respondent's brief (hernandez)

7/30/2019 Respondent's Brief (Hernandez)

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To Be Argu

ELIZABETH WOL

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST DEPARTMENTSERGIO HERNANDEZ,

Petitioner-Respondent,

-against-

OFFICE OF THE MAYOR OF THE CITY OF NEW YORK,

Respondent-Appellant.

New York County Clerks

Index No.: 106213/2011

BRIEF FOR PETITIONER-RESPONDENT

SCHLAM STONE & DOLAN LLP

Michael C. MarcusElizabeth Wolstein

Raffi Melkonian

26 Broadway 19th

FloorNew York, New York 10004

Telephone: (212) 344-5400Facsimile: (212) 344-7677

[email protected]

Attorneys for Petit ioner-Respondent

Sergio H ernandez


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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................

PRELIMINARY STATEMENT ..............................................................

COUNTER STATEMENT OF QUESTION PRESENTED ....................

COUNTER STATEMENT OF FACTS ...................................................

A. The Appointment Of Cathleen Black As New York City Sc

Chancellor ............................................................................

B. Mr. Hernandezs FOIL Request And Administrative Appea

C. The Trial Court Proceedings ................................................

D. The Trial Courts Decision ...................................................

RELEVANT STATUTORY BACKGROUND .......................................

ARGUMENT ............................................................................................

I. THE JUDGMENT SHOULD BE AFFIRMED BECAUSE FOILINTER- AND INTRA-AGENCY EXEMPTION DOES NOT AP

TO THE MAYORS OFFICES COMMUNICATIONS WITH A

PRIVATE CITIZEN SUCH AS MS. BLACK ..............................

A. The City Bears The Burden Of Showing That The Black E

Fall Within The Inter- And Intra-Agency Exemption, Whic

All FOIL Exemptions Must Be Narrowly Construed ..........

B. The Court of Appeals Decision in Town of WaterfordReq

Affirmance ............................................................................

1. Withholding Of The Black E-mails Cannot Be Justified


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a. Ms. Black Was Not Engaged As And Did Not Funct

As A Consultant Retained By The City .....................

b. In Communicating With The Mayors Office, Ms. B

Acting In Her Own Interest To Promote Her Own Ca

For High City Office ..................................................

3. Even If Ms. Black Was An Agent Of The Mayors OffiWhich She Was Not That Would Not Make Her An A

For Purposes Of The Inter- And Intra-Agency ExemptioAs To Bring The Requested E-mails Within The Exemp

C. The E-mails Are Also Beyond The Scope Of The Inter- An

Intra-Agency Exemption Because They Are Not Predecisio

Or Deliberative According To The Citys Own Description

II. MR. HERNANDEZ IS ENTITLED TO AN AWARD OFREASONABLE ATTORNEYS FEES AND COSTS PURSUANTO FOIL SECTION 89(4)(C) ........................................................

CONCLUSION .........................................................................................


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TABLE OF AUTHORITIES

CASES

Center for Auto Safety v. Dept of Justice,

576 F. Supp. 739 (D.D.C. 2002)............................................................

County of Madison v. United States Dept of Justice,

641 F.2d 1036 (1st Cir. 1981) ...............................................................

Data Tree, LLC v. Romaine,

9 N.Y.3d 454, 849 N.Y.S.2d 489 (2007). ..............................................

Dept of the Interior v. Klamath Water Users Protective Assn,

532 U.S. 1 (2001) ..................................................................................

Dow Jones & Co. v. Dept of Justice,917 F.2d 571 (D.C. Cir. 1990). ..............................................................

FBI v. Abramson,

456 U.S. 615 (1982) ..............................................................................

Gould v New York City Police Department,

89 N.Y.2d 267, 653 N.Y.S.2d 54 (1996) ...............................................

Gulf Ins. Co. v. Transatlantic Reinsurance Co.,

69 A.D.3d 71, 886 N.Y.S.2d 133 (1st Dept 2009) ...............................

Ho Myung Moolsan Co Ltd. v. Manitou Mineral Water, Inc.,

665 F. Supp. 2d 239 (S.D.N.Y. 2009) ...................................................

Lesher v. Hynes,

19 N.Y.3d 57, 945 N.Y.S.2d 214 (2012) ...............................................

Matter of Capital Newspapers Div of Hearst Corp v Whalen


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Matter of Newsday, Inc. v. Empire State Dev. Corp.,

98 N.Y.2d 359, 746 N.Y.S.2d 855 (2002) .............................................

In the Matter of Sea Crest Const. Corp. v. Commissioners of Public Wo

82 A.D.2d 546, 442 N.Y.S.2d 130 (2d Dept 1981) .............................

Matter of Town of Waterford v. New York State Dept of Envl Conserva

18 N.Y.3d 652, 944 N.Y.S.2d 429 (2012) .............................................

Matter of Westchester Rockland Newspapers v. Kimball,

50 N.Y.2d 575, 430 N.Y.S.2d 574 (1980) .............................................

Matter of Xerox Corp. v. Town of Webster,

65 N.Y.2d 131, 490 N.Y.S.2d 488 (1985) .............................................

Miller v. N.Y. State Dept of Trans.,58 A.D.3d 981, 871 N.Y.S.2d 489 (3d Dept 2009) ................................

