Harvey v. Hynes

• Decision Date: 06 May 1997
• Citation: 665 N.Y.S.2d 1000,174 Misc.2d 174
• Parties: , 1997 N.Y. Slip Op. 97,607 In the Matter of Umar U. HARVEY, Petitioner, v. Charles J. HYNES, as Kings County District Attorney, Respondent.
• Court: New York Supreme Court

Page 1000

665 N.Y.S.2d 1000

174 Misc.2d 174, 1997 N.Y. Slip Op. 97,607

In the Matter of Umar U. HARVEY, Petitioner, v. Charles J. HYNES, as Kings County District Attorney, Respondent.

Supreme Court, Kings County.

May 6, 1997.

Charles J. Hynes, pro se.

Virginia Modest for Charles J. Hynes, respondent.

Umar Ubor Harvey, pro se.

JULIUS VINIK, Justice.

Respondent moves to reargue the portion of this court's order dated October 17, 1996 which, pursuant to a Freedom of Information Law (Public Officers Law § 84 et seq.) (FOIL) request, directed the respondent to supply petitioner with the Grand Jury testimony of the witnesses who testified against petitioner at his criminal trial.

In determining this motion, the court has considered respondent's motion and exhibits and petitioner's affirmation in opposition and exhibits.

Background

Following a criminal conviction upon a jury trial, petitioner requested various documents from respondent. Among these requests were the Grand Jury testimony of all witnesses who testified against petitioner. Upon petitioner's initial request and upon his agency appeal, respondent denied the request on the ground of Grand Jury secrecy. In the answer to petitioner's CPLR article 78 petition, respondent, for the first time, raised the additional ground that Grand Jury minutes are court records.

In an order dated October 17, 1996, the court refused to consider respondent's claim that Grand Jury minutes are court records, not agency records, because respondent had not invoked such a ground for denying petitioner's request as part of the administrative proceeding. In reaching this conclusion, the court relied upon Matter of Parkmed Associates v. New York Tax Commission, 60 N.Y.2d 935, 936, 471 N.Y.S.2d 44, 459 N.E.2d 153. The court proceeded to order release of Grand Jury testimony of witnesses who testified at petitioner's criminal trial, because the Grand Jury minutes had already been disclosed to petitioner, and there was thus no basis for continuing secrecy as to him.

Motion to Reargue

Originally, respondent claimed that a CPLR article 78 action brought to review a denial of a FOIL request is in the nature of a writ of mandamus to review. The respondent now claims that such a CPLR Article 78 action is in the nature of a writ of mandamus to compel. Under such a writ, respondent argues that the rule barring an agency from raising a new ground for the first time in court does not apply (see, Matter of Scherbyn v. Wayne-Finger Lakes BOCES, 162 A.D.2d 967, 557 N.Y.S.2d 192, revd. on other grounds 77 N.Y.2d 753, 570 N.Y.S.2d 474, 573 N.E.2d 562). Since this court did not consider this argument in reaching its original decision, respondent's motion for reargument is granted (see, Loland v. City of New York, 212 A.D.2d 674, 622 N.Y.S.2d 762; see also, People v. Patrick, 183 N.Y. 52, 53, 75 N.E. 963).

The court vacates its prior decision only as it relates to the Grand Jury testimony. This decision is substituted for that portion.

Freedom Of Information Law

FOIL promotes a policy of open government by presumptively opening the records of government agencies to public access (see, Gould v. New York City Pol. Dept., 89 N.Y.2d 267, 274-275, 653 N.Y.S.2d 54, 675 N.E.2d 808; Encore Coll. v. Auxiliary Serv., 87 N.Y.2d 410, 416-417, 639 N.Y.S.2d 990, 663 N.E.2d 302; see also, Public Officers Law § 84). In doing so, however, FOIL expressly excludes the judiciary from its definition of an agency subject to the disclosure rules (see, Public Officers Law § 86[3], 87[2]; see also, Matter of Pasik v. State Bd., 102 A.D.2d 395, 399, 478 N.Y.S.2d 270). Agencies covered by FOIL must disclose all records except those covered by specific statutory exceptions (Public Officers Law § 87[2]; Gould v. New York City Pol. Dept., supra, 89 N.Y.2d, at 275, 653 N.Y.S.2d 54, 675 N.E.2d 808).

Procedurally, FOIL provides that upon a written request reasonably describing the desired record the agency "shall make such record available to the person requesting it [or] deny such request in writing" (Public Officers Law § 89[3] ). The requester may appeal a denial to the agency's appeal person who "shall ... fully explain in writing ... the reasons for further denial" or provide the record (Public Officers Law § 89[4][a] ). FOIL provides for judicial review by stating:

Except as provided in subdivision five of this section, a person denied access to a record in an appeal determination under the provisions of paragraph (a) of this subdivision may bring a proceeding for review of such denial pursuant to article seventy-eight of the civil practice law and rules. In the event that access to any record is denied pursuant to the provisions of subdivision two of section eighty-seven of this article, the agency involved shall have the burden of proving that such record falls within the provisions of such subdivision two (Public Officers Law § 89[4][b] ).

