Matter of Stein v. N.Y. State Department of Transportation

• Decision Date: 05 January 2006
• Docket Number: 98216.
• Citation: 25 A.D.3d 846,807 N.Y.S.2d 208,2006 NY Slip Op 00060
• Parties: In the Matter of EDWARD A. STEIN, Respondent-Appellant, v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

25 A.D.3d 846

807 N.Y.S.2d 208

2006 NY Slip Op 00060

In the Matter of EDWARD A. STEIN, Respondent-Appellant, v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION, Appellant-Respondent.

98216.

Appellate Division of the Supreme Court of the State of New York, Third Department.

January 5, 2006.

Cross appeals from a judgment of the Supreme Court

(Malone, Jr., J.), entered April 29, 2005 in Albany County, which, inter alia, partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's Freedom of Information Law request.

Rose, J.

Pursuant to the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]), petitioner requested that respondent permit inspection and copying of certain records relating to a road construction project in Rockland County. Respondent denied this request as well as petitioner's subsequent administrative appeal. When petitioner commenced this proceeding seeking FOIL disclosure of the requested documents, respondent voluntarily agreed to provide six boxes and several loose files of materials, and submitted the balance of the records which it claimed were responsive, yet exempt interagency and intraagency materials, to Supreme Court for in camera review (see Public Officers Law § 87 [2] [g] [iii]). The court found that most of the submitted documents were exempt, but ordered FOIL disclosure of numerous unreviewed letters and e-mails on the ground that respondent had failed to meet its burden to prove that those documents were exempt. Petitioner and respondent cross-appeal.

Under Public Officers Law § 87 (2), all agency records are open to the public unless specifically exempted by statute (see Matter of Fappiano v New York City Police Dept., 95 NY2d 738, 746 [2001]; Matter of Newsday, Inc. v State Dept. of Transp., 10 AD3d 201, 203 [2004], affd 5 NY3d 84 [2005]). Such statutory exemptions are to be narrowly construed and the agency has the burden of demonstrating that they squarely apply (see Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]; Matter of Hassig v New York State Dept. of Health, 294 AD2d 781, 782 [2002], lv denied 99 NY2d 502 [2002]). The exemption for "inter-agency or intra-agency materials" in Public Officers Law § 87 (2) (g) (iii) has been construed to include "deliberative materials or `communications exchanged for discussion purposes not constituting final policy decisions'" (Matter of Mingo v New York State Div. of Parole, 244 AD2d 781, 782 [1997], quoting Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 699 [1993]; see Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 132 [1985]).

Upon review of the records submitted for in camera review here, we agree that the documents withheld by Supreme Court fall within the exemption for predecisional, nonfinal discussion and recommendations by employees within and among agencies to assist decision makers in formulating a policy or determination (see Matter of Xerox Corp. v Town of Webster, supra at 132-133; Matter of Morgan v New York State Dept. of Envtl. Conservation, 9 AD3d 586, 587 [2004]; Matter of Mingo v New York State Div. of Parole, supra at 782). We also agree with Supreme Court that respondent reasonably complied with two of petitioner's requests seeking all records that refer to the project's design and pertain to any claims made by contractors on the project. Given respondent's plausible explanation of its difficulty interpreting the wording of these requests and petitioner's flat refusal to...