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New York Times Co. v. New York State Executive Chamber

Supreme Court, Albany County

July 6, 2017

The New York Times Company, JESSE McKINLEY and VIVIAN YEE, Petitioners,
New York State Executive Chamber, Respondent.

          THE NEW YORK TIMES LEGAL DEPARTMENT Attorneys for the Petitioners

          GREENBERG TRAURIG, LLP Attorneys for the Respondent

          PATRICK J. McGRATH, Supreme Court Justice

         In 2015, the United States Attorney's Office for the Southern District of New York (hereinafter "USAO") commenced a grand jury investigation that either initially or over time focused on State economic development initiatives commonly known as the Buffalo Billion and the Nano Economic Development Program. In connection therewith, the USAO served a grand jury subpoena on the Executive Chamber on April 28, 2016, demanding the production of records. Todd R. Howe (a lobbyist who had worked for now Governor Cuomo before he was elected) and Joseph Percoco (former executive deputy secretary to Governor Andrew Cuomo) were subjects of the investigation.

         Percoco and eight co-defendants were charged via criminal complaint on September 20, 2016, and indicted November 22, 2016, accused of various corruption, extortion, bribery and fraud offenses which are the subject of the Buffalo Billion/Nano investigation. On December 21, 2016, United States District Court Judge Valerie E. Caproni signed a Protective Order on Consent, binding on all parties, prohibiting disclosure to the public, including members of the media, of specified "disclosure material" produced by the USAO to defendants. The Executive Chamber itself is not a named party in the indictment.

         On September 20, 2016, Howe plead guilty to committing various federal crimes in connection with matters that were and are the subject of the Buffalo Billion/Nano investigation. On September 22, 2016, the USAO announced that Howe is cooperating with the government.

         The New York Attorney General (hereinafter "NYAG") has also conducted a bid-rigging criminal investigation in coordination with the USAO and the Federal Bureau of Investigation. On September 22, 2016, the NYAG instituted a criminal proceeding via felony complaint that overlaps with the Buffalo Billion/Nano federal investigation and judicial proceedings. The State complaint does not charge anyone named in the FOIL requests, but does name one of Percoco's co-defendants in the federal indictment.

         On June 3, 2016 and July 12, 2016, Petitioner made requests to the Executive Chamber pursuant to the Freedom of Information Law ("FOIL") seeking the following information:

1) Any email correspondence between State Operations Director Jim Malatras and Todd R. Howe between the dates of January 1, 2011 and June 1, 2016.
2) Daily schedules for the years 2011, 2012, 2013, 2014 and 2015 for Joseph Percoco, as well as calendars kept by secretaries, aides and schedulers.
3) Any and all records pertaining to Percoco's return to the Executive Chamber in 2014 (Percoco left his position as aide to the Governor in April 2014 to run the Governor's re-election campaign, and returned to his government post in late 2014).
4) Any emails from Percoco and various members of the Executive branch staff between the dates of January 1, 2014 through January 8, 2016, including Jim Malatras; Former Deputy Director of State Operations for Policy Andrew Kennedy; and Secretary to the Governor William Mulrow.

         Between August 8, 2016 and October 5, 2016, the Executive Chamber (hereinafter "the Chamber") denied all requests on the same grounds, specifically, NY Pub. Off. Law 87(2)(e). Petitioner took timely administrative appeals, and each denial was upheld, relying principally on NY Pub. Off. Law 87(2)(e)(i), which exempts from disclosure records compiled for law enforcement purposes, the disclosure thereof would interfere law enforcement investigations or judicial proceedings. The Chamber reserved the right to assert other FOIL exemptions, and attempts to do so here in its Memorandum of Law in Opposition to the Petition, specifically, that the records exempt under NY Pub. Off. Law 87(2)(e)(ii) and (iii), as well as NY Pub. Off. Law 87(2)(a) and (b). Although the Chamber did not invoke these exemptions in its initial denial, it argues that it may do so here, because "the rights of third parties not before the Court would be affected by the disclosure, " including the grand jury and third parties whose name appear on records responsive to the Howe email FOIL request. Petitioner does not dispute this, and fully responds to the Chamber's arguments in connection thereto.

         The petitioner commenced this CPLR Article 78 proceeding to compel the respondents to disclose, pursuant to FOIL (NY Pub. Off. Law § 84 et seq.), the aforementioned information. Petitioner argues that the documents were not "compiled for law enforcement purposes" as they were originally made in the ordinary course of business. Next, that the Chamber has failed to establish how disclosure would interfere with law enforcement investigations or judicial proceedings. Petitioner claims that the scope of the FOIL requests "far exceeds the scope of prosecutorial interest" and therefore, disclosure would not risk prematurely revealing prosecutorial strategy. Petitioners note that the records requested in connection with Percoco are records that were sent to him, ie., records that he already knows about, so there can be little question of the disclosure of confidential material. Petitioner also notes that federal prosecutors were required to produce Rule 16 discovery on or before January 17, 2016, which "diminishes significantly the risk of interference posed by disclosure, " nor would it amount to the equivalent of early discovery.

