respondent's notice of appeal (city)

7/30/2019 Respondent's Notice of Appeal (City)

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APPELLATE DIVISION OF THE SUPREME COURTFIRST ruDICIAL DEPARTMENTX

SERGIO HERNANDEZ,Index No.: 106213/11P etitioner-Respondent,

- against -THE OFFICE OF THE MAYOR OF THE CITY OF NEWYORK, PRE-ARGUMENT

Respondent-Appellant.------------x

PLEASE TAKE NOTICE, that the Respondent-Appellant, for its pre-argumentstatement, alleges as follows:

l. The full names of the original parties, and the names, addresses andtelephone numbers of counsel for the parties, are as set forth below:

Petitioner-Respondent : SERGIO HERNANDEZAttorneys forPetitioner-Respondent : Schlam Stone & Dolan LLP

26Broadway, lgth FloorNew York, New York 10004(212) 344-s400Respondent-Appellant : THE OFFICE OF THE MAYOR OF THE CITY OF NEWYORKAttorneys forRespondent-Appellant: Michael A. CardozoCorporation Counsel of the City of New York100 Church StreetNew York, New York 10007Qtz) 788-t010


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2. In this proceeding commenced under Article 78 of the CPLR, Petitioner-Respondent challenged the determination of the Respondent-Appellant to deny Petitioner-Appellant access to documents requested pursuant to the New York Freedom of InformationLaw, N.Y. Pub. Off. Law $ 84, et seq.

3, Appeal is taken from that portion of the Order and Judgment of JusticeAlice Schlesinger dated November 23,2011 and entered in the office of the Clerk of New YorkCounty on December 6, 2011, pursuant to which Justice Schlesinger found that the subjectdocuments were not exempt as inter-agency or intra-agency records under N.Y. Pub. Off. Law $86(3) and, on that basis, granted the Petition and directed Respondent-Appellant to release thesubject records.

4. The grounds for appeal are that the Court erred in finding that (i) CathleenP. Black was not acting as an agent of or consultant to, the City of New York or Mayor MichaelBloomberg after she had been appointed to serve as Chancellor of the City school dishict butrior to her assuming that position; (ii) the nature of the communications contained in therequested documents was not deliberative; and (iii) on these grounds that subject records werenot exempt as inter-agency or intra-agency records under N.Y. Pub. Off. Law $ 86(3).

Dated New York, New YorkDecember 7,2011MICHAEL A. CARDOZO .Corporation Counsel of the City of New YorkAttorney for Respondent-Appellant100 Church StreetNew York, New York 10007(212) 788-1010By:

Leonard KoernerChief, Appeals Division

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fr:SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORKln the Matter of the Application ofSERGIO HERNANDEZ,

Petitioner lndex No. 106213111Motion Sequence 001For a Judgment Under Article 78of the Civil Practice Law and Rules,-against-

OFFICE OF THE MAYOR OF THE CITY OFNEW YORK, Respondent.SCHLESINGER, J.:

This Adicle 78 proceeding involves the rights of the press and the public toreceive information regarding decisions made by our Mayor to Rti frigh-level positions inthe New York City government. The case is of particular note in that it involves thecontroversial hiring of Ms. Cathleen Black to serue as New York City SchoolsChancellor,. a position sg obtained only with a waiver of the credentialing requirementsand a position she held for only a brief period of time. lt is also noteworthy in light of theongoing investigation by the New York City Public Advocate Bill de Blasio into why theCity reportedly "fails so miserably to release even the most routine data requestedunder the state's Freedom of lnformation Law."1 'Background Facts

Petitioner Sergio Hernandez is a freelance journalist who currently reports forProPubtica in New York City. At the time of the events at isse here, Mr. Hernandezwas reporting for The Mllage Voice and contributing to its blog "Runnin' Scared."

I See The New York Times Editorial "They Like Transparency, Until They Don't,"RECEIVEDNO\/ 2 B 20il

X

November 14,2011.

