Opinion
1190 Index No. 157453/21 Case No. 2023–01678
12-14-2023
In the Matter of QUEENSRAIL CORPORATION, Petitioner–Appellant, v. METROPOLITAN TRANSPORTATION AUTHORITY, Respondent–Respondent.
Government Justice Center, Inc., Albany (Cameron J. Macdonald of counsel), for appellant. Calcaterra Law PC, New York (James Aliaga of counsel), for respondent.
Government Justice Center, Inc., Albany (Cameron J. Macdonald of counsel), for appellant.
Calcaterra Law PC, New York (James Aliaga of counsel), for respondent.
Kern, J.P., Singh, Kennedy, Mendez, Rodriguez, JJ.
Order and judgment (one paper), Supreme Court, New York County (William Franc Perry, J.), entered September 12, 2022, which, insofar as appealed from as limited by the briefs, denied the petition to compel respondent to disclose records requested by petitioner pursuant to the Freedom of Information Law (FOIL) ( Public Officers Law §§ 84 – 90 ), and dismissed the proceeding brought pursuant to CPLR article 78, unanimously modified, on the law, to reinstate the proceeding and remand the matter for further proceedings consistent with this decision, and otherwise affirmed, without costs.
Disclosing cost information in the contract proposals submitted to respondent by nonparty Systra Engineering, Inc. would likely result in substantial competitive injury to Systra, by revealing essential information about its previously successful approach to bidding for engineering contracts (see Matter of Catapult Learning, LLC v. New York City Dept. of Educ., 109 A.D.3d 731, 732, 971 N.Y.S.2d 439 [1st Dept. 2013] ). Petitioner is not entitled to other information in the contract proposals with redactions to the cost information, because redactions to records requested under FOIL are available only under the personal privacy exemption (see Matter of Judicial Watch, Inc. v. City of New York, 178 A.D.3d 540, 541, 114 N.Y.S.3d 342 [1st Dept. 2019] ), which is not raised in this case. Petitioner's procedural arguments based on Public Officers Law § 89(5) are also unavailing.
Respondent failed to demonstrate the applicability of the intra-agency materials exemption to petitioner's request for certain work product produced by Systra, "since some or all of the materials may constitute ‘factual tabulations or data[,]’ ... which do not fall within this exemption" ( Matter of Thomas v. Condon, 128 A.D.3d 528, 530, 9 N.Y.S.3d 257 [1st Dept. 2015], quoting Public Officers Law § 87[2][g] ). Accordingly, we remand for respondent to provide petitioner with any records responsive to petitioner's request for work product to the extent that they constitute factual data and do not contain cost information, and to submit any other records responsive to petitioner's request for work product to Supreme Court for an in camera inspection (see Matter of Thomas, 128 A.D.3d at 530, 9 N.Y.S.3d 257 ; see also Matter of Whitehead v. Warren County Bd. of Supervisors, 165 A.D.3d 1452, 1454, 86 N.Y.S.3d 241 [3d Dept. 2018] ). Respondent's argument that it does not possess some of the work product sought by petitioner is unpreserved, since respondent never relied on that ground to support its determination at the administrative level (see Matter of Madeiros v. New York State Educ. Dept., 30 N.Y.3d 67, 74, 64 N.Y.S.3d 635, 86 N.E.3d 527 [2017] ). Moreover, the FOIL request adequately described the work product sought.
We have considered respondent's remaining arguments as to work product and find them unavailing.