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Supreme Court, New York County Index No.

106213/2011

To be argued by SUSAN PAULSON

NEW YORK SUPREME COURT APPELLATE DIVISION: FIRST DEPARTMENT SERGIO HERNANDEZ, Petitioner-Respondent, For a Judgment Under Article 78 of the Civil Practice Law and Rules, -againstOFFICE OF THE MAYOR OF THE CITY OF NEW YORK, Respondent-Appellant. REPLY BRIEF OF APPELLANT MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for RespondentAppellant, 100 Church Street, New York, New York 10007. (212) 788-1362 or 1055 spaulson@law.nyc.gov FRANCIS F. CAPUTO, JEFFREY S. DANTOWITZ, SUSAN PAULSON, Of Counsel August 24, 2012

REPRODUCED ON RECYCLED PAPER

Page TABLE OF CONTENTS TABLE OF AUTHORITIES.......................................... ii PRELIMINARY STATEMENT.......................................... 1 ARGUMENT....................................................... 1 POINT I PETITIONER MISREADS THE COURT OF APPEALS DECISION IN TOWN OF WATERFORD........................................1 A. The Court of Appeals Decision in Town of Waterford Does Not Foreclose the Citys Arguments in this Case................................. 1 B. In Town of Waterford, the Court of Appeals Recognizes That FOIL Seeks To Protect Deliberative Processes.................................... 4 C. In Town of Waterford, the Court of Appeals Recognizes That Communications With Consultants Can Fall Within the IntraAgency Exemption............................. 7 POINT II AN AWARD OF ATTORNEYS FEES WOULD NOT BE PROPER IN THIS CASE......................10 CONCLUSION.................................................... 13 PRINTING SPECIFICATIONS STATEMENT............................. 14

Page TABLE OF AUTHORITIES CASES Fils-Aime v. Ryder TRS, Inc., 40 A.D.3d 917 (2d Dept. 2007) ............................... 9 Friedland v. Maloney, 148 A.D.2d 814 (3d Dept. 1989) ............................. 10 Harris v. City University of New York, Baruch College, 114 A.D.2d 805 (1st Dept. 1985) ............................ 12 Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 18 N.Y.3d 652 (2012) ...................... passim One Beekman Place v. City of New York, Inc., 169 A.D.2d 492 (1st Dept. 1991) .......................... 6, 7 Sea Crest Constr. Corp. v. Stubing, 82 A.D.2d 546 (2d Dept. 1981) ............................... 9 Xerox Corp. v. Webster, 65 N.Y.2d 131 (1985) ................................. 3, 5, 11 STATUTES Education Law 2590-h........................................ 10 Education Law 3003(3)........................................ 9 Public Officers Law 86(3).................................... 3 Public Officers Law 87(2)(b)................................ 11 Public Officer Law 87(2)(g).................................. 6 Public Officers Law 89(4)(c)................................ 10

ii

PRELIMINARY STATEMENT By Order of the Supreme Court, New York County

(Schlesinger, J.), entered December 6, 2011, the Supreme Court granted petitioner-respondent Sergio Hernandezs Article 78

petition and directed the City to release certain documents he had requested from the Office of the Mayor of the City of New York (hereinafter the City) pursuant to the New York State Freedom of Information concluded Law (FOIL). the requested The Supreme are Court not

erroneously

that

documents

exempt from disclosure as intra-agency records. the decision of the Supreme Court should be reversed. Because addressed instant points. ARGUMENT POINT I PETITIONER MISREADS APPEALS DECISION WATERFORD. A. THE IN COURT TOWN OF OF the the appellants of the main brief

Accordingly,

anticipated arguments, arguments

and the and

majority addresses

petitioners certain

reply

only

briefly

The Court of Appeals Decision in Town of Waterford Does Not Foreclose the Citys Arguments in this Case. Petitioner argues that the recent decision of the

Court of Appeals in Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 18 N.Y.3d 652, 658 (2012),

forecloses

the

Citys at

arguments 13-31.

on By

appeal. conflating

Brief the

for

Petitioner-Respondent

inter-

agency and intra-agency components of the FOIL exemption at issue in this case and misreading the argues decision that in Town Court the of of

Waterford, Appeals

petitioner

erroneously the

the

squarely

rejected

identical

arguments

City

raises here in that case.

Id. at 13.

