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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK


[ Application for a Judgment under Article 78 of the CPLR and other relief by
SERGIO
Petitioner,
v.
THE OFFICE OF THE MAYOR OF THE CITY OF NEW YORK, I
Res ondent.
INDEX NUMBER: 106213/2011
R.J.I. NUMBER:
MEMORANDUM OF LAW IN SUPPORT OF PETITION
FOR A JUDGMENT DIRECTING PRODUCTION OF
RECORDS UNDER FREEDOM OF INFORMATION LAW
SCHLAM STONE & DOLAN LLP
Elizabeth W o 1 stein, Esq.
26 Broadway, 19th Floor
New York, New York 10004
Telephone: (212) 344-5400
Facsimile: (212) 344-7677
Attorney for Petitioner
Sergio Hernandez
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................................................... iii-v
PRELIMINARY STATEMENT ..................................................................................................... 1
STATEMENT OF FACTS .............................................................................................................. 2
A. The Appointment Of Ms. Black As New York City Schools Chancellor ........................... 2
B. Mr. Hernandez's FOIL Request And Administrative Appeal ............................................ .4
ARGUMENT ................................................................................................................................... 6
I. RESPONDENT HAS FAILED TO CARRY ITS BURDEN OF
DEMONSTRATING THAT THE REQUESTED RECORDS
ARE PROPERLY WITHHELD .......................................................................................... 6
A. FOIL Exemptions Must Be Narrowly Construed In Order To
Fulfill The Statute's Broad Disclosure Mandate ..................................................... 6
B. The Requested Records Do Not Fall Within FOIL's
Privacy Exemption ................................................................................................... 7
1. The Requested E-Mail Communications Are Not
Expressly Exempted And Do Not Implicate Other
Cognizable Privacy Concerns ...................................................................... &
2. There Is A Compelling Public Interest In Disclosure
Of The Requested Email Communications .................................................. 9
3. Even If Some Of The Requested Documents Touch
Upon The Privacy Exemption, Respondent Must
Provide Redacted Versions Of The Materials .......................................... .11
C. The Requested Records Do Not Fall Within FOIL's Exception
For Inter- And Intra-Agency Communications ..................................................... .\3
1. Communications With Private Citizens Such As Ms. Black
Do Not Fall Within The Intra- And Inter-Agency Exemption .................. 13
II. RESPONDENT SHOULD BE ORDERED TO PROVIDE A
PARTICULARIZED JUSTIFICATION FOR ITS INVOCATION
OF THE ASSERTED EXEMPTIONS .............................................................................. 14
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A. Respondent's Blanket Assertions That The Requested Documents
Are Exempt From Disclosure Are Inadequate To Justify Its Withholdings .......... 14
B. Respondent Is Required To Disclose The Segregable, Non-Exempt
Portions Of The Withheld Documents ................................................................... l6
III. PETITIONER IS ENTITLED TO HIS LEGAL FEES AND COSTS .............................. ! 7
CONCLUSION .............................................................................................................................. 18
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!1
TABLE OF AUTHORITIES
Bahnken v. New York City Fire Department,
17 A.D.3d 228 (1st Dep't 2005) .......................................................................................... 7
Banchs v. Coughlin,
168 A.D.2d 711 (3d Dep't 1990) ....................................................................................... 17
Capital Newspapers Division of Hearst Corp. v. City of Albany,
63 A.D.3d !336 (3d Dep't 2009) ....................................................................................... 12
Capital Newspapers Division of Hearst Corp. v. Burns,
109 A.D.2d 92 (3d Dep't), ajf'd, 67 N. Y.2d 562 (!986) ..................................................... 7
Capital Newspapers Division of Hearst Corp. v. Burns,
67N.Y.2d 562 (!986) .......................................................................................... 6, 7, 10,15
Cornell University v. New York City Police Department,
!53 A.D.2d 515 (1st Dep't 1989) ................................................................................ 15, 16
Cross-Sound Ferry Services, Inc. v. Department of Transportation,
219 A.D.2d 346 (3d Dep't 1995) ...................................................................................... .17
Data Tree, LLC v. Romaine,
9 N.Y.3d 454 (2007) ................................................................................................ 7, 11-12
Daily News, L.P v. City of New York Office of Payroll Administration,
9 A.D.3d 308 (1st Dep't. 2004) ......................................................................................... 16
David v. Lewisohn,
136 Misc. 2d 325 (Sup. Ct. 1987) rev 'don other grounds,
142 A.D.2d 305 (3d Dep't 1988) ...................................................................................... .13
Federation of New York State Rifle & Pistol Clubs, Inc. v. New York City Police Department,
73 N.Y.2d 92 (1989) ............................................................................................................ 6
Gould v New York City Police Department,
89 N. Y.2d 267 (!996) .............................................................................................. 4, 14, 15
