Kheel v. Ravitch

• Decision Date: 05 May 1983
• Citation: 93 A.D.2d 422,462 N.Y.S.2d 182
• Parties: Theodore W. KHEEL, Petitioner-Respondent, v. Richard RAVITCH and Metropolitan Transportation Authority, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 182

462 N.Y.S.2d 182

93 A.D.2d 422

Theodore W. KHEEL, Petitioner-Respondent, v. Richard RAVITCH and Metropolitan Transportation Authority,

Respondents-Appellants.

Supreme Court, Appellate Division,

First Department.

May 5, 1983.

Mary P. Bass, New York City, for respondents-appellants.

Raymond F. Gregory, New York City, for petitioner-respondent.

Before CARRO, J.P., and SILVERMAN, FEIN and KASSAL, JJ.

KASSAL, Justice.

Petitioner brought this proceeding pursuant to CPLR Article 78 to compel production by respondents, pursuant to the Freedom of Information Law (Public Officers Law § 84 et seq.) of a memorandum prepared by the staff of the Transit Authority. This document relates to petitioner's performance as the designated arbitrator under the collective bargaining agreements between the transit unions and the Transit Authority and Manhattan and Bronx Surface Transit Operating Authority, both divisions of the Metropolitan Transportation Authority (MTA). The memorandum, which MTA concedes contained an analysis of arbitration awards by Mr. Kheel, included a recommendation that the interests of the MTA would best be served by the designation of a new arbitrator for the contract period following expiration of the existing collective bargaining agreement on March 31, 1982. Petitioner also sought disclosure of a copy of the decision of the MTA Board not to redesignate him as the impartial arbitrator, as well as the names of the Board members who had voted and the manner by which each vote was cast.

The primary issue in the case, both before Special Term, 115 Misc.2d 602, 454 N.Y.S.2d 413, and on this appeal, is whether the documents sought are subject to public disclosure under the Freedom of Information Law or are exempt thereunder on the alternate grounds urged by appellants, that (1) production would impair collective bargaining negotiations or (2) that the documents are exempt from disclosure as intra-agency material [Public Officers Law § 87(2)(c) and (g) ].

For the past 33 years, since 1949, petitioner served as a well-known and highly respected labor mediator in the transit industry. At the time the then existing collective bargaining agreement between the Transit Authority and the unions expired, on March 31, 1982, Mr. Kheel was the designated impartial arbitrator.

On April 5, 1982, the New York Times reported: "Kheel, Facing Ouster, Steps Down As New York's Transit Arbitrator". According to the news story, MTA Chairman Richard Ravitch sought to change the designated arbitrator after concluding that petitioner's recent decisions were "unfavorable to management and favorable to the union." The report made specific reference to the disclosure by Ravitch of the existence of a memorandum which documented the "unfavorable rulings" by Kheel and that there were "strong feelings" within the MTA Board that petitioner should be replaced.

According to petitioner, days prior to publication of the newspaper account, he had learned of a move to displace him as the designated arbitrator and, on April 4, 1982, he announced that, as a result of his belief that an arbitrator, to be effective, must be acceptable to both sides, he would not accept reappointment as the impartial arbitrator.

On April 6, 1982, pursuant to the Freedom of Information Law, [Public Officers Law § 87], petitioner demanded production of the memorandum referred to in the news story, together with a copy of the Board decision, the names of the Board members who had voted and the manner by which each had voted. The letter requesting this information expressed the view that Ravitch's plan to oust petitioner would be highly damaging to Kheel's professional career as an arbitrator and would have an adverse effect upon his reputation for fairness and impartiality. This letter concluded that disclosure was necessary to determine whether the MTA or the Mayor, or both acted arbitrarily or capriciously in reaching the determination that petitioner be replaced.

On April 27, 1982, 4 days after management and transit union leaders had announced the appointment of a new arbitrator, petitioner's request for this disclosure was denied by MTA's General Counsel upon the grounds: (1) production "would impair collective bargaining negotiations" and (2) the document constituted "inter- or intra-agency material which does not constitute statistical or factual data, instructions to staff or a final agency policy or determination." [Public Officers Law § 87(2)(c) and (g) ] While appellants refused to produce the requested memorandum, they furnished petitioner with portions of the transcript of the press conference held by Ravitch on April 23, 1982, where the MTA Chairman stated:

"The decision to replace Ted [Kheel] which was made at my instance, not at the unions [sic], was not made because I thought poorly of his ability, integrity or impartiality at all. Rather the fundamental view that I thought it was time for a change .. and given the fact that we are seeking major changes in the contract for all the circumstances previous described. But it is clearly, this decision was no reflection on Mr. Kheel's (as I said) ability, integrity or impartiality."

Thereupon, this proceeding was brought to judicially enforce petitioner's claimed right to disclosure of the memorandum and the determination of the Board. In opposing the application, appellants contended that the memorandum did not constitute final agency policy but, instead, amounted to an analysis of Mr. Kheel's performance made by transit authority staff, including a short discussion of a proposed arbitration clause for the new collective bargaining agreement and the writer's view as to how petitioner would apply that clause. It was concluded that the interests of the MTA would be better served by reaching an agreement with the transit unions to select a different arbitrator. It was further stated that the memorandum was not circulated among the members of the Board, who did not vote on any matter relating to the negotiation. Further, it was alleged that no decision was ever made by the Board with respect to ousting petitioner, nor was any Board action required. The determination was not intended, in any way, to reflect upon his competence or ability, from which both union and management had benefitted over the years. According to appellants, the 4-page memorandum, dated March 18, 1982, did not amount to final agency action; was prepared prior to reaching a decision to replace petitioner; and was but one of many factors taken into account by Ravitch in assessing the MTA's collective bargaining posture in terms of the designation of an impartial arbitrator for the next ensuing period.

Disputing the claim, Kheel contended that the memorandum was not a predecision document but actually was prepared after the decision to replace him had been made and was used as postdecisional support for the reason given by the MTA in opposing his redesignation.

Special Term directed production, finding that the agency had not satisfied its burden to demonstrate that the requested material was exempt from disclosure. In rejecting the claim that production would impair collective bargaining negotiations [Public Officers Law § 87, subds. (2), (3) ], the court relied upon the absence of any showing of present or imminent collective bargaining negotiations which might be affected by the release of information which had already been placed in the public arena by the comments made by the MTA Chairman. In finding inapplicable the exemption for intra-agency material [Public Officers Law § 87, subd. (2)(g) ], the court held that the memorandum reflected final agency policy formulated by the MTA. In light of the claim that there had been no formal MTA Board determination as to petitioner's status, the court, finding that other records might exist, directed the MTA to specify those documents in existence with regard to the determination upon which disclosure had been sought, and granted petitioner leave to thereafter pursue available remedies to obtain access to such additional documents, including an application to reopen the proceeding after exhaustion of administrative remedies.

The Freedom of Information Law (Public Officers Law § 84 et seq.) effectively strikes a balance between the inherent right of the public to know and the legitimate interest on the part of government to keep certain matters confidential. The legislation establishes a general policy which favors disclosure, subject to eight narrowly drafted exemptions, with the burden cast upon the agency to sufficiently demonstrate that the requested material is exempt. (Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 419 N.Y.S.2d 467, 393 N.E.2d 463; Westchester News v. Kimball, 50 N.Y.2d 575, 430 N.Y.S.2d 574, 408 N.E.2d 904). Instructive is the observation by Chief Judge Cooke, writing for a unanimous Court of Appeals in Fink v. Lefkowitz, supra 47 N.Y.2d at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463:

"To be sure, the...