Matter of NYS Funeral Directors Assn. v New York State Dept. of Health

[*1] Matter of NYS Funeral Directors Assn. v New York State Dept. of Health 2020 NY Slip Op 50815(U) Decided on June 11, 2020 Supreme Court, Albany County Hartman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2020
Supreme Court, Albany County

In the Matter of the Application of NYS Funeral Directors Association, Petitioner,

against

New York State Department of Health, Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.



4201-19



Greenberg Traurig, LLP

Cynthia Neidl, Esq.

Attorneys for Petitioner

54 State Street, Sixth Floor

Albany, New York 12207

Letitia A. James

Attorney General of the State of New York Christopher J. Hummel, Assistant Attorney General

Attorneys for Respondent

The Capitol

Albany, New York 12224-0341
Denise A. Hartman, J.

Petitioner NYS Funeral Directors Association (NYSFDA) commenced this CPLR article 78 proceeding challenging respondent's denial of its Freedom of Information Law (FOIL) request. Respondent answered and opposes the petition. For the reasons that follow, the petition is dismissed as moot, except for that portion requesting reasonable attorneys' fees and litigation costs, which is granted.

Background

To become a licensed funeral director in New York State, an individual must pass the National Board Examination (hereinafter NBE), an exam that is designed and administered by the International Conference of Funeral Service Examining Boards (hereinafter the Conference). In September 2015, in response to allegations made by the Conference that faculty and students from the American Academy McAllister Institute of Funeral Services (hereinafter AAMI) were involved in an organized effort to share NBE exam questions and answers, respondent began investigating and reviewing documentary evidence provided by the Conference pursuant to subpoena.

By letter dated January 17, 2018, respondent informed approximately 94 funeral directors licensed in the State of New York that they must retake and pass the NBE as a condition of renewing their licenses.[FN1] By letter dated February 26, 2018, while respondent's investigations were ongoing, petitioner submitted to respondent a FOIL request seeking documents and information related to respondent's decision to invalidate the NBE scores. On February 28, 2018, respondent acknowledged receipt of the request and notified petitioner that respondent was working with the "appropriate [respondent] program area(s) to identify documents that are responsive to [the] request." Respondent estimated that a determination would be reached "in approximately 20 business days, or it would notify [petitioner] in writing about the availability of responsive material, or if the time needed to complete the request extended beyond the 20 business days." In March 2018, respondent filed a Notice of Hearing and Statement of Charges against the president and six other instructors of AAMI. In letters dated March 28, 2018, May 9, 2018, July 13, 2018, September 17, 2018, and November 23, 2019, respondent advised petitioner that it was continuing to process the FOIL request but required additional time to "continue conducting a diligent search for potentially responsive records and to review these records for [*2]applicable exemptions, legal privileges and responsiveness." Respondent's status letters provided reasons why respondent was unable to respond and an estimated review completion date. Respondent further stated that it "would notify petitioner when/if the responsive materials [were] available for release or if the time needed to complete [the] request extend[ed] beyond the [estimated completion date]."

By letter dated January 28, 2019, respondent's Records Access Officer, denied petitioner's February 2018 FOIL request, citing Public Officers Law § 87 (2) (e) (ii) and claiming that the documents were exempt "as records that are compiled for law enforcement purposes and which, if disclosed, would 'deprive a person of a right to a fair trial or impartial adjudication.'" On or about February 27, 2019, petitioner appealed the denial. On March 13, 2019, respondent's Records Access Appeals Officer upheld the initial determination, also on the ground that the records are exempt under Public Officers Law § 87 (2) (e) (ii).

On or about July 12, 2019, petitioner commenced this CPLR article 78 proceeding challenging respondent's denial of its February 2018 FOIL request. Petitioner seeks an order: (1) declaring respondent's conduct in delaying its response to the FOIL request to be unlawful under the Public Officers Law; (2) vacating respondent's denial of the FOIL request and its appeal; (3) directing respondent to provide the requested documents; and (4) awarding costs, disbursements, and attorney's fees. Respondent moved, pre-answer, to dismiss the petition on the ground that petitioner lacks standing. By decision and order dated January 14, 2020, the Court denied respondent's motion to dismiss.

