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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK


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Application for a Judgment under Article 78 of the CPLR
and other relief,
SERGIO HERNANDEZ
Petitioner,
-against-
OFFICE OF THE MAYOR OF THE CITY OF NEW
YORK,
Respondent.
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Index No. 106213/11
lAS Part 16
(Schlesinger, J.)
MEMORANDUM OF LAW IN SUPPORT OF VERIFIED ANSWER
Preliminary Statement
Respondent, the Office of the Mayor of the City of New York, submits this
memorandum of law in support of its Verified Answer. As discussed more fully below,
Respondent properly withheld documents requested by Petitioner pursuant to New York's
Freedom of Information Law ("FOIL"), as these documents were exempt as intra-agency
material that does not fall into any of the exceptions listed in N.Y. Public Officers Law
87(2)(g). Some of these documents also contained personal cell phone numbers and email
addresses that, if disclosed, would constitute an unwarranted invasion of personal privacy and,
thus, were properly withheld under N.Y. Public Officers Law 87(2)(b).
FACTS
Respondent respectfully refers the Court to its Statement of Material and Pertinent
Facts as set forth in its Verified Answer 28-48) for a recitation of the facts pertinent to this
proceeding. A brief summary is set forth below.
Cathleen Black's Selection as Chancellor
In early November 2010, Mayor Bloomberg selected Cathleen P. Black to be the
Chancellor of the City school district, upon the pending resignation of Joel Klein. 28.
He publicly announced that selection on November 9, 2010. ld. 29. As Ms. Black did not
possess the graduate coursework or experience requirements of Education Law 3003(1) for a
superintendent certificate, she was required to obtain a School District Leader certificate from
the New York State Education Department pursuant to Education Law 3003(3) in order to
serve as Chancellor. I Id. Because she also did not have any previous experience in the
field of education, it was understood that Ms. Black's selection would be the subject of scrutiny
and debate. Id. 31.
After her selection in early November 2010, Ms. Black, City staff and Hearst
' '
Corporation staff assigned to assist Ms. Black in her transition to City government were required
to communicate with one another in order to appropriately prepare the request for a School
District Leader certificate, to respond to routine inquiries that are customary for high-level
mayoral appointees, and to engage in outreach planning to the community to address concerns
' '
that had been publicly raised regarding Ms. Black. Ms. Black was both directly communicating
with as well as copied one-mails between these parties. Id. 33.
In New York City, the Chancellor is the superintendent of the City school district pursuant to
Education Law 2590-h. Education Law 3003(1) requires, generally, that any person serving as a
superintendent of schools must meet certain requirements to be eligible for a superintendent's certificate.
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On or about November 17, 2011, the Mayor requested from the New York State
Education Department a waiver of the requirements of Education Law 3003(1) for Ms. Black,
and that it issue her a School District Leader certificate pursuant to Education Law 3003(3). Id.
~ 32. That request was granted on November 29, 2010, and Ms. Black began serving as
Chancellor on January 1, 2011. Id. ~ ~ 37-38.
Petitioner's FOIL Request
By email dated November 19, 2011 sent to Anthony Crowell, Respondent's
Records Access Officer, Petitioner requested copies of "E-mail messages sent from or received
by any state electronic email accounts assigned to the Office of the Mayor to or from an
individual named Cathleen Prunty 'Cathie' Black or email addresses containing the domain
hearst.com" pursuant to the New York State Freedom of Information Law, Article 6 84, et
seg.2 See A n s w e r ~ 39; Petition at Exhibit A.
By letter to Petitioner dated January 13, 2011 from Anthony Crowell, Respondent
denied Petitioner's FOIL request pursuant toN. Y. Public Officers Law 87(2)(b) on the ground
that disclosure would constitute an unwarranted invasion of personal privacy, and pursuant to
N.Y. Public Officers Law 87(2)(g) on the ground that the requested records were inter-agency
or intra-agency materials. See Answer ~ 45; Petition at Exhibit B. Petitioner appealed that
determination by emails dated January 19, 2011. See Answer ~ 46; Petition at Exhibit C. By
letter to Petitioner dated January '26, 20 i 1, Deputy Mayor Carol Robles-Roman upheld the
determination to deny Petitioner's FOIL request for the reason previously provided. See Answer
~ 47; Petition at Exhibit D.
2 By subsequent em ails dated November 19, 20 I 0, Petitioner clarified that his request was intended for
the Office of the Mayor, not the State Education Department. A n s w e r ~ 39; Petition at Exhibit A.
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As discussed more fully below, Respondent's determination to withhold the
responsive records was entirely proper. At the relevant time period here -- i.e., prior to the date
of Petitioner's FOIL Request on November 19, 2010 --Ms. Black was acting as Respondent's
agent or consultant in assisting Respondent's communication and outreach efforts regarding her
background and qualifications, and in support of the Mayor's request that Commissioner Steiner
issue her the requested School District Leader certificate. Thus, the responsive emails are intra-
agency records and, because they do not contain any of the information listed in N.Y. Public
Officers Law 87(2)(g), they were properly withheld from disclosure. Also as discussed below,
as some of these documents contained personal cell phone numbers and email addresses, Answer
~ 43, the disclosure of this information would constitute an unwarranted invasion of personal
privacy and was, therefore, properly withheld under N.Y. Public Officers Law 87(2)(b).
As Respondent's determination to deny Petitioner's FOIL request was reasonable,
the Petition should be denied.
