| Matter of Hearst Corp. v City of Albany |
| 2011 NY Slip Op 07338 [88 AD3d 1130] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Hearst Corporation et al., Appellants, v City ofAlbany, Respondent. |
—[*1] John J. Reilly, Corporation Counsel, Albany (Jeffrey V. Jamison of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the Supreme Court (Connolly, J.), entered May 25,2010 in Albany County, which, among other things, dismissed petitioners' application, in aproceeding pursuant to CPLR article 78, to review a determination of respondent denyingpetitioner Brendan Lyons' Freedom of Information Law requests.
Petitioner Hearst Corporation is the publisher of the Times Union, a daily newspaper thatcovers the Albany area. During an investigation, a journalist employed by the newspaper,petitioner Brendan Lyons, discovered that respondent had regularly issued "no fine" parkingtickets to designated vehicles. He further learned that parking tickets issued to respondent'semployees, "politically connected" individuals and their relatives were routinely voided orexcused by its Parking Violations Bureau without judicial involvement. Seeking moreinformation on these practices, Lyons made two requests pursuant to the Freedom of InformationLaw (Public Officers Law art 6 [hereinafter FOIL]) for documents related to the "no fine"parking tickets, as well as those that had been administratively voided or dismissed byrespondent. As relevant here, respondent refused to provide records related to the dismissedtickets, claiming that they were "specifically exempted from disclosure" by the sealing provisionsof CPL 160.50 (see Public Officers Law § 87 [2] [a]). Upon petitioners'unsuccessful administrative appeal, respondent additionally asserted that the release of therecords would constitute an unwarranted invasion of the ticket recipients' privacy (seePublic Officers Law § 87 [2] [b]).[*2]
Petitioners commenced this CPLR article 78 proceedingseeking an order directing respondent to turn over the records, as well as an award of costs andcounsel fees. Following joinder of issue and further litigation—including full briefing ofthis matter—respondent turned over the records, while nevertheless maintaining that itsinitial denial of the FOIL request was legally permissible. Supreme Court dismissed as moot thatportion of the petition seeking to compel disclosure and noted that, in any event, the recipients ofthe tickets were necessary parties that petitioners had failed to join. It also found that respondenthad a reasonable basis for refusing to turn over the records and, therefore, declined to awardcounsel fees to petitioners. Petitioners appeal, and we now reverse.
Initially, whether the documents here are exempt from disclosure presents a "substantial ornovel [issue], likely to recur and capable of evading review," bringing this case within theexception to the mootness doctrine (Cityof New York v Maul, 14 NY3d 499, 507 [2010]; cf. Matter of Global Tel*Link v State of N.Y. Dept. of CorrectionalServs., 68 AD3d 1599, 1600-1601 [2009]). The issues presented are admittedly noveland, moreover, are substantial in that they implicate the important public policy underlying FOILof granting the public access to government records (see Matter of Buffalo News v BuffaloEnter. Dev. Corp., 84 NY2d 488, 492 [1994]; Matter of Capital Newspapers, Div. ofHearst Corp. v Whalen, 69 NY2d 246, 252 [1987]). Respondent continues to maintain thatthe requested records are exempt from disclosure, making it likely that the issues presented herewill recur in the future. Finally, respondent's strategy in releasing the documents—despitethe fact that release would be illegal if its position that the records sought are sealed werecorrect—amply justifies the inference that respondent will strive to ensure that those issuesevade review in the future. We are thus persuaded that this case falls within the exception to themootness doctrine (see Matter of Laborers' Intl. Union of N. Am., Local No. 17 v New YorkState Dept. of Transp., 280 AD2d 66, 69 [2001]; see also Mitchell v Kemp, 176AD2d 859, 859-860 [1991]; cf. Matter of Schulz v State of New York, 210 AD2d 781,781 [1994], appeal dismissed 85 NY2d 923 [1995]).
