| Matter of Rose v Albany County Dist. Attorney's Off. |
| 2013 NY Slip Op 07796 [111 AD3d 1123] |
| November 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of Nakia Rose, Appellant, v Albany CountyDistrict Attorney's Office, Respondent. |
—[*1] Thomas Marcelle, County Attorney, Albany (Tracy Murphy of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the Supreme Court (Devine, J.), enteredNovember 29, 2012 in Albany County, which, among other things, partially dismissedpetitioner's application, in a proceeding pursuant to CPLR article 78, to reviewrespondent's determination denying petitioner's Freedom of Information Law request.
In 2009, petitioner was convicted of numerous crimes in connection with adrug-related shooting and robbery in the City of Albany (People v Rose, 72 AD3d1341 [2010], lv dismissed 16 NY3d 745 [2011]). In January 2012, hesubmitted a request to respondent pursuant to the Freedom of Information Law(see Public Officers Law art 6 [hereinafter FOIL]) seeking disclosure of 29categories of documents relating to the criminal investigation that led to his conviction.As relevant here, petitioner's request number 13 sought "[a]ll notes, memos, teletypes,letters, records, and other communications to/from the State police, Albany police,Albany Dept. of Public Safety, or federal authorities regarding [petitioner] and/or theinvestigation underlying the charges against him." Request number 21 sought "[a]llletters or communications written by any employee of [respondent], or on its behalf, toany governmental agency or private entity concerning any prosecution witness, includingbut not limited to letters and communications to the Division of Parole, ProbationDepartment, Human Resources Administration, NYC Housing Authority, Department ofHomeland Security, and Immigration." In May 2012, respondent denied all of petitioner'srequests, and petitioner promptly filed an [*2]administrative appeal. After respondent failed to respondwithin 10 days as required by Public Officers Law § 89 (4) (a), petitionercommenced this CPLR article 78 proceeding challenging the denial of his FOIL requests(see Public Officers Law § 89 [4] [b]).
Thereafter, the Chair of the Law Committee of the Albany County Legislatureprovided a response to petitioner's appeal, finding that respondent failed to provide asufficient factual basis for application of the claimed exemptions and directingrespondent to provide additional factual grounds for its denials. Respondent subsequentlyissued a letter which, among other things, partially denied request number 13 and againdenied request number 21. Specifically, respondent claimed that the withheld documentsresponsive to request number 13 had either been provided to defense counsel duringdiscovery or were exempt as inter- or intra-agency materials (see Public OfficersLaw § 87 [2] [g]). Respondent likewise denied request number 21 on the basis thatthe documents had been provided to defense counsel during discovery and, further, onthe ground that the release of such information could endanger the lives or safety ofcertain individuals (see Public Officers Law § 87 [2] [f]). Supreme Court,while granting access to other categories of documents, affirmed the partial denial ofrequest number 13 and the denial of request number 21. Petitioner appeals.
