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In re Gartner

Supreme Court of New York, Third Department

April 5, 2018

In the Matter of BARBARA GARTNER, Appellant,

          Calendar Date: February 21, 2018

          Barbara Gartner, New York City, appellant pro se.

          Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondents.

          Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker, JJ.


          MCCARTHY, J.P.

         Appeal from a judgment of the Supreme Court (McNally Jr., J.), entered June 7, 2016 in Albany County, which partially dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondents denying petitioner's Freedom of Information Law request.

         In June 2013, petitioner submitted a request to respondent Attorney General's Office under the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) seeking any communications related to transactions in which certain charitable endowments were modified, SUNY-Downstate acquired Long Island College Hospital (hereinafter LICH), and subsequently sought court approval to close LICH and sell its property. The Attorney General's Office informed petitioner that it had located 505 pages that were responsive to this FOIL request, and specified the cost and method of obtaining those documents.

         After petitioner sent a check in the amount specified, the Attorney General's Office informed her that, due to a change in circumstances regarding the litigation concerning LICH, the 505 pages that were identified for disclosure were now being withheld as exempt. Petitioner filed an administrative appeal. Respondent Kathryn Sheingold, the records appeals officer for the Attorney General's Office, determined that petitioner was entitled to 195 pages that were already publicly available on the Attorney General's website, but affirmed the partial redaction of five pages and the decision to withhold the remaining pages.

         A few months later, after portions of the litigation regarding LICH were resolved, petitioner resubmitted her FOIL request. The Attorney General's Office denied the request, concluding that all documents were exempt. On petitioner's administrative appeal, Sheingold affirmed the denial. Petitioner filed a CPLR article 78 proceeding challenging that denial. The parties negotiated a settlement in which petitioner agreed to withdraw her petition without prejudice in exchange for the disclosure of 305 of the 310 pages that were not already publicly available. As part of the settlement, the Attorney General's Office confirmed that the 505 pages that had previously been identified as responsive represented "the entire universe of documents that respond to the subject FOIL request."

         After petitioner reviewed the 305 pages she had received, some of which had been redacted, and realized that they referenced other documents that she had not received, petitioner commenced this second CPLR article 78 proceeding seeking an order compelling respondents to conduct a diligent search for responsive documents, permitting petitioner or an independent third party to examine the files maintained by respondents to determine whether they provided all of the responsive documents, compelling respondents to disclose all records withheld or redacted or submit them for an in camera review, and awarding her counsel fees. Respondents then voluntarily supplied unredacted copies of all pages that had previously been disclosed and the remaining five pages of the original 505 pages. Following a court conference, respondents conducted another search for responsive documents and found 56 additional pages that they then provided to petitioner, as well as 949 additional pages that they withheld based on claimed exemptions for intra-agency materials, inter-agency materials and attorney work product (see Public Officers Law § 87 [2] [a], [g]; CPLR 3101 [c]). Respondents submitted these pages to Supreme Court for in camera review, with an affidavit listing which exemption applied to each group of pages. The court concluded that the 949 pages were properly withheld under the stated exemptions, but awarded petitioner counsel fees based on the way that the Attorney General's Office had handled the FOIL request. Petitioner appeals.

         First, we will address petitioner's contentions that respondents must be ordered to conduct a further diligent search for responsive records, provide a new certification of a diligent search and/or allow petitioner or an independent party to conduct such a search. "When faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search" (Matter of Beachwood Restorative Care Ctr. v Signor, 5 N.Y.3d 435, 440-441 [2005]; see Public Officers Law § 89 [3] [a]). Petitioner's concern is understandable, considering that respondents originally certified that a diligent search had been conducted and represented that only 505 pages were responsive, whereas they later located more than 1, 000 additional responsive pages. The affidavit attesting to the unearthing of those additional documents asserts that more than one diligent search was conducted and the attesting Assistant Attorney General, who was responsible for the underlying proceedings concerning LICH, "believe[d]" that all responsive documents had been turned over to petitioner or to Supreme Court for in camera review. Although the language used in the affidavit is less precise than we would ordinarily expect for a certification, Supreme Court did not err in determining that respondents had conducted and certified a diligent search, as required (see Public Officers Law § 89 [3] [a]; Matter of Gould v New York City Police Dept., 89 N.Y.2d 267, 279 [1996]). Additionally, there is no legal authority to allow a petitioner or independent third party to conduct a search of an agency's records to locate responsive documents; indeed, such a search would be improper because it would inevitably permit the person to view agency records that were not responsive or that were exempt from disclosure.