ARGUMENT
POINT I
AS CATHLEEN BLACK AND HER STAFF WERE AGENTS
OF THE RESPONDENT DURING THE RELEVANT TIME,
RESPONDENT PROPERLY INVOKED THE INTRA-
AGENCY EXEMPTION TO WITHHOLD RESPONSIVE
RECORDS
"An express agency is created 'by written or spoken words or other conduct of the
principal which, reasonably interpreted, causes the agent to believe that the principal desires him
to act on the principal's account." Itel Containers Int'l Corp. v. Atlant-Trafik Express Service,
Ltd., 909 F.2d 698, 702 (2d Cir. 1990)(quoting Restatement (Second) of Agency 26 (1958)).
"Whether such an agency is formed depends of the actual interaction between the putative
principal and agent, not on any perception a third party may have of the relationship." Id.
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The elements of an agency relationship are "(I) the manifestation by the principal
that the agent shall act for him; (2) the agent's acceptance of the undertaking; and (3) the
understanding of the parties that the principal is to be in control of the undertaking." Ho Myung
Moolsan Co. v. Manitou Mineral Water, 665 F. Supp.2d 239, 258 (S.D.N.Y. 2009); Hyosung
America, Inc. v. Sumagh Textile Co, Ltd., 934 F. Supp. 570, 575 (S.D.N. Y. 1996)(intemal
quotation and citation omitted). See Gulf Ins. Co. v. Transatlantic Reinsurance Co., 69 A.D.3d
71, 97,886 N.Y.S.2d 133, 152 (1st Dept. 2009)(agency results from "manifestation of consent by
one person to another that the other shall act on his behalf and subject to his control, and the
consent of the other to act")( quotation omitted); Restatement (Second) of Agency I cmt b
(1958).
The critical factor in this assessment is the control of the agent by the principal.
Jurgens v. Poling Transp. Corp., 113 F. Supp.2d 388, 399 (E.D.N.Y. 2000)(citing In re Shulman
Transp. Enterprises, Inc., 744 F.2d 293, 296 (2d Cir. 1984)). "Control is established when the
principal prescribes what the agent shall or shall not do before the agent acts, or at the time the
agent acts, or both." Ho Myung Moolsan Co, 665 F. Supp.2d at 258 (internal quotation and
citation omitted). In making its assessment, the Court is to look for "the exertion of actual
control, not formal indicia of control." Id. (quoting Royal Ins. Co. of America v. RU-VAL Elec.
QQnh, 918 F. Supp 647, 653 (E.D.N.Y. 1996)). Notably, such control need not apply to every
aspect of the agent's conduct, Mazart v. State of New York, 109 Misc. 2d 1092, 1099, 441
N.Y.S.2d 600, 605 (N.Y. Ct. of Claims 1991), and the existence of consideration is not essential
to the creation ofthe agency relationship. Central Trust Co. v. Sheahan, 66 A.D.2d 1015, 1016,
411 N.Y.S.2d 741,743 (4
1
h Dept. 1978)(citing N.Y. Jur.2d Agency, 2).
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In early November 2010, Mayor Bloomberg selected Ms. Black to serve as
Chancellor upon the pending resignation of Joel Klein. Because Ms. Black did not meet the
eligibility requirements of Education Law 3003(1), Mayor Bloomberg was required to request
that Commissioner Steiner of the New York State Education Department issue Ms. Black a
School District Leader certificate pursuant to Education Law 3003(3) so that she could serve as
Chancellor. Having selected Ms. Black as the most suitable person to be the next Chancellor,
Respondent had a clear interest in having Commissioner Steiner issue the requested certificate so
that she could serve in that role. It was understood, however, that Ms. Black's background
would be subject to scrutiny and debate, and that there would be concerns raised which, if not
addressed, might negatively impact Commissioner's Steiner's decision and jeopardize the
Mayor's selection. Indeed, the concerns raised about Ms. Black following her appointment were
well-publicized and a matter of public record.
Thus, in the weeks after Ms. Black was selected -- a period that includes the
relevant time for Petitioner's FOIL request -- Respondent had an interest in addressing these
concerns, and did so though its communication and outreach efforts designed to clarify and
expound on Ms. Black's credentials, and to address any concerns about her qualifications so as
to ensure the success of her candidacy. A n s w e r ~ 42. Ms. Black indisputably shared this interest,
and she acted in furtherance and support of this goal.
As part of these efforts, Ms. Black, City staff and/or Hearst Corporation staff
assigned to assist Ms. Black in her transition to City government communicated with each other
though email about the preparation of the request to Commissioner Steiner for a School District
Leader certificate for Ms. Black, responses to routine queries, and outreach planning to the
community. These emails included discussions concerning clarification of Ms. Black's
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background, discussions related to contacts with various individuals regarding Ms. Black's
selection, and drafts of the letter to be sent to Commissioner Steiner. 33.
While Ms. Black was acting in tandem with Respondent and in furtherance of
Respondent's interests, it was well-understood that these efforts were being coordinated by
Respondent. Id. 35. Indeed, the responsive documents show that Ms. Black and her staff did
not act independently, but only on Respondent's advice and guidance. Id. 36.
Having been selected by the Mayor as the incoming Chancellor, having accepted
that selection and thereafter having acted under Respondent's guidance in furtherance of
Respondent's interest in having that selection "approved" through Commissioner Steiner's
issuance of the requested certificate, it is clear that Ms. Black was acting as Respondent's agent
during the relevant time. Thus, the documents -- emails exchanged between
Respondent and Ms. Black (or others at hearst. com) -- are intra-agency documents and may be
withheld from disclosure N.Y. Public Officers Law 87(2)(g).
Pursuant to N.Y. Public Officer Law 87(2)(g), an agency may withhold records
which are inter-agency or intra-agency materials which are not:
1. statistical or factual tabulations or data;
ii instructions to staff that affect the public;
111. final agency policy or determinations; [or]
IV. external audits, including but not limited to audits performed by
the [New York State] comptroller and the federal government[.]