IAS MOTIO SUPPORT OFFICE


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By e-mail dated November 19, 2010 addressed to "A. Crowefl" at Cty Hall, Mr.Hernandez made a request for documents pursuant to the New York State Freedom oflnformation Law (FOIL), codified at $84 et seq. of the New York State Public OffcersLaw (POL) (Petition, Exh A). f n the e-mail, Mr. Hernandez identified himself as areporter affiliated with the Village Voce and indicated that he was making the request'"as part of a news-gathering effort and not for commercial use.'He then requestedcopies of the following materials:

E-mail messages sent from or received by any stateelectronic mailaccounts assigned to the Office of theMayor to or from an individual narned athleenPrun'Cathie" Black or e-mail addresses containingthe domain hearst.com.

Mr, Hernandez emphaeized that time was of the essene, and he urged City Hall topromptly provide whatever records were navailable immediately," with others to followas they were located. He atso reminded the City that it was. required to Justiff anydenials or deletions "by reference to specifc exemptlons of the Law."

Despite the stated urgency of the November 19 request, the apparentnewsworthiness of the subJect, and at least two.follow-up requests from Mr. Hernandez,the Mayor's Office did not respond for approximately 60 days. That reepoirse was ln theform of a lefter dated January 13,2011 from Anthony W. Crowell, Counseler to theMayor, maited to Mr. Hemandez (Exh B). ln the letter, Mr. Crowelf denied the FOILrgquest in its entre, stating that

Please be advised that we are wthholding responsivedocuments pursuant to Fublic Officers Law SectionET(21(b),which allows agencies to withhold infomation that "ifdisclosed would constitute an unwarTanted irivasion ofpersonal privacy;" and Public Officers Law Secton 87(2Xg),which allows agencies to withhold "inter-agency and intra-agency materials.".

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ln accordance with the instructions included at the end of Mr. Crowell's letter, Mr,Hernandez immediately filed an appeal by e-mail dated January.19,2011addressed toDepu Mayor Carol Robles-Roman, with a copy to Mr. Crowell (Exh C). Afterrecounting the details of his request and the procedural history, Mr. Hernandoz arguedwhy the City's denial was "in ero/' and contrary to the legislative policy favoring opengovernment. First arguing generally why disclosure was justified, Mr. Hernandez statedas follows:

It should be ernphaslzed that prior to January 3,2011, Ms.Black was a private citizen employed by Hearst Corporation,a privately-held media conglomerate based in New YorkCity, Since at least Jun22;2009, Hearet Corporation hasowned and controlled the lnternet domain name"hearst.com" and e-mail aecounts associated with thatdomain. Beoause the initial request was filed before Ms.'Black came under the city's empley, and because FOILapplies only to records that exist when the request is made,Ms. Black was still a private cttizen within the scope andpurpose of this request.Mr. Hernandez then went on to argue with specificity why the two claimed

exemptions were lnapplieable. With regard to the first claimed exemption based onpurported ounwarlanted invasion of privacy," he asserted (with a relevant citation toGoutd v New York Cty Polce Depaftmenf, 89 NYzd zai,Ztsthat'blanket exemptions

for particular types of documenteo were baned and that the law required the City todisclose the documents with appropriate redactions. With regard to the second claimedexempton based on documents exchanged between agenciee orwithin an agency, hoaseerted (with a relevant citation to POL $86, subd. 3) that communications betweenthe City and a private citizen such as Ms. Black orthe Hearst Corporation did notqualify as either inter-agency or intra-agency meterials.

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Consistent with this policy, the courts have routlnely construed FOIL to meanthat all documents are "presumptively available for revier/.' unless they fall under one ofthe limited exemptions set forth in POL $87(2). Seo, Tuck-lt-Away, supra, citing Matterof M. Farbman &Sons v New YorR Ciiy Health &Hosps. Cop.,62 NYzd 75 (1984).

Further, the burden is on the government to establish that. the requested rnaterial "falls squarefy within a FOIL

exemption by articulating a particularized and specificjustification for denying access ." Capitt Newspapes Dv ofHearct Corp. v Bumq67 NYZd 562, 566 (1986).

