Matter of Civil Serv. Empls, Assn. Inc. Monroe County Local 828, Unit 7402 (Monroe Community Coll.)

[*1] Matter of Civil Serv. Empls. Assn. Inc. Monroe County Local 828, Unit 7402 (Monroe Community Coll.) 2022 NY Slip Op 50798(U) Decided on August 18, 2022 Supreme Court, Monroe County Doyle, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 18, 2022
Supreme Court, Monroe County

In the Matter of Civil Service Employees Association, Inc.
Monroe County Local 828, Unit 7402, Petitioner,

For an Order and Judgment pursuant to
Article 78 of the Civil Practice Laws and Rules

Monroe Community College, Respondent.



Index No. E2022003190


Jonathan Johnsen, Esq., Creighton, Johnson & Giroux, for Petitioner

Kate I. Reid, Esq., BOND, SHOENECK & KING, PLLC, for Respondent
Daniel J. Doyle, J.

In August of 2021 Petitioner Civil Service Employees Association, Inc., Monroe County Local 828, Unit 7402 (hereinafter "CSEA") submitted a Freedom of Information Law ("FOIL") request for a copy of an investigative report prepared by Respondent Monroe Community College's (hereinafter "MCC") outside counsel involving complaints made by CSEA that its members were being unlawfully surveilled. Respondent did not provide the report. Instead, it provided Petitioner with an "Outcome Letter" which outlined the results of the investigation. Petitioner renewed its FOIL demand, and Respondent refused to provide the investigative report on the grounds that "the report which you are seeking relates to unproven/unsubstantiated allegations of wrongdoing against a particular employee of the College". Petitioner appealed to Respondent's FOIL appeal officer, but the appeal was denied.

CSEA now brings an article 78 petition pursuant to Public Officers Law § 89(4)(b) seeking a determination that Respondent's denial was improper, and the assessment of attorneys' fees. Respondent moves to dismiss the Petition, arguing that it properly denied CSEA access to the investigative report as it is subject to an enumerated exception to disclosure (violation of personal privacy) and is attorney work-product.

For the reasons that follow, Respondent's motion to dismiss is DENIED and the Petition [*2]is GRANTED, in part.

The court declines to award attorneys' fees pursuant to Public Officers Law § 89(4)(c).

Motion to Dismiss

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v. Morone, 50 NY2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154; Rovello v. Orofino Realty Co., 40 NY2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970)." (Leon v. Martinez, 84 NY2d 83, 87-88 [1994].)

A review of the Petition establishes that CSEA alleged sufficient facts to support a cause of action pursuant to POL § 89(4)(b).[FN1] CSEA filed a request for the Rusnak Report on October 14, 2021, requested an update from MCC on October 25, 2021, and received a denial on November 17, 2021. Within the required thirty days, CSEA appealed the denial to MCC's "FOIL appeals officer". On December 23, 2021, the FOILS appeal officer denied the appeal.[FN2] As the relevant time periods were met by CSEA, and it alleges an improper denial of access to an agency record under POL § 87, the Petition states a valid claim under POL § 89(4)(b).

Thus, the motion to dismiss is denied.

Although CPLR § 7804(f)[FN3] would normally require that the Respondent be allowed to submit an Answer prior to a determination of the issues raised in the Petition, as the facts and positions of the parties are fully set forth in the record below the Court will render a decision on the merits of the Petition.

As MCC has fully briefed its arguments that it properly withheld the Rusnak Report as it would be an invasion of privacy and the Report is exempt from disclosure under the attorney-client privilege, delaying resolution of the issues in this case by allowing MCC to submit an Answer raising those same objections in point of law would be a waste of judicial resources.[FN4]

"Where, as here, the dispositive facts and the positions of the parties are fully set forth in the record, thereby making it "clear that no dispute as to the facts exists and [that] no prejudice will result from the failure to require an answer," the court may reach the merits of the petition and grant petitioner judgment thereon without giving respondents a further opportunity to answer the petition (Matter of Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 102, 480 N.Y.S.2d 190, 469 N.E.2d 511 [1984]; see Matter of Laurel Realty, LLC v. Planning Bd. of Town of Kent, 40 AD3d 857, 860, 836 N.Y.S.2d 248 [2d Dept. 2007], lv denied 9 NY3d 809, 844 N.Y.S.2d 784, 876 N.E.2d 513 [2007])." (Miranda Holdings, Inc. v. Town Bd. of Town of Orchard Park, 206 AD3d 1662, 1663[4th Dept. 2022].)