         As to the propriety of respondents' withholding of documents, "[p]ursuant to FOIL, government documents are presumptively available for inspection and copying unless they are statutorily exempt by Public Officers Law § 87 (2)" (Matter of Humane Socy. of U.S. v Brennan, 53 A.D.3d 909, 910 [2008] [internal quotation marks and citation omitted], lv denied 11 N.Y.3d 711');">11 N.Y.3d 711 [2008]). The agency resisting disclosure under FOIL bears the burden of showing that the responsive document "falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" (id. at 910-911 [internal quotation marks and citations omitted]; see Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 N.Y.3d 652, 657 [2012]; Matter of Moody's Corp. & Subsidiaries v New York State Dept. of Taxation & Fin., 141 A.D.3d 997, 999 [2016]). Respondents rely on the exemptions for intra-agency and inter-agency materials and attorney work product.

         An exemption from FOIL disclosure exists for intra-agency and inter-agency materials, but there are exceptions - meaning that disclosure is permitted - if the document consists of, among other things, "statistical or factual tabulations or data" (Public Officers Law § 87 [2] [g] [i]). "Factual data... simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" (Matter of Gould v New York City Police Dept., 89 N.Y.2d at 277; see Matter of Humane Socy. of U.S. v Brennan, 53 A.D.3d at 911). Upon our in camera inspection of the documents, we conclude that most of the pages alleged to be intra-agency materials are exempt because they contain ideas or opinions exchanged between employees of the Attorney General's Office. However, the documents on pages 1 and 286 [1] contain factual information without any opinion, rendering them nonexempt. Certain other documents - pages 2-3, 251-252, 263-264, 780-781 and 791-792 - are not exempt because they deal with the scheduling of meetings, rather than any deliberative process.

         The same statute that exempts intra-agency materials applies to inter-agency materials, i.e., communications shared between different government agencies to assist a decision maker in one agency in reaching a determination (see Public Officers Law § 87 [2] [g]; Matter of Moody's Corp. & Subsidiaries v New York State Dept. of Taxation & Fin., 141 A.D.3d at 1001; Matter of Marino v Pataki, 55 A.D.3d 1171, 1173 [2008]; Matter of Grigger v New York State Div. of Parole, 11 A.D.3d 850, 852 [2004], lv denied4 N.Y.3d 704');">4 N.Y.3d 704 [2005]). Respondents claim that this exemption applies to communications between the Attorney General's Office and counsel for SUNY-Downstate. Although SUNY-Downstate is apparently a government entity, it was not interacting with the Attorney General's Office in that capacity. SUNY-Downstate was a party to litigation attempting to acquire LICH and modify endowment restrictions in order to meet that goal and, later, to close LICH and sell its property. The Attorney General's Office was not assisting SUNY-Downstate, as a government entity, in its endeavors, but was involved in these transactions under the Attorney General's statutory obligations to protect charitable beneficiaries and the public in situations where a trustee or not-for-profit corporation desires to modify restrictions on a charitable endowment or sell substantially all of its assets (see N-PCL 511, 555; EPTL 8-1.1 [f]; 8-1.4; see also N-PCL 511-a; compare Executive Law § 63 [1]). In this supervisory and oversight role, the Attorney General's Office was more akin to a separate party to the litigation than an advisor for SUNY-Downstate (see EPTL 8-1.4 [e], [m]; N-PCL 511 [b]; cf. EPTL 8-1.1 [h]). In fact, under certain circumstances, a not-for-profit corporation can, "[i]n lieu of obtaining court approval, " apply to the Attorney General directly for approval to sell substantially all of its assets (N-PCL 511-a). Considering these circumstances and the positions of the parties in these interactions, ...

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