Opinion
No. 63270.
12-01-2016
LEE ENTERPRISES, INC., as parent company of The Post Star; Maury Thompson, as Staff Writer for The Post Star, Hubbard Broadcasting, Inc., as owner of WNYT–TV; Kathy Barrans, as Special Projects Producer at WNYT–TV, Petitioners, for a Judgment under Article 78 of the Civil Practice Law and Rules v. The CITY OF GLENS FALLS; City Clerk Robert A. Curtis, as the City of Glens Falls' Records Access Officer; and Mayor John A. Diamond, as the City of Glens Falls' Chief Executive Officer and Records Access Appeal Officer, Respondents.
Greenberg Traurig, LLP, Albany (Kelly L. McNamee of counsel), for petitioners. Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (James A. Resila of counsel), for respondents.
Greenberg Traurig, LLP, Albany (Kelly L. McNamee of counsel), for petitioners.
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (James A. Resila of counsel), for respondents.
ROBERT J. MULLER, J.
Petitioners seek access under the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL] ) to a hearing officer's report and recommendation that was considered by the City of Glens Falls Common Council (hereinafter the Council) in terminating the employment of an employee of respondent City of Glens Falls (hereinafter the City). Lauren M. Stack, who was the City's assessor, pleaded guilty in August 2016 to, among other things, driving while ability impaired. The City brought disciplinary charges against her pursuant to the City Charter § 3.24 and a hearing on the charges was held before a hearing officer in September 2016. At a special meeting of the Council held on October 3, 2016, the Council voted to go into executive session to consider a hearing officer's report and recommendation regarding Stack. Following the executive session, the Council returned to a public session and voted unanimously to accept the hearing officer's recommendation that Stack's employment with the City be terminated. Petitioners Maury Thompson (a reporter for The Post–Star) and Kathy Barrans (a producer at WNYT–TV) submitted separate requests under FOIL to respondent Robert A. Curtis, who was the City's records access officer, seeking a copy of the hearing officer's report and recommendation regarding Stack. Curtis denied the FOIL requests and Curtis's determinations were upheld on administrative appeal by respondent John A. Diamond, who was the records access appeal officer. This proceeding ensued.
"FOIL is based on the overriding policy consideration that ‘the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government’ " (Matter of Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252 [1987], quoting Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571 [1979] ; see Matter of Federation of N.Y. State Rifle & Pistol Clubs v. New York City Police Dept., 73 N.Y.2d 92, 95 [1989] ). The Court of Appeals has made clear "that FOIL ‘be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government’ " (Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 18 NY3d 652, 657 [2012], quoting Matter of Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d at 252 ). Where an exemption is asserted, "the burden [is] upon the public agency to demonstrate that ‘the material requested falls squarely within the ambit of one of [the] statutory exemptions' " (Matter of Newsday, Inc. v. Empire State Dev. Corp., 98 N.Y.2d 359, 362 [2002], quoting Matter of Fink v. Lefkowitz, 47 N.Y.2d at 571 ).
In their memorandum of law, respondents rely on the exemption provided by Public Officers Law § 87(2)(g) as their ground not to disclose the hearing officer's report and recommendation. That provision of the statute allows an agency to deny access to records that "are inter-agency or intra-agency materials which are not: (i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) final agency policy or determinations; [or] (iv) external audits ...." This intra-agency exemption "applies to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" ... and "the purpose of such exemption is to protect the deliberative process of the government by ensuring that persons in an advisory role will be able to express their opinions freely to agency decision makers" (Matter of Smith v. New York State Off. of the Attorney Gen., 116 AD3d 1209, 1210 [2014], lv denied, 24 NY3d 912 [2014] [internal quotation marks, citations and brackets omitted] ). Respondents argue that the hearing officer was a City employee and that his report and recommendation was "a strictly preliminary, nonfinal recommendation ." According to respondents, the Council did not adopt the entire report and recommendation, but instead merely accepted the recommendation therein. Thus, they assert, "the [r]eport is not a final agency determination, and is exempt from disclosure."