Mothers on the Move, Inc. v. Messer,

236 A.D.2d 408, 652 N.Y.S.2d 773 (2d Dept 1997) ...........................

One Beekman Place, Inc. v. City of New York,

169 A.D. 2d 492, 564 N.Y.S.2d 169 (1st Dept 1991) ..........................

Pekelnaya v. Allyn,

25 A.D.3d 111, 808 N.Y.S.2d 590 (1st Dept 2005) .............................

People for the American Way Found. v. U.S. Dept of Educ.,

516 F.Supp.2d 28 (D.D.C. 2007)...........................................................

Ryan v. United States Dept of Justice,

617 F.2d 781 (D.C. Cir. 1980) ...............................................................

In re Shulman Transp Enter Inc


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TOA Const. Co., Inc. v. Tsitsires,

54 A.D.3d 109, 861 N.Y.S.2d 335 (1st Dept 2008) .............................

Tuck-it-Away Assocs., L.P. v. Empire State Dev. Co.,

54 A.D.3d 154, 861 N.Y.S.2d 51 (1st Dept 2008) ...............................

United States Dept of Justice v. Tax Analysts,

492 U.S. 136 (1989) ..............................................................................

STATUTES, RULES AND OTHER AUTHORITIES

New York Freedom of Information Law,

86(3) ....................................................................................................

87 ........................................................................................................

87(2) .................................................................................................... 87(2)(b) ...............................................................................................

87(2)(g) ...............................................................................................

89(4)(c) ...............................................................................................

New York State Education Law 3003(3) ...............................................

8 N.Y.C.R.R. Part 80-3.10(b)(3)(iii) .........................................................

Restatement (Third) of Agency 1, cmt. B (2006) ..................................


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PRELIMINARY STATEMENT

Nearly two years ago, Respondent Sergio Hernandez, a journa

request under New Yorks Freedom of Information Law, Pub. Off. Law

(FOIL), for e-mails sent and received between Appellant Office of the M

City of New York (the City or the Mayors Office) and Ms. Cathle

Black, who at the time of the request was Mayor Bloombergs nominee fo

New York City Schools Chancellor. The City denied the request on the

FOIL exemptions, the personal privacy exemption, Pub. Off. Law 87(2

exemption for inter-agency and intra-agency materials, Pub. Off. Law 8

the time Mr. Hernandez commenced this proceeding, the City had ab

privacy argument, and in opposing the Article 78 Petition asserted only th

intra-agency exemption to justify its withholding of communications b

Mayors Office and a private individual. Nearly one year ago, the trial c

the Petition and ordered the City to disclose the requested documents

characterized the Citys assertion of the inter- and intra-agency as

specious, since the exemption by definition involves communications

within governmental agencies, and Ms. Black was quite obviously not o


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litigating position has gone from specious to completely indefensible an

frivolous. It is inexplicable that the City did not withdraw its appeal. T

left to infer that the Cathie Black e-mails are so politically toxic that t

Office would rather litigate in defiance of the governing law than let the

the light of day.

In Town of Waterford, the Court of Appeals ruled that communicatio

a state agency and the federal Environmental Protection Agency (EPA

exempt from disclosure under the inter- and intra-agency exemption,

definition of agency under FOIL does not include federal agencies. E

the EPA was an agency in the ordinary sense, the fact that it did not fal

statutory definition of the term precluded application of the exemption.

further held that the state agencys policy justifications for protecting t

communications were of no significance, since the courts are required to

exemption as written. Finally, the Court rejected the argument that

consultant to the state agency, so as to come within the exemption, since a

state and federal agencies worked together toward the same goal on the

was the subject of the disputed communications, EPA was not re


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within the inter- and intra-agency exemption. That is the governing rule

and without more it disposes of the Citys appeal and requires affirmanc

Each one of the Citys arguments that attempt to get around this

which effects no change to existing law furthermore, was rejected by t

Appeals in Town of Waterford. This Court may not reverse the judgm

grounds that it would be good policy (according to the City) to shield the

mails so that prospective City employees can communicate candidly

prospective employing agencies, when such communications are plainly

scope of the exemption. And even if, as the City argues, Ms. Black can be

an agent of the Mayors Office a proposition devoid of factual support i

her communications are beyond the scope of the exemption since she

agency as defined in FOIL.

Finally, Town of Waterford forecloses the Citys argument that

should be considered a consultant for purposes of the inter- and in

exemption. Ms. Black was not retained by the City as a consultant, did no

a consultant or employee, and communicated with the Mayors Offic

advocate to advance her own interest in securing the Chancellor position


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The City has never had any reasonable basis to withhold the reque

on the basis of either of the FOIL exemptions it asserted in respo

Hernandezs FOIL request. Its appeal is now manifestly frivolous in ligh

Waterford. The City should be directed to release the e-mails immediat

Hernandez should be awarded his reasonable attorneys fees and cos

provides.

COUNTER STATEMENT OF QUESTION PRESENTED

Question: Has the City properly withheld, under the FOIL exe

predecisional inter-agency and intra-agency materials, e-mails between an

a private citizen, where the private citizen is not an agency as defined in

consultant retained by the withholding agency?

The Court below correctly answered No.

