Memorandum of Law in Support of Answer

7/30/2019 Memorandum of Law in Support of Answer

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK-------------------------------- ----------------------------------XApplication for a Judgment under Article 78 of the CPLRand other relief,SERGIO HERNANDEZ

Petitioner,-against-

OFFICE OF THE MAYOR OF THE CITY OF NEWYORK,Respondent.

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Index No. 106213/11lAS Part 16(Schlesinger, J.)

MEMORANDUM OF LAW IN SUPPORT OF VERIFIED ANSWERPreliminary Statement

Respondent, the Office of the Mayor of the City of New York, submits thismemorandum of law in support of its Verified Answer. As discussed more fully below,Respondent properly withheld documents requested by Petitioner pursuant to New York'sFreedom of Information Law ("FOIL"), as these documents were exempt as intra-agencymaterial that does not fall into any of the exceptions listed in N.Y. Public Officers Law87(2)(g). Some of these documents also contained personal cell phone numbers and emailaddresses that, if disclosed, would constitute an unwarranted invasion of personal privacy and,thus, were properly withheld under N.Y. Public Officers Law 87(2)(b).


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FACTSRespondent respectfully refers the Court to its Statement of Material and Pertinent

Facts as set forth in its Verified Answer 28-48) for a recitation of the facts pertinent to thisproceeding. A brief summary is set forth below.Cathleen Black's Selection as Chancellor

In early November 2010, Mayor Bloomberg selected Cathleen P. Black to be theChancellor of the City school district, upon the pending resignation of Joel Klein. A n s w e r ~ 28.He publicly announced that selection on November 9, 2010. ld. 29. As Ms. Black did notpossess the graduate coursework or experience requirements of Education Law 3003(1) for asuperintendent certificate, she was required to obtain a School District Leader certificate fromthe New York State Education Department pursuant to Education Law 3003(3) in order toserve as Chancellor. I Id. ~ ~ 3 0 - 3 1 . Because she also did not have any previous experience in thefield of education, it was understood that Ms. Black's selection would be the subject of scrutinyand debate. Id. 31.

After her selection in early November 2010, Ms. Black, City staff and Hearst' 'Corporation staff assigned to assist Ms. Black in her transition to City government were required

to communicate with one another in order to appropriately prepare the request for a SchoolDistrict Leader certificate, to respond to routine inquiries that are customary for high-levelmayoral appointees, and to engage in outreach planning to the community to address concerns

' 'that had been publicly raised regarding Ms. Black. Ms. Black was both directly communicatingwith as well as copied one-mails between these parties. Id. 33.

In New York City, the Chancellor is the superintendent of the City school district pursuant toEducation Law 2590-h. Education Law 3003(1) requires, generally, that any person serving as asuperintendent of schools must meet certain requirements to be eligible for a superintendent's certificate.

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On or about November 17, 2011, the Mayor requested from the New York StateEducation Department a waiver of the requirements of Education Law 3003(1) for Ms. Black,and that it issue her a School District Leader certificate pursuant to Education Law 3003(3). Id.

32. That request was granted on November 29, 2010, and Ms. Black began serving asChancellor on January 1, 2011. Id. 37-38.Petitioner's FOIL Request

By email dated November 19, 2011 sent to Anthony Crowell, Respondent'sRecords Access Officer, Petitioner requested copies of "E-mail messages sent from or receivedby any state electronic email accounts assigned to the Office of the Mayor to or from anindividual named Cathleen Prunty 'Cathie' Black or email addresses containing the domainhearst.com" pursuant to the New York State Freedom of Information Law, Article 6 84, etseg.2 See A n s w e r ~ 39; Petition at Exhibit A.

By letter to Petitioner dated January 13, 2011 from Anthony Crowell, Respondentdenied Petitioner's FOIL request pursuant toN.Y. Public Officers Law 87(2)(b) on the groundthat disclosure would constitute an unwarranted invasion of personal privacy, and pursuant toN.Y. Public Officers Law 87(2)(g) on the ground that the requested records were inter-agencyor intra-agency materials. See Answer 45; Petition at Exhibit B. Petitioner appealed thatdetermination by emails dated January 19, 2011. See Answer 46; Petition at Exhibit C. Byletter to Petitioner dated January '26, 20 i 1, Deputy Mayor Carol Robles-Roman upheld thedetermination to deny Petitioner's FOIL request for the reason previously provided. See Answer

47; Petition at Exhibit D.

2 By subsequent em ails dated November 19, 20 I0, Petitioner clarified that his request was intended forthe Office of the Mayor, not the State Education Department. A n s w e r ~ 39; Petition at Exhibit A.- 3-


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As discussed more fully below, Respondent's determination to withhold theresponsive records was entirely proper. At the relevant time period here -- i.e., prior to the dateof Petitioner's FOIL Request on November 19, 2010 --Ms. Black was acting as Respondent'sagent or consultant in assisting Respondent's communication and outreach efforts regarding herbackground and qualifications, and in support of the Mayor's request that Commissioner Steinerissue her the requested School District Leader certificate. Thus, the responsive emails are intra-agency records and, because they do not contain any of the information listed in N.Y. PublicOfficers Law 87(2)(g), they were properly withheld from disclosure. Also as discussed below,as some of these documents contained personal cell phone numbers and email addresses, Answer

43, the disclosure of this information would constitute an unwarranted invasion of personalprivacy and was, therefore, properly withheld under N.Y. Public Officers Law 87(2)(b).

As Respondent's determination to deny Petitioner's FOIL request was reasonable,the Petition should be denied.

