Sustainable South Bronx, Inc. v. Horn, 2008 NY Slip Op 30119(U) (N.Y. Sup. Ct. 1/15/2008)
| Decision Date | 15 January 2008 |
| Docket Number | 0110278/2007,Motion Seq. No. 001 |
| Citation | 2008 NY Slip Op 30119 |
| Parties | SUSTAINABLE SOUTH BRONX, INC., Petitioner, v. MARTIN HORN, COMMISSIONER OF THE CITY OF NEW YORK DEPARTMENT OF CORRECTION and ROBERT C. LIEBER, PRESIDENT OF THE NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, Respondents. |
| Court | New York Supreme Court |
In this article 78 proceeding, petitioner, Sustainable South Bronx, Inc. ("SSBX") seeks a judgment directing the New York City Economic Development Corporation (NYCEDC") (collectively "respondents") to provide a complete document production in response to SSBX's October 11, 2006 requests under the Freedom of Information law ("FOIL") and/or ordering the DOC and the NYCEDC to provide a complete written explanation of any redactions and documents withheld pursuant to any asserted FOIL exemptions and/or ordering an in camera review of materials that DOC and. NYCEDC are withholding to determine whether such documents should be produced.
Respondents moved(mis-designated as a cross-motion) to dismiss the petition, pursuant to CPLR 3212(a)(7), alleging petitioner has failed to state a cause of action on the grounds that petitioner has already received the requested relief.
Petitioner is a community organization concerned with environmental issues affecting South Bronx residents. On October 11, 2006, Legal Services for the City of New York-Bronx ("LSN-Bronx"), acting on behalf of SSBX, submitted FOIL requests to DOC and NYCEDC seeking documents related to "Oak Point", a 27 acre parcel of land located in the Hunts Point section of the South. DOC seeks to acquire Oak Point in order to construct a correctional facility on the site.
This FOIL request sought disclosure and information: 1) concerning site selection for the proposed correctional facility; 2) all building plans, specifications and approvals; 3) any acquisition agreements and/or consent orders; 4) all documents regarding meetings, agreements and accords between DOC and NYCEDC regarding construction of the correctional facility; 5) all documents between DOC and other city agencies, councils and boards regarding the proposed facility and 6) all documents concerning public notices, hearings, meetings or other public participation by the DOC regarding construction of the facility.
On October 12, 2006 DOC acknowledged its receipt of the FOIL request and, on December 12, 2006, the DOC notified LSNY-Bronx that DOC would need at least three (3) months to gather the records in the FOIL request. Thereafter, on February 5, 2007, DOC produced a 92 page "initial" partial production and stated that due to the volume of materials to be reviewed that it would need additional time, "to adequately assess all the department data." (Yoskowitz Aff., Ex. 5) On February 27, 2007, SSBX appealed DOC's February 5, 2007 response on the ground that DOC was required to provide access to the requested records within ten (10) business days of receipt of the request. SSBX also reminded DOC that the public scoping hearing regarding Oak Point was scheduled for April 16th and that public participation in the meeting was vital. On March 9, 2007, DOC produced its production of an additional 133 pages of documents. In its March 9 letter, the DOC indicated that:
Records or portions thereof have been withheld as to those items that constitute inter-agency or intra-agency materials that do not contain statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determination, or an external audit. Pub. Off. Law Section 87(2)(g). Additionally, certain records are protected by attorney client privilege under section 4504 of the CPLR, and thus are exempt from disclosure pursuant to Pub. Off. Law Section 87(2)(a). Lastly, certain records or portions thereof have been redacted as such materials, if disclosed, would impair present or imminent contract awards or collective bargaining negotiations. Pub. Off. Law Section 87(2)(c).
On April 3, SSBX appealed DOC's March 9, 2007 response requesting that DOC provide a chart listing each document DOC withheld and each portion of a document it redacted with basic information about those documents so that SSBX could evaluate whether the documents had been properly withheld. Six days later on April 9, 2007, DOC responded finally denying the appeal. In that final determination DOC described the documents it was withholding pursuant to Public Officer Law Section 87 (2)(g) [] as:
letter and email communications, notes from the files of Department personnel, discussion documents, draft ULURP, EIS
and fair Share Analysis as well as underlying deliberative and analytical materials. Public disclosure of these... materials would adversely affect the governmental deliberative process...
