In the Matter of N.Y. State Defenders Ass'n v. N.Y. State Police

• Decision Date: 07 July 2011
• Citation: 927 N.Y.S.2d 423,87 A.D.3d 193,2011 N.Y. Slip Op. 05839
• Parties: In the Matter of NEW YORK STATE DEFENDERS ASSOCIATION, Appellant,v.NEW YORK STATE POLICE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 193

927 N.Y.S.2d 423

2011 N.Y. Slip Op. 05839

In the Matter of NEW YORK STATE DEFENDERS ASSOCIATION, Appellant,

v.NEW YORK STATE POLICE et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

July 7, 2011.

Andrew L. Kalloch, New York Civil Liberties Union Foundation, New York City, for appellant.Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondents.Before: ROSE, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.STEIN, J.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered October 20, 2010 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, review a determination of respondent New York State Police denying petitioner's Freedom of Information Law request.

Petitioner made a request to respondent New York State Police pursuant to the Freedom of Information Law ( see Public Officers Law art. 6 [hereinafter FOIL] ) for information on its policies relating to electronic recording of custodial interviews, interrogations, confessions and statements. Respondent Laurie Wagner, State Police Records Access Officer, timely denied the request on the basis that the records sought were exempt from disclosure. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding, seeking an order directing respondents to comply with the FOIL request and an award of counsel fees and costs, among other things. Respondents answered the petition and, because all of the records requested by petitioner were attached to the answer, sought dismissal of the proceeding on the basis that it was now moot. Supreme Court dismissed the petition as moot and denied petitioner's request for counsel fees. Petitioner now appeals. ¹

As relevant here, a court may award counsel fees and other litigation costs to a litigant who substantially prevails in a FOIL case if the court finds that “the agency had no reasonable basis for denying access” to the records sought (Public Officers Law § 89 [4][c][i] ). A pertinent consideration in determining whether an agency had a reasonable basis for denying a FOIL request is whether the agency reasonably claimed the records were exempt from disclosure under Public Officers Law § 87(2), although the denial may still have been reasonable even if the records are ultimately deemed not to be exempt ( see Matter of Niagara Envtl. Action v. City of Niagara Falls, 63 N.Y.2d 651, 652, 479 N.Y.S.2d 512, 468 N.E.2d 694 [1984], affg. 100 A.D.2d 742, 473 N.Y.S.2d 653 [1984]; Matter of Miller v. New York State Dept. of Transp., 58 A.D.3d 981, 985, 871 N.Y.S.2d 489 [2009], lv. denied 12 N.Y.3d 712, 882 N.Y.S.2d 397, 909 N.E.2d 1235 [2009]; Matter of Humane Socy. of U.S. v. Fanslau, 54 A.D.3d 537, 538–539, 863 N.Y.S.2d 519 [2008]; Matter of Henry Schein, Inc. v. Eristoff, 35 A.D.3d 1124, 1125–1126, 827 N.Y.S.2d 718 [2006] ). Furthermore, we have previously held that, even if the statutory requirements are met, an award of counsel fees is still discretionary and a court's determination will not be disturbed absent an abuse of such discretion ( see Matter of Capital Newspapers Div. of Hearst Corp. v. City of Albany, 63 A.D.3d 1336, 1339, 881 N.Y.S.2d 214 [2009], mod. on other grounds 15 N.Y.3d 759, 906 N.Y.S.2d 808, 933 N.E.2d 207 [2010]; Matter of Powhida v. City of Albany, 147 A.D.2d 236, 238–239, 542 N.Y.S.2d 865 [1989] ).

Initially, we reject respondents' contention that petitioner did not substantially prevail in this proceeding because respondents ultimately provided the records sought on a voluntary basis in the absence of a consent decree or judgment of Supreme Court. While the fact that respondents disclosed the requested documents upon the commencement of this proceeding and without the need for further or substantial judicial intervention ( compare Matter of New York Civ. Liberties Union v. City of Saratoga Springs, ––– A.D.3d ––––, 926 N.Y.S.2d 732 [decided herewith] ) is a factor to be considered in determining whether, in an exercise of Supreme Court's discretion, an award of counsel fees ultimately may be appropriate here, the “voluntariness” of such disclosure is irrelevant to the issue of whether petitioner substantially prevailed in this proceeding. Indeed, to allow a respondent to automatically forestall an award of counsel fees simply by releasing the requested documents before asserting a defense would contravene the very purposes of FOIL's fee-shifting provision ² ( see Matter of Global Tel*Link v. State of N.Y. Dept. of Correctional Servs., 68 A.D.3d 1599, 1601, 892 N.Y.S.2d 604 [2009]; Matter of Powhida v. City of Albany, 147 A.D.2d at 239, 542 N.Y.S.2d 865). Here, inasmuch as petitioner received all the information that it requested and to which it was entitled in response to the underlying FOIL litigation, it may be said to have substantially prevailed within the meaning of Public Officers Law § 89(4)(c).³

We turn next to the question of whether a reasonable basis existed for initially withholding the records sought by petitioner ( see Public Officers Law § 89[4][c][i]; Matter of Beechwood Restorative Care Ctr. v. Signor, 5 N.Y.3d 435, 441, 808 N.Y.S.2d 568, 842 N.E.2d 466 [2005] ). The denial of petitioner's FOIL request was predicated on an exemption from compliance with FOIL requests pertaining to records, or portions thereof, “compiled for law enforcement purposes ... which, if disclosed, would ... reveal criminal investigative techniques or procedures” that are nonroutine (Public Officers Law § 87[2][e][iv] ). “To ensure maximum access to government documents, the ‘exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption’ ” ( Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 275, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996], quoting Matter of Hanig v. State of N.Y. Dept. of Motor Vehs., 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 [1992] ). In fact, “blanket exemptions ... are inimical to FOIL's policy of open government” ( Matter of Gould v. New York City Police Dept., 89 N.Y.2d at 275, 653 N.Y.S.2d 54, 675 N.E.2d 808).

Upon our review of this record, we cannot say that it was reasonable for respondents to issue a blanket denial of petitioner's document request. The argument that there was a reasonable basis to believe that the records were exempt from disclosure is belied by the virtually immediate release of the requested information upon commencement of this proceeding. Furthermore, our independent review of the records reveals that, at most, respondents could have reasonably...