The Citys arguments are

not, however, identical to those presented in Town of Waterford, and, to the extent that they under overlap, the facts such of arguments that case, were not

considered

and

evaluated

rejected as a matter of law. In Town of Waterford, the Court of Appeals held that the inter-agency exemption did not apply in that case because the United States Environmental Protection Agency (EPA) is not an agency as defined in the Public Officers Law. Waterford, 18 N.Y.3d at 657. Town of

The City does not, however, argue

either that the inter-agency exemption applies or that Ms. Black should be considered an agency for purposes of FOIL. Nor does the City argue that Courts have adopted a functional approach to the definition of agency. that Courts have adopted a The Citys argument is approach to the

functional

application of the intra-agency exemption, an argument that Town of Waterford recognizes to be valid, notwithstanding its

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conclusion that the intra-agency exemption is inapplicable under the facts of that case. Id. at 657-658.

Although the Court of Appeals rejected the argument that the definition of agency in Public Officers Law 86(3) should not be applied to the distinct phrases inter-agency and intra-agency, it did recognize that documents prepared by a party that is not an agency can be withheld under the intraagency exemption. Id. at 657-658, citing Xerox Corp. v.

Webster, 65 N.Y.2d 131, 133 (1985) (records may be considered "intra-agency material" even though prepared by an outside

consultant at the behest of an agency as part of the agency's deliberative process). Thus, in Town of Waterford, the Court of

Appeals considered, and rejected, the argument that the EPA is the equivalent of an outside consultant, not as a matter of law, but under the facts of the case. Id. at 658.

Here, the City argues, not that Ms. Black comes within the definition of an agency and that the inter-agency

exemption should apply (see Brief for Petitioner-Respondent at 27-30, suggesting the contrary), wherein but the rather that this case

presents

circumstances

intra-agency

exemption

applies to a party that is not an agency, a party that acts in a manner akin to that of an agent or consultant. This argument is

plainly not foreclosed by the decision of the Court of Appeals in Town of Waterford.

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B.

In Town of Waterford, the Court of Appeals Recognizes That FOIL Seeks To Protect Deliberative Processes. The City argues that this case presents circumstances

wherein the intra-agency exemption applies to a party that is not an agency because the records at issue reflect the predecisional deliberative process of government. Petitioner

construes this as a policy argument in favor of extending the intra-agency exemption; contends that, as such, Town of

Waterford, makes clear that this argument is irrelevant, as a matter of law; and argues that, to the extent that it is a recognized application policy to underlying the with exemption, individuals it has no a

communications

outside

government agency. Petitioner further

Brief for Petitioner-Respondent at 19-20. argues that the responsive documents are

neither pre-decisional nor deliberative. is no merit to these claims.

Id. at 30-31.

There

As an initial matter, protecting the candor of those assisting in the decision-making process is not a policy

argument in favor of creating a new exemption from the Freedom of Information Law. As the Court of Appeals acknowledge in Town

of Waterford, it is a recognized rationale for the intra-agency exemption at issue in this case. See Town of Waterford, 18

N.Y.3d at 658 (We have held that the purpose of the intraagency exception is to allow individuals within an agency to

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exchange process, public.).

their without

views the

freely, concern

as that

part

of

the ideas

deliberative will become

those

Nor,

as

petitioner

argues,

is

this

rationale

inapplicable simply because the communications at issue are with an individual outside of government. Brief for Petitioner-

Respondent at 20.

In Town of Waterford, the Court of Appeals

also recognized that in Xerox Corporation, it had determined that real estate firm at appraisal the reports prepared by a private from

consulting

agency's

request

were

exempt

disclosure as intra-agency material, observing that "[i]t would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this

protection when reports are prepared for the same purpose by outside consultants retained by agencies". Town of Waterford,

18 N.Y.3d at 658, citing Xerox Corporation, 65 N.Y.2d at 133. Here, Ms. Black, City staff and/or Hearst Corporation staff assigned to assist Ms. Black in her transition to City government, about the were communicating of the with Citys each other to though email

preparation

request

Commissioner

Steiner for a School District Leader Certificate for Ms. Black, responses community. to routine queries, and outreach planning to the

R. 44.

These emails included discussions concerning

clarification of Ms. Blacks background, discussions related to

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contacts

with

various

individuals

regarding

Ms.

Blacks

selection, and drafts of the letter to be sent to Commissioner Steiner. See id. These communications prepared of to are assist the smooth pre-decisional the City in

deliberative carrying Leader out

communications, its function to

obtaining the

School

District of

Certificate

facilitate

transition

government. the State

The City does not argue that the emails relate to Education Departments deliberative process in

deciding whether to grant Ms. Black the waiver request. 15.