         The Chamber retained counsel, Elkan Abramowitz, a former Assistant United States Attorney now in private practice, to assist in responding to the subpoena. He affirms that the Chamber indicated to the USAO that it would cooperate fully with the investigation, and that it has produced thousands of responsive documents. Mr. Abramowitz states that the FOIL requests on their face seek documents and information that fall substantially within the scope of the subpoena served on the Chamber, and subsequent requests made by the USAO. He also affirms that based on searches to respond to the grand jury subpoena, all communications in the Chamber's possession that would be responsive to the FOIL requests are also responsive to the grand jury subpoena.

         Mr. Abramowitz argues that disclosure of the requested records may reveal non-public aspects of the case, which could hinder the USAO's ability to shape and control its investigation. Additionally, it could make public the persons identified in the materials sought by the USAO, and give those persons access to that information, which could jeopardize the USAO's investigation. He states that the disclosure of the records would result in the same harm regardless of whether the FOIL requests were made to the Chamber or the USAO.


         The legislative declaration section of FOIL announces New York's public policy that "a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions...[T]he public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of [FOIL]." Public Officers Law § 84. FOIL "proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government." Matter of Fink v Lefkowitz, 47 N.Y.2d 567, 571 (1979). This Court must bear in mind that "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government." Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 N.Y.2d 246, 252 (1987). In keeping with that policy, "FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted." Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 N.Y.2d 562, 566 (1986); see Public Officers Law § 87 (2). "Notably, blanket exemptions for particular types of documents are inimical to FOIL's policy of open government, and the agency must articulate a particularized and specific justification for denying access to the requested documents." Matter of Police Benevolent Assn. of NY State, Inc. v State of New York, 145 A.D.3d 1391, 1392 (3d Dept. 2016) [internal quotation marks, brackets and citations omitted]; see Matter of Gould v New York City Police Dept., 89 N.Y.2d 267, 275 (1996).

         Compiled for Law Enforcement Purposes

         Public Officers Law § 87 (2) (e) (i) exempts from disclosure records that "are compiled for law enforcement purposes and which, if disclosed, would... interfere with law enforcement investigations or judicial proceedings." This provision broadly permits an agency to make "a generic determination" that disclosure of a record would interfere with a judicial proceeding against a particular individual. Matter of Legal Aid Socy. v New York City Police Dept., 274 A.D.2d 207, 214-15 (1st Dept. 2000), lv dismissed and denied 95 N.Y.2d 956 (2000); see Matter of Whitley v New York County Dist. Attorney's Off., 101 A.D.3d 455, 455 (1st Dept 2012); Matter of Pittari v Pirro, 258 A.D.2d 202, 206-08 (2d Dept 1999), lv denied 94 N.Y.2d 755 (1999). The exemption is based on the risk that such disclosure would have a chilling effect on a pending prosecution, would create a substantial likelihood of delay in a pending criminal proceeding, or would interfere with criminal discovery rules. Matter of Pittari v Pirro, 258 A.D.2d 202, 206-07 (2d Dept. 1999), lv denied 94 N.Y.2d 755. While the agency need not specify the potential risk posed by disclosure for each and every document requested, it must "identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents... [T]he agency must still fulfill its burden under Public Officers Law § 89(4)(b) to articulate a factual basis for the exemption." Matter of Lesher v Hynes, 19 N.Y.3d 57, 67 [2012]; see also Matter of Law Offs. of Adam D. Perlmutter, PC v New York City Police Dept., 123 A.D.3d 500, 501 (1st Dept 2014).

         FOIL's "legislative history... indicates that many of its provisions... were patterned after the Federal analogue. Accordingly, Federal case law and legislative history... are instructive" when interpreting such provisions. Lesher v. Hynes, 19 N.Y.3d 57, 64 (2012) citing Matter of Fink v Lefkowitz, 47 N.Y.2d 567, 572 (1979) [citations omitted]. In Lesher v. Hynes, supra, the Court of Appeals noted that New York's law enforcement exemption is modeled on 5 USC § 552 (b) (7), part of the Freedom of Information Act, or "FOIA". FOIA's law enforcement exemption permits the non-disclosure of "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would" create one of six specified dangers, the first of which was to "interfere with enforcement proceedings." 5 USC § 552 [b] [7] [A]. When the New York Legislature amended FOIL in 1977, it enacted Public Officers Law § 87 (2)(e)(i), which, as previously noted, denies access to records "compiled for law enforcement purposes and which, if disclosed, would... interfere with law enforcement investigations or judicial proceedings."

         In John Doe Agency v. John Doe Corp., 493 U.S. 146, 155 (1989), the United States Supreme Court reversed the Court of Appeals, which had drawn a "distinction between documents that originally were assembled for law enforcement purposes and those that were not so originally assembled but were gathered later for such purposes. The plain language of Exemption 7 does not permit such a distinction. Under the statute, documents need only to have been compiled when the response to the FOIA request must be made." (Emphasis added). The Court found that "as is customary, we look initially at the language of the statute itself. The wording of the phrase under scrutiny is simple and direct: 'compiled for law enforcement purposes.' The plain words contain no requirement that compilation be effected at a specific time. The objects sought merely must have been 'compiled' when the Government invokes the Exemption. A compilation, in its ordinary meaning, is something composed of materials collected and assembled ...

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