Opinion
Index No. 902827-21
03-15-2022
In the Matter of the Application of the LEGAL AID SOCIETY, a nonprofit corporation, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
The Legal Aid Society, Criminal Practice, Prisoners’ Rights Project, Attorneys for Petitioner (Robert M. Quackenbush, of counsel), 199 Water Street, 6th Floor, New York, New York 10038 Letitia James, Attorney General, Attorney for Respondent (Stacey Hamilton, of counsel), The Capitol, Albany, New York 12224
The Legal Aid Society, Criminal Practice, Prisoners’ Rights Project, Attorneys for Petitioner (Robert M. Quackenbush, of counsel), 199 Water Street, 6th Floor, New York, New York 10038
Letitia James, Attorney General, Attorney for Respondent (Stacey Hamilton, of counsel), The Capitol, Albany, New York 12224
Richard M. Platkin, J. Petitioner Legal Aid Society commenced this CPLR article 78 proceeding on March 31, 2021, challenging the denial of its January 21, 2021 request for records pursuant to the Freedom of Information Law (see Public Officers Law art 6 ["FOIL"]).
The petition, as amended, sought an order compelling respondent New York State Department of Corrections and Community Supervision ("DOCCS") to disclose "all records reflecting the number of DOCCS employees, by facility, tested for COVID-19, and the number of DOCCS employees who tested positive for COVID-19, by facility, from October 1, 2020 to the date of DOCCS’ final determination denying access, March 5, 2021" (NYSCEF Doc No. 16 ["Amended Petition"], ¶ 1 [emphasis omitted]; see also id. , Whereas Clause).
In lieu of answering, DOCCS moved to dismiss the proceeding as moot based on its August 4, 2021 production of records. By Decision & Order dated October 12, 2021, the Court partially granted the motion by dismissing the branch of the Amended Petition seeking access to records reflecting the number of DOCCS employees who tested positive for COVID-19 (see NYSCEF Doc No. 48 ["First Decision"], p. 5). The motion was denied, however, as to the part of the Amended Petition that sought records reflecting the number of DOCCS employees who had been tested (see id. , pp. 6-8).
Rather than answer the branch of the Amended Petition that survived the first round of motion practice, DOCCS disclosed additional records to petitioner and then moved for a second time to dismiss the proceeding as moot. The second motion was denied in a Decision & Order dated January 26, 2022 on the ground that DOCCS had not produced responsive records from January 21, 2021 (initial FOIL request) through March 5, 2021 (denial of FOIL appeal) (see NYSCEF Doc No. 57, p. 5), and DOCCS again was ordered to answer the Amended Petition.
By letter dated February 22, 2022, petitioner advised the Court that DOCCS had provided it with the remaining records responsive to the FOIL request (see NYSCEF Doc Nos. 59-60). The parties therefore "agree that the underlying FOIL request is now moot" and ask the Court to "resolve Petitioner's request for reasonable attorneys’ fees" (NYSCEF Doc No. 59). This Decision, Order & Judgment follows.
DISCUSSION
"Where a petitioner receives an adequate response to a FOIL request during the pendency of [its] CPLR article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties" ( Matter of DeFreitas v. New York State Police Crime Lab , 141 A.D.3d 1043, 1044, 35 N.Y.S.3d 598 [3d Dept. 2016] [citations omitted]).
Based on petitioner's submission of February 22, 2022, the Court grants the parties’ request to "deem the underlying FOIL request moot" (NYSCEF Doc No. 59). Dismissal of the proceeding for mootness does not, however, "preclude petitioner's request for counsel fees" ( Matter of Gannett Satellite Info. Network, LLC v. New York State Thruway Auth. , 181 A.D.3d 1072, 1074, 120 N.Y.S.3d 224 [3d Dept. 2020] ; see Matter of Associated Gen. Contrs. of NY State, LLC v. New York State Thruway Auth. , 173 A.D.3d 1526, 1527, 105 N.Y.S.3d 573 [3d Dept. 2019] ).
Under Public Officers Law ("POL") § 89 (4) (c), the Court:
(i) may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, and when the agency failed to respond to a request or appeal within the statutory time; and (ii) shall assess ,
against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access (emphasis added).
"A petitioner substantially prevails under [POL] § 89 (4) (c) when it receives all the information that it requested and to which it was entitled in response to the underlying FOIL litigation, even where, as here, [information] is received after the proceeding is commenced" ( Matter of Gannett Satellite Info. Network, LLC , 181 A.D.3d at 1074, 120 N.Y.S.3d 224 [internal quotation marks and citation omitted]; see Matter of Competitive Enter. Inst. v. Attorney Gen. of NY , 161 A.D.3d 1283, 1286, 76 N.Y.S.3d 640 [3d Dept. 2018] ; Matter of Legal Aid Socy. v. New York State Dept. of Corr. & Community Supervision , 105 A.D.3d 1120, 1121-1122, 962 N.Y.S.2d 773 [3d Dept. 2013] ; see also Matter of New York State Defenders Assn. v. New York State Police , 87 A.D.3d 193, 195, 927 N.Y.S.2d 423 [3d Dept. 2011] ["the ‘voluntariness’ of ... disclosure is irrelevant to the issue of whether petitioner substantially prevailed"]; Matter of NYS Funeral Directors Assn. v. New York State Dept. of Health , 67 Misc. 3d 1243[A], 2020 N.Y. Slip Op. 50815[U], *7, 2020 WL 4005793 [Sup. Ct., Albany County 2020] [Hartman, J,], affd 200 A.D.3d 1255, 160 N.Y.S.3d 398 [3d Dept. 2021] ).