ARGUMENTPOINT I

AS CATHLEEN BLACK AND HER STAFF WERE AGENTSOF THE RESPONDENT DURING THE RELEVANT TIME,RESPONDENT PROPERLY INVOKED THE INTRA-AGENCY EXEMPTION TO WITHHOLD RESPONSIVERECORDS"An express agency is created 'by written or spoken words or other conduct of the

principal which, reasonably interpreted, causes the agent to believe that the principal desires himto act on the principal's account." Itel Containers Int'l Corp. v. Atlant-Trafik Express Service,Ltd., 909 F.2d 698, 702 (2d Cir. 1990)(quoting Restatement (Second) of Agency 26 (1958))."Whether such an agency is formed depends of the actual interaction between the putativeprincipal and agent, not on any perception a third party may have of the relationship." Id.

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The elements of an agency relationship are "(I) the manifestation by the principalthat the agent shall act for him; (2) the agent's acceptance of the undertaking; and (3) theunderstanding of the parties that the principal is to be in control of the undertaking." Ho MyungMoolsan Co. v. Manitou Mineral Water, 665 F. Supp.2d 239, 258 (S.D.N.Y. 2009); HyosungAmerica, Inc. v. Sumagh Textile Co, Ltd ., 934 F. Supp. 570, 575 (S.D.N.Y. 1996)(intemalquotation and citation omitted). See Gulf Ins. Co. v. Transatlantic Reinsurance Co., 69 A.D.3d71, 97,886 N.Y.S.2d 133, 152 (1st Dept. 2009)(agency results from "manifestation of consent byone person to another that the other shall act on his behalf and subject to his control, and theconsent of the other to act")( quotation omitted); Restatement (Second) of Agency I cmt b(1958).

The critical factor in this assessment is the control of the agent by the principal.Jurgens v. Poling Transp. Corp., 113 F. Supp.2d 388, 399 (E.D.N.Y. 2000)(citing In re ShulmanTransp. Enterprises, Inc., 744 F.2d 293, 296 (2d Cir. 1984)). "Control is established when theprincipal prescribes what the agent shall or shall not do before the agent acts, or at the time theagent acts, or both." Ho Myung Moolsan Co, 665 F. Supp.2d at 258 (internal quotation andcitation omitted). In making its assessment, the Court is to look for "the exertion of actualcontrol, not formal indicia of control." Id. (quoting Royal Ins. Co. of America v. RU-VAL Elec.QQnh, 918 F. Supp 647, 653 (E.D.N.Y. 1996)). Notably, such control need not apply to everyaspect of the agent's conduct, Mazart v. State of New York, 109 Misc. 2d 1092, 1099, 441N.Y.S.2d 600, 605 (N.Y. Ct. of Claims 1991), and the existence of consideration is not essentialto the creation ofthe agency relationship. Central Trust Co. v. Sheahan, 66 A.D.2d 1015, 1016,411 N.Y.S.2d 741,743 (4 1h Dept. 1978)(citing N.Y. Jur.2d Agency, 2).

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In early November 2010, Mayor Bloomberg selected Ms. Black to serve asChancellor upon the pending resignation of Joel Klein. Because Ms. Black did not meet theeligibility requirements of Education Law 3003(1), Mayor Bloomberg was required to requestthat Commissioner Steiner of the New York State Education Department issue Ms. Black aSchool District Leader certificate pursuant to Education Law 3003(3) so that she could serve asChancellor. Having selected Ms. Black as the most suitable person to be the next Chancellor,Respondent had a clear interest in having Commissioner Steiner issue the requested certificate sothat she could serve in that role. It was understood, however, that Ms. Black's backgroundwould be subject to scrutiny and debate, and that there would be concerns raised which, if notaddressed, might negatively impact Commissioner's Steiner's decision and jeopardize theMayor's selection. Indeed, the concerns raised about Ms. Black following her appointment werewell-publicized and a matter of public record.

Thus, in the weeks after Ms. Black was selected -- a period that includes therelevant time for Petitioner's FOIL request -- Respondent had an interest in addressing theseconcerns, and did so though its communication and outreach efforts designed to clarify andexpound on Ms. Black's credentials, and to address any concerns about her qualifications so asto ensure the success of her candidacy. A n s w e r ~ 42. Ms. Black indisputably shared this interest,and she acted in furtherance and support of this goal.

As part of these efforts, Ms. Black, City staff and/or Hearst Corporation staffassigned to assist Ms. Black in her transition to City government communicated with each otherthough email about the preparation of the request to Commissioner Steiner for a School DistrictLeader certificate for Ms. Black, responses to routine queries, and outreach planning to thecommunity. These emails included discussions concerning clarification of Ms. Black's

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background, discussions related to contacts with various individuals regarding Ms. Black'sselection, and drafts of the letter to be sent to Commissioner Steiner. A n s w e r ~ 33.

While Ms. Black was acting in tandem with Respondent and in furtherance ofRespondent's interests, it was well-understood that these efforts were being coordinated byRespondent. Id. 35. Indeed, the responsive documents show that Ms. Black and her staff didnot act independently, but only on Respondent's advice and guidance. Id. 36.

Having been selected by the Mayor as the incoming Chancellor, having acceptedthat selection and thereafter having acted under Respondent's guidance in furtherance ofRespondent's interest in having that selection "approved" through Commissioner Steiner'sissuance of the requested certificate, it is clear that Ms. Black was acting as Respondent's agentduring the relevant time. Thus, the r e s p o n s i ~ e documents -- emails exchanged betweenRespondent and Ms. Black (or others at hearst. com) -- are intra-agency documents and may bewithheld from disclosure N.Y. Public Officers Law 87(2)(g).

Pursuant to N.Y. Public Officer Law 87(2)(g), an agency may withhold recordswhich are inter-agency or intra-agency materials which are not:

1. statistical or factual tabulations or data;ii instructions to staff that affect the public;111. final agency policy or determinations; [or]IV. external audits, including but not limited to audits performed bythe [New York State] comptroller and the federal government[.]

