative process" exemption, holds that pre-decisional inter-agency or intra-agency materials may be protected from disclosure. The Court of Appeals has described the purpose of the exemption as aiming "to protect the deliberative process of government by ensuring that persons in an advisory role will be able to express their opinions freely to agency decision makers" (Gould v NYC Police Dep't, 89 NY2d 267, 276 [1996], quoting Xerox Corp. v Town of Webster, 65 NY2d 131, 132 [1985]). As the exemption covers solely pre-decisional materials, it does not apply to "final agency policy or determinations" (Pub. Off. Law § 87[2][g][iii]). Another exemption to this exception is the factual or statistical data used by an agency in its decision making, which is subject to disclosure even if it is incorporated into a protected, pre-decisional document (Pub. Off. Law § 87[2][g][i], see also Gould, 89 NY2d at 277).

Here, Petitioner argues that the letter is a final agency determination as it reflects the Conflict Board's final disposition regarding the DOI's investigation into Respondent. Respondent counters that the letter is not a final determination, as it does not reach a conclusion regarding whether the Mayor violated the Conflict Board's fundraising laws. Respondent reasons that unlike a decision issued after a hearing, the letter contains no findings of fact and was never made public by the Conflict Board (NYSCEF doc No. 3 at 3). However, the Conflict Board has also indicated that this letter is its final course of action and referred to the letter as the "disposition of the case" (NYSCEF doc No. 2 at 15).

Thus, the Conflict Board's own description of the letter supports Petitioner's claim that the letter is its final determination regarding the DOI's investigation, and therefore it is not a [*5]deliberative document within the meaning of Public Officers Law § 87(2)(g). Petitioner is also correct that the factual data contained within the letter is subject to disclosure; however, the Court need not reach this argument as the entire letter is subject to FOIL as it is unquestionably a final determination of the Conflict Board.

In its opposition to Petitioner' motion, Respondent largely abandons the argument that the letter is a deliberative record entitled to protection under statutory authority. Instead, Respondent frames the issue of the letter as part of a larger question of when private correspondence sent by an agency to a public servant may be "exposed to public scrutiny" (NYSCEF doc No. 19 at 4). Respondent cautions that were this letter subject to disclosure, public servants in the future may be "deterred from contacting the Bard about important matters for fear of being identified publicly" (id.). Respondent also suggests that disclosure of the letters may lead the public, in the "court" of public opinion, to convict servants of crimes they have not committed, given that the letters are meant as warnings but do not reach a conclusion on the criminality of the servant's behavior.

First, the Court notes that this is a policy argument, and the Legislature has already made the relevant policy decisions embodied in FOIL. The Court declines the invitation to supplant the Legislature's role. While Respondent cannot validly claim any FOIL exemptions here, other agencies that are the subject of FOIL requests may still of course claim privacy exemptions if said exemptions are applicable. For instance, formal advisory opinions, which are affirmatively requested by public servants, would likely be subject to protection under Public Officers Law § 87(2)(b), which protects an agency employee's personal privacy. Disclosure of warning letters does not trigger privacy issues on the same level as advisory opinions, as they are generally issued only after complaints have been made (N.Y.C. Charter § 2603[e]). The public's interest in knowing the extent of the warning issued to the Mayor supersedes the Mayor's privacy interest, particularly as here the public is already generally aware of the allegations of fundraising violations in the first place.

The Mayor does not have a valid privacy interest to assert. The only statutory authority cited by Respondent in this regard is the City Charter's provision regarding confidentiality of the Conflict Board's records, which, as discussed above, does apply to records held by Respondent. Respondent's argument that the public and the Mayor should be protected from the former's possible misunderstanding of the warning letter is unavailing. FOIL is premised "on the overriding policy consideration that the public is vested with an inherent right to know" (Town of Waterford v N.Y.S. Dep't of Envt'l Conservation, 18 NY3d 652, 656-57 [2012]). The public has the right to view the contents of the letter and come to its own conclusions regarding the Mayor's fundraising efforts with CONY. The policy arguments offered by Respondent are thus not compelling and cannot supersede the fact that the letter is not a document "of the board" within the plain meaning of § 2603(k). Accordingly, Petitioner's FOIL request is valid, and the warning letter must be exchanged.

Regarding Petitioner's request for attorney's fees, pursuant to FOIL's fee-shifting provision, a court must award reasonable counsel fees and litigation costs to a party that "substantially prevailed" in the proceeding if the court finds that the agency had no reasonable basis for denying access (see Pub. Off. Law § 89[4][c][ii]). Respondent argues that fee shifting is improper as Respondent had a valid basis for denying access to the warning letter. However, the Court finds that Respondent had no reasonable basis for withholding the Conflict Board's warning letter, as the plain meaning and reading of the applicable statutory exemptions and [*6]controlling Court of Appeals caselaw make it abundantly clear that Respondent's reliance on the exemptions was improper.

Furthermore, Petitioner has a clear and compelling interest in disclosing the contents of the letter to the public in the course of its reporting, and entities such as Respondent should be deterred from making future efforts to impede the right of the public to know information related to agency discipline of public officials. As such, attorneys' fees in favor of Petitioner are appropriate. The First Department recently affirmed an award of attorney's fees in Matter of Rauh v de Blasio, a case involving similar circumstances wherein the Mayor wrongfully claimed FOIL exemptions for public documents, including email correspondence between the Mayor and a CONY consultant (161 AD3d 120 [1st Dept 2018]).

In affirming that award, the First Department noted that the Mayor's "attempts to withhold these communications run counter to the public's interest in transparency and the ability to participate in important issues of municipal governance" (id. at 127). As the court has now determined that Respondent had no reasonable basis on the merits, Petitioner's application for attorney's fees must be granted pursuant to Public Officers Law § 89, and the Court refers the issue of the amount of reasonable attorney's fees to a special referee to determine that amount.

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that the petition for relief, pursuant to CPLR Article 78, of Petitioner The New York Times Company (Motion Seq. 001) is granted and Respondent The City of New York Office of the Mayor is directed to disclose all outstanding materials sought in Petitioner's May 6, 2019 FOIL request within thirty (30) days; and it is further

ORDERED that the Clerk of the Court is to enter judgment accordingly; and it is further

ORDERED that Petitioner's application for reasonable attorney's fees is granted; and it is further

ORDERED that the issue of the amount of reasonable attorneys' fees is hereby severed and referred to a Special Referee to Hear and Determine; and it is further

ORDERED that counsel for Petitioner shall serve a copy of this order with notice of entry on all parties and the Special Referee Clerk, Room 119M, within 30 days of entry to arrange a date for the reference to a Special Referee.

Dated: January 15, 2020

New York, New York

CAROL R. EDMEAD, J.S.C. Footnotes

Footnote 1:Laura Nahmias, Campaign for One New York plans to shut down, Politico (Mar. 17, 2016).