"Such material is exempt 'to protect the deliberative process of the government by ensuring that
persons in an advisory role would be able to express their opinions freely to agency decision
makers."' Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 132, 496 N.Y.S.2d 488, 490
(1985)(quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 A.D.2d 546, 549, 442 N.Y.S.2d
130, 132 (2d Dept. 1981)). See New York Times Co. v. City ofNew York Fire Dept., 4 N.Y.3d
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477, 4888, 796 N.Y.S.2d 302, 306 (2005)(the intra- and inter-agency exemptions were enacted
"to permit people within an agency to exchange opinions, advice and criticism freely and
frankly, without the chilling prospect of public disclosure"). Indeed, requests for disclosure of
material which contain opinions, advice, evaluations, deliberations, proposals, conclusions,
recommendations or other subjective material are routinely and consistently rejected b.y the
courts. See, ~ , Professional Standards Review Council of America, Inc. v. New York State
Dept. of Health, 193 A.D.2d 937, 939, 597 N.Y.S.2d 829, 832 (3d Dept. 1993)(comments,
opinions and recommendations of those involved in making contract award held privileged);
Rothenberg v. City University of New York, 191 A.D.2d 195, 196, 594 N.Y.S.2d 219, 220 (1st
Dept.)(denying access to report containing committee recommendations concerning candidates
for promotion), app. denied, 81 N.Y.2d 710,600 N.Y.S.2d 197 (1993).
Pre-decisional material is widely recognized as being exempt from disclosure to
prevent the second-guessing of an agency's decision-making process. In Cirale v. 80 Pine Street
Corp, 35 N.Y.2d 113, 116, 359 N.Y.S.2d 1, 4 (1974), the Court of Appeals recognized that
certain government documents may be withheld if the public interest would be harmed by
disclosure) In One Beekman Place, Inc. v. City of New York, 169 A.D.2d 492, 493, 564
N.Y.S.2d 169, 170 (1St Dept. 1991), the Appellate Division expressly recognized the public
interest in encouraging candid discussion among government employees in the development of
policy and reaching agency decisions. See In re World Trade Center Bombing Litigation, 93
A.D.2d 1, 9, 686 N.Y.S.2d 743,747 (1St Dept. 1999); Matter of Delaney v. Del Bello, 62 A.D.2d
281,287,405 N.Y.S.2d 276,280-81 (2d Dept. 1978).
3 Although Cirale involved disclosure under CPLR Article 31, its discussion of the importance of
protecting documents that concern an agency's decision-making process is instructive here.
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Clearly, the candor of those assisting in the decision-making process would be
impeded if they knew their opinions, deliberations, analyses and recommendations were exposed
to public scrutiny. The ability to freely voice and discuss opinions and conflicting views is
essential to an agency's ability to candidly assess competing facts and render well-reasoned
decisions. See One Beekman Place, Inc., 169 A.D.2d at 493, 564 N. Y.S.2d at 170. Exposing the
deliberations of agency personnel to second-guessing would hinder this process, and undermine
the agency's ability to make the best decisions. See Goodstein & West v. O'Rourke, 201 A.D.2d
731,731,608 N.Y.S.2d 306,307 (2d Dept. 1994); Kheel v. Ravitch, 93 A.D.2d 422,427-28,462
N.Y.S.2d 182, 185 (1st Dept. 1983), affd, 62 N.Y.2d 7, 475 N.Y.S.2d 814 (1984); Sea Crest
Constr. Corp., 82 A.D.2d at 549, 442 N. Y.S.2d at 132 (2d Dept. 1981 ).
Here, as noted, the responsive records are intra-agency records containing
discussion relating to the clarification of Ms. Black's background, proposed contacts with
various individuals regarding Ms. Black's selection, and drafts of the letter to be sent to
Commissioner Steiner requesting a School District Leader certificate for Ms. Black.
Significantly, none of the responsive documents contains (i) statistical or factual tabulations or
data; (ii) instructions to staff that affect the public;4 or (iii) a final agency policy or
4 Although Petitioner may argue that these em ails constitute instructions to staff that affect the public,
this is not the case. As the Committee on Open Government has made clear, although there is little
decisional law construing this phrase, it was intended to apply to agency guidelines, manuals, procedures
and the like:
[I]n a letter of July 21, 1977 prepared by the sponsor of the revised
Freedom of Information Law, former Assemblyman Mark Siegel
indicated that 87(2)(g) is intended to insure that "any so-called 'secret
Jaw' of an agency be made available", such as the policy "upon which an
agency relies" in carrying out its duties. Typically, agency guidelines,
procedures, staff manuals and the like provide direction to an agency's
employees regarding the means by which they perform their duties.
Some may be "internal", in that they deal solely with the relationship
between an agency and its staff. Others may provide direction in terms of
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determination. A n s w e r ~ 44. Thus, none of these exceptions set forth in N.Y. Public Officer Law
87(2)(g) applies, and Respondent properly withheld these documents from disclosure.
Additionally, Ms. Black's function during this time was similar to that of a
consultant. In this connection, it has been well-recognized that "while that term [inter-agency or
intra-agency materials] has not been defined in FOIL, it has been interpreted to include
communications between state agencies and outside entities that ... do not fall within the literal
definition of'agency' contained in the statute." Matter ofTown of Waterford v. New York State
Dept. of Environmental Conservation, 2010 NY Slip Op 6388 *5-6; 77 A.D.3d 224, 230-31; 906
N.Y.S.2d 651; 2010 N.Y. App. Div. LEXIS 6468 (3d Dept. 2010). As the Court of Appeals has
stated:
In connection with their deliberative process, agencies may at
times require opinions and recommendations from outside
consultants. It would make little sense to protect the deliberative
process when such reports are prepared by agency employees yet
deny this protection when reports are prepared for the same
purpose by outside consultants retained by agencies. Accordingly,
we hold that records may be considered 'intra-agency material'
even though prepared by an outside consultant at the behest of an
agency as part of the agency's deliberative process (see, Matter of
Sea Crest Constr. Corp. v. Stubing, 82 A.D. 2d 546, 549, 442
N.Y.S.2d 130, 132 (2d Dept. 1981); Matter of 124 St. Realty Corp.
the manner in which staff performs its duties in relation to or that affects
the public, which would ordinarily be public. To be distinguished would
be advice, opinions or recommendations that may be accepted or
rejected. An instruction to staff, a policy or a determination each would
represent a matter that is mandatory or which represents a final step in
the decision making process.