See R.

The emails relate to the Citys deliberative process in R. 44. They are pre-decisional

preparing the waiver request.

with respect to the Citys waiver request, not with respect to the States decision in response to the request. As such, they

are exempt from disclosure under Public Officer Law 87(2)(g). Finally, petitioner mistakenly argues that One Beekman Place v. City of New York, Inc., 169 A.D.2d 492 (1st Dept. 1991), is inapposite because it concerns a motion to compel documents withheld in discovery, not a FOIL request. for Petitioner-Respondent at 20 n4. In One See Brief Place,

Beekman

however, this Court explicitly recognized that the Freedom of Information discovery, Law, like the public from are interest privilege inter-agency policy in or or and

similarly

exempts that to

disclosure not final

intra-agency

materials in

agency

determinations

order

encourage

candid

discussion

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representation of views among government employees involved in the development of policy. 493. One Beekman Place, 169 A.D.2d at

Thus, One Beekman Place is indeed relevant to the Citys

argument that the subject documents can be withheld under the intra-agency exemption to protect the deliberative process of government. C. In Town of Waterford, the Court of Appeals Recognizes That Communications With Consultants Can Fall Within the IntraAgency Exemption. Petitioner contends that the Citys argument that Ms. Blacks role was akin to that of a consultant is foreclosed by Town of Waterford and that Ms. Black was not a consultant as a matter of law. Brief for Petitioner-Respondent at 21.

Recognizing, however, that the Courts have articulated a factbased analysis to determine if the consultant corollary to the intra-agency exemption applies, petitioner also argues that Ms. Black did not act as a consultant because she was not retained as such by or in the City, did and not fulfill the her function own Id. of a

consultant interests

employee, the

represented

independent at 23-26. Town of factors

subject

communications.

Plainly, the Citys argument is not foreclosed by Waterford, and requires consideration of all of the

relevant to the analysis. In argument that Town the of EPA Waterford, is the in analyzing of respondents an outside

equivalent

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consultant, the Court of Appeals considered a number of factors without identifying any single one of them as dispositive. of Waterford, 18 N.Y.3d at 658. Town

The Court of Appeals considered

the fact that: the Environmental Protection Agency (EPA) and Department of Environmental Conservation (DEC) have a

collaborative relationship and are presumably working together toward the same goal; that the EPA was not retained by the DEC and does not function as its employee or agent; that the EPA is the lead agency for the project at issue; and that the EPA and the DEC represent different constituencies and have interests that may diverge. Town of Waterford, 18 N.Y.3d at 658. Upon

consideration of these factors, the Court of Appeals concluded that the EPA is not the equivalent of an outside consultant under the facts of that case. Id.

Here, petitioner argues that because Ms. Black was not retained by the City and because, in petitioners view, she was acting in her own self-interest, the consultant corollary cannot apply. Brief for Petitioner-Respondent at 23-27. Unlike the

EPA in Town of Waterford, though, which functioned as the lead agency, not as an employee or agent, under the instant

circumstances Ms. Black was communicating with the City at the Citys behest assisting the City in performing its own function of obtaining the Certificate from the State. And unlike the EPA

in Town of Waterford, Ms. Black did not represent a different

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constituency than the Mayors Office or have any interests that may diverge with regard to the request for a School District Leader Certificate from the State. Ms. Black was communicating with the Mayors Office not in her own self interest, but rather in furtherance of the Mayors District interest Leader The that she be awarded so that her the she for requested could School as the

Certificate Mayor

serve to

Chancellor.

selected

appointment

position of Chancellor and, pursuant to Education Law 3003(3), the Mayor was required to submit the Certificate request to the State. Ms. Black and Hearst Corporation employees were

assisting the Mayors office in performing the function assigned to the Mayor by law, requesting a School District Leader

Certificate for a candidate that he had selected to appoint as Chancellor. In evaluating Ms. Blacks actual function in the

communications at issue in this case, this Court should conclude the consultant corollary properly applies. 1 See Sea Crest

