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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

-against-

Index No. 106213/11 lAS Part 16 (Schlesinger, J.)

Petitioner,

OFFICE OF THE MAYOR OF THE CITY OF NEW YORK,

Respondent.

---------------------------------------------------------------------X

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. Answer~ 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. ~~30-31. 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.

- 2-

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 Answer~ 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.

~ 47; Petition at Exhibit D.

See Answer

2 By subsequent em ails dated November 19, 20 I0, Petitioner clarified that his request was intended for the Office of the Mayor, not the State Education Department. Answer~ 39; Petition at Exhibit A.

- 3-

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.

- 4-

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).

- 5 -

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. Answer~ 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

- 6-

concerning

clarification

of Ms.

Black's

background, discussions related to contacts with various individuals regarding Ms. Black's

selection, and drafts of the letter to be sent to Commissioner Steiner. Answer~ 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 responsi~e 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

- 7-

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.

- 8 -

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

discussion relating to the clarification of Ms.

records

are

intra-agency

records

containing

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

- 9-

'

determination. Answer~ 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).

stated:

As the Court of Appeals has

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)).

- 10-

v. Hennessy, 82 A.D. 2d 981, 983, 440 N.Y.S.2d 419, 421 Dept. 1981)."

(2d

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).

- 11 -

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.

quotations omitted).

Courts

have

routinely

Fanslau, 54 A.D.3d 537, 538 (3d Dept.

2008)(intemal

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

- 12 -

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 R espons ibl

M

dicine v.

H gan ,

2010 NY Slip Op 51908U at *8-9; 29 Misc. 3d 1220A, 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

- 13 -

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

o f

Phy ic ia ns

ommitlee

for

R spons ible

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.

- 14-

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

- 15 -.

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 100 Church Street, Room 2-121 New York, NY 10007 (212)788-0C 9

Church Street, Room 2-121 New York, NY 10007 (212)788-0C 9 5 That Respondent could properly withhold

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.

- 16-

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

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)].

successful implementation of the policies motivating the enactment of the Freedom of Information Law centers

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

FOIL-A0-17992 State of New York Department of State Committee on Open Government Jhg_~t£lJtoJ the Committee
FOIL-A0-17992 State of New York Department of State Committee on Open Government Jhg_~t£lJtoJ the Committee

FOIL-A0-17992

State of New York Department of State Committee on Open Government

Jhg_~t£lJtoJ the Committee on _QJL~DJ;;overnmeoU~

autborL~e.d

February 9, 2010

to issue adyJsory_ QQifltoos

D Search Elll of ~iYgov

One Commerce Plaza 99 Washington Ave. Albany, New York 12231 (518) 474-2518 Fax (518) 474-1927 htmJJ_yy_ww. dos ·ll.Y_,_QovI cQQgL

,_

_1be_eosl.Jing ~rnftac;L'!isocy

QQinion is based solely_!!.QQIJ the informatLQD_Rf§e_!1t~_Q_ln_your 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 Stated differently, all records of an agency are available, except to the extent that records or portions

of access.

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

NYS 2d 905 (1975); Gannett Co

v.

_'iil!ag

eJNard_Q_f_

TnJ~te_e.~, 372

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

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); Scg~~ifl

Board of Education,l;p_st.f'1Qrlches, Sup. Ct., Suffolk Cty., NYU, Oct. 30, 1980); Cf:lP-itaLN_ew_s_paper!LY_,_~y_r_n_s, 67 NY 2d

562 (1986)].

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

payable to a municipal attorney that could indicate how that person spends his/her money; S.eUgy

298 (1994), concerning disclosure of social security numbers].

co.

and Donald C. Hadle'iJt.•_Vjl!gg_e_Q(Ly_Qns, Sup. Ct.,

y_,

NYS

Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinrn_e_tz_y

Conversely, to the extent that items relating to public officers or employees are irrelevant to the

e_Qf_Valley_S_treg_m.,

Sup. Ct., Nassau Cty.,

May 20, 1981, involving the back of a check

Sielaff, 200 AD 2d

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.

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.

nothing in the Freedom of Information Law would require an individual to indicate the nature of a conversation.

When

Further, even though the numbers may be disclosed,

This is not to suggest, however; that tlie numbers appearing on every phone bill must be disclosed in every

instance.

one's official duties to contact recipients of public assistance or persons seeking certain health services.

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.

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.

Exceptions to the general rule of disclosure might arise if a telephone is used during the performance of

We have

In our view, the last four digits could likely be deleted in that circumstance

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

DOS Home

I

A to Z Index

I 8R.pllcations

I ~i.bl.llt_y_ I Er.l.ll.ak'i Polic}'

Sincerely,

Camille S. Jobin-Davis Assistant Director

I ills.ctaimer

I CQntQ.ct

\!s

I

~I'II'I

GADOUAt