Committee on Open Government, FOIL-A0-13330 (April23, 2002)(annexed hereto as Exhibit 1). Here,
none of the communication between Respondent and Ms. Back concerned the manner in which staff
performed its duty in relation to the public or a matter that was mandatory. See Matter of Tuck-It-Away
Assoc., L.P. v. Empire State Development Corp., 54 A.D.2d 154, 861 N.Y.S.2d 51 (1
51
Dept. 2008) (inter-
agency communication regarding how agency should handle inquiry from public held not instruction to
staff under 87(2)(g)(ii)).
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v. Hennessy, 82 A.D. 2d 981, 983, 440 N.Y.S.2d 419, 421 (2d
Dept. 1981)."
Xerox Corporation, 65 N.Y.2d at 132, 496 N.Y.S.2d at 490. Thus, records "that would, if
prepared by agency employees, be exempt from disclosure under the Freedom of Information
Law (FOIL) as 'intra-agency materials' ... do not lose their exempt status simply because they
are prepared for the agency, at its request, by an outside consultant." Id. (quoting N.Y. Public
Officer Law 87(2)(g)). See Kent v Steiner, 2011 NY Slip Op 30093U; 2011 N.Y. Misc. LEXIS
614 (Albany Co. 2011); Miller v. New York State DOT, 2009 NY Slip Op 166 * 4; 58 A.D.3d
981, 985; 871 N.Y.S.2d 489; 2009 N.Y. App. Div. LEXIS 160 (3d Dept. 2009);Matter of Tuck-
It-Away Assoc., L.P. v. Empire State Development Corp., 54 A.D.2d 154, 861 N. Y.S.2d 51 (1
51
Dept. 2008).
Factors considered in determining the applicability of this
exemption are the nature of the relationship the outside entity had
with the state or municipal agency, as well as the content and
context of the communications sought to be disclosed (id. ).
Moreover, simply because the outside entity was a private concern
and not part of a state or municipal agency did not preclude
application of the exemption to their communications.
Matter of Town of Waterford, 2010 NY Slip Op 6388 *6; 77 AD .3d 224, 231, 2010 N.Y. App.
Div. LEXIS 6468.
Here, as described above, in communicating with Respondent, Ms. Black was
working at Respondent's behest and in furtherance of Respondent's interest that she be awarded
the request School District Leader certificate so that she could serve as Chancellor. This is also
made clear by the nature of the emails here at issue which demonstrate Ms. Black's role.
Accordingly, these records are exempt from disclosure under N.Y. Public Officer Law 87(2)(g).
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POINT II
DISCLOSURE OF PRIVATE TELEPHONE
NUMBERS AND EMAIL ADDRESSES
WOULD CONSTITUTE AN UNWARRANTED
INVASION OF PERSONAL PRIVACY
Section 87(2)(b) of the Public Officers Law provides that an agency may deny
access to records or portions thereof that would constitute an unwarranted invasion of personal
privacy under 89(2). Section 89(2)(b), in tum, provides a listing of the types of information
that are exempt. However, as is clear from its own terms - i.e., "An unwarranted invasion of
personal privacy includes, but shall not be limited to ... " -- section 89(2)(b) does not limit the
definition of "unwarranted invasion of personal privacy" to the situations listed in that section
and is not exhaustive. Matter .of Data Tree, LLC v. Romaine, 9 N. Y.3d 454, 462 (2007). See,
~ . New York Times Co. v. City of New York Fire Dept. , 195 Misc. 2d 119, 126 (Sup. Ct.,
N.Y. Co. 2003) (recognizing that list of categories in section 89(2)(b) is not exhaustive and
finding that communications by victims and survivors of September 11, 2001 terrorist attacks
contained in tapes and transcripts of 911 calls were exempt from disclosure under FOIL even
though communications did not fall under any of the specific listed categories), aff'd in relevant
part, 3 A.D.3d 340 (1st Dept. 2004), aff'd, 4 N.Y.3d 477, 488, 796 N.Y.S.2d 302, 306 (2005).
Ultimately, "[w]hat constitutes' an unwarranted invasion of personal privacy is measured by what
would be offensive and objectionable to a reasonable [person] of ordinary sensibilities" Matter of
Humane Socy. of United States v. Fanslau, 54 A.D.3d 537, 538 (3d Dept. 2008)(intemal
quotations omitted).
Courts have routinely found that disclosure of telephone numbers would
constitute an unwarranted invasion of personal privacy and are therefore exempt from disclosure
under FOIL. Matter of Humane Socy. of United States v. Brennan, 53 A.D.3d 909, 911 (3rd
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Dept. 2003), app. denied, 11 N.Y.3d 711 (2008) (finding disclosure of telephone numbers would
constitute an unwarranted invasion of personal privacy, and directing that the numbers be
redacted); Burtis v. New York Police Dept., 240 A.D.2d 259, 260 (1st Dept. 1997) (finding
telephone numbers in police complaint reports exempt from disclosure as an unwarranted
invasion of privacy); Woods v. Kings County Dist. Attys. Office, 234 A.D.2d 554, 556 (2d Dept.