"Such material is exempt 'to protect the deliberative process of the government by ensuring thatpersons in an advisory role would be able to express their opinions freely to agency decisionmakers."' Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 132, 496 N.Y.S.2d 488, 490(1985)(quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 A.D.2d 546, 549, 442 N.Y.S.2d130, 132 (2d Dept. 1981)). See New York Times Co. v. City ofNew York Fire Dept., 4 N.Y.3d

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477, 4888, 796 N.Y.S.2d 302, 306 (2005)(the intra- and inter-agency exemptions were enacted"to permit people within an agency to exchange opinions, advice and criticism freely andfrankly, without the chilling prospect of public disclosure"). Indeed, requests for disclosure ofmaterial which contain opinions, advice, evaluations, deliberations, proposals, conclusions,recommendations or other subjective material are routinely and consistently rejected b.y thecourts. See, ~ , Professional Standards Review Council of America, Inc. v. New York StateDept. of Health, 193 A.D.2d 937, 939, 597 N.Y.S.2d 829, 832 (3d Dept. 1993)(comments,opinions and recommendations of those involved in making contract award held privileged);Rothenberg v. City University of New York, 191 A.D.2d 195, 196, 594 N.Y.S.2d 219, 220 (1stDept.)(denying access to report containing committee recommendations concerning candidatesfor promotion), app. denied, 81 N.Y.2d 710,600 N.Y.S.2d 197 (1993).

Pre-decisional material is widely recognized as being exempt from disclosure toprevent the second-guessing of an agency's decision-making process. In Cirale v. 80 Pine StreetCorp, 35 N.Y.2d 113, 116, 359 N.Y.S.2d 1, 4 (1974), the Court of Appeals recognized thatcertain government documents may be withheld if the public interest would be harmed bydisclosure) In One Beekman Place, Inc. v. City of New York, 169 A.D.2d 492, 493, 564N.Y.S.2d 169, 170 (1St Dept. 1991), the Appellate Division expressly recognized the publicinterest in encouraging candid discussion among government employees in the development ofpolicy and reaching agency decisions. See In re World Trade Center Bombing Litigation, 93

A.D.2d 1, 9, 686 N.Y.S.2d 743,747 (1St Dept. 1999); Matter of Delaney v. Del Bello, 62 A.D.2d281,287,405 N.Y.S.2d 276,280-81 (2d Dept. 1978).

3 Although Cirale involved disclosure under CPLR Article 31, its discussion of the importance ofprotecting documents that concern an agency's decision-making process is instructive here.- 8 -


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Clearly, the candor of those assisting in the decision-making process would beimpeded if they knew their opinions, deliberations, analyses and recommendations were exposedto public scrutiny. The ability to freely voice and discuss opinions and conflicting views isessential to an agency's ability to candidly assess competing facts and render well-reasoneddecisions. See One Beekman Place, Inc., 169 A.D.2d at 493, 564 N. Y.S.2d at 170. Exposing thedeliberations of agency personnel to second-guessing would hinder this process, and underminethe agency's ability to make the best decisions. See Goodstein & West v. O'Rourke, 201 A.D.2d731,731,608 N.Y.S.2d 306,307 (2d Dept. 1994); Kheel v. Ravitch, 93 A.D.2d 422,427-28,462N.Y.S.2d 182, 185 (1st Dept. 1983), affd, 62 N.Y.2d 7, 475 N.Y.S.2d 814 (1984); Sea CrestConstr. Corp., 82 A.D.2d at 549, 442 N. Y.S.2d at 132 (2d Dept. 1981 ).

Here, as noted, the responsive records are intra-agency records containingdiscussion relating to the clarification of Ms. Black's background, proposed contacts withvarious individuals regarding Ms. Black's selection, and drafts of the letter to be sent toCommissioner Steiner requesting a School District Leader certificate for Ms. Black.Significantly, none of the responsive documents contains (i) statistical or factual tabulations ordata; (ii) instructions to staff that affect the public;4 or (iii) a final agency policy or

4 Although Petitioner may argue that these em ails constitute instructions to staff that affect the public,this is not the case. As the Committee on Open Government has made clear, although there is littledecisional law construing this phrase, it was intended to apply to agency guidelines, manuals, proceduresand the like:

[I]n a letter of July 21, 1977 prepared by the sponsor of the revisedFreedom of Information Law, former Assemblyman Mark Siegelindicated that 87(2)(g) is intended to insure that "any so-called 'secretJaw' of an agency be made available", such as the policy "upon which anagency relies" in carrying out its duties. Typically, agency guidelines,procedures, staff manuals and the like provide direction to an agency'semployees regarding the means by which they perform their duties.Some may be "internal", in that they deal solely with the relationshipbetween an agency and its staff. Others may provide direction in terms of

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determination. A n s w e r ~ 44. Thus, none of these exceptions set forth in N.Y. Public Officer Law87(2)(g) applies, and Respondent properly withheld these documents from disclosure.

Additionally, Ms. Black's function during this time was similar to that of aconsultant. In this connection, it has been well-recognized that "while that term [inter-agency orintra-agency materials] has not been defined in FOIL, it has been interpreted to includecommunications between state agencies and outside entities that . . . do not fall within the literal

definition of'agency' contained in the statute." Matter ofTown of Waterford v. New York StateDept. of Environmental Conservation, 2010 NY Slip Op 6388 *5-6; 77 A .D.3d 224, 230-31; 906N.Y.S.2d 651; 2010 N.Y. App. Div. LEXIS 6468 (3d Dept. 2010). As the Court of Appeals hasstated:

In connection with their deliberative process, agencies may attimes require opinions and recommendations from outsideconsultants. It would make little sense to protect the deliberativeprocess when such reports are prepared by agency employees yetdeny this protection when reports are prepared for the samepurpose by outside consultants retained by agencies. Accordingly,we hold that records may be considered 'intra-agency material'even though prepared by an outside consultant at the behest of anagency as part of the agency's deliberative process (see, Matter ofSea Crest Constr. Corp. v. Stubing, 82 A.D. 2d 546, 549, 442N.Y.S.2d 130, 132 (2d Dept. 1981); Matter of 124 St. Realty Corp.

the manner in which staff performs its duties in relation to or that affectsthe public, which would ordinarily be public. To be distinguished wouldbe advice, opinions or recommendations that may be accepted orrejected. An instruction to staff, a policy or a determination each wouldrepresent a matter that is mandatory or which represents a final step inthe decision making process.Committee on Open Government, FOIL-A0-13330 (April23, 2002)(annexed hereto as Exhibit 1). Here,none of the communication between Respondent and Ms. Back concerned the manner in which staffperformed its duty in relation to the public or a matter that was mandatory. See Matter of Tuck-It-AwayAssoc., L.P. v. Empire State Development Corp., 54 A.D.2d 154, 861 N.Y.S.2d 51 (1 51 Dept. 2008) (interagency communication regarding how agency should handle inquiry from public held not instruction tostaff under 87(2)(g)(ii)).

