The opinion of the court was delivered by: Richard M. Platkin, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Petitioner Christine Benedict moves, by Order to Show Cause, for an order and judgment directing respondents to provide her with the opportunity to review, inspect and copy any and all correspondence from Richard Arthur of the Office of the Albany County District Attorney to the Office of the County Comptroller. Respondent P. David Soares, the District Attorney of Albany County, cross-moves to dismiss the Verified Petition.
On April 29, 2008, petitioner, the Minority Leader of the Albany County Legislature, filed a request with respondent Albany County pursuant to the Freedom of Information Law ("FOIL") seeking "to review any and all correspondence from Richard Arthur of the District Attorney's office to the Office of the Albany County Comptroller." The Office of the Albany County Clerk ("County Clerk") referred petitioner's request to the Office of the Albany County District Attorney ("District Attorney"). By letter dated May 20, 2008, the County Clerk forwarded to petitioner a letter from the District Attorney, dated May 19, 2008, stating that petitioner's request "is being denied pursuant to Public Officers Law § 87 (2) (g)," a reference to the FOIL exemption for inter-agency materials.
On June 10, 2008, petitioner appealed the denial of her FOIL request to the Hon. Bryan Clenanhan, the Chair of the Albany County Legislature's Law Committee and the designated FOIL Appeals Officer for the County of Albany. By letter dated June 20, 2008, the FOIL Appeals Officer provided the following response to petitioner:
I write in response to [the appeal of your] denial of the April 29th request for access to records of the District Attorney. The D.A. responded by letter dated May 19th asserting, without specifics, a blanket invocation of one statutory exemption. No records have been provided for this review.
It is settled that blanket denials are inconsistent with FOIL and indicate a failure to comply with judicial authority. Comm. On Open Government FOIL-AO-16659; 12579. Accordingly, the records should be disclosed in this matter.
As FOIL Appeals Officer, I do not have authority to enforce compliance. By copy of this letter to the D.A. staff it is urged that all steps be taken by that office consistent with law.
Petitioner alleges that on June 23, 2008, the District Attorney sought reconsideration of this determination. The District Attorney provides a somewhat different characterization of this request, directing the Court's attention to a letter of the same date from his Office to the County Clerk purporting to "supplement [the] prior denial letter of May 19, 2008." The letter goes on to state that[t]he communications and correspondence between Richard Arthur and the Albany County Comptroller consist of intra-agency inquiries and requests for guidance on various topics of concern to their respective departments. These are communications that are a part of the preliminary discussions necessary to conduct business. As such, they are clearly exempt from disclosure . . . [as] intergency materials which are not final agency policy or determinations. . . . I hope this further clarification of our position, which is in no way solely a blanket denial, is sufficient.
According to petitioner, on or about August 23, 2008, the FOIL Appeals Officer indicated to her, apparently orally, that he adhered to his prior determination and the District Attorney's request to withhold the records was denied. Nonetheless, respondents have not provided petitioner with copies of the records responsive to her FOIL request.
By Verified Petition dated October 14, 2008, brought on by Order to Show Cause dated October 17, 2008, petitioner now seeks an order and judgment directing the District Attorney to provide petitioner with access to any and all correspondence from Richard Arthur of the District Attorney's Office to the Office of the Albany County Comptroller ("County Comptroller"). Petitioner also seeks an award of costs and attorney's fees. In response, the District Attorney filed a pre-answer motion to dismiss the petition. This Decision & Order follows.
In moving for dismissal of the petition, the District Attorney first argues that petitioner has failed to exhaust her administrative remedies and that there has been no final agency determination in this matter. According to the District Attorney, petitioner has made no effort, beyond her initial FOIL request, to obtain the requested records from the County Comptroller, despite the fact that her initial FOIL request indicated that the Comptroller may also possess responsive records. Thus, "[b]ecause the complaining party did not follow up on her request that the Albany County Clerk's Office obtain these records from the Albany County Comptroller's Office, or appeal from any constructive denial of her request by that agency, ...