1996)(requiring redaction of telephone numbers from all documents produced, not just single
category of documents); Malter of Physicians ommittee for Responsibl M dicine v. H gan,
2010 NY Slip Op 51908U at *8-9; 29 Misc. 3d 1 220A, 2010 N.Y. Misc. LEXIS 5446 at * 21
(Sup. Ct. Albany Co. Nov. 3, 201 0); Matter of James, Hoyer, Newcomer, Smiljanich &
Yanchuni, 2010 NY Slip Op 50863U at *14; 27 Misc. 3d 1223A; 2010 N.Y. Misc. LEXIS 1045
at* 34 (Sup Ct. N.Y. Co. March 31, 2010); Pinks v. Turnbull, 2006 NY Slip Op 51687U at *6;
13 Misc. 3d 1204A; 824 N.Y.S.2d 758, 2006 N.Y. Misc. LEXIS 2346 (Sup Ct. N.Y. Co. Aug.
29, 2006); Matter of Goyer v. New York State Dept. of Envtl. Conserv., 2005 NY Slip Op
25582, 12 Misc. 3d 261, 813 N.Y.S.2d 628 (Sup Ct. Albany Co. November 29, 2005).
The expectation of privacy is even greater with respect to the cell phone numbers
included on the responsive documents. Indeed, as there is no publicly-available directory of cell
phone numbers, it is clear that this information is disclosed only by the choice of the individual
owner, and only to those persons to whom the owner chooses to disclose it. It is too far a stretch
to argue that individuals have voluntarily elected to disclose their cell phone numbers to the
world at large, simply because they disclosed it to someone who later included in an email (and
likely without their knowledge or consent) that subsequently became the subject of a FOIL
request. Such disclosure would expose such individuals to unwanted communications from a
variety of persons with a variety of motives. Indeed, given the spirited public debate regarding
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Ms. Black, disclosure of cell phone numbers here could expose such individuals to
communications which are threatening, offensive, solicitous, or otherwise simply unwelcome
and of an intrusive nature. See Committee on Open Government, FOIL-A0-17992 (Feb. 9, 2010),
annexed hereto as Exhibit 2 ("if the telephone number ... is ... the cell phone number of a
private person ... disclosure could result in an unwarranted invasion of personal privacy ... ")
The same considerations hold true of personal email addresses, which courts
routinely protect from disclosure. See Matter of Phy icians ommitlee for R sponsible
Medicine, 2010 NY Slip Op 51908U at *8-9; 29 Misc. 3d 1220A, 2010 N.Y. Misc. LEXIS 5446
at * 21; Matter of James, Hoyer, Newcomer, Smiljanich & Yanchuni, 2010 NY Slip Op 50863U
at *14; 27 Misc. 3d 1223A; 2010 N.Y. Misc. LEXIS 1045 at* 34; Matter of Goyer v. New York
State Dept. of Envtl. Conse.rv., 2005 NY Slip Op 25582, 12 Misc. 3d 261, 813 N.Y.S.2d 628
(rejecting request for a variety of personal information, including telephone numbers and email
addresses, citing risk of identity theft).
Based on the foregoing, Respondent properly withheld from disclosure the private
telephone numbers and email addresses on the responsive records.
POINT III
AN AWARD OF ATTORNEYS' FEES IS NOT WARRANTED
In his Petition, Petitioner seeks an award of attorneys' fees, arguing that "[a] party
that substantially prevails in a FOIL proceeding may recover its attorneys' fees, where the
records sought are of clear significant interest to the public and the agency had no reasonable
basis for denying access. Pet. 's Memo of Law at 17. In making this argument, Petitioner argues
a standard that is no longer in effect, as it was amended several years ago.
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As amended in 2006, N.Y. Public. Off. Law 89( 4 )(c) now provides that the
Court may assess
reasonable attorneys' fees and other litigation costs reasonably incurred in any
case under the provisions of this section in which such person has substantially
prevailed, when:
(i) the agency has no reasonable basis for denying access; or
(ii) the agency failed to respond to a request or appeal within the statutory
time.
Thus, the amendment removed the requirement that the documents sought by the FOIL
proceeding be "of clearly significant interest" to the public.
As there is no dispute that Respondent timely responded to Petitioner's FOIL
request and his administrative appeal, the only questions are first, whether Petitioner will
substantially prevail in this matter and second, if he substantially prevails, whether Respondent
nonetheless had a reasonable basis for denying the request. These two questions are to be
determined independently. Should Petitioner not substantially prevail, the inquiry is over and no
fees are to be awarded. If Petitioner prevails, however, the court still must determine whether
Respondent had a reasonable basis for denying access to the requested records, as an agency's
decision to withhold requested records may be reasonable, even if it is rejected. See Miller v.
New York State DOT, 2009 NY Slip Op 166 * 4; 58 A.D.3d 981, 985; 871 N.Y.S.2d 489; 2009
N.Y. App. Div. LEXIS 160 (3d Dept. 2009)(although ordering documents disclosed, denying
request for fees where respondents "had a rational basis for their belief that the majority of the
documents withheld were exempt from disclosure.")
The facts of this proceeding appear to present an issue of first impression in this
State -- that is, the extent to which communications between a mayoral appointee and the
mayor's staff subject are to disclosure under FOIL. Here, as discussed above, given the nature of
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the relationship between Respondent and Ms. Black at the time the subject records were prepared
--with Ms. Black working in a subsidiary role, on the advice and guidance of Respondent, and in
furtherance of Respondent's interest in having his selection for Chancellor approved --
Respondent had a reasonable, good faith basis for invoking the exemption provided by N.Y.
Public Officers Law 87(2)(g) and withholding the responsive documents.5
As Respondent had a reasonable basis for denying petitioner access to the
requested records, an award of attomeys' fees is not warranted here.