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v. Hennessy, 82 A.D. 2d 981, 983, 440 N.Y.S.2d 419, 421 (2dDept. 1981)."

Xerox Corporation, 65 N.Y.2d at 132, 496 N.Y.S.2d at 490. Thus, records "that would, ifprepared by agency employees, be exempt from disclosure under the Freedom of InformationLaw (FOIL) as 'intra-agency materials' ... do not lose their exempt status simply because theyare prepared for the agency, at its request, by an outside consultant." Id. (quoting N.Y. PublicOfficer Law 87(2)(g)). See Kent v Steiner, 2011 NY Slip Op 30093U; 2011 N.Y. Misc. LEXIS614 (Albany Co. 2011); Miller v. New York State DOT, 2009 NY Slip Op 166 * 4; 58 A.D.3d981, 985; 871 N.Y.S.2d 489; 2009 N.Y. App. Div. LEXIS 160 (3d Dept. 2009);Matter of Tuck-It-Away Assoc., L.P. v. Empire State Development Corp., 54 A.D.2d 154, 861 N. Y.S.2d 51 (1 51Dept. 2008).

Factors considered in determining the applicability of thisexemption are the nature of the relationship the outside entity hadwith the state or municipal agency, as well as the content andcontext of the communications sought to be disclosed (id. ).Moreover, simply because the outside entity was a private concernand not part of a state or municipal agency did not precludeapplication of the exemption to their communications.Matter of Town of Waterford, 2010 NY Slip Op 6388 *6; 77 AD 3d 224, 231, 2010 N.Y. App.Div. LEXIS 6468.

Here, as described above, in communicating with Respondent, Ms. Black wasworking at Respondent's behest and in furtherance of Respondent's interest that she be awardedthe request School District Leader certificate so that she could serve as Chancellor. This is alsomade clear by the nature of the emails here at issue which demonstrate Ms. Black's role.Accordingly, these records are exempt from disclosure under N.Y. Public Officer Law 87(2)(g).

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POINT IIDISCLOSURE OF PRIVATE TELEPHONENUMBERS AND EMAIL ADDRESSESWOULD CONSTITUTE AN UNWARRANTEDINVASION OF PERSONAL PRIVACY

Section 87(2)(b) of the Public Officers Law provides that an agency may denyaccess to records or portions thereof that would constitute an unwarranted invasion of personalprivacy under 89(2). Section 89(2)(b), in tum, provides a listing of the types of informationthat are exempt. However, as is clear from its own terms - i.e., "An unwarranted invasion ofpersonal privacy includes, but shall not be limited to . . . " -- section 89(2)(b) does not limit thedefinition of "unwarranted invasion of personal privacy" to the situations listed in that sectionand is not exhaustive. Matter .of Data Tree, LLC v. Romaine, 9 N. Y.3d 454, 462 (2007). See,

~ . New York Times Co. v. City of New York Fire Dept. , 195 Misc. 2d 119, 126 (Sup. Ct.,N.Y. Co. 2003) (recognizing that list of categories in section 89(2)(b) is not exhaustive andfinding that communications by victims and survivors of September 11, 2001 terrorist attackscontained in tapes and transcripts of 911 calls were exempt from disclosure under FOIL eventhough communications did not fall under any of the specific listed categories), aff'd in relevantpart, 3 A.D.3d 340 (1st Dept. 2004), aff'd, 4 N.Y.3d 477, 488, 796 N.Y.S.2d 302, 306 (2005).Ultimately, "[w]hat constitutes'an unwarranted invasion of personal privacy is measured by whatwould be offensive and objectionable to a reasonable [person] of ordinary sensibilities" Matter ofHumane Socy. of United States v. Fanslau, 54 A.D.3d 537, 538 (3d Dept. 2008)(intemalquotations omitted).

Courts have routinely found that disclosure of telephone numbers wouldconstitute an unwarranted invasion of personal privacy and are therefore exempt from disclosureunder FOIL. Matter of Humane Socy. of United States v. Brennan, 53 A.D.3d 909, 911 (3rd

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Dept. 2003), app. denied, 11 N.Y.3d 711 (2008) (finding disclosure of telephone numbers wouldconstitute an unwarranted invasion of personal privacy, and directing that the numbers beredacted); Burtis v. New York Police Dept., 240 A.D.2d 259, 260 (1st Dept. 1997) (findingtelephone numbers in police complaint reports exempt from disclosure as an unwarrantedinvasion of privacy); Woods v. Kings County Dist. Attys. Office, 234 A.D.2d 554, 556 (2d Dept.1996)(requiring redaction of telephone numbers from all documents produced, not just singlecategory of documents); Malter of Physicians ommittee for Responsibl M dicine v. H gan,2010 NY Slip Op 51908U at *8-9; 29 Misc. 3d 1220A, 2010 N.Y. Misc. LEXIS 5446 at * 21(Sup. Ct. Albany Co. Nov. 3, 201 0); Matter of James, Hoyer, Newcomer, Smiljanich &Yanchuni, 2010 NY Slip Op 50863U at *14; 27 Misc. 3d 1223A; 2010 N.Y. Misc. LEXIS 1045at* 34 (Sup Ct. N.Y. Co. March 31, 2010); Pinks v. Turnbull, 2006 NY Slip Op 51687U at *6;13 Misc. 3d 1204A; 824 N.Y.S.2d 758, 2006 N.Y. Misc. LEXIS 2346 (Sup Ct. N.Y. Co. Aug.29, 2006); Matter of Goyer v. New York State Dept. of Envtl. Conserv., 2005 NY Slip Op25582, 12 Misc. 3d 261, 813 N.Y.S.2d 628 (Sup Ct. Albany Co. November 29, 2005).