Findings of Fact

On August 26, 2021, CSEA filed a FOIL request seeking a copy of an investigative report prepared by MCC's outside counsel involving complaints made by CSEA that its members were being unlawfully surveilled.[FN5] In sum and substance, approximately 30 of MCC's building services employees reported to CSEA that they believed they were being observed by their supervisor on security cameras, contrary to either Respondent's policies or the collective bargaining agreement.[FN6] The employees believed that their supervisor, Courtney Sprague, accessed video camera footage through their supervisor's direct supervisor, or through their supervisor's husband, Raymond Sprague, who was employed by MCC as a lieutenant in the public safety bureau.[FN7]

MCC engaged the law firm of Bond Schoeneck & King to conduct the investigation with the MCC Institutional Compliance Officer & Internal Auditor. Between May and late June of 2021, they interviewed several MCC employees, reviewed camera surveillance logs for Mr. Sprague, as well as MCC policies and procedures.[FN8] In a letter dated October 1, 2021 and sent to the MCC Director of Human Resources, Theresa E. Rusnak, Esq of Bond Schoeneck & King outlined the investigative findings (hereinafter "Rusnak Report").[FN9]

On October 7, 202o, the MCC Director of Human Resources sent a letter to Mr. Thomas Pollizi, CSEA President, outlining the findings contained in the Rusnak Report.[FN10] In this letter, Respondent provided a summary of the investigation, finding that there was no violation of Respondent MCC's policies or public safety general orders. This letter was forwarded to CSEA in response to their first FOIL request seeking the Rusnak Report.[FN11] CSEA filed another FOIL [*3]request to obtain the Rusnak Report to "confirm that the outside investigation concluded that no college policy had been violated and confirm that the summary provided by [MCC] did not omit relevant facts or finings".[FN12]

MCC denied CSEA's FOIL request and subsequent appeal. In its denial, MCC stated that the Rusnak Report "relates to unproven/unsubstantiated allegations of wrongdoing against a particular employee of the College", and thus it did not need to be disclosed, citing several advisory opinions from the Committee on Open Government and two decisions of the Appellate Division.[FN13] MCC also stated that it would not provide the report in order to "protect the privacy of the individuals who had been falsely accused of wrongdoing".[FN14]

The Court reviewed the Rusnak Report in camera.

Conclusions of Law

Public Officers Law § 87 clearly states that all agency records shall be available, with the exception of those records — or portion thereof — that fall within an enumerated exception. "FOIL now mandates that "[e]ach agency shall * * * make available for public inspection and copying all records," unless the records fall within a statutory exemption (Public Officers Law § 87[2] [emphasis added]). The Legislature also added a definition of "records" that implements the policy favoring disclosure and makes "the vast majority of requested documents presumptively discoverable" (Matter of Washington Post Co. v. New York State Ins. Dept., 61 NY2d 557, 564, 475 N.Y.S.2d 263, 463 N.E.2d 604). (Encore Coll. Bookstores, Inc. v. Auxiliary Serv. Corp. of State Univ. of New York at Farmingdale, 87 NY2d 410, 417 [1995].)

The Rusnak Report is clearly an agency record [FN15] . Respondent MCC objects to its disclosure on two grounds: (1) disclosure would be an unwarranted invasion of personal privacy pursuant to Public Officers Law § 87(2)(b), and (2) the Rusnak Report falls within the attorney-client privilege, and presumably exempt from disclosure under CPLR 3101(b) and (c), and Public Officers Law § 87(2)(a).

Had the Rusnak Report involved solely the investigation of employee misconduct in response to disciplinary charges, the Report may have been properly withheld by MCC. The fact that the Report involved an investigation wherein employee conduct was part of the investigation is not dispositive. "There is no statutory blanket exemption for investigative records, even where the allegations of misconduct are "quasi criminal" in nature or not substantiated, and the ability to withhold records under FOIL can only be based on the effects of disclosure in conjunction with attendant facts (see Matter of Gould v. New York City Police Dept., 89 NY2d 267, 275, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996]["[B]lanket exemptions for particular types of documents are inimical to FOIL's policy of open government"])." (Thomas v. New York City Dep't of Educ., [*4]103 AD3d 495 [1st Dept. 2013].)

