Miracle Mile Associates v. Yudelson

• Decision Date: 22 May 1979
• Parties: In the Matter of MIRACLE MILE ASSOCIATES, Appellant, v. Tanya YUDELSON, Records Access Officer of the City of Rochester, Louis N. Kash, Corporation Counsel, Francis D. R. Coleman, Municipal Attorney and the City of Rochester, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 142

417 N.Y.S.2d 142

68 A.D.2d 176

In the Matter of MIRACLE MILE ASSOCIATES, Appellant, v. Tanya YUDELSON, Records Access Officer of the City of Rochester, Louis N. Kash, Corporation Counsel Francis D. R. Coleman, Municipal Attorney and the City of Rochester, Respondents.

Supreme Court, Appellate Division, Fourth Department.

May 22, 1979.

Harris, Beach, Wilcox, Rubin & Levey, Rochester (William L. Dorr, Rochester, of counsel), for appellant.

Louis N. Kash, Corp. Counsel, Rochester, for respondents.

Before DILLON, P. J., and CARDAMONE, DOERR, MOULE, JJ.

CARDAMONE, Justice:

This appeal presents the question of what kinds of documents maintained as records by a municipality are exempt from public inspection under the Freedom of Information Law. This litigation rises in a setting focused on today's competitive clash between a regional developer and downtown interests.

Miracle Mile Associates, appellant, plans to develop a proposed suburban regional shopping center in Monroe County. It contends that respondent, the City of Rochester, petitioned the New York State Department of Environmental Conservation (DEC) for environmental review of the proposed Town of Henrietta shopping center for the purpose of delaying interminably construction of "The Market Place". In addition to asking for environmental review, the City also petitioned the DEC for a declaratory ruling under the Freshwater Wetlands Act, sought to persuade federal officials of a possible adverse environmental impact and commissioned its own study of the effects of the proposed Market Place Mall. Characterizing these activities as a deliberate effort "to wreck" the project, appellant instituted this Article 78 proceeding to obtain certain documents from the City and also instituted a presently pending civil suit for damages against the City in the Federal District Court for the Western District of New York. The City of Rochester responds that it acted out of concern for possible adverse environmental effects.

On June 27, 1978 appellant made four separate requests for access to City documents pursuant to the Freedom of Information Law (FOIL) addressed to: (1) the Assistant City Manager for Development; (2) the Office of the City Manager; (3) the Department of Community Development; and (4) the Law Department-Corporation Counsel. In each case access was sought to: "All memos, minutes, correspondence, or records of any kind, from January 1, 1968 present, pertaining to the proposed development known as Market Place Mall (Miracle Mile Mall) to be located in the Town of Henrietta between Jefferson Road and West Henrietta Road, or to the relocation of Red Creek proposed for that property". After an exchange of correspondence with the Records Access Officer of the respondent City, certain documents were agreed to be released. Respondent's Records Officer on July 14 denied appellant's request for access to any other information on the following grounds: "The remaining information in the City's files is not releasable because it is; (1) exempted under the provisions of the state and/or city Freedom of Information acts, or (2) exempted and/or privileged under Articles 31 and 45 of the Civil Practice Law and Rules, or (3) of a nature such that its disclosure would adversely affect the public interest, or (4) not collected in the ordinary course of business and not part of a general study".

Appellant appealed the determination of the Records Officer to the office of respondent Kash, City Corporation Counsel. By letter dated August 2, 1978 respondent Kash stated that the City would release, in addition to the declaratory rulings it had already released, the City's application to the New York State Environmental Conservation Commissioner for an Environmental Impact Statement and the Commissioner's response to it. However, respondent Kash declined to release other correspondence between the City of Rochester and other agencies stating that such records are exempt from disclosure by virtue of section 87(2)(g) of the Public Officer's Law. Respondents also declined to release communications made between different employees of the City which do not constitute statistical or factual tabulations or data, instructions to staff or final agency policy or determinations. The materials in the Miracle Mile file were categorized in an affidavit by the City as follows:

(1) petitions for declaratory rulings by the Department of Environmental Conservation and the responses to these petitions;

(2) correspondence among (a) City officials and officials of other agencies; (b) officials of the City and persons not affiliated with other agencies; (c) different City officials or employees;

(3) hand written notes of City officials or employees for their own files;

(4) miscellaneous newspaper clippings, outside publications, and other media articles relating to Miracle Mile;

(5) various federal, state and local laws, rules and regulations.

