| Matter of Verizon N.Y., Inc. v Mills |
| 2009 NY Slip Op 02372 [60 AD3d 958] |
| March 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of Verizon New York, Inc.,Respondent, v Michael C. Mills et al., Respondents. Cablevision Systems Corporation,Inc., Appellant. |
—[*1] McGuireWoods LLP, New York, N.Y. (Marshall Beil, Manuel Yanez, and Jacob P. Hildnerof counsel), for petitioner-respondent.
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of theBoard of Trustees of the Village of Elmsford, dated May 24, 2007, granting a Freedom ofInformation Law request by Cablevision Systems Corporation, Inc., and to enjoin theenforcement of the determination, the appeal is from a judgment of the Supreme Court,Westchester County (DiBella, J.), entered August 14, 2007, which granted the petition andannulled the determination.
Ordered that the judgment is modified, on the law and in the exercise of discretion, byadding thereto a provision remitting the matter to the Board of Trustees of the Village ofElmsford to determine whether to grant the Freedom of Information Law request as a matter ofdiscretion; as so modified, the judgment is affirmed, without costs or disbursements.
In January 2007 the petitioner, Verizon New York, Inc. (hereinafter Verizon), entered into acable franchise agreement (hereinafter the agreement) with the Village of Elmsford to providecable television and other cable services to residents of the Village. Pursuant to the agreement,Verizon was required to pay [*2]the Village a franchise fee basedon a percentage of its annual gross revenues derived from the operation of its cable system in theVillage. Verizon also was obligated to submit quarterly reports (hereinafter franchise reports)containing the basis for the computation. By letter dated May 14, 2007, Verizon submitted afranchise report for the first quarter of 2007, which set forth, in detail, its revenues, broken downby month and by category. Verizon requested that the Village keep the franchise reportconfidential and that it deny any request for it from "Cablevision or others" pursuant to theFreedom of Information Law (see Public Officers Law § 84 et seq.)(hereinafter FOIL).
By letter dated May 24, 2007, Cablevision Systems Corporation, Inc. (hereinafterCablevision), made a FOIL request for copies of Verizon's franchise report. The same day, theVillage notified Verizon by e-mail that it intended to grant Cablevision's request, inasmuch asthe Village did "not intend to become an arbiter of pending disputes between" Verizon andCablevision. Verizon brought this proceeding pursuant to CPLR article 78, inter alia, to reviewthat determination, arguing that the reports were exempt from disclosure under FOIL pursuant toPublic Officers Law § 87 (2) (d), which allows an agency to deny access to recordssubmitted by a commercial enterprise "which if disclosed would cause substantial injury to thecompetitive position of the subject enterprise." The Supreme Court, among other things, grantedthat branch of Verizon's petition which was to annul the determination to provide the franchisereport to Cablevision. We modify.
The Freedom of Information Law requires state and municipal agencies to "make availablefor public inspection and copying all records," subject to certain exemptions (Public OfficersLaw § 87 [2]; Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 462 [2007];Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 483 [2005]). Theexemptions, however, "are to be narrowly interpreted so that the public is granted maximumaccess to the records of government" (Matter of Data Tree, LLC v Romaine, 9 NY3d at462; see Matter of Markowitz v Serio, 11 NY3d 43 [2008]; Matter of CapitalNewspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987]). Further, the entityclaiming an exemption must show that the requested material "falls squarely within the ambit ofone of the statutory exemptions" (Matter of Verizon N.Y., Inc. v Bradbury, 40 AD3d1113, 1114 [2007]; see Matter of Markowitz v Serio, 11 NY3d at 51; Matter ofBahnken v New York City Fire Dept., 17 AD3d 228, 230 [2005]), and must articulate a"particularized and specific justification for denying access" (Matter of Verizon N.Y., Inc. vBradbury, 40 AD3d at 1114; see Matter of Bahnken v New York City Fire Dept., 17AD3d at 230). The party seeking the benefit of the exemption must "present specific, persuasiveevidence that disclosure will cause it to suffer a competitive injury; it cannot merely rest on aspeculative conclusion that disclosure might potentially cause harm" (Matter of Markowitz vSerio, 11 NY3d at 51). Here, the Supreme Court properly determined that Verizon met itsburden of demonstrating that its franchise reports fell squarely within the statutory exemption toFOIL disclosure under Public Officers Law § 87 (2) (d) for records "which if disclosedwould cause substantial injury to the competitive position of the subject enterprise." Moreover,Verizon offered the required "particularized and specific" justification for the denial ofCablevision's request (Matter of Verizon N.Y., Inc. v Bradbury, 40 AD3d at 1114). Theinformation contained in Verizon's franchise reports was not merely a breakdown of where itscustomers were located but, rather, contained a trove of information compiled by Verizon thatwould allow Cablevision to target Verizon's actual and potential customers with respect tovarious services.
Although the Village retained discretionary authority under FOIL to disclose Verizon's [*3]franchise reports despite the applicability of the exemption (seeMatter of Hanig v State of N.Y. Dept. of Motor Vehs., 79 NY2d 106, 109 [1992]; seealso Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 567 [1986]),the stated basis for its decision here was simply a desire not "to become an arbiter of pendingdisputes between Verizon and Cablevision." In the absence of any indication in the record thatthe decision had a sound basis in reason, or that, before rendering its decision, the Villageconsidered the facts underlying Cablevision's FOIL request and Verizon's opposition to it, theSupreme Court properly annulled the determination on the ground that it was arbitrary andcapricious (see CPLR 7803 [3]; Matter of Pell v Board of Educ. of Union FreeSchool Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d222, 231 [1974]). We modify the judgment by adding a provision directing that the matter beremitted to the Village to allow it to exercise its discretion as to whether, despite the exemption,the franchise reports should be disclosed. Fisher, J.P., Covello, Angiolillo and Balkin, JJ.,concur.