CONCLUSION
For the reasons set forth above, Respondent respectfully requests that the Petition
be denied in its entirety, and that it be granted such other an further relief as this Court deems
just and proper.
Dated: New York, New York
July 21, 2011
MICHAEL A. CARDOZO
Corporation Counsel for the City ofNew York
Attorney for Respondent
1 00 Church Street, Room 2-121
New York, NY 10007
(212)788-0C 9
5 That Respondent could properly withhold the private email addresses and cell phone numbers contained in these
emails is beyond dispute. See Point II, infra.
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EXHIBIT 1
State of New York
Department of State
Committee on Open Government
FOIL-A0-13330
April 23, 2002
=Search all of NY gov
One Commerce Plaza
99 Washington Ave.
Albany, New York 12231
(518) 474-2518
Fax (518) 474-1927
ht!;p://www.dos.n')'.gov/coogL
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory
opinion is based solely upon the information presented in your correspondence.
Dear
I have received your letter in which you asked about the availability of "'Police Department Guidelines' with regards to
precinct Supervisory staff giving uniformed police officers authority/direction to 'strip search' individuals who had been
arrested for non-felony offenses." You also questioned the propriety of a response from the New York City Police
Department indicating that the Department would respond to your request within 120 days.
In this regard, the Freedom of Information Law provides direction concerning the time and manner in which agencies
must respond to requests. Specifically, 89(3) of the Freedom of Information Law states in part that:
"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a
record reasonably described, shall make such record available to the person requesting it, deny such request in writing
or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when
such request will be granted or denied ... "
While an agency must grant access to records, deny access or acknowledge the receipt of a request within five
business days, when such acknowledgement is given, there is no precise time period within which an agency must
grant or deny access to records. The time needed to do so may be dependent upon the volume of a request, the
possibility that other requests have been made, the necessity to conduct legal research, the search and retrieval
techniques used to locate the records and the like. In short, when an agency acknowledges the receipt of a request
because more than five business days may be needed to grant or deny a request, so long as It provides an
approximate date indicating when the request will be granted or denied, and that date is reasonable in view of the
attendant circumstances, I believe that the agency would be acting in compliance with law.
Notwithstanding the foregoing, in my view, every law must be implemented in a manner that gives reasonable effect to
its intent, and I point out that in its statement of legislative intent, 84 of the Freedom of Information Law states that
"it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible."
Therefore, if records are clearly available to the public under the Freedom of Information Law, or if they are readily
retrievable, there may be no basis for a lengthy delay in disclosure. As the Court of Appeals has asserted:
" ... the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers
on goals as broad as the achievement of a more informed electorate and a more responsible and responsive
officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them
about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public
accountability wherever and whenever feasible' therefore merely punctuates with explicitness what In any event is
implicit" [Westchester News v. Kimball, 50 NY 2d 575, 579 (1980)].
Further, in my opinion, if, as a matter of practice or policy, an agency acknowledges the receipt of requests and
indicates in every instance that it will determine to grant or deny access to records "within 120 days" or some other
particular period, following the date of acknowledgement, such a practice or policy would be contrary to the thrust of
the Freedom of Information Law.
Regarding the availability of certain "police department guidelines", as a general matter, the Freedom of Information
Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the
extent that records or portions thereof fall within one or more grounds for denial appearing in 87(2)(a) through (i) of
the Law.
It is noted that 87(2)(g) permits an agency provide In pertinent part that:
"are Inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. Instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government ... "
It is noted that the language quoted above contains what In effect is a double negative. While inter- agency or intra-
agency materials may be withheld, portions of such materials consisting of statistical or factual information,
instructions to staff that affect the public, final agency policy or determinations or external audits must be made
available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-
agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view
be withheld.
Concerning "instructions to staff that affect the public" and "final agency policy or determinations", which are generally
available, respectively, under subparagraphs (ii) and (iii) of 87(2)(g) of the Freedom of Information Law, there is little
decisional law that deals directly with those provisions. However, in a letter of July 21, 1977 prepared by the sponsor
of the revised Freedom of Information Law, former Assemblyman Mark Siegel indicated that 87(2)(g) is intended to
insure that "any so-called 'secret law' of an agency be made available", such as the policy "upon which an agency
relies" in carrying out its duties. Typically, agency guidelines, procedures, staff manuals and the like provide direction
to an agency's employees regarding the means by which they perform their duties. Some may be "internal", in that
they deal solely with the relationship between an agency and its staff. Others may provide direction in terms of the
manner in which staff performs its duties in relation to or that affects the public, which would ordinarily be public. To
be distinguished would be advice, opinions or recommendations that may be accepted or rejected. An instruction to
staff, a policy or a determination each would represent a matter that is mandatory or which represents a final step in
the decision making process.
While instructions to staff that affect the public and final agency policies or determinations are generally accessible,
there may be instances in which those records or portions thereof may be withheld.
Perhaps most relevant would be 87(2)(e)(iv). The leading decision concerning that provision is Fink v. Lefkowitz,
which involved access to a manual prepared by a special prosecutor that investigated nursing homes in which the
Court of Appeals held that:
"The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprised
the nonroutine procedures by which an agency obtains Its Information (see Frankel v. Securities & Exch. Comm., 460
F2d 813, 817, cert den 409 US 889). However beneficial its thrust, the purpose of the Freedom of Information Law is
not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that
information to construct a defense to impede a prosecution.
"To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative
techniques, are those which articulate the agency's understanding of the rules and regulations it is empowered to
enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or
substantive law must be disclosed. Such information in the hands of the public does not impede effective law
enforcement. On the contrary, such knowledge actually encourages voluntary compliance with the law by detailing the
standards with which a person is expected to comply, thus allowing him to conform his conduct to those requirements
(see Stokes v. Brennan, 476 F2d 699, 702; Hawkes v. Internal Revenue Serv., 467 F2d 787, 794-795; Davis,
Administrative Law [1970 Supp], section 3A, p 114).
