| Matter of Madeiros v New York State Educ. Dept. |
| 2015 NY Slip Op 08028 [133 AD3d 962] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Pamela A. Madeiros,Appellant, v New York State Education Department et al.,Respondents. |
Greenberg Traurig, LLP, Albany (Cynthia E. Neidl of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of counsel), forrespondents.
Devine, J. Appeal from a judgment of the Supreme Court (Collins, J.), entered April16, 2014 in Albany County, which partially dismissed petitioner's application, in aproceeding pursuant to CPLR article 78, to review a determination of respondent StateEducation Department denying petitioner's Freedom of Information Law request.
Municipalities, defined as "count[ies] outside the city of New York or the city ofNew York in the case of . . . count[ies] contained within the city of NewYork," are charged with the approved costs of sending resident children to specialeducation preschool programs (Education Law § 4410 [1] [g]; seeEducation Law § 4410 [11] [a]). A municipality or the Board of Educationof the City of New York is empowered to "perform a fiscal audit of such services orprograms for which it bears fiscal responsibility in accordance with audit standardsestablished by" respondent Commissioner of Education (Education Law§ 4410 [11] [c] [i]). Respondent New York State Education Department(hereinafter Department) is accordingly directed to "provide guidelines on standards andprocedures . . . for fiscal audits of [those] services or programs" (EducationLaw § 4410 [11] [c] [i], as amended by L 2013, ch 57, § 1,part A, § 24) and, "for any audit commenced on or after May 28, 2013,municipalities shall submit to the [D]epartment for approval a detailed audit plan andaudit program which shall be consistent with guidelines on audit standards andprocedures issued by the [D]epartment on or after such date" (8 NYCRR 200.18 [b][2]).
[*2] Petitioner submitted a Freedom ofInformation Law (see Public Officers Law art 6 [hereinafter FOIL]) request inSeptember 2013, seeking the audit guidelines issued by the Department and anycommunications that it had with municipalities or school districts "relating to thestandards and procedures for, or relating to past, current or future fiscal audits of servicesor programs." The Department denied the request in its entirety, stating that thedocuments were exempt from FOIL as records compiled for law enforcement purposes(see Public Officers Law § 87 [2] [e]). Petitioner appealed from thatdenial and, when the Commissioner failed to rule on her appeal in a timely manner(see Public Officers Law § 89 [4]), she commenced the presentCPLR article 78 proceeding.
Respondents answered and provided 55 pages of redacted documents as a responseto petitioner's FOIL request, maintaining that the redacted portions were exempt fromdisclosure pursuant to Public Officers Law § 87 (2) (e) and (g). SupremeCourt rejected respondents' efforts to invoke Public Officers Law § 87 (2)(g) with regard to two of the pages, but held that the undisclosed portions of theremaining documents were compiled for law enforcement purposes and were exemptfrom disclosure under Public Officers Law § 87 (2) (e) (i). Petitioner nowappeals.
We affirm. "FOIL is based on a presumption of access to the records, and an agency. . . carries the burden of demonstrating that the exemption applies to theFOIL request" (Matter of DataTree, LLC v Romaine, 9 NY3d 454, 462 [2007] [citations omitted]; seePublic Officers Law § 89 [4] [b]). The Department here relied upon PublicOfficers Law § 87 (2) (e) in providing redacted records and, specifically, aprovision that exempts records from disclosure that "are compiled for law enforcementpurposes and which, if disclosed, would . . . interfere with law enforcementinvestigations or judicial proceedings" (Public Officers Law § 87 [2] [e][i]). Respondents asserted that the redactions were necessary because disclosure of theunredacted documents would reveal auditing techniques that would enable the providersof preschool special education programs to conceal their financial misdeeds moreeffectively.[FN*]
The Department was directed to prepare the audit guidelines in the wake of auditsconducted by the Comptroller that "found a pattern of mismanagement, waste and evenfraud by numerous private providers of preschool special education" (New York StateOffice of the State Comptroller, 2014 Annual Report, Preschool Special Education AuditInitiative at 3; see L 2013, ch 57, § 1, part A, § 24).Those audits resulted in criminal investigations and the referral of "numerous" certifiedpublic accountants to the Department for disciplinary proceedings, and there is no reasonto doubt that audits conducted under the guidance of the Department are also aimed atuncovering financial malfeasance. As such, while the guidelines and related documentsdid not arise from a specific law enforcement investigation, they were neverthelesscompiled with law enforcement purposes in mind, and are exempt from disclosure if theirrelease would [*3]enable individuals to "frustratepending or prospective investigations or to use that information to impede a prosecution"(Council of Regulated Adult Liq. Licensees v City of N.Y. Police Dept., 300AD2d 17, 18 [2002]; see Matter of Fink v Lefkowitz, 47 NY2d 567, 572 [1979];see also Tax Analysts v Internal Revenue Serv., 294 F3d 71, 79 [DC Cir 2002][interpreting analogous provision of federal Freedom of Information Act]).
Turning to the documents themselves, petitioner does not dispute that she hasobtained unredacted copies of almost 20 of the produced pages from another source,rendering academic a good portion of the relief she seeks (see Matter of Fappiano vNew York City Police Dept., 95 NY2d 738, 749 [2001]; Matter of Moore vSantucci, 151 AD2d 677, 678 [1989]). The audit guidelines themselves weredisclosed. The remaining documents include an internal control questionnaire and anaudit plan prepared by the Onondaga County Comptroller, and a review of theunredacted documents in camera reveal that they outline specific methods used by anauditor to examine the financial behavior of preschool special education programproviders. Inasmuch as the redacted portions would indeed reveal to "unscrupulous[providers] the path that an audit is likely to take and alert[ ] them to items to whichinvestigators are instructed to pay particular attention," we agree with Supreme Courtthat they are "compilations of investigative techniques exempt from disclosure"(Matter of Fink v Lefkowitz, 47 NY2d at 572-573).
Petitioner lastly argues that, because the Department failed to respond to heradministrative appeal in a timely fashion, she is entitled to counsel fees. Reasonablecounsel fees may indeed be awarded in a FOIL proceeding where "the agency failed torespond to a request or appeal within the statutory time," but only if the petitioner has"substantially prevailed" in the CPLR article 78 proceeding that followed (PublicOfficers Law § 89 [4] [c]). Supreme Court correctly determined that thevast majority of the challenged redactions were appropriate and, because she has notsubstantially prevailed, petitioner is not entitled to an award of counsel fees (see Matter of Saxton v New YorkState Dept. of Taxation & Fin., 107 AD3d 1104, 1105 [2013]; Matter of Mack v Howard, 91AD3d 1315, 1317 [2012]).
Garry, J.P., Rose and Lynch, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote *:Petitioner claims thatrespondents are now improperly attempting to rely upon Public Officers Law§ 87 (2) (e) (iv), which exempts from disclosure documents "compiled forlaw enforcement purposes . . . [that would] reveal criminal investigativetechniques or procedures, except routine techniques and procedures." Inasmuch asrespondents argue that the interference in future investigations will stem from theauditing techniques detailed in the unredacted documents, however, no meaningfuldistinction can be drawn between Public Officers Law § 87 (2) (e) (i) and(iv) under the circumstances of this case.