Article 78

and FOIL

Article 78 of the CPLR was adopted in order to provide a uniform procedure for judicial review of government action or inaction formally cognizable under the common-law writs of certiorari, mandamus, and prohibition (Matter of Newbrand v. City of Yonkers, 285 N.Y. 164, 174-175, 33 N.E.2d 75; Alexander, Practice Commentaries, McKinney's Cons.Law of N.Y., Book 7B, CPLR C7801:1, at 25-26). Although Article 78 supersedes those common-law writs, it does so in procedure only. A party's right to relief still depends upon the substantive law of the former writs (see, Matter of Newbrand v. City of Yonkers, supra, 285 N.Y., at 174-175, 33 N.E.2d 75; Siegel, N.Y. Prac. § 557, at 870-871 [2d ed.] ).

Review of a FOIL determination, however, does not fall neatly within any of the traditional writs. Since a FOIL determination is not a judicial-like hearing on a full record, it is not certiorari (see, Matter of Scherbyn v. BOCES, 77 N.Y.2d 753, 757, 570 N.Y.S.2d 474, 573 N.E.2d 562). A FOIL petitioner does not seek to prohibit a judicial or quasi-judicial body or official from acting without jurisdiction as under prohibition (see, Matter of McGinley v. Hynes, 51 N.Y.2d 116, 122-124, 432 N.Y.S.2d 689, 412 N.E.2d 376). Since an agency must grant access to non-exempt material (see, Gould v. New York City Pol. Dept., supra, 89 N.Y.2d, at 275, 653 N.Y.S.2d 54, 675 N.E.2d 808) it is not mandamus to review, which examines discretionary acts of agencies in a manner comparable to certiorari (see, Matter of Scherbyn v. BOCES, supra, 77 N.Y.2d, at 757-758, 570 N.Y.S.2d 474, 573 N.E.2d 562). Finally, in contrast to mandamus to compel, under which a petitioner must demonstrate a "clear legal right" to the relief requested (id., at 757, 570 N.Y.S.2d 474, 573 N.E.2d 562; Association of Ct. Rep. v. Bartlett, 40 N.Y.2d 571, 574, 388 N.Y.S.2d 882, 357 N.E.2d 353), in a FOIL case, the agency bears the burden of proving that the material falls within a statutory exemption (Public Officers Law § 89[4][b]; Gould v. New York City Pol. Dept., supra, 89 N.Y.2d, at 275, 653 N.Y.S.2d 54, 675 N.E.2d 808) and at least an initial burden when it denies disclosure on a ground other than a statutory exemption (see, Konigsberg v. Coughlin, 68 N.Y.2d 245, 249, 508 N.Y.S.2d 393, 501 N.E.2d 1 [agency must establish that description inadequate to locate the record]; Matter of Moore v. Santucci, 151 A.D.2d 677, 678, 543 N.Y.S.2d 103 [burden upon agency to show that request rendered moot] ).

Since review of a FOIL determination does not fit into any of the traditional writs, such review has its own substantive law and CPLR Article 78 only serves as a procedural mechanism for judicial review. Therefore, precedent that applies the rule limiting judicial review of agency determinations to the grounds invoked by the agency during the administrative proceeding to cases involving mandamus to review and certiorari (see, Matter of Scherbyn v. BOCES, supra, 77 N.Y.2d, at 758, 570 N.Y.S.2d 474, 573 N.E.2d 562), or excuses application of the rule to mandamus to compel (Matter of Scherbyn v. Wayne-Finger Lakes BOCES, supra, 162 A.D.2d, at 967, 557 N.Y.S.2d 192), does not necessarily apply to a FOIL case.

Matter of Barry v. O'Connell, 303 N.Y. 46, 50-51, 100 N.E.2d 127, and Matter of Hickox v. Griffin, 274 App.Div. 792, 79 N.Y.S.2d 193, revd. on other grounds 298 N.Y. 365, 83 N.E.2d 836, are the earliest New York cases that state that judicial review is limited to the grounds invoked by the agency. Neither case explains the rationale for the rule, but both cite Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (Chenery II ) in support. While Chenery II likewise does not explain the rule's rationale, it is more fully explained in an earlier Supreme Court decision in the same case (see, Securities & Exch. Commn. v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 [Chenery I ] ). In Chenery I, the Court stated:

"If an [administrative] order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment. For purposes of affirming no less than reversing its orders, an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency" (id.).

From this statement, the rationale appears to be that where the Legislature has delegated to an agency the power to make policy or discretionary decisions through an administrative process, a court cannot interfere with such judgment. The administrative process is the means through which the policy may be made or discretion exercised. Thus, it would be improper to allow an agency to supplement a decision that was not made through the administrative process.

In light of this rationale, courts have held that judicial review is not limited to the ground invoked by the agency where the act at issue is not within the...