Humane Society of US. v. Fanslau,
54 A.D.3d 537 (3d Dep't 2008) ..................................................................................... 9, 10
Johnson v. New York City Police Department,
257 A.D.2d 343 (1st Dep't 1999) ...................................................................................... 14
Kwasnik v. City of New York,
262A.D.2d 171 (lstDep't 1999) .................................................................................. 9, 11
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111
La Rocca v. Board of Education ofJericho Union Free School District,
220 A.D.2d 424 (2d Dep't I995) ......................................................................................... 8
Laureano v. Grimes,
I 79 A.D.2d 602 (Ist Dep't I992)7
Matter of Scott, Sardano & Pomeranz v. Records Access Officer of City ofSyracuse,
65 N.Y.2d 294 (I985) ........................................................................................................ I2
Miller v. New York State Department ofTransportation,
58 A.D.3d 981 (3d Dep't 2009) ................................................................................... 13, 14
Mothers on the Move, Inc. v. Messer,
236 A.D.2d 408 (2d Dep't 1997) ......................................................................................... 8
Mulgrew v. Board of Education of City School District of The City of New York,
31 Misc. 3d 296 (Sup. Ct. N.Y. Co. 2011) ....................................................................... .10
New York Committee for Occupational Safety & Health v. Bloomberg,
72 A.D. 3d I 53 (1st Dep't 2010) ................................................................................... 7, 12
New York Times Co. v. City of New York Fire Department,
4 N.Y.3d 477 (2005) ................................................................................................ 9, I I, I3
Obiajulu v. City of Rochester,
213 A.D.2d 1055 (4thDep't I995) .................................................................................... 12
Powhida v. City of Albany,
147 A.D.2d 236 (3d Dep't 1989) ....................................................................................... 17
Russo v. Nassau County Community. College,
81 N.Y.2d 690 (1993) ....................................................................................................... 13
Sea Crest Construction Corp. v. Stu bing,
82 A.D.2d 546 (2d Dep't 1981) ......................................................................................... 13
Siani v. Research Found. of the State University of New York,
No. 6976-06, 2007 N.Y. Misc. LEXIS 9122 (N.Y. Sup. Mar. 26, 2007) .......................... I 7
Sustainable South Bronx, Inc. v Horn,
No.: 110278/07, 2008 WL 206957 (Sup. Ct. N.Y. Cnty. 2008) ........................................ 15
Town of Waterford v. New York State Department of Environmental Conservation,
77 A.D.3d 224 (3d Dep't 2010) ................................................................................... 13, 14
Washington Post Co. v. New York State Insurance Department,
6I N.Y.2d 557 (1984) ........................................................................................................ I6
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IV
Xerox Corp. v. Town of Webster,
65 N. Y .2d 131 (1985) ........................................................................................................ 13
RULES, STATUTES AND OTHER AUTHORITIES
Public Officers Law 87 ....................................................................................................... passim
Public Officers Law 87(2) ...................................................................................................... 6, 14
Public Officers Law 87 (2)( a) ...................................................................................................... 14
Public Officers Law 87(2)(b) ........................................................................................... .4, 5, 6, 7
Public Officers Law 87 (2)( t) ...................................................................................................... 14
Public Officers Law 87(2)(g) ................................................................................... .4, 5, 6, 13, 14
Public Officers Law 89(2)(b)(i) ................................................................................................ 8, 9
Public Officers Law 89(2)(c)(i) ............................................................................................ 11, 12
Public Officers Law 89( 4)( c) ...................................................................................................... 17
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v
PRELIMINARY STATEMENT
This Article 78 proceeding challenges the refusal of Respondent Office of the Mayor of
the City of New York ("Respondent" or "the Mayor's Office") to produce records requested by
Petitioner Sergio Hernandez ("Petitioner" or "Mr. Hernandez"), under New York's Freedom of
Information Law, Pub. Off. Law 87 et seq. ("FOIL"). The records sought by Mr. Hernandez
concern the Mayor's controversial appointment of Ms. Cathleen "Cathie" Black ("Ms. Black"), a
former media executive, as New York City Schools Chancellor. Specifically, Mr. Hernandez
sought emails sent between the Mayor's Office and Ms. Black, or any @hearst.com email
address, before Ms. Black began her work as a public employee. The request was intended to
shed light on the process used to select Ms. Black as Schools Chancellor. The Mayor's selection
of Ms. Black continues to be an issue of intense public interest among New York City taxpayers.