COUNTER STATEMENT OF FACTS

A. The Appointment of Cathleen Black as New York City Schools In November 2010, New York City Mayor Michael R. Bloomberg

the appointment of Cathleen P. Black to be the next chancellor of the C


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from the New York State Education Department a School Dist

certificate, pursuant to New York State Education Law 3003(3). (R.

that statute, the State Education Commissioner may issue the certificate

an individual to serve as Chancellor

to exceptionally qualified persons who do not meet all of

the graduate course or teaching requirements of subdivision

one of this section, but whose exceptional training and

experience are the substantial equivalent of such

requirements and qualify such persons for the duties of a

superintendent of schools.

N.Y. Education Law 3003(3).

The relevant regulation further required that the City make a forma

the State to issue the certificate, which had to include

the job description, its rationale for requesting such

certification of the individual, a statement identifying theexceptional qualifications of the candidate, the individuals

completed application for certification, vitae and official

transcripts of collegiate study.

8 N.Y.C.R.R. Part 80-3.10(b)(3)(iii). Mayor Bloomberg submitted his for

for the required certificate on November 17, 2010. (R. 44).

The State Education Department granted Ms. Black the requested c

November 29, 2010. (R. 45). She took office as Chancellor on January


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Schools Chancellor (April 7, 2011, 10:45

http://cityroom.blogs.nytimes.com/2011/04/07/cathie-black-is-out-as-ch

B. Mr. Hernandezs FOIL Request and Administrative AppealRespondent Sergio Hernandez is an independent journalist who w

for the Village Voices Runnin Scaredblog at the time of the C

controversy. (R. 21-22). On November 19, 2010, Mr. Hernandez submi

request seeking disclosure of all [e]-mail messages sent from or received

electronic mail accounts assigned to the Office of the Mayor to or from a

named Cathleen Prunty Cathie Black or e-mail addresses containing

hearst.com. (R. 22, 29-30) (the E-mails or the Black E-mails). Mr

asked the City to justify any withholding by reference to specific FOIL

and release all segregable portions of otherwise exempt documents. (R.

On November 30, 2010, Mr. Hernandez received a letter fro

acknowledging receipt of his request and informing him that he cou

decision within twenty days. (R. 35). After more than thirty days passe

response, on January 4, 2011, Mr. Hernandez questioned the Citys FOIL

the status of his request. (R. 35).


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On January 13, 2011, fifty-five days after Mr. Hernandez submitt

request, the City denied the request in its entirety. (R. 32). Without identi

the withheld documents by date or otherwise, the Mayors Offices d

simply asserted that all requested documents were withheld under Pub

87(2)(b) and 87(2)(g)FOILs exemptions for records that if disclo

constitute an unwarranted invasion of personal privacy, and records tha

inter-agency and intra-agency materials. (R. 32).

Mr. Hernandez promptly filed an administrative appeal on Januar

(R. 34-36). Citing Gould v New York City Police Department, 89 N.Y.2

275, 653 N.Y.S.2d 54, 56-57 (1996), Mr. Hernandez emphasized that

cannot categorically assert that its documents are exempt, as the Mayor

done, but rather must provide a particularized and specific justi

withholding requested documents. (R. 35). Mr. Hernandez further unde

because his FOIL request covered the period before Ms. Black became

Ms. Black was a private citizen and the requested e-mails between the Ma

and Ms. Black therefore could not constitute either inter-agency or in

communications. (R. 35-36).


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and inter- and intra-agency exemptions, Pub. Off. Law. 87(2)(b) and 8

failed to identify any specific documents or categories of documents that

withheld, and failed to explain how either of the claimed exemptions ap

specific email or category of e-mails. (R. 38).

C. The Trial Court ProceedingsMr. Hernandez timely filed an Article 78 Petition (the Petition)

the Citys failure to disclose the requested e-mails. (R. 19-26). The Peti

that the City violated FOIL by improperly withholding documents that

within either of the claimed statutory exemptions, and by failing to

particularized justification for the withholding as required by FOIL. (R. 2

Petition sought an order (i) directing the City to produce the requested doc

directing the City to provide a specific and particularized justification for

any document it asserted was exempt from disclosure; and (iii) aw

Hernandez reasonable attorneys fees and costs pursuant to Public Off

89(4)(c).

In response to the Petition, the City did not assert, as it had thro

administrative stage, that the E-mails were exempt from disclosure under


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assert the privacy exemption as a justification for withholding th

Accordingly, the Citys only asserted basis for withholding the e-mails b

Mayors Office and Ms. Black, then a private citizen, was the exemption f

intra-agency materials, Pub. Off. Law 87(2)(g). The Citys memoran

argued that this exemption should apply because Ms. Black was either

consultant to the City during the period before she became Chancellor.

The Citys only evidentiary submission in response to the Petit

Verified Answer (the Answer). (R. 40-49). The Answer did not

withheld e-mails in any fashion. (R. 40-49). Rather, the only factual de

the e-mails asserted that they fell into the following three categories: (i)

concerning clarification of Ms. Blacks background; (ii) discussion

proposed and actual contacts with various government officials and other s

regarding Ms. Blacks selection; and (iii) drafts of the letter to

Commissioner Steiner requesting a School District Leader certificate for

(R. 44).