Turning to the merits, "CPL 160.50 provides that upon the 'termination of a criminal actionor proceeding against a person in favor of such person,' and where the interests of justice do notrequire otherwise, 'the record of such action or proceeding shall be sealed' " (Matter of Harperv Angiolillo, 89 NY2d 761, 764 [1997], quoting CPL 160.50 [1]). While parking violationsare not crimes, prosecutions thereon are nonetheless generally "governed by the rules of thecriminal law" (People v Phinney, 22 NY2d 288, 290 [1968]; see Vehicle andTraffic Law § 155). Thus, respondent argues, CPL 160.50 applies to records relating todismissed parking violations (see generally Matter of Johnson Newspaper Corp. vStainkamp, 61 NY2d 958, 960-961 [1984]). The fatal flaw in respondent's contention,however, is that CPL 160.50 applies only to records arising from a "criminal action orproceeding," both of which occur in criminal courts (see CPL 1.20 [16], [18],[19]; 10.10 [1]). The FOIL requests here, by contrast, sought documents related to tickets thatrespondent had administratively dismissed, and disclaimed any interest in those that hadbeen dismissed "by a judge, in City or Traffic Court." Indeed, the Committee on OpenGovernment opined prior to the commencement of this proceeding that CPL 160.50 did not applyto the demanded documents and, while that opinion is not binding upon us (see Matter of Schenectady County Socy. forthe Prevention of Cruelty to Animals, Inc. v Mills, 74 AD3d 1417, 1419 [2010]), weagree that the records sought do not come within the sealing provisions of the statute.
Respondent further justified its refusal to provide the requested records on the ground thatdisclosure would inflict "an unwarranted invasion of personal privacy" upon the ticket [*3]recipients (Public Officers Law § 87 [2] [b]; see generally Matter of Edwards v NewYork State Police, 44 AD3d 1216, 1216 [2007]). Inasmuch as none of the enumeratedprivacy exceptions applies (see Public Officers Law § 89 [2] [b]), we must"balanc[e] the privacy interests at stake against the public interest in disclosure of theinformation" in determining whether disclosure is appropriate (Matter of New York Times Co. v City ofN.Y. Fire Dept., 4 NY3d 477, 485 [2005]; see Matter of Schenectady County Socy.for the Prevention of Cruelty to Animals, Inc. v Mills, 74 AD3d at 1420). The privacyinterest urged by respondent was that recipients of the dismissed tickets may "be offended" by thedisclosure of their identities.[FN*]Far outweighing that personal umbrage, however, is the public's interest in the circumstancessurrounding respondent's administrative dismissal of tens of thousands of parking tickets, whichnecessarily requires the disclosure of the recipients' identities given the allegations thatrespondent afforded preferential treatment in dismissing tickets issued to certain classes ofindividuals.
In sum, respondent did not meet its burden of showing that the records fall within anexception to FOIL, and the petition should have been granted (see Public Officers Law§ 89 [4] [b]). As a final matter, we agree with petitioners that they are entitled to an awardof counsel fees and costs. Petitioners have substantially prevailed in this proceeding and, contraryto Supreme Court's conclusion, the record establishes that respondent lacked a reasonable basisfor denying access to the documents (see Public Officers Law § 89 [4] [c] [i]; Matter of New York State Defenders Assn.v New York State Police, 87 AD3d 193, 197 [2011]). Indeed, respondent's prolongeddelay in releasing the documents and—in ultimately doing so—transparent attemptto avoid judicial review of its unsupported assertion that the documents were exempt fromdisclosure, "evinced a clear disregard of the public's right to open government" (Matter of New York Civ. Liberties Union vCity of Saratoga Springs, 87 AD3d 336, 339 [2011]; see Matter of Purcell v Jefferson County Dist. Attorney, 77 AD3d1328, 1329 [2010]; Matter of Powhida v City of Albany, 147 AD2d 236, 239-240[1989]). Thus, this matter must be remitted for a determination of the appropriate amount of feesand costs to be awarded (see Matter of New York Civ. Liberties Union v City of SaratogaSprings, 87 AD3d at 340).
Rose, Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the judgment is reversed, onthe law, with costs, petition granted, and matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision.
Footnote *: Contrary to Supreme Court'sconclusion, the recipients are not necessary parties to this proceeding. CPL 160.50 does not sealthe records at issue, the present proceeding has no impact on the dismissals themselves, and therights of the recipients are accordingly not directly affected (see Matter of Schulz v DeSantis, 218 AD2d 256, 259-260 [1996]). Ticket recipients may well be embarrassed if theiridentities are publicized, but that embarrassment, without more, does not render them necessaryparties (see e.g. Matter of Carnevale vCity of Albany, 68 AD3d 1290, 1292 [2009]; Matter of Buffalo News v BuffaloMun. Hous. Auth., 163 AD2d 830, 831 [1990]).