| Matter of Bass Pro, Inc. v Megna |
| 2010 NY Slip Op 00057 [69 AD3d 1040] |
| January 7, 2010 |
| Appellate Division, Third Department |
| In the Matter of Bass Pro, Inc., et al., Appellants, v Robert L.Megna, as Commissioner of Taxation and Finance, Respondent. (Proceeding No. 1.) In theMatter of BPS Catalog, L.P., et al., Appellants, v Robert L. Megna, as Commissioner ofTaxation and Finance, Respondent. (Proceeding No. 2.) |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the Supreme Court (Devine, J.), entered December11, 2008 in Albany County, which partially granted petitioners' applications, in two proceedingspursuant to CPLR article 78, to review two determinations of respondent partially denyingpetitioners' Freedom of Information Law requests.
Petitioners each made a Freedom of Information Law (see Public Officers Law art 6[hereinafter FOIL]) request for any and all documents reviewed, analyzed or prepared by theDepartment of Taxation and Finance in connection with its investigation of petitioners andultimate decision to conduct a sales tax audit. The Department provided over 750 pages ofresponsive documents, but denied access to 91 pages based upon various FOILexemptions.[FN*]Following an unsuccessful administrative appeal, petitioners commenced these CPLR article 78proceedings seeking disclosure of the withheld documents. Along with its answer, respondentsubmitted the affidavit of the Department's employee who initially responded to petitioners'FOIL requests and provided the undisclosed documents to Supreme Court for in camerainspection. In a single decision and order disposing of both petitions, Supreme Court found thatmost of the withheld documents were exempt from disclosure under FOIL, but ordereddisclosure of 12 pages of material, as redacted. Petitioners now appeal.
Petitioners contend that both the Department and respondent failed to sufficiently identifythe documents that were withheld and to provide a particularized and specific justification forwithholding them. They further assert that respondent's submission of the withheld documentsfor in camera review by Supreme Court was insufficient to satisfy its burden in this regard. Wedo not agree.
In an administrative appeal of an agency's denial of access to records, the agency is requiredto provide "a full written explanation of the reasons for denying access to a record" (Matterof Kaufman v New York State Dept. of Envtl. Conservation, 289 AD2d 826, 827 [2001];see Public Officers Law § 89 [4] [a]). Here, the Department complied with itsobligations insofar as its administrative determinations provided a sufficient description of thewithheld documents and set forth the reasons for denying access to them (see Matter ofMiller v New York State Dept. of Transp., 58 AD3d 981, 982[*2][2009], lv denied 12 NY3d 712 [2009]). In the context of aCPLR article 78 proceeding challenging an agency's denial of access, the burden is on theagency to demonstrate that the withheld material " 'falls squarely within a FOIL exemption byarticulating a particularized and specific justification for denying access' " (Matter of Data Tree, LLC v Romaine,9 NY3d 454, 462-463 [2007], quoting Matter of Capital Newspapers Div. of HearstCorp. v Burns, 67 NY2d 562, 566 [1986]; accord Matter of Markowitz v Serio, 11 NY3d 43, 50-51 [2008];see Matter of Miller v New York State Dept. of Transp., 58 AD3d at 983). Contrary topetitioners' assertion, respondent articulated a basis for the denial, rather than merely repeatingthe statutory language of the claimed exemptions. Under these circumstances, "a properprocedure for meeting this burden [was] to submit the records in question for in camerainspection by the court" (Matter of Miller v New York State Dept. of Transp., 58 AD3dat 983; see Matter of Gould v New York City Police Dept., 89 NY2d 267, 275 [1996];Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 83[1984]; Matter of Kaufman v New York State Dept. of Envtl. Conservation, 289 AD2dat 827).
Petitioners also challenge Supreme Court's determination that certain documents wereproperly withheld under the statutory exemption for intra-agency materials (see PublicOfficers Law § 87 [2] [g]). The inter-agency and intra-agency exemption applies to"deliberative materials or 'communications exchanged for discussion purposes not constitutingfinal policy decisions' " (Matter of Mingo v New York State Div. of Parole, 244 AD2d781, 782 [1997], quoting Matter of Russo v Nassau County Community Coll., 81 NY2d690, 699 [1993]; see Matter of Miller v New York State Dept. of Transp., 58 AD3d at984). Upon our in camera inspection of these documents, we conclude that they fall squarelywithin this exemption as predecisional, nonfinal discussions and recommendations by employeeswithin the agency used to assist the decision makers in formulating a determination (seeMatter of Xerox Corp. v Town of Webster, 65 NY2d 131, 132-133 [1985]; Matter of Stein v New York State Dept. ofTransp., 25 AD3d 846, 847-848 [2006]).
Finally, petitioners failed to previously raise, either on administrative appeal or beforeSupreme Court, their current argument that the Department failed to properly certify that it hasno other materials in its possession that would be responsive to petitioners' requests or that it hadperformed a diligent search that yielded no other responsive documents (see PublicOfficers Law § 89 [3] [a]). As such, this issue is not properly before us (see Matter ofKhan v New York State Dept. of Health, 96 NY2d 879, 880 [2001]; Matter of Brown v Goord, 45 AD3d930, 933 [2007], lv dismissed 10 NY3d 796 [2008]; Matter of Terminix Intl. Co.v Assistant Commr. for Hearings & Mediation Servs. for N.Y. State Dept. of Envtl.Conservation, 301 AD2d 810, 812 [2003]).
Rose, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote *: Although the Departmentdenied access to 32 additional pages, these documents were later released to petitioners and arenot at issue in this appeal.