| Matter of Global Tel*Link v State of N.Y. Dept. of CorrectionalServs. |
| 2009 NY Slip Op 10021 [68 AD3d 1599] |
| December 31, 2009 |
| Appellate Division, Third Department |
| In the Matter of Global Tel*Link, Appellant, v State of New YorkDepartment of Correctional Services et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), forrespondents.
Malone Jr., J. Appeal from a judgment of the Supreme Court (Donohue, J.), entered August8, 2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent Department of Correctional Servicesdenying certain Freedom of Information Law requests.
Petitioner commenced this CPLR article 78 proceeding challenging a determination ofrespondent Department of Correctional Services (hereinafter DOCS) denying a Freedom ofInformation Law (see Public Officers Law art 6 [hereinafter FOIL]) request purportedlymade on its behalf. Specifically, an attorney with the law firm that represented petitioner soughtthe disclosure of "any bid evaluation records, tabulation records, rating sheet records and recordscontaining back-up factual and statistical data and information" used by DOCS in its award ofthe inmate telephone system contract, as well as "the winning bid/proposal and attachments, withthe exception of any trade secret information." DOCS denied the request on the grounds that,because the contract was still in the "restricted period" (see e.g. State Finance Law§ 139-j [1] [f]; § 139-k [1] [f]) and a final contract had not been approved, thedocuments were exempt interagency or intraagency materials and their disclosure would impairpresent or imminent [*2]contract awards (see PublicOfficers Law § 87 [2] [c], [g]), and the disclosure of the documents was prohibited by theState Finance Law (see State Finance Law § 163 [former (9) (c)]). Finding thatpetitioner lacked standing to maintain the proceeding based upon the attorney's failure to revealto DOCS that he had requested the documents on petitioner's behalf, Supreme Court dismissedthe petition. Petitioner appealed and, during the pendency of this appeal, DOCS providedpetitioner with all of the requested documents. DOCS now contends that this appeal is moot.
We do not agree with petitioner's contention that a novel and substantial issue is presentedhere that is likely to recur and evade review (see e.g. Matter of Laborers' Intl. Union of N.Am., Local No. 17 v New York State Dept. of Transp., 280 AD2d 66 [2001]). Notably, ofthe three grounds cited by DOCS in its denial of the FOIL request, only the issue of whether thedisclosure of the documents during the restricted period was prohibited by State Finance Law§ 163 (9) (c) has not been previously addressed by the courts (see e.g. Matter ofEmpire Golf Mgt., LLC v Olivieri, 18 AD3d 334 [2005] [discussing Public Officers Law§ 87 (2) (c)]; Matter of New York 1 News v Office of President of Borough of StatenIs., 231 AD2d 524 [1996] [discussing Public Officers Law § 87 (2) (g)]; Matter ofCross-Sound Ferry Servs. v Department of Transp., 219 AD2d 346 [1995] [same];Matter of Professional Stds. Review Council of Am. v New York State Dept. of Health,193 AD2d 937 [1993] [same]). However, this issue is nevertheless also moot inasmuch as theState Finance Law has been amended to remove the language that prohibited the disclosure ofcompeting offers (see L 2008, ch 137, § 3). Accordingly, it appears that the issueis not likely to recur.[FN*]
In light of the foregoing, it is not necessary to address respondents' contention that petitionerlacks standing to maintain this proceeding. Finally, although this proceeding is moot, petitionercould nevertheless be found to have "substantially prevailed," thus entitling it to counsel fees(Public Officers Law § 89 [4] [c]; see Matter of Powhida v City of Albany, 147AD2d 236, 239 [1989]). Under the facts of this case, however, we cannot say that petitionersubstantially prevailed and decline to make such an award.
Mercure, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the appeal is dismissed, asmoot, without costs.
Footnote *: According to State Finance Law§ 163 (former [9] [c]), "[d]isclosure of the content of competing offers other thanstatistical tabulations of bids received in response to an invitation for bids, or of anyclarifications of or any revisions thereto shall be prohibited prior to award." That sentence wasdeleted in its entirety upon revision, effective June 30, 2008 (see L 2008, ch 137, §3).