Petitioner claims that Supreme Court improperly considered the submissionstendered by respondent after the expiration of the administrative appeal response periodand following the commencement of this CPLR article 78 proceeding and that, absentthose belated submissions, respondent has failed to satisfy its burden of establishing thatthe requested documents are exempt from disclosure under FOIL. It is a fundamentalprinciple of administrative law that judicial review of an administrative determination islimited to the " ' "facts and record adduced before the agency" ' " (Matter ofFeatherstone v Franco, 95 NY2d 550, 554 [2000], quoting Matter of Yarbough vFranco, 95 NY2d 342, 347 [2000]; accord Matter of Kelly v Safir, 96 NY2d32, 39 [2001]; see Matter ofWorld Buddhist Ch'An Jing Ctr., Inc. v Schoeberl, 45 AD3d 947, 951 [2007]).Yet, in the context of FOIL, "the next step in the procedure for challenging an allegedinappropriate denial of access to records by an agency [following an administrativeappeal] is a CPLR article 78 proceeding" (Matter of Kaufman v New York StateDept. of Envtl. Conservation, 289 AD2d 826, 827 [2001]; see PublicOfficers Law § 89 [4] [a], [b]), and it is in such proceeding that the agency bearsthe burden of " 'articulating a particularized and specific justification for denying access'" (Matter of Kaufman v New York State Dept. of Envtl. Conservation, 289AD2d at 827, quoting Matter of Capital Newspapers Div. of Hearst Corp. vBurns, 67 NY2d 562, 566 [1986]; see Matter of Data Tree, LLC v Romaine, 9 NY3d 454,462-463 [2007]; Matter of BassPro, Inc. v Megna, 69 AD3d 1040, 1041 [2010]). As such, "[w]hether or notrespondent provided petitioner with a full written explanation at the administrative levelis academic" (Matter of Kaufman v New York State Dept. of Envtl.Conservation, 289 AD2d at 827 [citations omitted]). Thus, Supreme Courtwas not prohibited from considering respondent's post-petition response in assessingwhether respondent satisfied its burden in this CPLR article 78 proceeding todemonstrate the requisite particularized justifications for the exemptions invoked in itsinitial denial of petitioner's FOIL request.
We are not unmindful that respondent's post-petition response also invoked a FOILexemption not previously relied upon as a ground for nondisclosure in its initial denial ofrequest number 21—namely, that disclosure of such documents could endanger thelife or safety of the prosecution witnesses to whom they pertain (see PublicOfficers Law § 87 [2] [f]). Although review of an administrative determination isgenerally limited to the grounds invoked by the [*3]agency at the time of its determination (see Matter of National Fuel GasDistrib. Corp. v Public Serv. Commn. of the State of N.Y., 16 NY3d 360, 368[2011]; Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662, 678[1997]; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77NY2d 753, 758 [1991]; Matter of Consolidated Edison Co. of N.Y. v Public Serv.Commn., 63 NY2d 424, 441 [1984], appeal dismissed 470 US 1075 [1985]),this principle of administrative law did not preclude Supreme Court from addressing theapplicability of the newly raised exemption to the requested documents, inasmuch as theconfidentiality rights of third parties not before the court are implicated by the disclosuredetermination (see Matter of Johnson Newspaper Corp. v Stainkamp, 61 NY2d958, 960-961 [1984]; Matter ofMolloy v New York City Police Dept., 50 AD3d 98, 100 [2008]; Matter ofHarvey v Hynes, 174 Misc 2d 174, 176-179 [Sup Ct, Kings County 1997]; seealso Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, 69 NY2d232, 238 n [1987], cert denied sub nom. Y and X v Kuriansky, 482 US 928[1987]; cf. Matter ofMacKenzie v Seiden, 106 AD3d 1140, 1143 [2013]).