The City in this case hae wholly failed to apply eitherthe policy declared by ourLegislature or the dictates of our Court of Appeals detailed above. The conclusory,blanket denials do not satisff the standard set by the law. What is more, a roview of thetwo claimed exemptions reveals that neither one applies.' A claimed "unwananted invasion of personal privacy" does not permit the

wholesale withholding of a document. Rather, POL SB9(2), specifies a list of identiffingdetails that the agency may redact when it makee records available. While the City mayredact "empfoyment hstory", the e-mails presumably do not contain anyconfidencesregarding that issue. Quite the contrary, Ms. BlacKs employment history was a matterof publc record at the time of her appontment due to the need for a waiver of certain ofthe credentialing requirements. The privacy exemption is intendod to apply toinformation of a genuinely prlvate nature only, [soe, New Yorl< Commttee forOccupational Safety and v Bloomberg, T2 ADS 153, 160 (1't Dep't 2010l.i1, and theCity has given no indication that the requested e-mails contain any such information.

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What is more, a balancing of the potential privacy interests at stake against thepublic interest in disclosure favors disclosure in this cse with appropriate redactions.Particularly instructive here is the First Department's decision in Kwasnik v City of NewYork,262 ADzd 171 (1" Dep't 1999). There the Appellate Division affirmed the trialcourt's direction to the City University of New York to digclose the public employmenthistory of certain employoes who purportedly did not meet the licensing requrement foremployment when hired. The court stated: This result is supported by opinions of theCommittee on Open Government, to which the courts should defer ..., favoringdisclosure of public employee$' resumes if only because publio employment is, by dintof FOIL itself, a matter of public record ...." 262 AD2d at'172 (citations omitted). lnapplying the balancing test to the circumstances of the case, the court concluded that"the agency's need for information would be great and the personalhardship ofdisclosure small (see, Public Officers Law S[2JlbJ[iv])." /d.' Such is the case herer'As Ms. Black did not meet the credentialing requrementsfor the all-important postion of School Chancellor, the public has the right to krrow what

information about her employnent history and qualifications was dlsclosed in the e-mails. Any information of an intensely personal nature coufd easily be redacted, withthe balance of the informaton dsclosed. lndeed, despite its earlier blanket denial of theFOIL request on privacy grounds, the City's position in this litigation appears to be thatwhil telephone numberS, cell phone numbers, and personal e-rnailaddreeses shouldbe redacted, the remaining text of the e-mails is not exempt from diselosure on privacygrounds. As petitioner does not dispute that such redactions are approprate, they wiflbe allowed by this Court.

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The City's second claimed oxemption relating to inter-agency or intra-agencyrecords is particularly specious, as it by definition involves comrnunications between orwithin governmental agencies. POL 586(3). lt is undisputed that Ms. Black and theHearst employees were private citzens at the time the subjecl e-mails were written.Simply puq the statute offers no exemption for agency comrnunications with privatecitizens such as Ms. Black. Records that consist of communications with peoplooutside the agency must be disclosed. See, Millerv NY State Dept. of Tnns.,58 AD3d981, 984-85 (3'd Dept 2009XDOT's press releases and communications with peopleoutside the agenry were not exempt as intra-agency documents).

Wholly devoid of morit is the City's claim that Oathleen Black and her staff wereagents of the City during the relevant time. The City argues that because the City hadan interest in addressing oncerns by Cornmiesioner Steiner about Ms. BlacKequalifications for the position of Chancellor, and because Me. Black was providinginformation to assist the Mayor in addressing those concrns, Ms. Black and h'erstaffwere acting as de facto"agentsn or ae uconsultants'for the Cty.

Neither the facts nor the law on agency support this argument..As petitionerconectly notes, as a mayo-a! nominee Ms. Black was not bound to act.on the Mayor'sbghalf, and the Mayor had no basis to exert controt over Ms. Black bofore herappontment was confirmed. While Ms. Black may welt have foltowed the Mayo/sguidance in order to assist her in receiving the appointment thoy both desired, andwhile the interests of both partes may well have been served by obtalning theinformation needed to address Commissionor Steiner's concerns, those facts do notconstitute a principal-agent or consultant relationship.