Respondent's withholding of the documents requested by Mr. Hernandez violates FOIL
in two respects. First, the withheld documents do not qualifY for either of the FOIL exemptions
asserted to justify their withholding. In addition, Respondent failed to satisfy its obligations to
provide a specific and particularized justification for the claimed exemptions, and to provide
redacted versions of documents that contain segregable, non-exempt material.
The emails concerning Ms. Black's appointment will shed light on the Mayor's Office's
handling of this important decision, which at the time - Ms. Black had since resigned -. was to
shape the future of New York City's vast and complicated public school system. The requested
information directly affects the ability of New York's citizens to hold their Mayor accountable
for the success or failure of his appointment. Respondent's improper reliance on blanket and
unsupported claims of exemption is woefully deficient and fails to justify its refusal to produce
the requested documents. The Mayor's Office should be ordered to produce all non-exempt
documents, or portions of documents, responsive to Mr. Hernandez's request, and to provide a
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particularized listing of all documents withheld, stating m detail the factual basis for the
withholding.
STATEMENT OF FACTS
A. The Appointment Of Ms. Black As New York Citv Schools Chancellor
In November 2010, New York City Mayor Michael R. Bloomberg announced the
appointment of Ms. Black, an executive at Hearst Magazines, to be the next chancellor of the
City's public school system. See Times Topics: Cathleen P. Black, N.Y. Times, Apr. 7, 2011.
Ms. Black had spent her career in the publishing industry, and had no education background at
the time of her appointment. See id Because of her lack of experience, Ms. Black was required
to seek a waiver from the State Educational Department in order to be eligible for the position.
!d. Rather then grant the waiver outright, the State Education Commissioner proposed a
compromise wherein a chief academic officer would also be appointed to oversee teaching,
learning, and accountability with Ms. Black. See Javier C. Hernandez, Mayor and State Reach
Deal on a Schools Chief, N.Y. Times, Nov. 26, 2010. That waiver was granted on Nov. 26,
2010, and Ms Black took office on January 1, 2011. Id.
Ms. Black's appointment sparked significant debate over her qualifications and
speculation as to why Mayor Bloomberg had chosen her over other candidates. Concerned about
Ms. Black's lack of experience, local g officials, education professionals, and parents called on
the State Education Department to block her appointment. See Steven Thrasher, Cathie Black's
Appointment Generating More Pushback, Runnin' Scared (Nov. 22, 2010, 8:58 PM),
http://blogs.villagevoice.com/runninscared/20 10111 /cathie_blacks_a.php; Sarah Wheaton, City
Councilman Opposes Appointee for Schools, N.Y. Times, Nov. 14, 2010. Meanwhile, the Mayor
refused to release information about the process used to select Ms. Black, saying that secrecy
was necessary in order to avoid a public spectacle. See Javier C. Hernandez, Opposition
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Growing to Bloomberg Pick for Schools, N.Y. Times, Nov. 15, 2010. The media speculated that
Mayor Bloomberg had not conducted an adequate search for a new chancellor, and indeed had
not considered anyone other than the under qualified Ms. Black. See, e.g., Matt Cvetic, The
Search for the Search, N.Y. Times, Nov. 14, 2010. Moreover, many in the community viewed
the Mayor's secretive selection process and ultimate appointment of an inexperienced publishing
executive as an example of his autocratic and unresponsive style of governance. See Elissa
Gootman, Discontent With Mayor at Heart of School Uproar, N.Y. Times, Nov. 25, 2010.
Following months of public controversy, Ms. Black stepped down from the chancellorship on
April 7, 20 11. Yet despite the copious media coverage, how and why Mayor Bloomberg
selected Ms. Black remains unclear.