In describing Ms. Blacks role in the Mayors effort to secure her a

to the Chancellor position, the Answer stated, upon information and bel


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expected to participate in and support these efforts, (R. 44), and that whil

was working in tandem with the Office of the Mayor in pursuit of a co

she did not act independently, but only on the advice and guidance from t

the Mayor. (R. 45). The City offered no other facts bearing on the

between Ms. Blacks efforts to secure her own appointment and thos

Bloomberg, and no facts to suggest that the Mayor exercised control over

conduct during the period before she assumed the Chancellorship.

D. The Trial Courts DecisionIn a memorandum decision and order dated November 23, 2011, th

granted the Petition and ordered the City to disclose the requested e-mai

days. (R. 6). Summing up the rationale for its rejection of the Citys arg

court determined that the City in this case has wholly failed to apply eith

declared by our Legislature or the dictates of our Court of Appeals. (R

The court concluded that the Citys invocation of the inter- and i

exemption was particularly specious, as [the exemption] by definitio

communications between or within governmental agencies. (R. 14). B

undisputed that Ms. Black and the Hearst employees were private citizen


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The court then rejected the Citys contention that Ms. Black and he

either consultants or agents of the City at the relevant time, determining th

the facts nor the law on agency support [the argument that Ms. Black a

were acting as de facto agents or consultants for the City]. (R. 14). Spec

court found that as a mayoral nominee Ms. Black was not bound to

Mayors behalf, and the Mayor had no basis to exert control over Ms. B

her appointment was confirmed. (R. 14). Rather, the Court held, M

cooperation with the Mayors Office served the interests of both partie

The Court determined that those facts do not constitute a princip

consultant relationship. (R. 14).

Finally, the court concluded that applying the inter-agency and i

exemption would not serve the policy behind the exemption

communications with people outside the agency are not considered

governments deliberative process, and their disclosure will not inhib

making within the government. (R. 15).3

RELEVANT STATUTORY BACKGROUND

FOIL requires agencies to make available for public inspection and


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Pub. Off. Law 87(2). The only exemption asserted by the City to

withholding of the documents requested by Mr. Hernandez is the exempti

agency or intra-agency materials, pursuant to which an agency may den

materials that:

(g) 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;iv.

external audits, including but not limited toaudits performed by the comptroller and

the federal government.

Pub. Off. Law 87(2)(g).

FOIL specifically defines the term agency as any state or

department, board, bureau, division, commission, committee, public auth

corporation, council, office or other governmental entity performing a go

or proprietary function for the state or any one or more municipalities the

the judiciary or the state legislature. Pub Off. Law 86(3).

In interpreting FOIL, New York courts may appropriately rely on f

interpreting the analogous federal Freedom of Information Act (FOIA


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945 N.Y.S.2d 214, 218 (2012) (ellipses in original; internal quotation mar

Tuck-it-Away Assocs., L.P. v. Empire State Dev. Co., 54 A.D.3d 154, 86

51, 57 (1st Dept 2008) (holding that federal case law is instructive wit

inter- and intra-agency exemption).

ARGUMENT

I. THE JUDGMENT SHOULD BE AFFIRMED BECAUSINTER- AND INTRA-AGENCY EXEMPTION DOES NOT A

THE MAYORS OFFICES COMMUNICATIONS WITH A

CITIZEN SUCH AS MS. BLACK

The Citys contention that the Black E-mails are exempt from discl

the inter- and intra-agency exemption is wrong and flies directly in the f

settled law. While the Citys invocation of this exemption has a

insupportable as both a legal and factual matter as the court below cor

the Citys arguments are now demonstrably frivolous in light of t

Appeals March 2012 decision in Town of Waterford v. New York Sta

Environmental Conservation, 18 N.Y. 3d 652, 944 N.Y.S. 2d 429 (20

case, the Court of Appeals squarely rejected the identical arguments the

here except in Town of Waterford the facts were stronger because th

disputed external communications were with a federal agency rather th


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consultant based on precisely the rationale Mr. Hernandez advances he

also precisely why the court below found the argument meritless with re

Black.

A. The City Bears The Burden Of Showing That The BlaFall Within The Inter- And Intra-Agency Exemption, W

All FOIL Exemptions Must Be Narrowly Construed

It is well settled that FOIL is based on the overriding policy consid

the public is vested with an inherent right to know and that official

anathematic to our form of government. Matter of Capital Newspap

Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252, 513 N.Y.S.2d 367, 370 (1

FOIL is to be liberally construed so that the public is granted maximum a

records of government. Id; see also Matter of Newsday, Inc. v. Empire

Corp., 98 N.Y.2d 359, 362, 746 N.Y.S.2d 855, 856 (2002) (As we have

noted, FOILs declared purpose of ensuring open government require

disclosure provisions an expansive interpretation.);Dept of the Interior

Water Users Protective Assn, 532 U.S. 1, 8 (2001) (FOIAs limited exe

not obscure the basic policy that disclosure, not secrecy is the dominant

the act).


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of Waterford, 18 N.Y.3d at 657, 944 N.Y.S.2d at 431. To meet that

agency must articulate a particularized and specific justification fo

access. Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 463, 849 N.Y.S.2

(2007). If the agency fails to prove that a statutory exemption applies, FO

disclosure, not concealment. Id. (citingMatter of Westchester Rockland N

v. Kimball, 50 N.Y.2d 575, 580, 430 N.Y.S.2d 574, 577 (1980)).