According to respondent, on January 9, 2020, the evidentiary phase of its administrative hearings related to the alleged cheating scheme ended. By letter dated February 18, 2020, respondent released the majority of the approximately 8,000 pages of responsive records to petitioner, withholding approximately 500 pages and partially redacting the remainder, pursuant to the following exemptions: (1) materials exempt from disclosure by statute (Public Officers Law § 87 [2] [a]); (2) material that if disclosed would constitute unwarranted invasion of personal privacy (Public Officers Law § 87 [2] [b]); (3) material that is either trade secrets or would cause substantial injury to the competitive position of the subject enterprise from which the documents were obtained (Public Officers Law § 87 [2] [d]); (4) inter- or intra- agency materials (Public Officers Law § 87 [2] [g]); (5) examination questions or answers (Public Officers Law § 87 [2] [h]); and (6) information technology information (Public Officers Law § 87 [2] [i]). In the February 18, 2020 cover letter accompanying the release of records, respondent informed petitioner: "Should you feel that you have been unlawfully denied access to records in this follow-up response to your FOIL request, you may appeal such denial in writing within 30 days to the Records Access Appeals Officer . . . ."

Respondent thereafter answered and opposed the petition, arguing that: (1) to the extent petitioner challenges respondent's alleged delay in responding to the FOIL request, such challenge was rendered moot by respondent's ultimate denial of the request; and (2) respondent properly withheld the records under the law enforcement exemption because the records would have interfered with ongoing administrative hearings. Respondent claimed for the first time in answering that it "inadvertently" relied at the administrative level on the wrong subparagraph of the law enforcement exemption, citing Public Officers Law § 87 (2) (e) (ii) — which exempts from disclosure records that are compiled for law enforcement purposes which, if disclosed, would deprive a person of a right to a fair trial or impartial adjudication — rather than Public Officers Law § 87 (2) (e) (i) — which exempts from disclosure records compiled for law [*3]enforcement purposes which, if disclosed, would interfere with law enforcement investigations or judicial proceedings. Respondent further noted that, once the evidentiary phase of its administrative proceedings closed on January 9, 2020, respondent disclosed all responsive records to petitioner on February 18, 2020, unless withheld or redacted pursuant to other various exemptions under the Public Officers Law.

On April 29, 2020, the Court asked the parties for further submissions addressing whether: (1) the petition challenging respondent's January 28, 2019 blanket denial of petitioner's FOIL request under the law enforcement exemption was rendered moot by the February 18, 2020 disclosure; and (2) a new CPLR article 78 proceeding is necessary to challenge respondent's reasons for withholding the remaining documents and redactions in the February 18, 2020 disclosure.

In further submission, petitioner argued that: (1) the petition has not been rendered moot because the petition alleges that no exception to FOIL applies to the information sought, and that respondent waived any exemptions not previously asserted; (2) petitioner's request for a declaration that respondent's conduct in delaying its response to the FOIL request to be unlawful under the Public Officers Law has not been rendered moot; and (3) petitioner's request for attorneys' fees, costs and disbursements was not rendered moot by respondent's post-litigation production. Respondent, on the other hand, argued that: (1) respondent's February 18, 2020 response rendered moot petitioner's challenge to the January 28, 2019 response; and (2) if petitioner seeks to challenge the February 18, 2020 response, it must exhaust administrative remedies and pursue a separate CPLR article 78 proceeding.

Analysis

Petitioner's Challenge to the January 28, 2019 Denial Was Rendered Moot by Respondent's February 18, 2020 FOIL Response.

Under the facts presented here, respondent's February 18, 2020 FOIL response superseded its January 28, 2019 denial and rendered the petition moot to the extent that petitioner seeks: (1) vacatur of respondent's denial of the FOIL request; (2) an order directing respondent to provide the requested documents; and (3) a declaration that respondent's conduct in delaying its response to the FOIL request was unlawful under the Public Officers Law.