The expectation of privacy is even greater with respect to the cell phone numbersincluded on the responsive documents. Indeed, as there is no publicly-available directory of cellphone numbers, it is clear that this information is disclosed only by the choice of the individualowner, and only to those persons to whom the owner chooses to disclose it. It is too far a stretchto argue that individuals have voluntarily elected to disclose their cell phone numbers to theworld at large, simply because they disclosed it to someone who later included in an email (andlikely without their knowledge or consent) that subsequently became the subject of a FOILrequest. Such disclosure would expose such individuals to unwanted communications from avariety of persons with a variety of motives. Indeed, given the spirited public debate regarding

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Ms. Black, disclosure of cell phone numbers here could expose such individuals tocommunications which are threatening, offensive, solicitous, or otherwise simply unwelcomeand of an intrusive nature. See Committee on Open Government, FOIL-A0-17992 (Feb. 9, 2010),annexed hereto as Exhibit 2 ("if the telephone number ... is ... he cell phone number of aprivate person . . . disclosure could result in an unwarranted invasion of personal privacy . . . ")

The same considerations hold true of personal email addresses, which courtsroutinely protect from disclosure. See Matter of Phy icians ommitlee for R sponsibleMedicine, 2010 NY Slip Op 51908U at *8-9; 29 Misc. 3d 1220A, 2010 N.Y. Misc. LEXIS 5446at * 21; Matter of James, Hoyer, Newcomer, Smiljanich & Yanchuni, 2010 NY Slip Op 50863Uat *14; 27 Misc. 3d 1223A; 2010 N.Y. Misc. LEXIS 1045 at* 34; Matter of Goyer v. New YorkState Dept. of Envtl. Conse.rv., 2005 NY Slip Op 25582, 12 Misc. 3d 261, 813 N.Y.S.2d 628(rejecting request for a variety of personal information, including telephone numbers and emailaddresses, citing risk of identity theft).

Based on the foregoing, Respondent properly withheld from disclosure the privatetelephone numbers and email addresses on the responsive records.

POINT IIIAN AWARD OF ATTORNEYS' FEES IS NOT WARRANTEDIn his Petition, Petitioner seeks an award of attorneys' fees, arguing that "[a] party

that substantially prevails in a FOIL proceeding may recover its attorneys' fees, where therecords sought are of clear significant interest to the public and the agency had no reasonablebasis for denying access. Pet. 's Memo of Law at 17. In making this argument, Petitioner arguesa standard that is no longer in effect, as it was amended several years ago.

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As amended in 2006, N.Y. Public. Off. Law 89( 4 )(c) now provides that theCourt may assess

reasonable attorneys' fees and other litigation costs reasonably incurred in anycase under the provisions of this section in which such person has substantiallyprevailed, when:(i) the agency has no reasonable basis for denying access; or(ii) the agency failed to respond to a request or appeal within the statutorytime.

Thus, the amendment removed the requirement that the documents sought by the FOILproceeding be "of clearly significant interest" to the public.

As there is no dispute that Respondent timely responded to Petitioner's FOILrequest and his administrative appeal, the only questions are first, whether Petitioner willsubstantially prevail in this matter and second, if he substantially prevails, whether Respondentnonetheless had a reasonable basis for denying the request. These two questions are to bedetermined independently. Should Petitioner not substantially prevail, the inquiry is over and nofees are to be awarded. If Petitioner prevails, however, the court still must determine whetherRespondent had a reasonable basis for denying access to the requested records, as an agency'sdecision to withhold requested records may be reasonable, even if it is rejected. See Miller v.New York State DOT, 2009 NY Slip Op 166 * 4; 58 A.D.3d 981, 985; 871 N.Y.S.2d 489; 2009N.Y. App. Div. LEXIS 160 (3d Dept. 2009)(although ordering documents disclosed, denyingrequest for fees where respondents "had a rational basis for their belief that the majority of thedocuments withheld were exempt from disclosure.")

The facts of this proceeding appear to present an issue of first impression in thisState -- that is, the extent to which communications between a mayoral appointee and themayor's staff subject are to disclosure under FOIL. Here, as discussed above, given the nature of

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the relationship between Respondent and Ms. Black at the time the subject records were prepared--with Ms. Black working in a subsidiary role, on the advice and guidance of Respondent, and infurtherance of Respondent's interest in having his selection for Chancellor approved --Respondent had a reasonable, good faith basis for invoking the exemption provided by N.Y.Public Officers Law 87(2)(g) and withholding the responsive documents.5

As Respondent had a reasonable basis for denying petitioner access to therequested records, an award of attomeys' fees is not warranted here.