While FOILs disclosure requirements are to be broadly co

exemptions must be narrowly interpreted. Matter of Fedn of New Yor

& Pistol Clubs, Inc. v. New York City Police Dept., 73 N.Y.2d 92, 96, 53

226, 228 (1989); United States Dept of Justice v. Tax Analysts, 492 U.

(1989) (Consistent with the Acts goal of broad disclosure, these exem

been consistently given a narrow compass). Application of these

interpretive principles ensures that the public is granted maximum ac

records of government. Town of Waterford, 18 N.Y.3d at 657, 944 N.Y.

B. The Court of Appeals Decision in Town of WaterfordRAffirmance

The City has failed to meet its burden of demonstrating that the r

mails fall squarely within the ambit of the inter and intra agency exemp


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new category of communications not covered by the exemption: those b

agencies and their prospective appointees. (See City Br. at 9-14). In a

City argues that the E-mails are covered by the exemption because Ms

acting as either the Citys agent or its consultant. Each argument is fo

Town of Waterford.

1. Withholding Of The Black E-mails Cannot BThrough Policy Arguments When The

Indisputably Lie Beyond The Scope Of The Inter

Agency Exemption As Written

In Town of Waterford, a municipality sought disclosure und

documents exchanged between the New York Department of Env

Conservation (DEC) and the federal EPA relating to remediation of P

Hudson River, a project that was affecting the towns water supply. Id., 1

655, 944 N.Y.S.2d at 430. DEC resisted disclosure based on the i

exemption, arguing that because EPA was an agency under the plain me

term, any communications between DEC and EPA were exempt from disc

FOILs inter- and intra-agency exemption. Id.

The Court of Appeals rejected the argument and concluded tha

failed to meet its burden of showing that the communications between DE


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meritless DECs argument that the definition of agency should not b

the statutory phrases inter-agency and intra-agency. 18 N.Y.3d

N.Y.S.2d at 431. It necessarily followed that because by its plain terms t

definition [of agency] does not include federal agencies, but rather is lim

and municipal entities, the disputed communications were not prot

disclosure. Id.

The Court thus rejected the notion that an agency for purp

exemption could be something other than FOILs statutory definition of th

if the proposed non-statutory definition was consistent with the com

meaning of an agency

Although the EPA would be an agency within the definition

of that term as it is commonly understood, that fact is of no

assistance to respondent when the term is clearly defined inthe statute. Since the EPA is not an agency for purposes

of FOIL, the inter-agency exemption does not apply to

materials exchanged between these entities.

Id. The City therefore has it precisely backward in arguing that courts h

a functional, or common sense approach to the definition of intra-agency,

9, for which it cites Town of Waterford, a case holding exactly to the contr


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Because the Court concluded that the inter- and intra-agency exem

be interpreted as written, it also had no difficulty in rejecting DECs ar

policy considerations demanded protection of the materials exchanged be

and DEC. As the Court explained, to the extent that there is reson

argument that the exemption should apply in order to protect the pre-dec

deliberative process, that issue must be addressed to the Legislature. Id.

at 657, 944 N.Y.S.2d at 431.

Town ofWaterfordreadily disposes of the Citys arguments on

Under FOILs definition of the term, an [a]gency means any state o

department, bureau, division, commission, committee, public autho

corporation, council, office, or other governmental agency performing a go

or proprietary function for the state or any one or more municipalities the

the judiciary or the state legislature. N.Y. Pub. Off. Law 86(3). It is

that Ms. Black and other Hearst employees were both (i) private indivi

time of the communications at issue, and (ii) not among the entities desc

statutory definition. Accordingly, none was an agency within the meani

and communications between the Mayors Office and Ms. Black or


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Town of Waterfordalso makes clear that the Citys views concernin

benefits of creating a new communications with high-level nominees ex

irrelevant, as a matter of law, to the question whether the E-mails may

withheld under the inter- and intra-agency exemption. According to th

disclosure would discourage candidates from considering [high-level] p

fear of disclosure of their candid communications, and [e]xpose the deli

agency personnel to second-guessing. (City Br. at 14). But the Court

rejected the States analogous policy arguments for extending the exe

different category of communications which, like the Black E-mails, fell

plain terms of the exemption. Its rationale is controlling here: these kin

arguments for extending the exemption as written must be addre

Legislature. Town of Waterford, 18 N.Y. 3d at 657, 944 N.Y.S.2d at 4

This has long been the rule courts have applied to repeatedly reje

arguments for withholding documents based on policies they believe wo

are not reflected in the statute. See Klamath, 532 U.S. at 15-16 (refusin

Indian Trust exemption into the federal FOIA statute because [t]here

support for the exemption in the statutory text, which we have elsewhere


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stifle consent decree negotiations. These factors, however, are for leg

judicial concern.); County of Madison v. United States Dept of Justic

1036, 1041 (1st Cir. 1981) (requiring that sound policy argument

appealing, be grounded in a reading of statutory language that fairly recon

than simply ignores the FOIAs phrasing). In short, the enactment o

FOIL established a system of categorical exclusions and required disclos

not invite a judicial weighing of the benefits and evils of disclosure on a c

basis. FBI v. Abramson, 456 U.S. 615, 631 (1982).