Petitioner Sergio Hernandez is an independent journalist who was reporting for the
Village Voice's Runnin' Scared b1og at the time of the Cathie Black controversy. Verified
Petition ("Pet.") 3. Mr. Hernandez and Runnin' Scared have actively covered the debate
surrounding Ms. Black since her appointment was announced on November 9, 2010. See, e.g.,
Sergio Hernandez, Inside the Great Cathie Black Media Blitz, Runnin' Scared (Jan. 18, 2011,
5 :31 PM), http:/ /blogs. villagevoicc.com/runninscared/20 1 1/0 1/inside _the _grea. php; Sergio
Hernandez, Nobody Likes Cathie Black: This Week's Scorecard, Runnin' Scared (Nov. 24,2010,
4:16 PM), http://blogs.villagevoice.com/runninscared/20 1 0/11/this _weeks_ nobo .php; Sergio
Hernandez, Cathie Black, Schools Chancellor: Liked By Nobody [Updated], Rum1in' Scared
(Nov. 15, 2010, 3:15 PM), http://blogs.villagevoice.com/runninscared/2010/ll/nobdy
_really _li.php
1
1
See also Wayne Barrett, Cathie Black WaitingforApprovalfrom an Office That Has Said 'No' Before, Runnin'
Scared (Nov. 18, 2010, 534 PM), http:l/blogs.villagevoice.comirunninscarcd /20 I 0!11/cathic __ b!ack wa.php; Foster
Kamer, Three Reasons Why You Should Be Upset About Cathie Black, New NYC Schools Chancellor, Runnin'
Scared (Nov. 9, 2010, 4:30 PM), http://blogs.villagevoice.com/runninscared/20 J w.php; Steven
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3
B. Mr. Hernandez's FOIL Request And Administrative Appeal
Given the importance of public oversight of this controversial appointment, Petitioner
submitted a FOIL request seeking information about the process used by the Mayor's Office in
selecting Ms. Black as the schools' chancellor. Mr. Hernandez's request, submitted on
November 19, 2010, sought disclosure of all "[e]-mail messages sent from or received by any
state electronic mail accounts assigned to the Office of the Mayor to or from an individual named
Cathleen Prunty 'Cathie' Black or e-mail addresses containing the domain hearst.com." Pet. ,
II, and Exh. A.. Mr. Hernandez asked that Respondent justify any withholding by reference to
specific FOIL exemptions and release all segregable portions of otherwise exempt documents.
Pet., Exh. A.
On January 13, 2011, fifty-five days after Petitioner submitted his FOIL request,
Respondent denied the request in its entirety. Pet. , 12 . Without identifying any of the withheld
documents by date or otherwise, Respondent's denial letter simply asserted that all requested
documents were withheld under Pub. Off. Law 87(2)(b) and 87(2)(g)- FOIL's exemptions
for records that "if disclosed, would constitute an unwarranted invasion of personal privacy" and
records that constitute "inter-agency and intra-agency materials." Pet., 13, and Exh. B.
Mr. Hernandez promptly filed an administrative appeal on January 19, 2011. Pet., 13.
Citing Gould v New York City Police Department, 89 N.Y.2d 267, 274-275 (1996), Mr.
Hernandez emphasized that categorically asserting exemptions, as the Mayor's Office had done,
does not satisfy its FOIL obligations. Pet. , 13, and Exh. C. He also noted that regardless of
whether an exemption applied, the Mayor's Office was required to provide redacted versions of
documents with exempt material deleted, rather than withholding responsive documents in their
Thrasher, Cathie Black, Calling the Kettle Black?, Runnin' Scared (Dec. 7, 2010, 1:34 PM),
http://blogs.villagevoice.com/runninscared/20 1 0/12/cathie _black_ ca.php.
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entirety. Pet. ~ 13, and Exh. C. Mr. Hernandez further underscored that because he filed his
FOIL request before Ms. Black began working for the City, Ms. Black was a private citizen for
purposes of the request, and that consequently emails between the Mayor's Office and Ms. Black
could not constitute either "inter-agency or intra-agency" communications. Pet. ~ 13, and Exh.
C.
One week later, the Mayor's Office denied Mr. H.ernandez's appeal in its entirety. Pet.
~ 14, and Exh. D. Respondent again made blanket assertions that all the requested documents
were exempt from disclosure under Pub. Off. Law 87(2)(b) and 87(2)(g), but failed to identify
any specific documents or categories of documents that were being withheld, and failed to
explain how any of the claimed exemptions applied to any specific document or category of
documents. P e t . ~ 14, and Exh. D.