"It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713 [1980]; accord Matter of Kagan v New York State Dept. of Corr. & Community Supervision, 117 AD3d 1215, 1216 [3d Dept 2014]). Where "petitioners cannot receive the relief requested in the petition, . . . the matter [is] moot" (Matter of Police Benevolent Assn. of NY, Inc. v State of New York, 161 AD3d 1430, 1431 [3d Dept 2018]; see Matter of Jeanty v Commissioner of Correctional Servs., 92 AD3d 1160, 1161 [3d Dept 2012]). And, "[w]here a petitioner receives an adequate response to a FOIL request during the pendency of [its] CPLR article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties" (Matter of DeFreitas v New York State Police Crime Lab, 141 AD3d 1043, 1044 [3d Dept 2016]).

Petitioner argued in its reply that respondent — erroneously and to its detriment — relied in [*4]its January 2019 denial solely upon the law enforcement exemption under Public Officers Law § 87 (2) (e) (ii), thereby waiving any other exemptions upon which respondent now attempts to rely, either in opposition to the petition or in support of its February 2020 partial withholding and redaction. Petitioner points to Matter of Madeiros v New York State Educ. Dept. (30 NY3d 67 [2017]) and argues that the Court of Appeals has "held in no uncertain terms that an agency waives any exemption not raised in its administrative denials." In its supplemental submission, petitioner further argues that: (1) the petition is not moot because respondent did not provide all documents requested; and (2) the general rule that a challenge to a constructive denial is rendered moot by a subsequent response does not apply here, where respondent issued a written — albeit belated — denial.

After careful consideration, the Court finds that, in this case, where respondent issued a follow-up response on February 18, 2020 providing the bulk of the requested documents once the law enforcement exemption no longer applied, petitioner's challenge to the rationale set forth in respondent's January 28, 2019 denial was rendered moot. And petitioner must commence a new CPLR article 78 proceeding to challenge respondent's reasons for withholding in its February 18, 2020 disclosure the remaining documents and redactions, after proceeding through the administrative appeal process.

Matter of Madeiros, upon which petitioner relies, is not controlling. There, the respondent initially denied the petitioner's FOIL request in its entirety, asserting that the requested records were exempt from disclosure under the law enforcement exemption pursuant to Public Officers Law § 87 (2) (e) (see Matter of Madeiros v New York State Educ. Dept., 30 NY3d at 72). After petitioner commenced a CPLR article 78 proceeding challenging the respondent's denial, the respondent answered and released 55 pages of partially redacted documents responsive to petitioner's FOIL inquiry, arguing that the redactions were proper under both section 87 (2) (e) and (g) of the Public Officers Law (see id.). The Court rejected the respondent's attempt to invoke Public Officers Law § 87 (2) (g) as a basis for the redaction because the respondent had not raised it at the administrative level (see Matter of Madeiros v New York State Educ. Dept., 30 NY3d at 72-73). The Court also rejected the respondent's reliance on Public Officers Law § 87 (2) (e) (iv) — pertaining to non-routine criminal investigative techniques — because respondent had failed to invoke that particular law enforcement exemption in its denial of the petitioner's FOIL request, instead citing to Public Officers Law § 87 (2) (e) without reference to a specific subparagraph, but using language plainly tracking subparagraph (i), rather than subparagraph (iv) (see Matter of Madeiros v New York State Educ. Dept., 30 NY3d at 74-75. In so holding, the Court of Appeals noted that "judicial review of an administrative determination is limited to the grounds invoked by the agency and the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis" (id. at 74 [internal quotation marks and brackets omitted]).