The Report also investigated CSEA's concerns about improper employee surveillance by Ms. Sprague and other supervisors and thus it involved broader policy concerns related to the collective bargaining agreement between MCC and CSEA and attendant employer-employee obligations.

"Public Officers Law § 89(2)(b) says that "[a]n unwarranted invasion of personal privacy includes, but shall not be limited to" seven specified kinds of disclosure. In a case, like this one, where none of the seven specifications is applicable, a court "must decide whether any invasion of privacy ... is 'unwarranted' by balancing the privacy interests at stake against the public interest in disclosure of the information" (Matter of New York Times Co. v. City of NY Fire Dept., 4 NY3d 477, 485, 796 N.Y.S.2d 302, 829 N.E.2d 266 [2005])." (Harbatkin v. New York City Dep't of Recs. & Info. Servs., 19 NY3d 373, 380 [2012].)

In reviewing the Rusnak Report and balancing the interests involved, the Court believes that the equities favor disclosure of the Report, subject to appropriate redaction of identifying details (including any witnesses who desired confidentiality [Harbatkin, supra]).[FN16]

Furthermore, the Court rejects MCC's argument that the Rusnak Report is privileged as it was prepared by outside counsel.

MCC cannot prevent disclosure of investigative reports simply because they employ outside counsel to conduct the investigation and report on same. "Although typically arising in the context of a client's communication to an attorney, the privilege extends as well to communications from attorney to client. The privilege is of course limited to communications—not underlying facts (Upjohn Co. v United States, 449 US, at 395-396, supra). In order for the privilege to apply, the communication from attorney to client must be made "for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship." (Rossi v Blue Cross & Blue Shield, 73 NY2d 588, 593.) The communication itself must be primarily or predominantly of a legal character (id., at 594)." (Spectrum Sys. Int'l Corp. v. Chem. Bank, 78 NY2d 371, 377—78 [1991].)

A review of the Rusnak Report establishes it was not prepared to provide legal advice, only to report investigative findings. It is devoid of any legal advice or analysis. Thus, it is not subject to the attorney-client privilege.[FN17] (Id.) Therefore, it cannot be withheld under Public [*5]Officers Law § 87(2)(a).

Finally, the Court declines to award attorneys' fees under POL § 89(4)(c).[FN18] Although CSEA substantially prevailed in this proceeding (see McDevitt v. Suffolk County, 183 AD3d 826 [2nd Dept. 2020]), the Court finds that MCC's stated reasons for withholding the report were reasonable. The Court recognizes that POL § 89(4)(c) was amended by the Legislature to make the awarding of fees mandatory in circumstances where a party substantially prevails, and the court determines the withholding party had no reasonable basis for denying access. However, the fact that CSEA substantially prevailed is not the sole factor. "[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 New York State Defenders Assn. v. New York State Police, 87 AD3d 193, 195, 927 N.Y.S.2d 423 [2011]; see Matter of Competitive Enter. Inst. v. Attorney Gen. of NY, 161 AD3d at 1285, 76 N.Y.S.3d 640)." (Util. Rate Analysis Consultants (URAC) Corp. v. Pub. Serv. Comm'n, 171 AD3d 1279, 1281 [3rd Dept. 2019].)

Although the Court has determined that the Report must be provided, and has rejected MCC's stated reasons for withholding disclosure, the Court also finds that MCC reasonably relied upon advisory opinions of the Committee on Open Government which stand for the proposition that records related to unsubstantiated employee complaints need not be provided. The Court disagrees with the application of those opinions to the facts of this proceeding, but determines that MCC's grounds for the initial withholding of the Rusnak Report were reasonable. Thus, although CSEA substantially prevailed in this proceeding, the Court declines to award attorneys' fees.

