Prisoners' Legal Servs. of N.Y. v. N.Y.S. Dep't of Corr. & Cmty. Supervision

• Citation: 209 A.D.3d 1208,177 N.Y.S.3d 765
• Decision Date: 27 October 2022
• Docket Number: 533722
• Parties: In the Matter of PRISONERS’ LEGAL SERVICES OF NEW YORK, Appellant, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
• Court: New York Supreme Court Appellate Division

209 A.D.3d 1208
177 N.Y.S.3d 765

In the Matter of PRISONERS’ LEGAL SERVICES OF NEW YORK, Appellant,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.

533722

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

Calendar Date: September 7, 2022
Decided and Entered: October 27, 2022

177 N.Y.S.3d 767

Debevoise & Plimpton LLP, New York City (William C. Mattessich of counsel), and Prisoners’ Legal Services of New York, Albany (Matthew McGowan of counsel), for appellant.

Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondent.

Before: Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

209 A.D.3d 1209

Appeals from two judgments of the Supreme Court (Kimberly A. O'Connor, J.), entered February 11, 2021 and June 8, 2021 in Albany County, which dismissed petitioner's application, in a combined proceeding

177 N.Y.S.3d 768

pursuant to CPLR article 78 and action for declaratory judgment, to review a determination of respondent denying petitioner's Freedom of Information Law requests.

In May and June 2019, numerous incidents took place in the yards of the Auburn and Clinton Correctional Facilities for which respondent conducted Tier III disciplinary hearings for four incarcerated individuals represented by petitioner – Charles Blanchard, Phillip Bradley, Antonion Christian and Shaun Martin. Following the hearings, petitioner filed separate requests pursuant to the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) for each incident involving one of petitioner's clients seeking, among other things, the surveillance video and unusual incident (hereinafter UI) reports from each client's hearing. As relevant here, respondent denied the requests to the extent that each sought surveillance video footage of the incidents from the respective facilities, as well as Bradley's UI report. Specifically, with respect to Christian, petitioner contacted Auburn's superintendent via email to inquire about the video footage. Approximately one month later, respondent's counsel ultimately denied the requested video pursuant to Public Officers Law § 87(2)(e), asserting that disclosing it would "interfere with law enforcement investigations." Petitioner administratively appealed the denial, which was denied by respondent's FOIL appeals officer, who again cited Public Officers Law § 87(2)(e). The appeals officer took the position that, contrary to petitioner's contention, "the review of evidentiary records during a disciplinary hearing does not negate the applicability of FOIL exemptions in response to a subsequent FOIL request for [those] records."

Petitioner made a virtually identical request to Auburn regarding Bradley, which respondent denied based upon the fact that a criminal investigation was still ongoing, and that petitioner could renew its request upon the conclusion of the investigation. In its administrative appeal of the denial, petitioner asserted that respondent's former denial failed to specify the incarcerated individuals to whom the denial applied and did not cite the statutory exemption relied upon.

209 A.D.3d 1210

Respondent's FOIL appeals officer upheld the denial, setting forth the same reasoning relied upon in Christian's denial and further relying upon Public Officers Law § 87(2)(g) and (e). Petitioner made similar FOIL requests to Clinton for videos viewed at the disciplinary hearings of Martin and Blanchard; those requests were denied and the denial was upheld upon administrative appeal due to an "ongoing investigation," relying upon Public Officers Law § 87(2)(e) and (f).

Petitioner then commenced this combined CPLR article 78 proceeding and action for declaratory judgment, seeking to compel disclosure of the remainder of the requested materials. Notably, during the pendency of the proceeding, respondent withdrew its claimed law enforcement exemption with respect to the Auburn footage and Bradley's UI report and provided petitioner with said materials. Accordingly, in addition to arguing that respondent had violated its obligations under FOIL, petitioner contended that respondent's subsequent disclosure of Bradley's UI report and the Auburn video footage established that petitioner substantially prevailed and was entitled to counsel fees and costs. In its February 2021 judgment, Supreme Court found that petitioner's claim was moot to the extent it had sought Bradley's UI report and the Auburn video footage relating to Christian and Bradley, as respondent had produced these materials subsequent to commencement of the proceeding, and that the mootness exception

177 N.Y.S.3d 769

did not apply. The court found that petitioner's failure to serve a summons, in addition to its notice of petition, rendered its claims for declaratory relief not properly before the court. As to the Clinton video footage relating to Martin and Blanchard, the court found that it could not determine whether the withheld videos fell within a FOIL exemption without viewing the footage in camera and ordered that the remainder of the petition be held in abeyance pending review. Thereafter, in a June 2021 judgment, the court concluded, based upon its in camera review, that respondent had met its burden of establishing that disclosure of the requested material could lead to the possibility of endangerment such that the aforementioned footage fell within the exemption under Public Officers Law § 87(2)(f). The court further declined to award petitioner counsel fees, stating that petitioner did not substantially prevail. Petitioner appeals.

Initially, contrary to petitioner's contention, we agree with Supreme Court that respondent's disclosure of Bradley's UI report and video footage from Auburn mooted the challenge to respondent's denial of the requests for those materials. "Where a petitioner receives an adequate response to a FOIL request

209 A.D.3d 1211

during the pendency of his or her CPLR article 78 proceeding, [that issue is] moot because a determination [on that issue] will not affect the rights of the parties" ( Matter of Gannett Satellite Info. Network, LLC v. New York State Thruway Auth., 181 A.D.3d 1072, 1073–1074, 120 N.Y.S.3d 224 [3d Dept. 2020] [internal quotation marks and citations omitted]). Despite petitioner's assertion to the contrary, we do not find the exception to the mootness doctrine to be applicable (see Matter...