It is clear that petitioner substantially prevailed in this proceeding, and the only question is whether DOCCS had a reasonable basis for denying access to the requested records.
POL § 87 (2) (f) "exempts from disclosure materials that, if disclosed, could endanger the life or safety of any person," and DOCCS "need only demonstrate a possibility of endangerment in order to invoke this exemption" ( Matter of Hutchinson v. Annucci , 189 A.D.3d 1850, 1854, 136 N.Y.S.3d 560 [3d Dept. 2020] [internal quotation marks, brackets and citations omitted]). "A pertinent consideration ... is whether the agency reasonably claimed the records were exempt from disclosure under [POL] § 87 (2), although the denial may still have been reasonable even if the records are ultimately deemed not to be exempt" ( Matter of Vertucci v. New York State Dept. of Transp. , 195 A.D.3d 1209, 1210, 150 N.Y.S.3d 786 [3d Dept. 2021] [internal quotation marks and citation omitted], lv denied 37 N.Y.3d 917, 2022 WL 97994 [2022] ).
DOCCS maintains that it had a reasonable basis for denying the FOIL request in February 2021 because the facility-level positivity data requested by petitioner, which identifies
the number of COVID-positive staff at each facility, "could conceivably have been used by incarcerated individuals in attempts to circumvent security protocols" and "target perceived vulnerabilities" (NYSCEF Doc No. 39 ["MOL"], p. 4; see NYSCEF Doc No. 37 ["Ranieri Aff."], ¶ 11). However, DOCCS later determined that, "with the passage of time, the disclosure of facility-level data would not pose a present threat as the information is historical. The facility-level information that was requested in January 2021 is now disclosable as historical information which does not affect current staffing levels" (MOL, p. 4; see Ranieri Aff., ¶ 12).
The Court does not find this argument entirely convincing. Petitioner's FOIL request of January 21, 2021 sought COVID-19 testing and positivity data from October 1, 2020 (see NYSCEF Doc No. 17). Thus, at the time of the March 5, 2021 denial of petitioner's appeal, the agency was invoking the endangerment exception of POL § 87 (2) (f) as to "historical [positivity] information" spanning back more than five months. DOCCS has not provided the Court with any reason to believe that the disclosure of positivity data from months earlier could endanger anyone or reveal the current vulnerabilities of any facility.
And even if DOCCS acted reasonably in denying access to stale positivity data, there was no safety rationale associated with disclosure of the number of DOCCS employees who merely had been tested for COVID-19. In denying this prong of the administrative appeal, the FOIL appeals officer represented that the agency "does not maintain comprehensive COVID-19 testing data for employees" (NYSCEF Doc No. 22). However, this response elided over the fact that "DOCCS itself arranged and facilitated COVID-19 testing of facility staff on the premises of its correctional facilities ..." (First Decision, p. 7 [internal quotation marks and citation omitted]; see also NYSCEF Doc No. 53).
Accordingly, the Court finds that petitioner has "substantially prevailed" in this case and DOCCS lacked a "reasonable basis for denying access to the [requested] records," thereby obliging the Court to assess "reasonable attorney's fees" in favor of petitioner ( POL § 89 [4] [c] [ii] ).
The unreasonableness of the agency's position further is underscored by its tortured, piecemeal disclosure of the requested data during the pendency of this proceeding (see generally Matter of Reiburn v. New York City Dept. of Parks & Recreation , 171 A.D.3d 670, 671, 98 N.Y.S.3d 49 [1st Dept. 2019], quoting 2017 NY Assembly Bill A2750).
CONCLUSION
Based on the foregoing, it is
ORDERED and ADJUDGED that the branch of the Amended Petition challenging denial of petitioner's FOIL request is dismissed as moot; and it is further
ORDERED and ADJUDGED that the branch of the Amended Petition seeking an award of counsel fees is granted; and it is further
ORDERED that, within twenty (20) days , petitioner's counsel shall submit, on notice to respondent, an affirmation setting forth his qualifications, billing rate, billing records and the attorney's fees and litigation costs sought, along with a proposed order; and finally it is
ORDERED that respondent may submit opposition papers concerning the reasonableness of the fees and costs being sought by petitioner within ten (10) days of service of petitioner's submission.
The Court takes judicial notice of the prior proceedings and filings in this matter (see Matter of Shirley v. Shirley , 101 A.D.3d 1391, 1394, 956 N.Y.S.2d 304 [3d Dept. 2012] ; Casson v. Casson , 107 A.D.2d 342, 344, 486 N.Y.S.2d 191 [1st Dept. 1985], appeal dismissed 65 N.Y.2d 637, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [1985] ).
This constitutes the Decision, Order & Judgment of the Court.