But Matter of Madeiros is distinguishable from this case. In Matter of Madeiros, the respondent's post-litigation response was not precipitated by anything other than the pending proceeding. Rather, the respondent conceded error in issuing a blanket denial based on the law enforcement exemption, but it argued that some portion of the requested documents were exempt from disclosure under exemptions not previously raised at the administrative level. Here, respondent provided the bulk of the requested documents on February 18, 2020 once the evidentiary phase of its administrative hearings had ended, and the law enforcement exemption — [*5]regardless of specific subparagraph — no longer applied as a basis for withholding them.

The instant case more closely aligns with the facts presented in Matter of DeFreitas v New York State Police Crime Lab (141 AD3d 1043 [3d Dept 2016]). In Matter of DeFreitas, the petitioner-inmate submitted a FOIL request seeking documents associated with DNA testing relating to his conviction for which he was imprisoned (see Matter of DeFreitas v New York State Police Crime Lab, 141 AD3d at 1043). When he received no response from the records access officer, and his administrative appeal went unanswered, the petitioner commenced a CPLR article 78 proceeding based on the constructive denial (see id.). Following commencement, the respondent-agency advised the petitioner that 1,356 pages of records responsive to his request would be provided upon payment of the copying fee; a diligent search failed to produce records related to certain other portions of his request; and the remaining records sought were being withheld as exempt from disclosure under Public Officers Law § 87 (2) (e) (i) because such records were compiled for law enforcement purposes and disclosure would interfere with then-ongoing judicial proceedings. The Third Department held that "[the] respondent's written response to petitioner's FOIL request rectified respondent's prior failure to respond, and Supreme Court properly found [the] proceeding to be moot" (Matter of DeFreitas v New York State Police Crime Lab, 141 AD3d at 1045).

But the Third Department also addressed separately the respondent's determination to withhold some of the remaining documents under the law enforcement exemption. Before the Third Department issued its decision, the respondent advised that, because the petitioner's criminal proceedings and judicial review had since concluded and the law enforcement exemption no longer applied, "it would review and release any remaining records covered by his request subject to redaction under Civil Rights Law § 50-b and payment of the statutory copying fee" (see Matter of DeFreitas v New York State Police Crime Lab, 141 AD3d at 1044 [internal quotation marks and citations omitted]; see also Matter of Lesher v Hynes, 19 NY3d 57, 67 [2012]). "Accordingly," the Third Department concluded, "[the] petitioner's challenge to respondent's withholding of documents compiled for law enforcement purposes that were previously exempted from disclosure is moot" (Matter of DeFreitas v New York State Police Crime Lab, 141 AD3d at 1044).

Similarly here, the evidentiary phase of respondent's administrative hearings has closed, and the law enforcement exemption no longer applies. To the extent that petitioner seeks vacatur of respondent's denial of the FOIL request based on the law enforcement exemption, or an order directing respondent to provide the requested documents, the petition was rendered moot by respondent's February 18, 2020 response. And, insofar as petitioner seeks review of respondent's February 18, 2020 partial denial of its FOIL request, petitioner must exhaust its administrative remedies and commence a new CPLR article 78 proceeding to challenge the reasons for withholding in the February 18, 2020 disclosure the remaining documents and redactions.

To the extent that petitioner seeks a declaration that respondent's conduct in delaying its response to the FOIL request was unlawful under the Public Officers Law, "as a general matter, 'a declaratory judgment action is not the proper vehicle to challenge an administrative procedure where[, as here,] judicial review by way of [a CPLR] article 78 proceeding is available'" (Matter of Shore Winds, LLC v Zucker, 179 AD3d 1208, 1211 [3d Dept 2020], quoting Greystone Mgt. Corp. v Conciliation & Appeals Bd. of City of NY, 62 NY2d 763, 765 [1984]). In any event, it appears that respondent complied with Public Officers Law § 89 (3) (a) by timely confirming receipt of petitioner's FOIL request and furnishing periodic, reasonable updates stating the [*6]approximate date when such request would be granted or denied (see Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d 1072, 1075 [3d Dept 2020]).