The Mayor's Office's responses to Mr. Hernandez's request violate FOIL and the
transparency in govermnent the statute is intended to foster. The Mayor's Office provided no
justification for any of its withholdings, failed to provide redacted versions of documents
containing segregable, non-exempt material, and relied upon FOIL exemptions that do not
properly apply to Mr. Hernandez's requests. The Court should declare the Mayor's Office in
violation of FOIL and direct it promptly to provide Mr. Hernandez with the requested
information.
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ARGUMENT
I. RESPONDENT HAS FAILED TO CARRY ITS BURDEN OF
DEMONSTRATING THAT THE REQUESTED RECORDS ARE PROPERLY
WITHHELD
Respondent has made blanket assertions that the requested records are exempt from
disclosure under two FOIL exemptions: the exemption for documents which, if disclosed, would
constitute an unwarranted invasion of personal privacy, see Pub. Off. Law 87(2)(b), and that
for documents reflecting intra- and inter-agency communications, see Pub. Off. Law 87(2)(g).
Neither exemption properly applies to the requested emails.
A. FOIL Exemptions Must Be Narrowly Construed In Order To Fulfill The
Statute's Broad Disclosure Mandate
New York's FOIL provides that an "agency shall ... make available for public inspection
and copying all records" except those that fall under a specific statutory exemption. Pub. Off.
Law 87(2). "The Freedom of Information Law expresses this State's strong commitment to
open govermnent and public accountability and imposes a broad standard of disclosure upon the
State and its agencies." Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 565-
66 (1986) "All government records are thus presumptively open for public inspection and
copying unless they fall within one of the enumerated exceptions of Public Officers Law
87(2)." Gould, 89 N.Y. 2d at 274-75. Consequently, FOIL's disclosure obligations must be
"liberally construed, and its exemptions narrowly interpreted so that the public is granted
maximum access to the records of govemment." Fed'n of New York State Rifle & Pistol Clubs,
Inc. v. New York City Police Dept., 73 N.Y.2d 92, 96 (1989) (internal quotation marks omitted).
The government has the burden of establishing that the requested documents qualify for
an exemption. See, e.g., Pub. Off. Law 87(5)(f); Gould, 89 N.Y.2d at 275; Capital
Newspapers, 67 N.Y.2d at 570. The agency must "demonstrat[e] that the requested material falls
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squarely within a FOIL exemption by articulating a particularized and specific justification for
denying access," Capital Newspapers at 566, and it must do so "in more than just a plausible
fashion." Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462 (2007) (internal quotation marks
omitted).
A reviewing court must independently dete1mine whether the records fall squarely within
the asserted exemption to disclosure-a "far different rule" than the "arbitrary and capricious"
standard that typically applies to judicial review of agency action. N. Y Comm. for Occupational
Safety & Health v. Bloomberg, 72 A.D. 3d !53, !58 (1st Dep't 2010); see also Bahnken v. New
York City Fire Dep 't, 17 A.D.3d 228 (lst Dep't 2005) (arbitrary and capricious standard does not
apply to judicial review of agency's FOIL determination); Laureano v. Grimes, 179 A.D.2d 602,
603-04 (1st Dep't 1992) (same). Put differently, "construction of the statutory exception from
disclosure ... involves pure statutory reading and analysis, there is no basis to rely on any
special expertise of the [agency] and thereby accord its statutory interpretation any particular
deference." Capital Newspapers Div. of Hearst Corp. v. Burns, 109 A.D.2d 92, 94 (3d Dep't),
aff'd, 67 N.Y.2d 562 (1986).
As demonstrated below, Respondent has failed to meet its burden of establishing by
"particularized and specific justification" that the withheld emails fall squarely within the
invoked exemptions.
B. The Requested Records Do Not Fall Within FOIL's Privacv Exemption
Respondent asserts that the documents requested by Mr. Hernandez are exempt from
disclosure under Pub. Off. Law 87(2)(b ), which exempts records, or portions thereof, that "if
disclosed would constitute an unwarranted invasion of personal privacy." Pub. Off. Law
87(2)(b). An "unwarranted invasion of personal privacy," as relevant here, expressly includes,
but is not limited to, "disclosure of employment, medical or credit histories or personal
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references of applicants for employment." !d. 89(2)(b)(i). The requested emails are not private
within the meaning of the statute, nor would their disclosure otherwise constitute an
"unwarranted invasion of personal privacy," given the strong public interest in shedding light on
the Mayor's selection of Ms. Black as Schools Chancellor.