Order and Judgment

Now upon reading the Petition and supporting exhibits (NYSCEF Docket #s 1-12); Petitioner's Memorandum of Law in Support with exhibits (NYSCEF Docket #s 13-17); Respondent's Notice of Motion and supporting exhibits (NYSCEF Docket #s 23-25; 27-31); Respondent's Memorandum of Law (NYSCEF Docket # 26); and Petitioner's Affirmation in Opposition to Motion to Dismiss (NYSCEF Docket #33),

AND due deliberation having been had, it is ORDERED that Respondent's Motion to Dismiss the Petition is DENIED, and it is further

ORDERED and ADJUDGED that the Petition is GRANTED on the merits in accordance with the above decision; and it is further

ORDERED that the Rusnak Report shall be disclosed to Petitioner CSEA, subject to appropriate redactions in accordance with this Decision, within twenty-one (21) days of notice of entry of this Order; and it is further

ORDERED that Petitioner's request for attorneys' fees pursuant to POL § 89(4)(c)(ii) is denied.

This constitutes the Decision, Order & Judgment of the Court.

August 18, 2022
Honorable Daniel J. Doyle, JSC Footnotes

Footnote 1:"Except as provided in subdivision five of this section, a person denied access to a record in an appeal determination under the provisions of paragraph (a) of this subdivision may bring a proceeding for review of such denial pursuant to article seventy-eight of the civil practice law and rules. In the event that access to any record is denied pursuant to the provisions of subdivision two of section eighty-seven of this article, the agency involved shall have the burden of proving that such record falls within the provisions of such subdivision two. . .": (POL § 89[4][b].)

Footnote 2:CSEA Petition (NYSCEF Docket # 1) at ¶¶ 9-17.

Footnote 3:"Objections in point of law. The respondent may raise an objection in point of law by setting it forth in his answer or by a motion to dismiss the petition, made upon notice within the time allowed for answer. If the motion is denied, the court shall permit the respondent to answer, upon such terms as may be just; and unless the order specifies otherwise, such answer shall be served and filed within five days after service of the order with notice of entry . . ." (CPLR § 7804[f].)

Footnote 4:MCC also submitted a certification of the administrative record, thus affirming the record was complete. (NYSCEF Docket # 27.)

Footnote 5:Petitioner's Verified Petition (NYSCEF Docket # 1) at ¶ 4.

Footnote 6:Exhibit B to the Verified Petition (NYSCEF Docket # 3) at pages 2-3.

Footnote 7:Id.

Footnote 8:Id.

Footnote 9:The Court has reviewed this letter in camera.

Footnote 10:Id.

Footnote 11:Petitioner's Verified Petition (NYSCEF Docket # 1) at ¶¶ 7-8.

Footnote 12:Petitioner's Verified Petition (NYSCEF Docket # 1) at ¶¶ 9-10.

Footnote 13:Email dated December 23, 2021 from MCC to CSEA, Exhibit J to the Verified Petition (NYSCEF Docket #11).

Footnote 14:Affidavit of Kristin Lowe (NYSCEF Docket # 24) at ¶ 6.

Footnote 15:MCC is clearly an "agency" (POL § 86[3]) and the Rusnak Report is clearly a "record" (POL § POL 86[4]).

Footnote 16:MCC argues that redaction is not an appropriate remedy (see Respondent's Affirmation, NYSCEF Docket # 26, at page 9) as "CSEA is already aware of the identity of the accused employee". MCC ignores the fact that in the "Outcome Letter" it provided to CSEA it named the employees involved in the investigation. MCC cannot now claim that release of the Rusnak Report would result in an unwarranted invasion of personal privacy when it released those names in the Outcome Letter. (See NYSCEF Docket # 25.)

Footnote 17:"Nor is such a report privileged merely because an investigation was conducted by an attorney; a lawyer's communication is not cloaked with privilege when the lawyer is hired for business or personal advice, or to do the work of a nonlawyer (People v Belge, 59 AD2d 307, 308-309). Yet it is also the case that, while information received from third persons may not itself be privileged (see, Kenford Co. v County of Erie, 55 AD2d 466), a lawyer's communication to a client that includes such information in its legal analysis and advice may stand on different footing. The critical inquiry is whether, viewing the lawyer's communication in its full content and context, it was made in order to render legal advice or services to the client." (Id. at 379.)

Footnote 18:"The court in such a proceeding: (i) may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, and when the agency failed to respond to a request or appeal within the statutory time; and (ii) shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access." (POL § 89[4][c].)