CONCLUSIONFor the reasons set forth above, Respondent respectfully requests that the Petition

be denied in its entirety, and that it be granted such other an further relief as this Court deemsjust and proper.Dated: New York, New YorkJuly 21, 2011

MICHAEL A. CARDOZOCorporation Counsel for the City ofNew YorkAttorney for Respondent100 Church Street, Room 2-121New York, NY 10007(212)788-0C 9

5 That Respondent could properly withhold the private email addresses and cell phone numbers contained in theseemails is beyond dispute. See Point II, infra.- 16-


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EXHIBIT 1


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State of New YorkDepartment of StateCommittee on Open Government

FOIL-A0-13330April 23, 2002

=Search all of NY go

One Commerce P99 Washington AAlbany, New York 12(518) 474-2Fax (518) 474-1ht!;p://www.dos.n')'.gov/coo

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisoryopinion is based solely upon the information presented in your correspondence.DearI have received your letter in which you asked about the availability of "'Police Department Guidelines' with regards toprecinct Supervisory staff giving uniformed police officers authority/direction to 'strip search' individuals who had beenarrested for non-felony offenses." You also questioned the propriety of a response from the New York City PoliceDepartment indicating that the Department would respond to your request within 120 days.In this regard, the Freedom of Information Law provides direction concerning the time and manner in which agenciesmust respond to requests. Specifically, 89(3) of the Freedom of Information Law states in part that:"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for arecord reasonably described, shall make such record available to the person requesting it, deny such request in writingor furnish a written acknowledgement of the receipt of such request and a statement of the approximate date whensuch request will be granted or denied ... "

While an agency must grant access to records, deny access or acknowledge the receipt of a request within fivebusiness days, when such acknowledgement is given, there is no precise time period within which an agency mustgrant or deny access to records. The time needed to do so may be dependent upon the volume of a request, thepossibility that other requests have been made, the necessity to conduct legal research, the search and retrievaltechniques used to locate the records and the like. In short, when an agency acknowledges the receipt of a requestbecause more than five business days may be needed to grant or deny a request, so long as It provides anapproximate date indicating when the request will be granted or denied, and that date is reasonable in view of theattendant circumstances, I believe that the agency would be acting in compliance with law.Notwithstanding the foregoing, in my view, every law must be implemented in a manner that gives reasonable effect tits intent, and I point out that in its statement of legislative intent, 84 of the Freedom of Information Law states that"i t is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible."Therefore, if records are clearly available to the public under the Freedom of Information Law, or if they are readilyretrievable, there may be no basis for a lengthy delay in disclosure. As the Court of Appeals has asserted:" ... the successful implementation of the policies motivating the enactment of the Freedom of Information Law centerson goals as broad as the achievement of a more informed electorate and a more responsible and responsiveofficialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring themabout permeate the body politic to a point where they become the rule rather than the exception. The phrase 'publicaccountability wherever and whenever feasible' therefore merely punctuates with explicitness what In any event isimplicit" [Westchester News v. Kimball, 50 NY 2d 575, 579 (1980)].Further, in my opinion, if, as a matter of practice or policy, an agency acknowledges the receipt of requests andindicates in every instance that it will determine to grant or deny access to records "within 120 days" or some otherparticular period, following the date of acknowledgement, such a practice or policy would be contrary to the thrust ofthe Freedom of Information Law.


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Regarding the availability of certain "police department guidelines", as a general matter, the Freedom of InformationLaw is based upon a presumption of access. Stated differently, all records of an agency are available, except to theextent that records or portions thereof fall within one or more grounds for denial appearing in 87(2)(a) through (i) ofthe Law.It is noted that 87(2)(g) permits an agency provide In pertinent part that:"are Inter-agency or intra-agency materials which are not:i. statistical or factual tabulations or data;

ii. Instructions to staff that affect the public;iii. final agency policy or determinations; oriv. external audits, including but not limited to audits performed by the comptroller and the federal government .. "It is noted that the language quoted above contains what In effect is a double negative. While inter- agency or intraagency materials may be withheld, portions of such materials consisting of statistical or factual i nformation,instructions to staff that affect the public, final agency policy or determinations or external audits must be madeavailable, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of interagency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my viewbe withheld.

Concerning "instructions to staff that affect the public" and "final agency policy or determinations", which are generallyavailable, respectively, under subparagraphs (ii) and (iii) of 87(2)(g) of the Freedom of Information Law, there is littldecisional law that deals directly with those provisions. However, in a letter of July 21, 1977 prepared by the sponsorof the revised Freedom of Information Law, former Assemblyman Mark Siegel indicated that 87(2)(g) is intended toinsure that "any so-called 'secret law' of an agency be made available", such as the policy "upon which an agencyrelies" in carrying out its duties. Typically, agency guidelines, procedures, staff manuals and the like provide directionto an agency's employees regarding the means by which they perform their duties. Some may be "internal", in thatthey deal solely with the relationship between an agency and its staff. Others may provide direction in terms of themanner in which staff performs its duties in relation to or that affects the public, which would ordinarily be public. Tobe distinguished would be advice, opinions or recommendations that may be accepted or rejected. An instruction tostaff, a policy or a determination each would represent a matter that is mandatory or which represents a final step inthe decision making process.While instructions to staff that affect the public and final agency policies or determinations are generally accessible,there may be instances in which those records or portions thereof may be withheld.Perhaps most relevant would be 87(2)(e)(iv). The leading decision concerning that provision is Fink v. Lefkowitz,which involved access to a manual prepared by a special prosecutor that investigated nursing homes in which theCourt of Appeals held that:"The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprisethe nonroutine procedures by which an agency obtains Its Information (see Frankel v. Securities & Exch. Comm., 460F2d 813, 817, cert den 409 US 889). However beneficial its thrust, the purpose of the Freedom of Information Law isnot to enable persons to use agency records to frustrate pending or threatened investigations nor to use thatinformation to construct a defense to impede a prosecution."To be distinguished from agency records compiled for law enforcement purposes which illustrate investigativetechniques, are those which articulate the agency's understanding of the rules and regulations it is empowered toenforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural orsubstantive law must be disclosed. Such information in the hands of the public does not impede effective lawenforcement. On the contrary, such knowledge actually encourages voluntary compliance with the law by detailing thestandards with which a person is expected to comply, thus allowing him to conform his conduct to those requirements(see Stokes v. Brennan, 476 F2d 699, 702; Hawkes v. Internal Revenue Serv., 467 F2d 787, 794-795; Davis,Administrative Law [1970 Supp], section 3A, p 114)."Indicative, but not necessarily dispositive of whether investigative techniques are nonroutine is whether disclosure ofthose procedures would give rise to a substantial likelihood that violators could evade detection by deliberatelytailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel (see Cox v. UnitedStates Dept. of Justice, 576 F2d 1302, 1307-1308; City of Concord v. Ambrose, 333 F Supp 958)."In applying those criteria to specific portions of the manual, which was compiled for law enforcement purposes, the


