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New York Committee for Occupational Safety and Health v. Bloomberg

January 7, 2010

IN RE NEW YORK COMMITTEE FOR OCCUPATIONAL SAFETY AND HEALTH, PETITIONER-APPELLANT,
v.
MICHAEL BLOOMBERG, AS MAYOR OF THE CITY OF NEW YORK, ET AL., RESPONDENTS-RESPONDENTS.



Petitioner appeals from an order of the Supreme Court, New York County (Eileen A. Rakower, J.), entered February 28, 2008, which denied the petition brought pursuant to CPLR article 78 challenging the denial by respondents of petitioner's Freedom of Information Law request for certain documents, and granted respondents' cross motion to dismiss the proceeding.

The opinion of the court was delivered by: Mazzarelli, J.P.

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 Official Reports.

Angela M. Mazzarelli, J.P., David Friedman, James M. Catterson, Dianne T. Renwick, Sheila Abdus-Salaam, JJ.

113393/07

Petitioner New York Committee for Occupational Safety and Health (NYCOSH) is a not-for-profit corporation comprised of, among others, 175 local trade unions and various health and safety activists. Its stated mission is to ensure workplace safety for all workers in the State. In May 2007, NYCOSH served a Freedom of Information Law (FOIL) request on the office of the New York City Mayor. It sought all records transmitted in 2006 to the Mayor by City agencies pursuant to Administrative Code of the City of New York section 12-127 (c)(1) and (2) (also known as Local Law 41 of 2004). Section 12-127 (c)(1) provides that: "Each agency shall keep a record of any workers' compensation claim filed by an employee, the subject of which concerns an injury sustained in the course of duty while such employee was employed at such agency. Such record shall include, but not be limited to, the following data: (i) the name of the agency where such employee worked; (ii) such employee's title; (iii) the date such employee or the city filed such claim with the appropriate office of the state of New York, if any; (iv) the date the city began to make payment for such claim, or the date such claim was established by the appropriate state office and the date the city began to make payment for such claim pursuant to such establishment, if any; (v) the date such injury occurred; (vi) the location at which such injury occurred; (vii) the nature of such injury, including, but not limited to, the circumstances of such injury, the type or diagnosis of such injury and a description of how such injury occurred; (viii) the length of time such employee is unable to work due to such injury, if any; and (ix) a list of any expenses paid as a result of such claim, including, but not limited to, expenses relating to wage replacement, medical costs, administrative costs and any penalties." Section 12-127 (c)(2) requires each agency to transmit the workers' compensation records required to be maintained by section 12-127 (c)(1) to the Mayor.

Administrative Code section 12-127 (c)(3) requires that the Mayor create an annual report based on the records he receives pursuant to section 12-127 (c)(2). The section requires the annual report to analyze the expenses paid by each agency in connection with each workers' compensation claim; list the specific workers' compensation claims for each agency and the City as a whole; list the specific sites where injuries occurred for each agency and for the City as a whole; and provide year-to-year comparisons of the compiled information. In response to NYCOSH's request, the Mayor's office provided its 2006 annual report prepared pursuant to Administrative Code section 12-127 (c)(3). The Mayor's office did not, however, produce the requested information; that is, the raw data which the Mayor was required to use to prepare the report. NYCOSH took an administrative appeal from the Mayor's response. In denying it, the appeal officer wrote that the Mayor's office was "not in possession of any documents responsive to your request beyond" the annual report. However, the denial letter advised NYCOSH that the City's Law Department maintains records of workers' compensation claims on behalf of the Mayor and referred NYCOSH to the Law Department for additional information.

NYCOSH then served a FOIL request on the Law Department seeking the same documents as in the initial request to the Mayor's office. The Law Department denied the request, stating in a letter that it "does not maintain a comprehensive data base of the information described by the section of the Administrative Code cited in your letter nor is this agency otherwise in possession of such a record." NYCOSH appealed to the Law Department and was again denied relief. In the denial letter, the Law Department's appeals officer represented that the Department did not "receive or maintain a record that contains all of the information listed in [Administrative Code section 12-127 (c)(1)]" and that FOIL did not require it to "create a record that does not already exist." The letter further stated that it was the appeals officer's "understanding that there are fifteen thousand to sixteen thousand [workers compensation] claims filed each year" and that information regarding such claims "is gathered into a litigation case file for each individual claim."

NYCOSH commenced this article 78 proceeding to require the Mayor's office and the Law Department to produce the documents requested in its two FOIL requests. It also sought its reasonable attorneys' fees.

Respondents moved to dismiss the petition. The Mayor's office asserted that it could not respond to the FOIL request beyond producing the annual report, because it had delegated the responsibility for collecting information and preparing the report to the Law Department. The Law Department submitted the affidavit of Youssef Sidhom, the Director of Administration for its Workers Compensation Division. Sidhom stated that he was "aware of all of the records maintained by the [Workers Compensation Division] and the current maintenance of its electronic filing system." He stated that he "conducted a thorough, reasonable and diligent agency- wide search for responsive paper and electronic records and there is no one responsive record which contains the information [NYCOSH] seeks. Rather, as described below, the requested information is stored electronically in a database, or is otherwise found within individual case files and would be overly burdensome to produce."

Sidhom then recounted how workers compensation claim information is received, stored and retrieved by the Law Department. He stated that of the approximately 16,000 claims received annually, 60% are submitted electronically. Those are "input in the City's workers' compensation system," which then "interfaces with certain City-wide computer systems, extracts certain data from those systems, and then downloads the desired information into the New York City Law Department Workers' Compensation Division's internal computer system, known as GenIRIS.'" Sidhom explained that "[t]he GenIRIS system is comprised of a database which houses ten separate units. In order to compile the requested information, special programs need to be designed and run to extract the information from each unit separately and consolidated into one report." Of the claims which are submitted in paper form, Sidhom asserted that the forms are first placed in a file prepared for each claimant, and then the relevant information is entered into the GenIRIS database.

Sidhom next discussed how the annual report is created. He stated that "[the] report is prepared using a series of complex programs and formulas, and time-consuming reviews designed to retrieve the required information from each of the ten separate units that comprise GenIRIS. This data is then compiled (with like-information being combined), sorted and formatted."

Finally, Sidhom explained what would have to be done to comply with NYCOSH's FOIL request. He stated that: "[N]ew reports and commands would need to be designed with respect to each category of information. Indeed, as some of this information (such as length of time an employee misses from work and the date the City began to make payment for such claim) is stored in a different location other new formulas would likely have to be written to extract the required data from each of GenIRIS's ten units, and then compiled, sorted and formatted. The completion of such a project would be a time-consuming effort and disruptive of the Workers' Compensation Division's operations.

"Thus, in order to comply with [NYCOSH]'S FOIL [r]equest, Respondents would be required to review and photocopy documents from some 16,000 files, or prepare special reports, as described above, to extract the required information. Moreover . . . as the requested information is contained within workers' compensation files, disclosure of such information would constitute ...


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