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Wht is more, applying the exemption in a case such as this would not seruo thepolicy behind the exemption. The obvious purpose of the exornption is to oncourage"people within an agency to exchange opinions, advlce and criticisrn freely and frankly,without the chilling prospect of public disclosure ." Matter of Nw York Times Co. v Cityof NY Fire Dept.4 NYzd 267, 176 (1996) However, communications with peopleoutside the agency are not considered part of the government's deliberative process,and thir disclosure wlll not inhibit decision-making within the government. See Miller,suprc.

Here, the e-mails presumably do not relate to the State Education Department'sactualdeliberative process in deciding whether to grant Ms. Black the requested wavor.tnstead, they invotve efforts by the City to obtain informaton to prepare the waiverrgquest, complete the mayoral appointment process, and address community oencemsabout Ms. Black's qualifications for the position. Ms. Black *u, ih. appointee, and not aoonsultant, in that process.'Thus, no basis for the exemption exsts..

Regarding petitione/e requost for attorney's fes, based on the papers submittedto date and oral argument, the Court finds that the interests of allparties would bsserved by a conference to further address the issues raised.

Accordingly, it is herebyADJUDGED that the petition is granted and respondent is directed to release theeubject records consistent wlth the torms of thls decision within fifleen days of the date

of this decision: and it is further

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.")ORDERED that counsel for both parties shall appear before this Court in Room

222 on Wednesday, January 4,2012 at 9;30 a.m. to further address the issue ofcounsel fees.Dated: It0v 2 B Zltl J.S.CALCE SCHTES

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Index t06213/2011

4=*E '3 r'ss"s-gnr=*5EBEsB+-.-

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Due and timely service hereby admitted.Nev' York N. 20t I

Esq.Atlorneyfor

MICHAELA. CARDOZOCorporation Counsel of the City of New YorkAttorney for Responde nl100 Clwrch StreetNew York N.Y. 10007Of Counsel Jef Dantowit(2r2) 788-0939

ORDER AND JITDGMENT

In the Matter of the Application ofSERGIO HERNANDEZ,

Petitioner,For a Judgment Under Article 78 of the Civil PracticeLaw and Rules,

-against-

OFFICE OF THE MAYOR OF TT{E CITY OF NEWYORK,Respondent.

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK

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AFFIDAVIT OF SERVICE ON ATTORNEY BY MAILSTATE OF NE\ry YORK, COUNTY OF NE\ry YORK, SS:

Stephanie V/right, being duly sworn, deposes and says:That on the 7th day of December, 2011, she served the annexed Notice of Appeal

Upon: SCHLAM STONE & DOLAN LLPAttorneys for Petitioner26 Broadway, 1 9th Floor,New York, New York 10004.(2t2) 344-s400

being the address within the State theretofore designated by him/her for that purpose, bydepositing a copy of the same, enclosed in a prepaid wrapper in a post offrce box situated at 100Chwch Street in the Borough of Manhattan, City of New York, regularly maintained by theGovernment of the United States in said City.

WRIGHTSworn to before me this-2-au, of Decemb er,201l

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Index No. 106213/l I

Due and time semce is hereby admitted.New Yorh /. Ii ............. .., 201 I

.Esq.Attorneyfor

IVTICHAEL A. CARDOZOCorporation otmsel of the City of New YorkAttorn ey for Re sp onden t100 Church StreetNew York, N.Y. 10007Of Cotmsel: Leonard KoemerTel: (212) 788-1010Lw Manager No. 2011-016396

NOTICE OF'APPEAL

SERGIO HERNANDEZ,Petitioner,

For a Judgment Under Article 78of the Civil Practice Law and Rules,-against-

THE OFFICE OF THE MAYOR OF THE CITYOF NEW YORK,Respondent.

SUPREME COURT OF THE STATE OF NEW YORKCOI-INTY OF NEW YO

respondent's notice of appeal (city)

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