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Court found that:"Chapter V of the Special Prosecutor's Manual provides a graphic illustration of the confidential techniques used in asuccessful nursing home prosecution. None of those procedures are 'routine' in the sense of fingerprinting or ballistictests (see Senate Report No. 93-1200, 93 Cong 2d Sess [1974]). Rather, they constitute detailed, specialized methodsof conducting an investigation into the activities of a specialized industry in which voluntary compliance with the lawhas been less then exemplary."Disclosure of the techniques enumerated in those pages would enable an operator to tailor his activities in such a wayas to significantly diminish the likelihood of a successful prosecution. The information detailed on pages 481 and 482 othe manual, on the other hand, is merely a recitation of the obvious: that auditors should pay particular attention torequests by nursing homes for Medicaid reimbursement rate increases based upon projected increase in cost. As this isimply a routine technique that would be used in any audit, there is no reason why these pages should not bedisclosed" (id. at 573).As the Court of Appeals has suggested, to the extent that the records in question include descriptions of investigativetechniques which if disclosed would enable potential lawbreakers to evade detection or endanger the lives or safety oflaw enforcement personnel or others [see also, Freedom of Information Law, 87(2)(f)], a denial of access would beappropriate. I would conjecture, however, _hat not all of the investigative techniques or procedures contained in therecords sought incident and the ensuing investigation could be characterized as "non-routine", and that it is unlikelythat disclosure of each aspect of the records would result in the harmful effects of disclosure described above.The other provision that may be pertinent as a basis for denial is 87(2)(f). Again, that provision permits an agency towithhold records insofar as disclosure "would endanger the life or safety of any person." If , for example, disclosure ofan Instruction to staff or policy would jeopardize the lives or safety of public employees or others, the cited provisionmight be applicable.I hope that I have been of assistance .Sincerely,

David TreacyAssistant DirectorDT:jm


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EXHIBIT 2


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State of New YorkDepartment of StateCommittee on Open Government

FOIL-A0-17992February 9, 2010

D Search Elll of go

One Commerce P99 Washington AAlbany, New York 12

(518) 474-25Fax (518) 474-19

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J h g _ ~ t l J t o J the Committee on Q J L ~ D J ; ; o v e r n m e o U ~ __ u t b o r L ~ e . d to issue adyJsory_QQifltoos ,__1be_eosl.Jing ~ r n f t a c ; L ' ! i s o c yQQinion is based solely_!!.QQIJ the i n f o r m a t L Q D _ R f e _ ! 1 t ~ _ Q _ l n _ y o u r cor::res_gondence.Dear

We are in receipt of your request for an advisory opinion regarding application of the Freedom of InformationLaw to records requested from the Village of Scarsdale. Specifically, you sought clarificat ion of our position on rightsof access to cell phone records under the Freedom of Information Law. You make a persuasive argument that anagency cannot rely solely on an employee's indication that a telephone number is "personal", and that it continues tobear the burden of proving that telephone call information redacted from a record falls squarely within the scope of anexception. In doing so, you mentioned issues that were addressed in a previous advisory opinion (FOIL-A0-13753)written by this office, which we now address and clarify.

First, as a general matter, the Freedom of Information Law is based upon a presumptionof access. Stated dif ferently , all records of an agency are available, except to the extent that records or portionsthereof fall within one or more grounds for denial appearing in 87(2)(a) through (k ) of the Law.

The key provisions under the circumstances are 87(2)(b) and 89(2)(b), both of which pertain to the abilityto deny access insofar as disclosure would constitute "an unwarranted invasion of personal privacy." Based on thejudicial interpretation of the Freedom of Information Law, It is clear that public officers and employees enjoy a lesserdegree of privacy than others, fo r it has been found in various contexts that those individuals are required to be moreaccountable than others. The courts have found that, as a general rule, records that are relevant to the performanceof the official duties of a public officer or employee are available, for disclosure in such instances would result in apermissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. _'iil!ag..eJNard_Q_f_ n J ~ t e _ e . ~ , 372NYS 2d 905 (1975); Gannett Co .. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Si!licropl_y,County of Nassau, 76 AD 2d 838 (1980); Geneva Printing__co. and Donald C. Hadle'iJt_Vjl!gg_e_Q(Ly_Qns, Sup. Ct.,Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhidg_y'-_Qty_Qf Albany,147 AD 2d 236 (1989); S c g ~ ~ i f l ..y_,__NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinrn_e_tz_y_._Board of Education,l;p_st.f'1Qrlches, Sup. Ct., Suffolk Cty., NYU, Oct. 30, 1980); C f : l P - i t a L N _ e w s _ p a p e r ! L Y _ , _ ~ y _ r _ n _ s , 67 NY 2562 (1986)]. Conversely, to the extent that items relating to public officers or employees are irrelevant to theperformance of their official duties, it has been found that disclosure would indeed constitute an unwarranted invasionof personal privacy [see e.g., M.atterQtWool, Sup. Ct., Nassau Cty., NYU, Nov. 22, 1977, dealing with membership ina union; Mines_'la\i'-Vil[gg..e_Qf_Valley_S_treg_m., Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a checkpayable to a municipal attorney that could indicate how that person spends his/her money; S.eUgy_. Sielaff, 200 AD 2d298 (1994), concerning disclosure of social security numbers].