Thus, respondent's February 18, 2020 FOIL response rendered the petition moot to the extent that petitioner seeks: (1) vacatur of respondent's January 28, 2019 denial of the FOIL request; (2) an order directing respondent to provide the requested documents; and (3) a declaration that respondent's conduct in delaying its response to the FOIL request was unlawful under the Public Officers Law.

Respondent's February 18, 2020 Response Did Not Render Moot Petitioner's Request for Attorney's Fees, Costs and Disbursements, Which Request Is Granted.

The Court's finding that petitioner's challenge to respondent's January 28, 2019 denial is moot does not preclude petitioner's request for associated costs and fees (see Matter of Cobado v Benziger, 163 AD3d 1103, 1105-1106 [3d Dept 2018]). Because petitioner substantially prevailed in this litigation and respondent's blanket denial based solely on Public Officers Law § 87 (2) (e) (ii) was unreasonable, petitioner is entitled to reasonable attorneys' fees and other litigation costs.

Pursuant to Public Officers Law § 89 (4) (c) (ii), the Court is required to assess against an agency reasonable attorneys' fees and other litigation costs reasonably incurred in any case in which the petitioner substantially prevails and the Court finds that the agency had no reasonable basis for denying access (see Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 78-79 [2017]; Matter of Utility Rate Analysis Consultants (URAC) Corp. v Public Serv. Commn. of the State of NY, 171 AD3d 1279, 1280 [3d Dept 2019]).[FN2] "A petitioner 'substantially prevail[s]' under Public Officers Law § 89 (4) (c) when [he or she] 'receive[s] all the information that [he or she] requested and to which [he or she] is entitled in response to the underlying FOIL litigation'" (Matter of Competitive Enter. Inst. v Attorney Gen. of NY, 161 AD3d 1283, 1286 [3d Dept 2018], quoting Matter of New York State Defenders Assn. v New York State Police, 87 AD3d 193, 196 [3d Dept 2011]). "As for whether a reasonable basis exist[s] for denying [a] petitioner access to the [agency records], a relevant issue 'is whether the agency reasonably claimed the records were exempt from disclosure under Public Officers Law § 87 (2), [and] the denial may still have been reasonable even if the records are ultimately deemed not to be exempt'" (Matter of Utility Rate Analysis Consultants (URAC) Corp. v Public Serv. Commn. of the State of NY, 171 AD3d at 1280-1281, quoting Matter of New York State Defenders Assn. v New York State Police, 87 AD3d at 195).

Petitioner argues that it is entitled to attorneys' fees, costs, and disbursements because it substantially prevailed in this proceeding and respondent lacked a reasonable basis for its denial, having now abandoned the single exemption for nondisclosure on which it relied at the administrative level. Respondent argues that petitioner did not substantially prevail in this matter [*7]and, regardless, respondent "had a reasonable basis for initially withholding the records pursuant to the law enforcement exemption under Public Officers Law § 87 (2) (e) (1)."

Petitioner substantially prevailed in this proceeding in that respondent disclosed the bulk of the requested documents after litigation was commenced (see Matter of Madeiros v New York State Educ. Dept., 30 NY3d at 79-80 [holding petitioner entitled to attorneys' fees when "petitioner's legal action ultimately succeeded in obtaining substantial unredacted post-commencement disclosure responsive to her FOIL request"]; Matter of Whitehead v Warren County Bd. of Supervisors, 165 AD3d 1452, 1453-1454 [3d Dept 2018]). And the Court is hard-pressed to believe that, absent commencement of this article 78 proceeding, respondent would have voluntarily disclosed these records a year later once the evidentiary phase of its administrative proceeding closed.