1. The Requested E-Mail Communications Are Not Expressly Exempted
And Do Not Implicate Other Cognizable Privacy Concerns
FOIL exempts from disclosure "employment, medical [and] credit histories or personal
references of applicants for employment." Pub. Off. Law 89(2)(b )(i). The requested e-mails
between the Mayor's Office and Hearst Co. clearly do not implicate medical or credit histories.
And while the emails relate to the employment of a city official, they are not records of
employment history. Indeed, Ms. Black's employment history was a matter of public record at
the time of her appointment. A "record is not considered an 'employment history' merely
because it records facts concerning employment. .. . "La Rocca v. Bd. of Educ. of Jericho Union
Free Sch. Dist., 220 A.D.2d 424,426-27 (2d Dep't 1995).
Far from being "histories," the emails relate to the potential future employment of Ms.
Black as Schools Chancellor, in particular, to her selection and qualifications for the post. Any
discussion of a potential position that Ms. Black has not even occupied yet does not implicate the
privacy concerns of an employment history, which may touch on sensitive issues of
performance, discipline, and compensation. Thus, in Mothers on the Move, Inc. v. Messer, the
court ordered disclosure of a form listing the names of candidates interviewed for potential future
employment in a New York City school district, reasoning that "[t]he information disclosed on
the form does not encompass the sort of detail that would ordinarily and reasonably be regarded
as intimate, private information." 236 A.D.2d 408, 410 (2d Dep't 1997).
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In any event, even employment histories (which the emails are not) may be subject to
disclosure where the records do not contain truly "intimate, private information," and where the
record may shed light, as in this case, on the hiring of a public employee whose qualifications for
the job were in question. In Kwasnik v. City of New York, the court held that the employment
history of a public university's employees, "insofar as revealed on their job applications," is not
"shielded from disclosure as an unwarranted invasion of the employees' privacy under Public
Officers 89(2)(b)(i)." 262 A.D.2d 171 (1st Dep't 1999). The Court found particularly
significant the fact that one of the employees "did not meet the licensing requirement for
employment when hired." id, as was true for Ms. Black, who was required to obtain a waiver of
the education credentials required to qualify for the position of Schools Chancellor. The court
also concluded, furthermore, that even though it was an employment history, the "personal
hardship of disclosure [was) small." Jd at 172.
Given Respondent's blanket denial of Mr. Hemandez's request and failure to provide any
factual basis for its assertion of the privacy exemption, Respondent plainly has not shown that
the requested documents contain "intimate, private information" such that their disclosure would
be "offensive to a reasonable [person) of ordinary sensibilities." Mothers on the Move, 236
A.D.2d at 410; Humane Society of US. v. Fans/au, 54 A.D.3d 537, 544 (3d Dep't 2008).
2. There Is A Compelling Public Interest In Disclosure Of The
Requested Email Communications
Where, as here, the information requested does not fall within any category of documents
expressly exempted from disclosure under FOIL's privacy exemption, the proper method for
determining whether the release of records constitutes an "unwarranted" invasion of personal
privacy is to balance the privacy interests at stake against the "public interest in disclosure of the
information." New York Times Co. v. City of New York Fire Dept., 4 N.Y.3d 477, 485 (2005).
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"What constitutes an unwarranted invasion of personal privacy is measured by what would be
offensive to a reasonable [person] of ordinary sensibilities." Humane Society, 54 A.D.3d at 544
(internal quotations omitted; alteration in original). Respondent eannot show-and has provided
no faets to suggest-that disclosure of the requested documents would be so "offensive to a
reasonable person" as to justify withholding them in the face of a clear public interest in
disclosure. !d.
There is a strong public interest in disclosure of documents related to public employment
and government hiring practices that fall outside the category of employment histories. See, e.g.,
Capital Newspapers, I 09 A.D.2d at 94 ("Since tax dollars are spent to pay public employees, the
public has a right to know certain facts relating to such employment."). Of course, "[t]his is not
to say that public employees do not have a right of privacy." Id. But "the acceptance of public
employment carries with it a realization that certain facts relating to such employment must be
public knowledge." !d. (emphasis added). Furthermore, the courts have often held that there is a
strong public interest in disclosure-and thus that there would be no "unwarranted" invasion of
personal privacy-where the information at issue relates to the public employee's "work and
performance" and is "intimately related to their employment with a city agency and did not relate
to their personal lives." Mulgrew v. Board of Ed. of City Sch. Dist. of City of New York,
31 Misc. 3d 296, 303 (Sup. Ct. N.Y. Co. 2011).
These principles apply equally to the hiring of a high level public employee like Ms.