With regard to telephone bills, based on the decisions cited above, when a public officer or employee uses atelephone in the course of his or her official duties, bills involving the use of the telephone would, in our opinion, berelevant to the performance of that person's official duties. On that basis and in general, we do not believe thatdisclosure would result in an unwarranted invasion of personal privacy with respect to an officer or employee servingas a government official.Since phone bills often list the numbers called, the time and length of calls and the charges, It has beencontended by some that disclosure of numbers called might result in an unwarranted invasion of personal privacy, not


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with respect to a public employee who initiated the call, but rather with respect to the recipient of the call. Whenphone numbers appear on a bill, however, those numbers do not necessarily indicate who in fact was called or whopicked up the receiver in response to a call. Therefore, an indication of the phone number would ordinarily disclosenothing regarding the nature of a conversation or contact. Further, even though the numbers may be disclosed,nothing in the Freedom of Information Law would require an individual to indicate the nature of a conversation.This is not to suggest, however; that tlie numbers appearing on every phone bill must be disclosed in everyinstance. Exceptions to the general rule of disclosure might arise if a telephone is used during the performance ofone's official duties to contact recipients of public assistance or persons seeking certain health services. We havepreviously advised that if a government employee contacts those classes of persons as part of the employee's primaryongoing and routine duties, there may be a basis for withholding the last four digits of phone numbers listed on a bill.For instance, disclosure of numbers called by a caseworker who phones applicants for or recipients of public assistance

might identify those who were contacted. In our view, the last four digits could likely be deleted in that circumstanceto protect against an unwarranted invasion of personal privacy due to the status of those contacted. Similarly, if a lawenforcement official phones informants, disclosure of the numbers might endanger an individual's life or safety, andthe numbers might justifiably be deleted pursuant to 87(2)(f) of the Freedom of Information Law.I t is our understanding that public employees and officials are typically permitted limited telephone use for

family and personal purposes during regular business hours. In this regard, it is our opinion that when a recordindicates that home telephone number was called, or a personal call was placed to a residential telephone number,disclosure could result in an unwarranted invasion of personal privacy. Similarly, when a personal call is placed to aprivate person's cellular phone number, in our opinion, release of that phone number to the public could constitute anunwarranted invasion of personal privacy of the person to whom the phone is issued, and in some cases causeadditional financial responsibility. In our opinion, records of calls made to commercial entities for non-work relatedpurposes would not necessarily result in an unwarranted invasion of personal privacy.The issuance of cell phones to public officials and employees for business purposes has resulted in varyingpayment and billing arrangements that may require a public official or employee to contribute toward the ongoingcosts associated with the use of the phone. When a public official or employee is permitted unlimited personal use of

government issued cell phone, different issues regarding disclosure of records emerge. For example, disclosure of thevolume of time a person spends on a cel.l phone during non-work hours is .irrelevant to an individual's job performanceand in our opinion, would result in an unwarranted iiwasion of personal privacy. Similarly, full disclosure of thetelephone numbers called or the telephone numbers from which calls originated during non-work hours, in our opinionwould result in an unwarranted invasion of personal privacy when those calls are not work-re lated. Disclosure of thecosts associated therewith, on the other harid, would not result in an unwarranted invasion of personal privacy, as thedollar value of a benefit conferred on an employee would involve a matter directly related to the person's employmentWith respect to records of telephone numbers reached when an employee is working, we believe that unlessdisclosure would result in an unwarranted invasion of personal privacy in relation to the persons contacted by the cellphone user, or who contacted the cell phone user, the agency would be required to disclose such information. For

example, again, if the telephone number listed on the bill is the employee's home telephone number or the cell phonenumber of a private person, or a residential number known to be unlisted, in our opinion, disclosure could result in anunwarranted invasion of personal privacy. On the other .hand, if ttie teleph'one number listed is a published telephonenumber for a commercial entity such as a pizza parlor or a real estate appraiser, we do not believe the agency wouldhave the authority to deny access. In our opinion, therefore, an indication that a phone call made during scheduledwork hours was "personal", with nothing more, would be insufficient to show that disclosure would result in anunwarranted invasion of personal privacy.

In this case, the Village has permitted the Superintendent of Public Works unlimited personal use of a Villageissued cell phone, presumably because he is expected to be available for emergencies during non-business hours. Inour opinion, during hours that the Superintendent is scheduled to work, the agency bears the burden of proving thatdisclosure of a particular phone number on a bill would constitute an unwarranted Invasion of personal privacy. Thoseitems in our opinion likely bear upon the performance of one's official duties and would, if disclosed, result in apermissible, not an unwarranted invasion of personal privacy. Disclosure of records of telephone numbers reachedduring hours that the Superintendent is not scheduled to work, except calls made for work-related purposes, on theother hand, in our opinion would result in an unwarranted invasion of personal privacy.

Although it may not be the case here, should an agency place restrictions on the use of a government issuedcell phone, perhaps limiting the number of minutes that may be utilized for personal use or prohibiting personal use ofthe phone, in our view, the distinction between scheduled work hours and non-work hours would not apply. In ouropinion the agency would have no basis to deny access to records of telephone numbers contacted during non-workhours in that situation, unless, as discussed above, disclosure of the telephone number would result in an unwarrantedinvasion of personal privacy of the person contacted.We recognize that it may be time consuming for an agency to ascertain the effect of disclosure of everytelephone number on a telephone bill. Again, we emphasize that the agency has the burden of proving that disclosure

of a record or a portion thereof would result in an unwarranted invasion of personal privacy. While we believe it is


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helpful to have input from an employee with respect to the effect of disclosure of particular numbers, the employee'scharacterization of a telephone number as "personal", without more, in our opinion is insufficient for purposes ofmeeting that burden of proofThis opinion Is intended to clarify and supercedes the opinion expressed in FOIL-A0-13753.

On behalf of the Committee on Open Government, we hope that this is helpful.

CSJ:jmcc: FOIL OfficerAlfred A. Gatta, Village ManagerWayne Esannason, Village Attorney

Sincerely,

Camille S. Jobin-DavisAssistant Director

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Memorandum of Law in Support of Answer

Documents

Transcript of Memorandum of Law in Support of Answer