Consequently, whatever one thinks of the Citys policy arguments, t

no basis, as a matter of law, for this Court to hold that the Black E-

properly withheld under the inter- and intra-agency exemption. An

important policies underlying the inter- and intra-agency exemption as

Citys appeal to such considerations,see City Br. at 9, 14, is also misplac

as the lower court concluded, communications with people outside the ag

considered part of the governments deliberative process, and their disclo

inhibit decision-making within the government. (R. 15).4

4 For this reason the Citys citation of One Beekman Place Inc v City of New York 169 A


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2. Ms. Black Was Not A Consultant To the Mayors OFactual Or Legal Matter

The Citys other principal argument that the requested e-mails a

because Ms. Black was acting as a consultant to the Mayors Office is b

factual basis in the record and is foreclosed by Town of Waterford a

Supreme Courts decision interpreting the analogous FOIA exemption in

of the Interior v. Klamath Water Users Protective Association, 532 U.

Ms. Black was never retained by the City as a consultant, did not fulfill the

a consultant or employee, and corresponded with the Mayors Offic

advocate in her own interest. As a matter of law, therefore, she was not

within the meaning of the inter- and intra-agency exemption.

Under the consultant corollary to the inter- and intra-agency

records may be considered intra-agency material even though prep

outside consultant at the behest of an agency, if the records are prepared

agencys deliberative process by the outside consultants retained by

Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131,133, 490 N.Y

490 (1985);see also Klamath, 532 U.S. at 11 (some Courts of Appeals ha

in some circumstances a document prepared outside the Government may n


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944 N.Y.S.2d at 432 (observing that the work product of consultants

agencies may be exempt from disclosure under FOIL when their reports

for the same purpose as reports by employees).

In Town ofWaterford, DEC argued that the collaborative efforts o

EPA and state DEC made the EPA the equivalent of an outside consultan

Waterford, 18 N.Y.3d at 658, 944 N.Y.S.2d at 432. The Court rejected th

It concluded that because DEC had not retained EPA as a consultant it co

consultant: EPA was not retained by the DEC and does not function as i

or agent. Id. In addition, the Court of Appeals found determinative t

unlike typical consultants, these agencies represent different constituenc

interests may diverge. Id.

In so holding the Court of Appeals relied on the U.S. Supreme Cour

inKlamath, 532 U.S. at 10-11. In that case, a federal agency, the Bure

Affairs (BIA or the Bureau), argued that its consultations with the Kla

Tribe fell within FOIAs inter-agency exemption because the Tribe was

consultant or agent of the BIA. The Supreme Court disagreed and h

consultant corollary can only apply where the purported consultant


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deliberation as documents prepared by agency personnel

might have done. To be sure, the consultants in these cases

were independent contractors and were not assumed to besubject to the degree of control that agency employment

could have entailed . . . But the fact about the consultant

that is constant in typical cases is that the consultant does

not represent an interest of its own, or the interest of any

other client, when it advises the agency that hires it. Its

only obligations are to truth and its sense of what good

judgment calls for, and in those respects the consultantfunctions just as an employee would be expected to do.

Id. at 11.

By contrast, the consultant corollary is inapplicable where th

consultant is representing its own interests, such as the Klamath T

potentially at the expense of others:

The Tribes, on the contrary, necessarily communicate with

the Bureau with their own, albeit entirely legitimate

interests in mind. While this fact alone distinguished tribalcommunications from the consultants examples recognized

by the several Courts of Appeals, the distinction is even

sharper, in that the Tribes are self-advocates at the expense

of other seeking benefits inadequate to satisfy everyone.

Klamath, 532 U.S. at 12. Thus, the outside partys acting in its own inter

the City erroneously argues, merely a factor to be balanced in assessing

outside party is acting as a consultant to an agency,see City Br. at 16, but


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Ms. Black was the Mayors nominee for the Schools Chancellor

consultant retained by the City. (R. 43). There is not an iota of record ev

she was retained by the City as a consultant to promote her own candid

regard to her own interest in obtaining the position, and indeed such an a

would be implausible and absurd if not unethical. She was not retained by

a consultant, not paid by the City to be a consultant, and as a nomi

Chancellor position, did not function as the Citys employee or agent

Waterford, 18 N.Y.3d at 658. For this reason, In the Matter of

Construction Corp. v. Commissioners of Public Works, 82 A.D.2d 546, 44

130 (2d Dept 1981), cited by the City,see City Br. at 20, is totally inappo

that case there was a contract between the agency and the outside party in

latter was designed a consultant. Id., 82 A.D.2d at 547, 442 N.Y.S.2d

The fact that the E-mails are claimed to show that Ms. Black was

tandem with Mayor Bloomberg in pursuit of a common goal does not

retained consultant, as the trial court correctly found. (R. 14). Indee

exactly the relationship that the Court of Appeals concluded, in Town of

did not make the federal EPA a consultant to DEC as DEC had argued A


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and DEC did not make EPA a consultant to DEC, they fail to make M

consultant to the City here.

b. In Communicating With The Mayors OfficeWas Acting In Her Own Interest To Promot