These same facts support the Citys argument that Ms. Black was acting in a manner akin to an agent of the City during the relevant time period. Having been selected by the Mayor as the incoming Chancellor and having accepted that selection, to facilitate this transition, Ms. Black acted under the Citys guidance in furtherance of its interest in having that selection approved through Commissioner Steiners issuance of the requested certificate. See Fils-Aime v. Ryder TRS, Inc., 40 A.D.3d 917, 918 (2d Dept. 2007) (principal-agent relationship may be established by evidence of consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by other so to act, even where agent is -9-

Constr. Corp. v. Stubing, 82 A.D.2d 546, 549 (2d Dept. 1981) (actual function served by outside party must be considered in deciding whether communications are encompassed by intra-agency exemption, designation as "consultant" is not determinative). POINT II AN AWARD OF ATTORNEYS FEES WOULD NOT BE PROPER IN THIS CASE Under Public Officers Law 89(4)(c), the Court may assess against an agency reasonable attorneys fees and other litigation costs reasonably incurred to a party who has

substantially prevailed in a FOIL action when the agency had no reasonable basis for denying access to the requested materials. An award under this section is within the sound discretion of the trial court. (3d Dept. 1989). See Friedland v. Maloney, 148 A.D.2d 814, 815 If, however, this Court decides to address the

issue of attorneys fees in the first instance, there is no basis to conclude that an award of fees and costs would be appropriate under the facts of this case. As explained above

and in appellants main brief, where courts have held that, in some situations, documents prepared by a party that is not an agency can be withheld under the intra-agency exemption, the acting as volunteer). Ms. Black was selected for appointment to a position in which she would serve at the pleasure of the Mayor and as a candidate for such a position would be subject to the Mayors direction and control. See Education Law 2590-h

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City had a reasonable basis for denying access to the requested materials as exempt under Public Officers Law 87(2)(g). Town of Waterford, 18 N.Y.3d at 657-658, citing See Xerox

Corporation, 65 N.Y.2d at 133 (records may be considered "intraagency material" even though prepared by an outside consultant at the behest of an agency as part of the agency's deliberative process). Under the facts of this case, the Citys invocation of intra-agency exemption to protect the email communications

between Ms. Black and the City was not patently unreasonable. The City had a reasonable basis for invoking the intra-agency exemption and, as explained above, the fact that Ms. Black is not an agency, a fact that City does not dispute, is not dispositive of this issue. In addition, there is a sound

factual basis for the application of the consultant corollary in this case and the decision of the Court of Appeals in Town of Waterford underscores the reasonableness, not, as petitioner

argues, the frivolity of this argument, by articulating the factors to be considered in determining if the consultant

corollary applies.

Town of Waterford, 18 N.Y.3d at 658.

Finally, the City neither conceded that the privacy exemption articulated in Public Officers Law 87(2)(b) does not (Chancellor shall serve at pleasure of Mayor of City of New York).

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apply nor abandoned the argument in the Supreme Court.

The City

argued that the privacy exemption applied to the private cell phone numbers and and other email addresses that of certain government in the

officials

stakeholders

were

contained

documents, a point that petitioner did not dispute. 46.

See R. 13,

Petitioners agreement to the redaction of this private

information confirms that the City had a reasonable basis for the assertion of the exemption to protect the privacy of

personal cell phone numbers and email addresses.

See Harris v.

City University of New York, Baruch College, 114 A.D.2d 805 (1st Dept. 1985) (directing disclosure of records subject to deletion of names, addresses and Social Security numbers protected by privacy exemption without award of costs). Where the City had a reasonable basis for denying

access to the responsive documents, there is no basis for an award of attorneys fees in this case.

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CONCLUSION THE ORDER OF THE SUPREME COURT SHOULD BE REVERSED AND THE PETITION SHOULD BE DISMISSED. Respectfully Submitted, MICHAEL A. CARDOZO Corporation Counsel, Attorney for Respondent-Appellant. By: SUSAN PAULSON FRANCIS F. CAPUTO, JEFFREY S. DANTOWITZ, SUSAN PAULSON, Of Counsel.

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PRINTING SPECIFICATIONS STATEMENT This using Courier brief New was 12. prepared with to Microsoft the Word 2003,

According

aforementioned

processing system, the entire brief, including portions that may be excluded from the word count pursuant to 22 N.Y.C.R.R.

600.10(d)(1)(i), contains 3,063 words. Dated: New York, New York August 24, 2012 MICHAEL A. CARDOZO Corporation Counsel of the City of New York Respondent-Appellant By: Susan Paulson Assistant Corporation Counsel 100 Church Street New York, New York 10007

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