Nevertheless, respondent's submissions were insufficient to sustain its burden ofdemonstrating that the requested records are exempt from disclosure. With respect toboth request numbers 13 and 21, respondent failed to provide any competent proof thatthe documents responsive to these requests were previously provided to petitioner duringdiscovery in his criminal action (see Matter of Riley-James v Soares, 33 AD3d 1171, 1172[2006]; compare Matter ofKhatibi v Weill, 8 AD3d 485, 486 [2004]). Moreover, to the extent thatrespondent asserted that documents responsive to request number 13 constituted exemptintra- or inter-agency material under Public Officers Law § 87 (2) (g), it merelyquoted the statutory language of the exemption without enumerating or describing any ofthe documents withheld and without offering a factual basis for the claims of exemption.Such conclusory assertions fall far short of establishing the requirement of particularity(see Matter of West HarlemBus. Group v Empire State Dev. Corp., 13 NY3d 882, 885 [2009]; Churchof Scientology of N.Y. v State of New York, 46 NY2d 906, 907-908 [1979]; seealso Matter of City of Newark v Law Dept. of City of N.Y., 305 AD2d 28, 34[2003]; Brown v Town of Amherst, 195 AD2d 979, 980 [1993]). Inasmuch asthe record is unclear as to whether and to what extent such documents, althoughintra-agency materials, may contain nonexempt statistical or factual data (seePublic Officers Law § 87 [2] [g] [i]; see generally Matter of Gould v NewYork City Police Dept., 89 NY2d 267, 277 [1996]; Matter of Xerox Corp. vTown of Webster, 65 NY2d 131, 133 [1985]), the appropriate remedy is remittal toSupreme Court for an in camera review of the documents (see Matter of Xerox Corp.v Town of Webster, 65 NY2d at 133; Matter of M. Farbman & Sons v New YorkCity Health & Hosps. Corp., 62 NY2d 75, 83 [1984]; Matter of Allen Group[Allen Testproducts Div.] v New York State Dept. of Motor Vehs., 147 AD2d 856,857 [1989]). To the extent that the records contain such statistical or factual data or othermaterials subject to disclosure, they should be redacted and made available to petitioner(see Matter of Xerox Corp. v Town of Webster, 65 NY2d at 133).
Respondent's asserted basis for the denial of request number 21—whichsought all letters or communications to other agencies or entities concerning anyprosecution witness—was that petitioner's codefendant had boasted that hebelonged to a gang that had previously killed witnesses and, therefore, disclosure couldendanger the life or safety of such a witness (see Public Officers Law § 87[2] [f]). Notwithstanding petitioner's claim that he already knows the identities of theprosecution witnesses who testified in open court at his criminal trial (see Matter of Chebere vJohnson, 3 AD3d 365, 366 [2004], lv dismissed 2 NY3d 778 [2004]),the requested communications may very well contain other identifying information suchas, for example, a witness's address or place of employment, the disclosure of whichcould put such person's safety [*4]at risk (see Matterof De Oliveira v Wagner, 274 AD2d 904, 905 [2000]; Matter of Johnson v NewYork City Police Dept., 257 AD2d 343, 348 [1999], lv dismissed 94 NY2d791 [1999]). Given these circumstances, Supreme Court should conduct an in camerainspection of the documents to determine whether they may be released, in redacted orunredacted form, without compromising the life or safety of any witness (see Matterof Chebere v Johnson, 3 AD3d at 366; Matter of Johnson v New York CityPolice Dept., 257 AD2d at 348-349; see also Matter of Laporte v Morgenthau, 11 AD3d 410,410 [2004]; Matter of Stronza v Hoke, 148 AD2d 900, 901 [1989], lvdenied 74 NY2d 611 [1989]).
Finally, we find no basis to disturb the denial of petitioner's request for counsel fees."While courts may award counsel fees to litigants who substantially prevail in a FOILproceeding, the decision whether to award such fees is discretionary even when thestatutory prerequisites have been established" (Matter of Carnevale v City of Albany, 68 AD3d 1290,1293 [2009] [citations omitted]; see Matter of New York Civ. Liberties Union v City of SaratogaSprings, 87 AD3d 336, 338-339 [2011]). We discern no abuse of discretion bySupreme Court here. However, in the event that additional disclosures are ordered uponremittal, Supreme Court should reconsider whether petitioner is entitled to counsel fees(cf. Matter of Saxton v NewYork State Dept. of Taxation & Fin., 107 AD3d 1104, 1105 [2013]; Matter of TJS of N.Y., Inc. v NewYork State Dept. of Taxation & Fin., 89 AD3d 239, 243 [2011]).
Stein, McCarthy and Spain, JJ., concur. Ordered that the judgment is modified, onthe law, without costs, by reversing so much thereof as found that the documents soughtin request number 13 and request number 21 were exempt from disclosure pursuant toPublic Officers Law § 87 (2) (g) and (f); matter remitted to the Supreme Court forfurther proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.