Black. Information regarding her selection and qualifications necessarily reflects upon her
"work and performance," and is unlikely to "relate to (her] personalli[fe ]" in such a manner as to
warrant exemption under FOIL. !d. As noted, outside of the employment and medical history
context, the privacy exemption typically covers only information of an intensely personal nature,
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10
such as statements describing private citizens' "intimate emotions such as fears, concem for
themselves and loved ones, and horror" prompted by the September II, 2001 terrorist attacks.
New York Times, 4 N.Y.3d at 490.
It would be far-fetched to infer that the requested emails would reveal such intensely
personal, intimate details. While their precise content cannot be known since they have not been
disclosed, the emails are likely to reveal nothing more than a discussion of Ms. Black's potential
candidacy, qualifications, interest in the job, and related matters. To the extent that anything in
the emails might be embarrassing to either the Mayor or Ms. Black, it is not because the subject
matter is of an intensely personal nature, but rather because the emails could bear out the
public's suspicion that the Mayor hired the wrong person for the wrong reasons. If the em ails do
contain any "intensely personal" material that qualifies as exempt, it may be redacted and the
non-exempt material should be produced, as FOIL requires.
The public interest in the requested emails is undeniable. The Mayor's appointment of
Ms. Black generated substantial concerns among parents, educators, and the public at large.
Indeed, Mayor Bloomberg's decision to hire, and eventually to dismiss Ms. Black garnered
nationwide scrutiny and provoked intense public debate. Moreover, the need for disclosure is all
the more acute where, as there, the records sought concern the hiring of an employee whose
qualifications for the job had been cast into doubt. See Kwasnik, 262 A.D.2d at 172 (strong
public interest in disclosure of information relating to public employment of individual who did
not meet licensing requirements for job).
3. Even If Some Of The Requested Documents Touch Upou The Privacy
Exemption, Respondent Must Provide Redacted Versions Of The Materials
"[E]ven when a document subject to FOIL contains such private, protected information,
agencies may be required to prepare a redacted version with the exempt material removed." Data
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Tree, LLC v. Romaine, 9 N.Y.3d 454, 464 (2007) (citing Pub. Off. Law 89(2)(c)(i)); Matter of
Scott, Sardano & Pomeranz v. Records Access Officer of City of Syracuse, 65 N.Y.2d 294, 298
(1985). The case law makes clear that "private, protected information" means information that
would identify an individual with his or her genuinely private information, and that the redaction
should be limited to the identifying information .. See, e.g., New York Committee for
Occupational Safety and Health v. Bloomberg, 72 A.D.3d 153, 160 (1st Dep't 2010) (ordering
New York City Mayor's Office to produce redacted workers' compensation records "so as to
preserve the personal privacy of any claimants who might be identified therein"); Capital
Newspapers Div. of Hearst Corp. v. City of Albany, 63 A.D.3d 1336, 1339 (3d Dep't 2009)
(ordering the City of Albany to disclose redacted gun tags where "redacting the names
of ... police department employees would adequately protect the individual officers."); Obiajulu
v. City of Rochester, 213 A.D.2d 1055 (4th Dep't 1995) (ordering disclosure of work
performance evaluations "with 'identifying details' redacted") (citing Pub. Off. Law
89(2)(c)(i)). Indeed, FOIL contains an express injunction that '"disclosnre shall not be
construed to constitute an unwarranted invasion of personal privacy ... when identifying details
are deleted." Pub. Off. Law 89(2)(c)(i).
It is difficult to imagine what intensely personal information could be contained in emails
that presumably address issues related to Ms. Black's appointment as Schools Chancellor.
Nonetheless, if Respondent were to demonstrate that the e-mails do contain personal information
that is unrelated to the Ms. Black' appointment -- such as the mention of a medical or family
issue, for example - any potential invasion of privacy could be obviated by disclosure of the
requested documents with such information redacted.
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12
C. The Requested Records Do Not Fall Within FOIL's Exception For Inter-
And Intra-Agency Communications
The Mayor's Office also claims that the emails are exempt under Pub. Off. Law
87(2)(g), the exemption governing intra- and inter-agency communications that is intended to
protect an agency's deliberative process. Because Ms. Black and other Hearst employees were
private citizens, communications with them are not intra- or inter-agency materials.