"Indicative, but not necessarily dispositive of whether investigative techniques are nonroutine is whether disclosure of
those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately
tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel (see Cox v. United
States Dept. of Justice, 576 F2d 1302, 1307-1308; City of Concord v. Ambrose, 333 F Supp 958)."
In applying those criteria to specific portions of the manual, which was compiled for law enforcement purposes, the
Court found that:
"Chapter V of the Special Prosecutor's Manual provides a graphic illustration of the confidential techniques used in a
successful nursing home prosecution. None of those procedures are 'routine' in the sense of fingerprinting or ballistic
tests (see Senate Report No. 93-1200, 93 Cong 2d Sess [1974]). Rather, they constitute detailed, specialized methods
of conducting an investigation into the activities of a specialized industry in which voluntary compliance with the law
has been less then exemplary.
"Disclosure of the techniques enumerated in those pages would enable an operator to tailor his activities in such a way
as to significantly diminish the likelihood of a successful prosecution. The information detailed on pages 481 and 482 of
the manual, on the other hand, is merely a recitation of the obvious: that auditors should pay particular attention to
requests by nursing homes for Medicaid reimbursement rate increases based upon projected increase in cost. As this is
simply a routine technique that would be used in any audit, there is no reason why these pages should not be
disclosed" (id. at 573).
As the Court of Appeals has suggested, to the extent that the records in question include descriptions of investigative
techniques which if disclosed would enable potential lawbreakers to evade detection or endanger the lives or safety of
law enforcement personnel or others [see also, Freedom of Information Law, 87(2)(f)], a denial of access would be
appropriate. I would conjecture, however, _that not all of the investigative techniques or procedures contained in the
records sought incident and the ensuing investigation could be characterized as "non-routine", and that it is unlikely
that disclosure of each aspect of the records would result in the harmful effects of disclosure described above.
The other provision that may be pertinent as a basis for denial is 87(2)(f). Again, that provision permits an agency to
withhold records insofar as disclosure "would endanger the life or safety of any person." If, for example, disclosure of
an Instruction to staff or policy would jeopardize the lives or safety of public employees or others, the cited provision
might be applicable.
I hope that I have been of assistance.
Sincerely,
David Treacy
Assistant Director
DT:jm
EXHIBIT 2
State of New York
Department of State
Committee on Open Government
FOIL-A0-17992
February 9, 2010
D Search Elll of gov
One Commerce Plaza
99 Washington Ave.
Albany, New York 12231
(518) 474-2518
Fax (518) 474-1927
htmJJ_yy_ww. dos ll.Y_,_Q ov I cQQgL
the Committee on __ to issue adyJsory_QQifltoos,__1be_eosl.Jing
QQinion is based solely_!!.QQIJ the cor::res_gondence.
Dear
We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information
Law to records requested from the Village of Scarsdale. Specifically, you sought clarification of our position on rights
of access to cell phone records under the Freedom of Information Law. You make a persuasive argument that an
agency cannot rely solely on an employee's indication that a telephone number is "personal", and that it continues to
bear the burden of proving that telephone call information redacted from a record falls squarely within the scope of an
exception. In doing so, you mentioned issues that were addressed in a previous advisory opinion (FOIL-A0-13753)
written by this office, which we now address and clarify.
First, as a general matter, the Freedom of Information Law is based upon a presumption
of access. Stated differently, all records of an agency are available, except to the extent that records or portions
thereof fall within one or more grounds for denial appearing in 87(2)(a) through (k) of the Law.
The key provisions under the circumstances are 87(2)(b) and 89(2)(b), both of which pertain to the ability
to deny access insofar as disclosure would constitute "an unwarranted invasion of personal privacy." Based on the
judicial interpretation of the Freedom of Information Law, It is clear that public officers and employees enjoy a lesser
degree of privacy than others, for it has been found in various contexts that those individuals are required to be more
accountable than others. The courts have found that, as a general rule, records that are relevant to the performance
of the official duties of a public officer or employee are available, for disclosure in such instances would result in a
permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. _'iil!ag..eJNard_Q_f_ 372
NYS 2d 905 (1975); Gannett Co .. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Si!licropl_y,
County of Nassau, 76 AD 2d 838 (1980); Geneva Printing__co. and Donald C. Hadle'iJt . _Vjl!gg_e_Q(Ly_Qns, Sup. Ct.,
Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhidg_y'-_Qty_Qf Albany,
147 AD 2d 236 (1989); .. y_,__NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinrn_e_tz_y_._
Board of Education,l;p_st.f'1Qrlches, Sup. Ct., Suffolk Cty., NYU, Oct. 30, 1980); 67 NY 2d
562 (1986)]. Conversely, to the extent that items relating to public officers or employees are irrelevant to the
performance of their official duties, it has been found that disclosure would indeed constitute an unwarranted invasion
of personal privacy [see e.g., M.atterQtWool, Sup. Ct., Nassau Cty., NYU, Nov. 22, 1977, dealing with membership in
a union; Mines_'la\i'-Vil[gg..e_Qf_Valley_S_treg_m., Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a check
payable to a municipal attorney that could indicate how that person spends his/her money; S.eUgy_. Sielaff, 200 AD 2d
298 (1994), concerning disclosure of social security numbers].
With regard to telephone bills, based on the decisions cited above, when a public officer or employee uses a
telephone in the course of his or her official duties, bills involving the use of the telephone would, in our opinion, be
relevant to the performance of that person's official duties. On that basis and in general, we do not believe that
disclosure would result in an unwarranted invasion of personal privacy with respect to an officer or employee serving
as a government official.