Respondent's contention that its blanket denial based solely on Public Officers Law § 87 (2) (e) (ii) as set forth in its January 28, 2019 determination was reasonable is not persuasive. Respondent has now expressly abandoned its reliance on that particular subparagraph of the law enforcement exemption. After petitioner commenced this CPLR article 78 proceeding, respondent asserted for the first time in answering that it "inadvertently" relied at the administrative level on Public Officers Law § 87 (2) (e) (ii), rather than Public Officers Law § 87 (2) (e) (i). But respondent's contention that it "inadvertently" relied on subparagraph (ii) appears disingenuous in light of the fact that its Records Access Officer and Records Access Appeals Officer explicitly cited and quoted the language of subparagraph (ii) in their respective denials. And, in opposition to petitioner's request for attorneys' fees and costs, respondent argues only that its denial was reasonable under subparagraph (i), which the Court construes as a tacit admission that its blanket denial based solely on Public Officers Law § 87 (2) (e) (ii) was unreasonable. In light of the foregoing, the Court finds that petitioner is entitled to reasonable attorneys' fees, costs, and disbursements associated with this litigation.

Accordingly, it is

Ordered and Adjudged that the petition is dismissed as moot, except for that portion requesting reasonable attorneys' fees, costs, and disbursements, which is granted; and it is

Ordered that petitioner's counsel, within 60 days of the date of this decision and judgment, shall submit, on notice, a comprehensive affirmation setting forth her qualifications, billing rate, billing records and the attorney's fees and litigation costs sought, along with a proposed order for such fees and costs; and it is further

Ordered that respondents may submit opposition papers, if any, concerning the reasonableness of the fees and costs being sought within 30 days of service of counsel's costs and fee application; and it is further

Ordered that petitioner's counsel may submit a reply to such objections, if any, within 15 days of service of the objections, and, if warranted, a hearing of the subject fees and litigations costs will be scheduled thereafter.

This constitutes the decision and judgment of the Court. The original decision and judgment is being transmitted to respondent's counsel. All other papers will be transmitted to the County Clerk for filing as circumstances allow, given the current restrictions arising from the COVID-19 pandemic. The signing of this decision and judgment does not constitute entry or filing under CPLR 2220 or 5016 and counsel is not relieved from the applicable rules respecting filing and service.

Dated: Albany, New York

June 11, 2020

_________________________________

Hon. Denise A. Hartman, AJSC

Papers Considered

1. Notice of Petition, dated July 12, 2019;

2. Verified Petition, dated July 9, 2019, with Exhibits A-N;

3. Affirmation of Cynthia E. Neidl, Esq. in Support of Verified Petition, dated July 12, 2019, with Exhibits A-E;

4. Memorandum of Law in Support of Verified Petition, dated July 12, 2019;

5. Verified Answer, dated February 27, 2020;

6. Affirmation of Rosemarie Hewig, Esq., undated, with Exhibits A-I;

7. Affirmation of Alvaro A.J. Salinero, Esq., dated February 26, 2020;

8. Memorandum of Law in Support of Respondent's Answer, dated February 27, 2020;

9. Reply Affirmation of Cynthia E. Neidl, Esq. in Further Support of the Verified Petition, dated March 5, 2020, with Exhibits A-J;

10. Reply Memorandum of Law in Further Support of Verified Petition, dated March 5, 2020;

11. Supplemental Memorandum of Law in Further Support of Verified Petition Addressed to Issues Raised by the Court, dated May 20, 2020; and

12. Supplemental Memorandum of Law in Further Support of Respondent's Answer, dated May 20, 2020. Footnotes

Footnote 1:In April 2018, petitioner and several funeral directors commenced a hybrid proceeding/action in Supreme Court, Albany County, challenging respondent's decision to invalidate the NBE scores (Index No. 2355-18). In May 2018, additional funeral directors initiated a similar hybrid proceeding/action in Supreme Court, Albany County (Index No. 3276-18). The two proceeding/actions were thereafter consolidated and ultimately resolved by Stipulation of Discontinuance, which was so ordered on November 30, 2018.

Footnote 2:The Court is also authorized to grant attorneys' fees and litigation costs when the petitioner substantially prevails and the respondent fails to respond to the request or appeal within the statutory time (see Public Officers Law § 89 [4] [c] [i]), but petitioner argues only that it is entitled to reimbursement on the ground that respondent lacked a reasonable basis for denying its FOIL request in its January 28, 2019 determination.