Weisshaus v. Port Auth. of N.Y. & N.J.
| Decision Date | 01 July 2015 |
| Docket Number | 719/15 |
| Citation | 18 N.Y.S.3d 268,49 Misc.3d 550,2015 N.Y. Slip Op. 25226 |
| Parties | In the Matter of the Application of Yoel WEISSHAUS, Petitioner, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Respondent. |
| Court | New York Supreme Court |
Yoel Weisshaus, petitioner pro se.
James M. Begley, New York City, for respondent.
Petitioner Yoel Weisshaus petitions, pursuant to CPLR Article 78, for an order: (1) vacating the decision of respondent Port Authority of New York and New Jersey (Port Authority) denying Weisshaus' Freedom of Information application; (2) directing the Port Authority to produce to Weisshaus the documents he sought in his Freedom of Information application; (3) directing the Port Authority to produce a privilege log of the documents it seeks to withhold and making the documents available for in camera inspection; and (4) imposing legal fees and costs, if applicable.
For the reasons which follow, The Port Authority is directed, pursuant to CPLR 7804(e), to provide, in some evidentiary form, a sufficiently detailed description of the responsive documents claimed to fall within the agency exception in order to allow this court to make a meaningful determination as to whether the claimed exception applies. In addition, to the extent that the 2011 toll hikes were discussed at Port Authority meetings that were open to the public, the Port Authority should make the minutes of such meetings available to Weisshaus for copying or review.
This CPLR Article 78 proceeding arises out of the Port Authority's denial of Weisshaus' letter request, dated September 26, 2011, that the Port Authority disclose documents and records relating to the Port Authority's decision to increase toll prices enacted on September 18, 2011. In the September 26, 2011 letter, Weisshaus stated, as is relevant here, that:
“PLEASE TAKE NOTICE full disclosure consists of indentifying [sic] documents, emails and all type of evidence that include minutes and transcripts of topics and discussions that were held in connection with the foregoing request.”
The Port Authority first responded to Weisshaus' request by way of a February 10, 2012 letter from its “FOI Administrator,” who stated that it was processing Weisshaus' request for “copies of records communicated to Governor Andrew Cuomo and Chris Christie regarding the toll increase” and that Weisshaus would be advised in writing if responsive documents were located and if any of the records were exempt from disclosure pursuant to the “Port Authority Freedom of Information Policy.” In letters dated in May, June, July and August 2012, the FOI Administrator wrote to petitioner and stated that Weisshaus' request would be processed under the Port Authority's “Freedom of Information Code,” but that additional time was needed to process the request. Finally, in a letter dated November 24, 2014, the FOI Administrator stated that, “[t]he materials responsive to your request, to the extent they exist, are exempt from disclosure pursuant to exemption (5) of the [Freedom of Information] Code as they would be inter-agency or intra-agency advisory, consultive or deliberative records.”
After receiving the November 24, 2014 denial letter, Weisshaus “appealed” the denial by sending a letter, dated November 28, 2014, to the Port Authority's General Counsel. After receiving no response to the November 28, 2014 letter, plaintiff commenced this CPLR Article 78 proceeding in March 2015. The Port Authority has since answered the petition and, in its opposition papers, asserts that it is entitled to dismissal of the petition.
The Port Authority was created in 1921 as a bi-state public authority by an interstate compact between the States of New York and New Jersey (L. 1921, ch. 154; LNJ 1921, ch. 151), which was approved by the Congress of the United States by joint resolution of August 23, 1921 (42 U.S. Stat., ch. 77, p. 174) (Nash v. Port Auth. of N.Y. & N.J., 298 A.D.2d 72, 73, 747 N.Y.S.2d 433 [1st Dept.2002] ; Faillace v. Port Auth. of N.Y. and N.J., 130 A.D.2d 34, 35, 517 N.Y.S.2d 941 [1st Dept.1987]lv. denied 70 N.Y.2d 613, 524 N.Y.S.2d 432, 519 N.E.2d 343 [1987] ). As a bi-state agency, the Port Authority is not subject to the unilateral control of either state, and, as such, the concurrence of both New York and New Jersey is required to apply a particular law to the Port Authority (Hess v. Port Auth. Trans–Hudson Corp., 513 U.S. 30, 42, 115 S.Ct. 394, 130 L.Ed.2d 245 [1994] ; King v. Port Auth. of N.Y. & N.J., 909 F.Supp. 938, 944 [D.N.J.1995], affd. 106 F.3d 385 [3d Cir.1996] ; Unconsolidated Laws § 6408 ; N.J.S.A. 32:1–8 ). Since, as of yet, no such concurrence has been reached with respect to application of New York's Freedom of Information Law (FOIL) (see Public Officers Law art 6) nor New Jersey's Open Public Records Act (OPRA) ( N.J.S.A. 47:1A–1 to 13),1 OPRA and FOIL are currently inapplicable to the Port Authority (see Dittrich v. Port Auth. of N.Y. & N.J., 2012 WL 4662213 [App.Div.2012] ).