Since phone bills often list the numbers called, the time and length of calls and the charges, It has been
contended by some that disclosure of numbers called might result in an unwarranted invasion of personal privacy, not
with respect to a public employee who initiated the call, but rather with respect to the recipient of the call. When
phone numbers appear on a bill, however, those numbers do not necessarily indicate who in fact was called or who
picked up the receiver in response to a call. Therefore, an indication of the phone number would ordinarily disclose
nothing regarding the nature of a conversation or contact. Further, even though the numbers may be disclosed,
nothing in the Freedom of Information Law would require an individual to indicate the nature of a conversation.
This is not to suggest, however; that tlie numbers appearing on every phone bill must be disclosed in every
instance. Exceptions to the general rule of disclosure might arise if a telephone is used during the performance of
one's official duties to contact recipients of public assistance or persons seeking certain health services. We have
previously advised that if a government employee contacts those classes of persons as part of the employee's primary
ongoing and routine duties, there may be a basis for withholding the last four digits of phone numbers listed on a bill.
For instance, disclosure of numbers called by a caseworker who phones applicants for or recipients of public assistance
might identify those who were contacted. In our view, the last four digits could likely be deleted in that circumstance
to protect against an unwarranted invasion of personal privacy due to the status of those contacted. Similarly, if a law
enforcement official phones informants, disclosure of the numbers might endanger an individual's life or safety, and
the numbers might justifiably be deleted pursuant to 87(2)(f) of the Freedom of Information Law.
It is our understanding that public employees and officials are typically permitted limited telephone use for
family and personal purposes during regular business hours. In this regard, it is our opinion that when a record
indicates that home telephone number was called, or a personal call was placed to a residential telephone number,
disclosure could result in an unwarranted invasion of personal privacy. Similarly, when a personal call is placed to a
private person's cellular phone number, in our opinion, release of that phone number to the public could constitute an
unwarranted invasion of personal privacy of the person to whom the phone is issued, and in some cases cause
additional financial responsibility. In our opinion, records of calls made to commercial entities for non-work related
purposes would not necessarily result in an unwarranted invasion of personal privacy.
The issuance of cell phones to public officials and employees for business purposes has resulted in varying
payment and billing arrangements that may require a public official or employee to contribute toward the ongoing
costs associated with the use of the phone. When a public official or employee is permitted unlimited personal use of a
government issued cell phone, different issues regarding disclosure of records emerge. For example, disclosure of the
volume of time a person spends on a cel.l phone during non-work hours is .irrelevant to an individual's job performance,
and in our opinion, would result in an unwarranted iiwasion of personal privacy. Similarly, full disclosure of the
telephone numbers called or the telephone numbers from which calls originated during non-work hours, in our opinion
would result in an unwarranted invasion of personal privacy when those calls are not work-related. Disclosure of the
costs associated therewith, on the other harid, would not result in an unwarranted invasion of personal privacy, as the
dollar value of a benefit conferred on an employee would involve a matter directly related to the person's employment.
With respect to records of telephone numbers reached when an employee is working, we believe that unless
disclosure would result in an unwarranted invasion of personal privacy in relation to the persons contacted by the cell
phone user, or who contacted the cell phone user, the agency would be required to disclose such information. For
example, again, if the telephone number listed on the bill is the employee's home telephone number or the cell phone
number of a private person, or a residential number known to be unlisted, in our opinion, disclosure could result in an
unwarranted invasion of personal privacy. On the other .hand, if ttie teleph'one number listed is a published telephone
number for a commercial entity such as a pizza parlor or a real estate appraiser, we do not believe the agency would
have the authority to deny access. In our opinion, therefore, an indication that a phone call made during scheduled
work hours was "personal", with nothing more, would be insufficient to show that disclosure would result in an
unwarranted invasion of personal privacy.
In this case, the Village has permitted the Superintendent of Public Works unlimited personal use of a Village
issued cell phone, presumably because he is expected to be available for emergencies during non-business hours. In
our opinion, during hours that the Superintendent is scheduled to work, the agency bears the burden of proving that
disclosure of a particular phone number on a bill would constitute an unwarranted Invasion of personal privacy. Those
items in our opinion likely bear upon the performance of one's official duties and would, if disclosed, result in a
permissible, not an unwarranted invasion of personal privacy. Disclosure of records of telephone numbers reached
during hours that the Superintendent is not scheduled to work, except calls made for work-related purposes, on the
other hand, in our opinion would result in an unwarranted invasion of personal privacy.
Although it may not be the case here, should an agency place restrictions on the use of a government issued
cell phone, perhaps limiting the number of minutes that may be utilized for personal use or prohibiting personal use of
the phone, in our view, the distinction between scheduled work hours and non-work hours would not apply. In our
opinion the agency would have no basis to deny access to records of telephone numbers contacted during non-work
hours in that situation, unless, as discussed above, disclosure of the telephone number would result in an unwarranted
invasion of personal privacy of the person contacted.
We recognize that it may be time consuming for an agency to ascertain the effect of disclosure of every
telephone number on a telephone bill. Again, we emphasize that the agency has the burden of proving that disclosure
of a record or a portion thereof would result in an unwarranted invasion of personal privacy. While we believe it is
helpful to have input from an employee with respect to the effect of disclosure of particular numbers, the employee's
characterization of a telephone number as "personal", without more, in our opinion is insufficient for purposes of
meeting that burden of proof
This opinion Is intended to clarify and supercedes the opinion expressed in FOIL-A0-13753.
On behalf of the Committee on Open Government, we hope that this is helpful.
CSJ:jm
cc: FOIL Officer
Alfred A. Gatta, Village Manager
Wayne Esannason, Village Attorney
Sincerely,
Camille S. Jobin-Davis
Assistant Director
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