In addition, the agency refused to provide the requested list, stating:
The Department is not required to produce a more detailed list than the description above of the records that have been examined and determined to be exempt under the Freedom of Information Law. This position has been upheld by the New York State Committee on Open Government in numerous opinions.
In the same determination, DOC additionally withheld preliminary and draft requests for proposal and procurement related materials asserting that the disclosure of such materials would impair present or imminent contract awards (see Yoskowitz Aff. Ex. 12)
The FOIL request to NYCEDC was quite similar to petitioner's document request made to DOC. In this October 11, 2006 request SSBX sought all documents from the last ten years that NYCEDC generated regarding 1) concerning site selection for the proposed correctional facility; 2) building plans, specifications and approvals; 3) documents concerning any acquisition agreements and/or consent orders; 4) documents regarding meetings, agreements and accords between NYCEDC and DOC regarding construction of the correctional facility; 5) documents between NYCEDC and other city agencies, councils and boards regarding the proposed facility and 6) documents concerning public notices, hearings, meetings or other public participation by the NYCEDC regarding the acquisition of Oak Point and construction of a correctional facility anywhere in the Bronx.
On October 12, 2007 NYCEDC acknowledged receipt of the request and, thereafter, by letter dated March 6, 2007 NYCEDC forwarded a number of documents1, advising petitioner's attorney that NYCEDC had withheld or redacted certain documents that it determined were exempted from disclosure pursuant to Public Officer Law Section 879(2) (c), as information that would impair present or imminent contract awards, and Public Officer Law Section 87(2)(g), inter or intra agency materials that are not statistical tabulations, instructions to staff that affect the public or final agency policy determination or audits. On April 18, 2007 SSBX formally appealed the March 6, 2007 response. On June 14, 2007 NYCEDC finally determined the appeal maintaining it was "not required to produce a detailed list identifying with specificity each document withheld under FOIL." (Yoskowitz Aff. Ex. 21) NYCEDC did produce some additional documents along with the final determination letter but indicated that it was withholding additional documents pursuant to Public Officer Law Section 87 (2)(g) as predecisional inter and intra agency documents, notes, communications with NYCEDC's consultants, and draft ULURP, EIS and Fair Share Analysis documents, disclosure of which would adversely affect the deliberative process. NYCEDC also withheld drafts of procurement related materials and requests for proposals pursuant to Public Officer Law Section 87(2)(c) which exempts documents from disclosure if such disclosure would impair present and imminent contract awards. Additionally, NYCEDC withheld documents asserting attorney client privilege. (Public Officer Law Section 87 [2] [a])
In support of the petition, SSBX argues that the productions are inadequate and inconsistent because respondents produced substantially more documents in response to virtually identical requests by other parties in a different lawsuit (Britestarr Homes, Inc. v City of New York, 07/05020 (Bankr. D. Conn., files Apr. 11, 2007) According to petitioner, that bankruptcy proceeding concerns the same issues that inform SSBX's FOIL request-the City's plan to build a prison at Oak Point.
Moreover, they contend that respondents have failed to provide particularized and specific justifications or factual information about the documents being withheld and that respondents have not established that they are properly withholding documents pursuant to the inter-agency/intra agency, present or imminent contract awards and/or attorney-client privilege or work product exemptions. Finally, SSBX argues that the court should conduct an in camera review to determine whether the withheld documents must be produced.
In opposition to the petition and in support of the motion to dismiss, respondents contend that SSBX's claims are moot because respondents have produced all of the responsive nonexempt records pursuant to the FOIL request; that SSBX is not entitled to a detailed list or chart of documents that respondents are withholding or redacting and that an in camera review is not warranted because respondents have established that the withheld records are properly exempt from disclosure under FOIL.
Respondents further assert that their responses to the FOIL requests were different in the bankruptcy proceeding because plaintiff in that proceeding sought different types and...
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