Candidacy For High City Office

Not only was Ms. Black not retained as a consultant to the Ci

undeniably acting in her own interest in communicating with the Mayor

matters relating to her nomination, even if her interest coincided with t

interest in seeing her obtain the Chancellor position. That fact alone also

finding that she was a consultant for purposes of the inter- and i

exemption. Like the tribes inKlamath, Ms. Black sought a benefit app

a high-ranking position in City government necessarily at the expen

applicants for the same benefit. If she was successful in becoming Chan

potential nominees for the position would not be appointed. And like

Town of Waterford,see 18 N.Y. 3d at 658, she represented a different c

than the Mayors Office did the constituency of herself and her candid

Chancellorship. Thus, even if Ms. Black and the Mayors Office sha

interest in securing Ms. Blacks appointment, Ms. Blacks evident sel


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Ms. Blacks self-interest in obtaining the Chancellor position distin

role from that of the entities held to be consultants in the remaining cases

City, Tigue v. United States Dept of Justice, 312 F.3d 70 (2d Cir. 2002),

Department of Justice, 617 F.2d 781 (D.C. Cir. 1980). In Tigue, the Sec

held that a task force convened by the Internal Revenue Service (IRS) to

effectiveness of the agencys Criminal Investigations Department was

consultant to the IRS when it requested from United States Attorn

(USAO) the disputed document, a memorandum outlining the USAO

and recommendations as to how the [IRS] should conduct criminal tax inve

Id. at 73. The court reasoned that the task force functioned as a consultan

was not acting on its own behalf in requesting the memorandum, bu

request to assist [the IRS] with developing policy recommendations re

CID. Id. at 78. That is remote from the position of Ms. Black, w

communicating with the Mayors Office to provide disinterested advice,

in her transition to City government (R. 44), i.e., in the promotion

candidacy.

Finally, even in the sui generis caseRyan v. Department of Justic


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the Department of Justice as part of a policy making process and had

interest in the Department of Justices deliberations.5

Id. at 798.

3. Even If Ms. Black Was An Agent Of The MayorWhich She Was Not That Would Not Mak

Agency For Purposes Of The Inter- And Int

Exemption So As To Bring The Requested E-ma

The Exemption

The Citys final argument, that the requested e-mails are exempt b

Black was an agent of the Mayors Office in communicating with the May

see City Br. at 18-19, is also plainly foreclosed by Town of Waterford. A

above, in that case, even a federal agency was held not to be an agency f

of the inter- and intra-agency exemption because a federal agency does no

FOILs statutory definition of agency. See supra at 24. Since a privat

nominated for a City job also does not fall within FOILs definition of

necessarily follows, from the holding in Town of Waterford, that the e-ma

Ms. Black and the Mayors Office are not within the inter- and i

exemption, without regard to whether Ms. Black can be characterized as

5Since the Supreme CourtsKlamath decision, courts have recognized thatRyan at m

the outer limit of the inter-agency exemption. See, e.g., People for the American Way FDept of Educ., 516 F.Supp.2d 28, 37 (D.D.C. 2007) (noting that whileKlamath did


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the Mayors Office. The court need go no further than that to rejec

nominee-as-agency argument.

Still, the trial court was undeniably correct in concluding that

characterization of Ms. Black as an agent of the City is [w]holly devoi

(R. 14). As the City recognizes,see City Br. at 19, common law agency

a manifestation of consent by one person to another that the other shal

behalf and subject to his control, as well as from the consent of the o

Gulf Ins. Co. v. Transatlantic Reinsurance Co., 69 A.D.3d 71, 96, 886 N.

152 (1st Dept 2009) (citation omitted);see also Restatement (Third) of A

cmt. B (2006). The principals control over the agent is essential to esta

existence of such a relationship. See, e.g., Pekelnaya v. Allyn, 25 A.D.

N.Y.S.2d 590 (1st Dept 2005) (It is well settled that a principal-agency

exists where on retains a degree of direction and control over the oth

Shulman Transp. Enterprises, Inc., 744 F.2d 293, 296 (2d Cir. 1984) (A

characteristic of an agency relationship is that the agent acts subject to the

direction and control); see alsoHo Myung Moolsan Co Ltd. v. Mani

Water, Inc., 665 F.Supp.2d 239, 258 (S.D.N.Y. 2009) (agency exists


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covered by the E-mails, i.e., before Ms. Black became Chancellor. The Ci

states that during this period Ms. Black acted on advice and guidance from

of the Mayor (R. 45); that the E-mails show (if we are to take the Citys

that Ms. Black and her staff were working in tandem with the Office of t

pursuit of a common goal (R. 45) (emphasis added); that the parties effo

be coordinated through the Office of the Mayor (R. 44); and that Ms. B

be expected to participate in and support these efforts. (R. 44) (emph

None of these factual assertions reflects or even suggests that the Mayor h

control Ms. Blacks activities. The Court should not be misled by

misrepresentation of these pages as stating that Ms. Black acted at the

the Mayor, City Br. at 19 (emphasis added); there is no such statement in

nor could there be given Ms. Blacks status as a nominee rather than an a

the Chancellor position.

Based on the foregoing evidentiary facts that actually do appear in

the court below correctly found that as a mayoral nominee Ms. Black wa

to act on the Mayors behalf, and the Mayor had no basis to exert contr

Black before her appointment was confirmed. (R. 14). There is no bas


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(R. 14). In short, while there is no legal consequence to be drawn from

argument that Ms. Black acted as the Mayors agent that could bring th

mails within the inter- and intra-agency exemption, the necessary factua

the argument is non-existent.

C. The E-mails Are Also Beyond The Scope Of The Inter- Agency Exemption Because They Are Not PredecDeliberative According To The Citys Own Description

Ms. Black was not an agency and did not function as a consultant

The Court need go no further to affirm the trial courts judgment. But

also fall beyond the inter- and intra-agency exemption because they are

decisional nor deliberative. The City does not even bother to expla

documents it describes could meet that standard.