The Court is unpersuaded by respondents' expansive interpretation of the intra-agency exemption. The cases finding the intra-agency exemption applicable are readily distinguishable from a situation where, as here, a public employee who was appointed by the mayor is terminated following a hearing (see e.g. Matter of Ward v. Gonzalez, 123 AD3d 1345, 1346 [2014], lv denied 25 NY3d 912 [2015] ; Matter of Smith v. New York State Off. of the Attorney Gen ., 116 AD3d at 1211–1212 ; Matter of Rowland D. v. Scully, 152 A.D.2d 570, 570 [1989], affd 76 N.Y.2d 725 [1990] ). Indeed, the Appellate Division, Fourth Department, has held that "[d]isciplinary files containing disciplinary charges, the agency determination of those charges, and the penalties imposed ... are not exempt from disclosure under FOIL" (Matter of Obiajulu v. City of Rochester, 213 A.D.2d 1055, 1055 [1995] [emphasis added]; see Matter of Buffalo News v. Buffalo Mun. Hous. Auth., 163 A.D.2d 830, 831 [1990] ; see also Matter of New York 1 News v. Office of President of Borough of Staten Is., 231 A.D.2d 524, 525 [2d Dept 1996] ; Matter of Powhida v. City of Albany, 147 A.D.2d 236, 238 [3d Dept 1989] ; Comm On Open Gov, FOIL–AO–f8930 [June 27, 1995] ). A disciplinary matter which is addressed in a hearing and culminates in the firing of a public employee does not fall within the intra-agency exemption simply because the agency claims to accept only the recommendation of the hearing officer, but not the reasons therefor; particularly where, as here, no alternative reason or explanation is set forth by the agency for its action. Moreover, there is no affidavit from a Council member or other individual with personal knowledge indicating that the Council's approach was, in fact, as narrow as now suggested. A reading of the plain language of the resolution does not support respondents' current contention that only a bottom-line recommendation was approved. Review of the hearing officer's report and recommendation does not reveal "personal and intimate details of [Stack's] personal life," which would be exempt from disclosure (Matter of Buffalo News v. Buffalo Mun. Hous. Auth., 163 A.D.2d at 831–832 ). Respondents have failed to set forth any viable reason for not disclosing the requested information and, thus, the Court finds that the entire report and recommendation must be released to petitioners pursuant to FOIL.
It merits noting that a review of the hearing officer's report and recommendation reveals essentially three parts; a preliminary section setting forth the procedural background as well as listing exhibits and witnesses; a section entitled "Analysis of Testimony;" and, finally, a "Recommendation." Interestingly, the "Recommendation" is five paragraphs in length and incorporates by reference the "Analysis of Testimony" section. Hence, even if there was merit to respondents' assertion that the Council accepted only the hearing officer's "Recommendation," it is arguable that this included several pages of the report in which the dispositive discussion regarding the charges is set forth, and not merely the bottom-line recommendation.
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Next, the Court considers petitioners' request for an award of counsel fees. The Court "may award counsel fees in a FOIL proceeding where a litigant ‘has substantially prevailed’ and when the agency ‘had no reasonable basis for denying access' to the records or documents in question" (Matter of Maddux v. New York State Police, 64 AD3d 1069, 1070 [2009], lv denied 13 NY3d 712 [2009], quoting Public Officers Law § 89[4][c] ). The "Court has discretion in the FOIL context to determine whether counsel fees should be awarded at all, [and] also in calculating the reasonable amount of any award" (Matter of Saxton v. New York State Dept. of Taxation & Fin., 130 AD3d 1224, 1225 [2015] ). Here, petitioners have prevailed. The Court further finds that respondents did not have a reasonable basis for denying access to the record. In fact, respondents' reasons for denying the request repeatedly changed and, ultimately, rested on an argument that lacked merit. Although an award of counsel fees is justified, the papers before the Court do not provide any relevant information with respect to such request so as to permit the Court to determine what fees are reasonable (see generally Matter of New York Civ. Liberties Union v. City of Saratoga Springs, 87 AD3d 336, 340 [2011] ; Matter of Gallogly v. City of New York, 51 Misc.3d 296, 302 [Sup Ct 2016] ). Accordingly, within 20 days of the date of this Decision, Order and Judgment, petitioners' counsel must submit such information as they wish for the Court to consider in determining reasonable counsel fees; respondents must submit any objects within 30 days of the date of this Decision, Order and Judgment; and any reply by petitioners shall be submitted within 35 days of the date of this Decision, Order and Judgment.
Based upon the foregoing analysis and upon review of the papers as enumerated hereinafter, it is
ORDERED and ADJUDGED that the petition is granted to the extent that respondents are directed to provide petitioners with a copy of the report and recommendation of the hearing officer regarding Lauren M. Stack, dated October 1, 2016, within 10 days of the date of this Decision, Order and Judgment; and it is further
ORDERED and ADJUDGED that petitioners are entitled to costs and reasonable counsel fees in accordance with this decision; and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision, Order and Judgment of this Court.
The original of this Decision, Order and Judgment has been filed by the Court together with petitioners' Order to Show Cause, dated October 31, 2016. Counsel for petitioners is hereby directed to promptly obtain a filed copy of the Decision, Order and Judgment for service with notice of entry upon counsel for respondents in accordance with CPLR 5513.
Papers reviewed:
Verified Petition, dated October 31, 2016.
Affirmation in Support of Kelly L. McNamee, Esq., dated October 31, 2016, annexed Exhibits A through C; Affidavit in Support of Maury Thompson, dated October 31, 2016, annexed Exhibits A through H; Affidavit in Support of Kathy Barrans, dated October 31, 2016, annexed Exhibits A through D.
Petitioners' Memorandum of Law, dated October 31, 2016.
Verified Answer, dated November 21, 2016.
Respondents' Memorandum of Law, dated November 21, 2016.
Petitioners' Reply Memorandum of Law, dated November 23, 2016.
In camera review:
Report and Recommendations of Hearing Officer In the Matter of the Disciplinary Charges Against Lauren M. Stack, dated October 1, 2016.