| Matter of Mazzone v New York State Dept. of Transp. |
| 2012 NY Slip Op 03504 [95 AD3d 1423] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Vincent Mazzone, Appellant, v NewYork State Department of Transportation, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Walsh of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Melkonian, J.), entered August25, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent denying petitioner's Freedom ofInformation Law request.
In March 2010, petitioner filed a Freedom of Information Law (see Public OfficersLaw art 6 [hereinafter FOIL]) request with respondent seeking documents involving areconstruction and bridge replacement project on Route 59 in the Town of Clarkstown, RocklandCounty. After petitioner was provided with some of the documents he requested, respondent'srecord access officer sent him a letter on April 9, 2010 stating that this "completes the responseto the request pertaining to records which reside [in the City of Albany]," and further advisedpetitioner that there would be a separate response to his FOIL request regarding records kept atrespondent's office in the City of Poughkeepsie, Dutchess County. A follow-up letter was sent topetitioner, advising him that certain records were being withheld pursuant to Public Officers Law§ 87 (2) (a) and (g), and informed him how he could appeal that determination. Petitionerthen filed an administrative appeal, which was denied in May 2010.[*2]
Prior to respondent issuing its decision regarding thedocuments petitioner requested that were located in respondent's Poughkeepsie office, its recordaccess officer at that facility informed petitioner that some of the records he requested wereavailable for inspection while others would be made available to him in the future. Petitionerexamined these records at respondent's Poughkeepsie office and asked for copies of some ofthem. When petitioner did not receive these copies, he inquired as to the status of this requestand, when the documents were not then provided, he filed a CPLR article 78 proceeding seekingtheir disclosure, as well as disclosure of those records that were withheld by respondent's Albanyoffice. While that petition was pending, respondent, on September 23, 2010, advised petitionerthat he would be provided with some of the documents that he had reviewed at the Poughkeepsieoffice, but that some would be withheld even though he had already seen them because they wereexempt from disclosure pursuant to Public Officers Law § 87 (2) (g).
In January 2011, Supreme Court (Platkin, J.) issued a decision in connection with petitioner'sCPLR article 78 proceeding. In it, the court did not decide whether the records that respondentwithheld were exempt from disclosure, but instead remanded the matter to respondent to providepetitioner with "a single final agency determination with response to any records to which accessis denied" (see Public Officers Law § 89 [3] [a]; [4] [a]). In March 2011,respondent provided petitioner with additional records and, pursuant to the court's order, issuedone determination dated March 17, 2011 that addressed petitioner's entire FOIL request. In it,respondent declared that some of the records that petitioner requested—including anumber that had already been made available to him for inspection—were exempt fromdisclosure pursuant to Public Officers Law § 87 (2) (a) and (g) and, as a result, would notbe provided to him.
In response to this determination, petitioner commenced this CPLR article 78 proceedingchallenging respondent's determination to withhold certain records and sought counsel fees,claiming, in part, that respondent waived any argument as to the disclosure of any documents ithad previously made available to him. Supreme Court (Melkonian, J.) rejected that argumentand, after examining the materials in camera, found that they were exempt from disclosurepursuant to Public Officers Law § 87 (2), and denied petitioner's request for counsel fees.Petitioner now appeals.
We do not agree with petitioner that respondent waived its right to claim that thesedocuments were exempt from disclosure simply because it had previously made them availableto him for inspection. Respondent claims that this disclosure was inadvertent, and notes thatpetitioner was allowed to inspect these documents before it had issued a determination on hisFOIL request regarding the documents stored at its Poughkeepsie facility. In such a circumstance,"when documents are inadvertently disclosed, the agency's right to claim an exemption is notwaived by such disclosure" (Matter of Miller v New York State Dept. of Transp., 58AD3d 981, 983 [2009], lv denied 12 NY3d 712 [2009]).