To fall within the inter- and intra-agency exemption, a document m

decisional, which means it must be prepared to assist the policy maker i

decision and it must be deliberative, which means actually related to the

which policy is formulated. Tuck-It-Away, 54 A.D.3d at 161, 861 N.Y

There is no basis in the record to support the claim that the E-mails form

governmental pre-decisional deliberative process.


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respond to routine queries that are customary for high-level mayoral app

engage in outreach planning to the community. (R. 44). On that basis

court correctly recognized, the e-mails presumably do not relate t

Education Departments actual deliberative process in deciding whether

Black the request waiver. (R. 15).

The Citys suggestion that the Black E-mails are inter-agen

reflecting the deliberative process underlying the Certificate request, C

(emphasis added), is beside the point, and attempts to obscure the issue. T

preparation of his formal request to the State Education Commission is

decision, and the Citys attempt to collapse the Mayors requestfor t

certificate into the State Education Commissioners decision in response to

is a sleight of hand that does not work. The E-mails were never sent to Co

Steiner; they were between Ms. Black, a private citizen, and the City.

could not have been deliberative or pre-decisional within the mean

exemption, and certainly not with respect to the State Education Com

decision in response to the Mayors request. See Miller v. N.Y. State Dep

58 A.D.3d 981, 984, 871 N.Y.S.2d 489, 493-94 (3d Dept 2009) (comm


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II. MR. HERNANDEZ IS ENTITLED TO AN AWARD OFREASONABLE ATTORNEYS FEES AND COSTS PUR

TO FOIL SECTION 89(4)(C)

While the City filed its Notice of Appeal before the court below c

Mr. Hernandezs claim for reasonable attorneys fees and costs (

impediment exists to this Court determining Mr. Hernandezs entitlemen

award under Public Officers Law 89(4)(c). The appropriateness of an a

and costs is a legal question that this Court can, and should, answer b

record before the Court. If the Court agrees that Mr. Hernandez is entitle

award, the matter can be remanded to the trial court for a determina

appropriate amount.

FOIL provides for an award of reasonable attorneys fees and oth

costs to a party that has substantially prevailed in an Article 78 procee

(i) the agency had no reasonable basis for denying access, or (ii) the ag

to respond to a request or appeal within the statutory time. Pub. Off

89(4)(c). If ever there were a poster child for an agency withholding

without a reasonable basis for doing so, this case is it. The City

unreasonable invocation of the privacy and inter- and intra-agency exem


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worked together to pitch and build support for her nomination is precisely

information that FOIL was meant to remove from the proverbial smoke

room and bring to light.

First, there has never been any reasonable basis for the City to

communications between Ms. Black and the Mayors Office are covered

and intra- agency exemption. She is manifestly not an agency as FOIL

term, so communications involving her cannot come within the inter- and i

exemption under the plain language of the statute. For this reason, it is

that records which consist of communications with people outside the

not part of the governments deliberative process, and fall outside the

Miller, 58 A.D. 3d 981, 984-85, 871 N.Y.S.2d at 494. The City should ha

as much when Mr. Hernandez made his request, and turned over the E-m

There is also no factual or legal basis to argue that this case come

consultant corollary to the exemption, in light of the seminal U.S. Suprem

on the subject,Klamath Water Users Protective Association, 532 U.S. at

Black (a) was never retained as a consultant by the City, (b) did not fun

capacity of a consultant, and (c) joined in the Mayors efforts to


40/43

factual attributes of a consultant under this doctrine. While Town of

underscores the frivolity of the argument, it was insupportable based on

the facts when Mr. Hernandez made his November 2010 FOIL request,

court correctly recognized.

Second, the argument that communications from and to Ms. Black a

by the inter- and intra-agency exemption based on her supposed status a

of the Mayor are equally lacking in any reasonable basis. At the outset

factual basis for this argument since the Citys only evidentiary subm

conspicuously devoid of any facts showing that the Mayor had a basis to

Blacks activities in the period before she was a City employee, as would b

to establish a principal-agent relationship. Moreover, even if Ms. Bla

deemed an agent of the Mayors Office, that does not make her an agen

bring her within the exemption.

Finally, the City effectively conceded that there was no reasonable

assertion of the personal privacy exemption (R. 32, 38), Pub. Off. Law

abandoning the argument after Mr. Hernandez filed his Article 78 Petition

no colorable basis to assert the privacy exemption over e-mails between


41/43

not remotely the kind of intimate, private information the disclosure of w

be offensive to a reasonable [person] of ordinary sensibilities. Mot

Move, Inc. v. Messer, 236 A.D.2d 408, 410, 652 N.Y.S.2d 773, 775 (2d D

Nonetheless, the Citys invocation of the privacy exemption at every

administrative process forced Mr. Hernandez to brief the issue in the lowe

to have the City abandon the argument in response.

In sum, there has never been any reasonable basis for the City to de

the Black E-mails. Rather, the City has multiplied the proceedings an

demonstrably insupportable arguments to delay disclosure of commun

Mayors Office would prefer to keep secret. An award of Mr. Hernandez

attorneys fees and costs is therefore appropriate.


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43/43

respondent's brief (hernandez)

Documents