Special Term conducted an In camera review of the documents requested by appellant which respondent had declined to release and, subsequently, ordered that some, but not all, of the documents reviewed be released. Respondent also furnished appellant with a list of those documents withheld and of those released. We have been furnished with the In camera review materials which Special Term ordered withheld.

We comment briefly at the outset on appellant's claim that respondent's conduct equitably estops it from claiming any exemption under FOIL. Concededly, a municipal corporation may be estopped from asserting a right it has; but this bar is to be used sparingly and only in truly unusual cases (LaPorto v. Village of Philmont, 39 N.Y.2d 7, 382 N.Y.S.2d 703, 346 N.E.2d 503; Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 382 N.Y.S.2d 18, 345 N.E.2d 561; Gordon v. Holt, 65 A.D.2d 344, 412 N.Y.S.2d 534; Matter of Moritz v. Board of Educ. of Gowanda Cent. School Dist., 60 A.D.2d 161, 400 N.Y.S.2d 247). Appellant here failed to demonstrate reliance and a prejudicial change in position, without which no basis exists for the application of this equitable remedy.

Miracle Mile Associates urge on the merits that the order directing In camera review be reversed because respondent's conclusory and nonspecific assertions fail to meet its burden of proving entitlement to the statutory exemption claimed. It also urges that we reverse the supplemental order at Special Term which permitted some materials to be withheld on the grounds that the documents do not fall within the statutory exemption for "inter-agency or intra-agency material".

The Public Officer's Law states that "(i)n 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" ( § 89(4)(b)). New York's Freedom of Information Law (FOIL) is patterned after the federal Freedom of Information Act (FOIA) (Matter of McAulay v. Board of Educ. of City of N. Y., 61 A.D.2d 1048, 403 N.Y.S.2d 116). Under the federal act the burden is on the agency resisting disclosure (5 U.S.C. § 552(a)(4) (B)). An agency resisting disclosure must furnish detailed affidavits or oral testimony to establish to the satisfaction of the trial court that the documents sought are exempt. Such exemption may also be demonstrated by surrounding circumstances or by selecting a representative document for In camera inspection or by disclosing certain portions and showing by circumstances that the excised portions are protected (Environmental Protection Agency v. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 35 L.Ed.2d 119).

In view of the fact that extensive In camera inspection is burdensome and appellate review difficult when the trial court's findings are phrased in conclusory language, one federal court directed that the agency give a relatively detailed analysis of the documents involved, indexed and cross-referenced as to justification so as to permit adequate adversary testing and to insure that the burden of proof remains on the agency (Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. den. 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873). Stating that it is a "rare case" that an In camera determination will be necessary, the Court of Appeals held that "(a) description of the material sought, the purpose for which it was gathered and other similar considerations will usually provide a sufficient basis upon which the court may determine whether the assertion of governmental privilege is warranted" (Cirale v. 80 Pine St. Corp., 35 N.Y.2d 113, 119, 359 N.Y.S.2d 1, 6, 316 N.E.2d 301, 304). Plainly, in some cases, In camera inspection will be necessary, but it is not and should not be an "automatic" or "inevitable tool" in every case (Environmental Protection Agency v. Mink, supra, 410 U.S. at 93, 93 S.Ct. 827).

The thrust of the case law is clear. Since, as noted, extensive In camera review is burdensome, both the New York and Federal Courts afford a full opportunity to the agency involved to avoid a court inspection by otherwise meeting its burden of proving an exemption. The agency must furnish a sufficiently detailed analysis of the questioned documents so that Special Term has an adequate basis for the exercise of its discretion and to insure that In camera inspection will be directed only in the "rare case". However, since the parties obviously have unequal knowledge of the documents sought, where the agency fails to give sufficiently detailed information with respect to the material allegedly exempt to permit the trial court to decide the issue, In camera inspection is one vehicle for protecting the rights of both. The respondent's letter of July 14 and its affidavit contain merely general statements worded in conclusory fashion insufficient for Special Term to determine whether the material was exempt and,...