Next, petitioner claims that it was respondent's burden to establish that these documents wereexempt from disclosure, and that this burden was not satisfied by simply submitting thesematerials to Supreme Court for an in camera inspection. When an agency claims that a record isexempt from disclosure, it must establish "that the material requested falls squarely within theambit of one of these statutory exemptions" (Matter of Town of Waterford v New York State Dept. of Envtl.Conservation, 18 NY3d 652, 657 [2012] [internal quotation marks and citationsomitted]; see Matter of Markowitz vSerio, 11 NY3d 43, 50-51 [2008]; Matter of Hearst Corp. v City of Albany, 88 AD3d 1130, 1133[2011]). An [*3]agency is required to provide " 'a full writtenexplanation of the reasons for denying access to a record' " (Matter of Bass Pro, Inc. v Megna, 69 AD3d 1040, 1041 [2010],quoting Matter of Kaufman v New York State Dept. of Envtl. Conservation, 289 AD2d826, 827 [2001]; see Public Officers Law § 89 [4] [a]), and may satisfy its burdenby submitting " 'the records in question for in camera inspection by the court' " (Matter ofBass Pro, Inc. v Megna, 69 AD3d at 1041, quoting Matter of Miller v New York StateDept. of Transp., 58 AD3d at 983).
Here, in addition to making some records in question available for such an inspection,respondent provided petitioner with a decision dated March 17, 2011 in which it stated thatcertain documents were being withheld because they involve privileged communication betweenthe agency staff and counsel or were inter-agency or intra-agency e-mails and memoranda thatcontained opinions, advice and recommendations integral to respondent's deliberative process(see Public Officers Law § 87 [2] [a], [g]; CPLR 3101 [b]; 4503 [a] [1]; Matterof Bass Pro, Inc. v Megna, 69 AD3d at 1041-1042). Moreover, while respondent's efforts incompiling these documents and making them available to Supreme Court in an intelligible formfor its in camera inspection left much to be desired,[FN1]we agree for the most part with Supreme Court that the materials submitted were in fact exemptfrom disclosure (see Matter of Bass Pro, Inc. v Megna, 69 AD3d at 1041-1042;Matter of Miller v New York State Dept. of Transp., 58 AD3d at 984; Matter of Marino v Pataki, 55 AD3d1171, 1172-1173 [2008]). In that regard, the memoranda entitled "Weekly Tailgate SafetyTalks" and accompanying e-mail are not records that are germane to respondent'sdecision-making process or reflect opinions or evaluations related to the construction of thisproject.[FN2]As such, these particular documents were not exempt from disclosure and must be disclosed.
Petitioner also argues that Supreme Court erred in failing to award counsel fees. A court mayaward such fees where the party seeking disclosure has "substantially prevailed" in theproceeding and the agency did not have a "reasonable basis for denying access" to the records inquestion (Public Officers Law § 89 [4] [c]; see Matter of Capital Newspapers Div. of Hearst Corp. v City ofAlbany, 63 AD3d 1336, 1339 [2009], mod 15 NY3d 759 [2010]). As petitionerdid not substantially prevail in his efforts to obtain disclosure of these documents and, given theircontent, respondent did not arbitrarily arrive at its decision not to disclose them, Supreme Court'sdecision denying him counsel fees did not constitute an abuse of its discretion (see Matter of Carnevale v City ofAlbany, 68 AD3d 1290, 1293 [2009]; compare Matter of New York State Defenders Assn. v New York StatePolice, 87 AD3d 193 [2011]; Matter of New York Civ. Liberties Union [*4]v City of Saratoga Springs, 87 AD3d 336, 337[2011]).[FN3]
Peters, P.J., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by requiring respondent to disclose to petitioner three pagesthat consist of an e-mail dated January 21, 2010 from "ccloutier" to "R08-Construction EIC" withattached two-page memorandum dated January 21, 2010 entitled "Weekly Tailgate Safety Talk,"and, as so modified, affirmed.
Footnote 1: Respondent submitted toSupreme Court a voluminous set of e-mails and memoranda that were neither paginated norotherwise segregated into any identifiable group. An index or list was not provided with theexhibit and no effort was made to collate these materials to facilitate the court's review.
Footnote 2: Specifically, respondent isrequired to disclose three pages that consist of an e-mail dated January 21, 2010 from "ccloutier"to "R08-Construction EIC" with attached two-page memorandum dated January 21, 2010 entitled"Weekly Tailgate Safety Talk."
Footnote 3: We note that petitioner does notdeny that he did not seek counsel fees in the first CPLR article 78 proceeding that he initiated inconnection with his efforts to obtain disclosure of these records.