The Port Authority, however, has adopted by-laws creating its own freedom of information rules that, as is relevant here, were embodied in a Freedom of Information Policy and Procedure (FOP) that was in effect from May 2008 through April 2012, and a Freedom of Information Code (FOC) that was in effect from April 2012 through December 2014. The by-laws adopting the FOP indicate that the Port Authority's freedom of information policy was intended to be consistent with New York's FOIL and New Jersey's OPRA. While the by-laws relating to the adoption of the FOC do not expressly state that the FOC was intended to be consistent with FOIL or OPRA, the by-laws express that the FOC was adopted with a goal of providing “greater transparency in governance,” and was adopted, inter alia, after review of the requirements of FOIL and OPRA. The disclosure requirements of the FOC and its exemptions are similar to those contained in FOIL and OPRA (Public Officers Law § 87[2] ; N.J.S.A. 47:1A–1.1 ). Indeed, both the FOP and the FOC provide that all records of the Port Authority “shall be” made available for public inspection and/or copying and only provide that such access “may be denied” if the records fall within certain enumerated exceptions. The FOP and the FOC's requirements relating to access to records and exemptions to that access, at least those relevant here, are essentially the same, and, and since the Port Authority applied the FOC in reviewing Weisshaus' records request, the court will review the petition under the FOC standards.
Weisshaus' petition is properly before this court. In 1950, the legislatures of both New York and New Jersey enacted legislation waiving the Port Authority's sovereign immunity (L. 1950, ch. 301, §§ 1–12; Unconsolidated Laws §§ 7101 to 7112 ; N.J.S.A. 32:1–157 ; see Matter of New York City Asbestos Litig., 24 N.Y.3d 275, 278, 998 N.Y.S.2d 150, 22 N.E.3d 1018 [2014] ; Santiago v. New York & New Jersey Port Auth., 429 N.J.Super. 150, 158–159, 57 A.3d 54, 59 [App.Div.2012], cert. denied 214 N.J. 175, 68 A.3d 890 [2013] ). The proceedings before the agency are also final, as the FOC does not provide for an agency appeals process, and expressly provides that the determination of the FOI Administrator (apparently acting as the “Secretary's designee” here) are final and that a person denied access to a record “may therefore, seek such judicial recourse as may be available in either State.”2
In reviewing the actions of the Port Authority, courts apply the same standards as are applied in reviewing the actions of administrative agencies (see
Mapp v. Burnham, 8 N.Y.3d 999, 1000, 839 N.Y.S.2d 439, 870 N.E.2d 678 [2007] ; In re Alleged Improper Practice Under Section XI, Paragraph A(d) of the Port Auth. Labor Relations Instruction, 194 N.J. 314, 330–333, 944 A.2d 611, 621–622 [2008], cert. denied sub nom. Port Auth. Police Benev. Assn., Inc. v. Port Auth. Of N.Y. & N.J., 555 U.S. 1069, 129 S.Ct. 754, 172 L.Ed.2d 726 [2008] ). In New York, the procedural mechanism for reviewing agency actions is under CPLR Article 78, which abolished the procedure of the former common-law writs of mandamus, certiorari, and prohibition, but retained their substantive law (Matter of Newbrand v. City of Yonkers, 285 N.Y. 164, 174–175, 33 N.E.2d 75 [1941] ; Alexander, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C7801:1, at 29–30). The Port Authority, in opposing the petition, argues that its denial of disclosure should be reviewed under the arbitrary and capricious standard of review. By referring to this standard, the Port Authority, is in effect, suggesting that this proceeding should be considered as a writ of mandamus to review, which writ involves the review of discretionary agency determinations, that, unlike certiorari, do not involve review of quasi-judicial administrative hearings (see Matter of Scherbyn v. Wayne–Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 757–758, 570 N.Y.S.2d 474, 573 N.E.2d 562 [1991] ). The standard of review in a mandamus to review proceeding “is whether the agency determination was arbitrary and capricious or affected by an error of law” (see CPLR 7803[3] ; Matter of Scherbyn, 77 N.Y.2d at 758, 570 N.Y.S.2d 474, 573 N.E.2d 562 ). This may or may not be the correct standard....
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