1. Communications With Private Citizens Such As Ms. Black Do Not
Fall Within The Intra- And Inter-Agency Exemption
The exemption for intra and inter-agency communications typically applies to
"deliberative material" created for internal "discussion purposes not constituting final policy
decisions." Russo v. Nassau County Cmty. College, 81 N.Y.2d 690, 699 (1993); see also David
v. Lewisohn, 136 Misc. 2d 325, 331 (Sup. Ct. 1987) (citing cases), rev'd on other grounds, 142
A.D.2d 305 (3d Dep't 1988). This type of communication is "exempt 'to protect the deliberative
process of the government by ensuring that persons in an advisory role would be able to express
their opinions freely to agency decision makers."' Xerox Corp. v. Town of Webster, 65 N.Y.2d
131, 132 (1985) (quoting Sea Crest Constr. Corp. v. Stubing, 82 A.D.2d 546, 549 (2d Dep't
1981)); see also Town of Waterford v. NY State Dep't of Environ. Conservation, 77 A.D.3d
224,228 (3d Dep't 2010) (citing cases).
The exemption thus protects the deliberative process within and between state
governmental agencies, not communications with private citizens who work outside the
government. Records "which consist of communications with people outside the agency" do not
fall under the exemption and must be disclosed. See Miller v. NY. State Dep 't of Trans., 58
A.D.3d 981, 984-85 (3d Dep't 2009); cf NY. Times Co. v. City of NY Fire Dep 't, 4 N.Y.3d
477, 487-88 (2005) (acknowledging prior decision stating that films shown to students of public
college were not intra-agency records). Therefore, the threshold issue when invoking the intra-
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13
and inter-agency exemption is "the identification of the parties and whether any communication
they might have had could qualify for this exemption." Town a_[ Waterford, 77 A.D.3d at 229.
Any emails received from or sent to Cathie Black or a "@hearst.com" email address are
necessarily "communications with people outside the agency." Miller, 58 A.D.3d at 984-85. Mr.
Hernandez made his request on November 19, 201 0; Ms. Black did not assume her post as
Chancellor until January 1, 2011. Communications to or from Ms. Black during the time period
covered by the request, i.e., the period before November 19, 2010- were therefore not inter- or
intra-agency communications within the meaning of FOIL. It is equally implausible that other
persons holding email addresses ending in "@hearst.eom," as stated in Mr. Hernandez's request,
were New York City or New York State employees such that the exemption for inter- and intra-
agency communications would be implicated by the request.
In short, neither FOIL exemption, on its face, appears to apply to the withheld
documents, and the Mayor's Office has failed to meet its burden of demonstrating any legal
grounds for refusing to make the information public.
II. RESPONDENT SHOULD BE ORDERED TO PROVIDE A PARTICULARIZED
JUSTIFICATION FOR ITS INVOCATION OF THE ASSERTED EXEMPTIONS
A. Respondent's Blanket Assertions That The Requested Documents Are
Exempt From Disclosure Are Inadequate To Justify Its Withholdings
FOIL places the burden squarely on the Mayor's Office to demonstrate the applicability
of any claimed exemption. Thus, "to invoke one of the exemptions of section 87(2), the agency
must articulate a particularized and specific justification for not disclosing requested
documents." Gould, 89 N.Y.2d at 275 (internal quotation marks omitted). Denying access to
documents under a "blanket exemption" or presenting an explanation that simply parrots the
statutory standard are insufficient. Jd at 274; see also Johnson v. New York City Police Dep 't,
257 A.D.2d 343, 349 (1st Dep't !999) (holding that "a blanket exemption is [not] warranted on
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14
public safety grounds" without a "more expansive 'particularized and specific justification for
denying access"' even if the documents directly or indirectly revealed the identity of certain
individuals) (quoting Matter of Capital Newspapers v. Burns, 67 N.Y.2d at 566).
Here, the Mayor's Office failed to provide any justification for its withholdings, either in
its initial denial of Mr. Hernandez's FOIL request or its denial of his appeal, much less the
specific and particularized justification FOIL requires. Indeed, at no point has the Mayor's
Office ever justified its reason for denying access to undisclosed documents beyond a general
statement that "we are withholding responsive documents" under Pub. Off. Law. 87(2)(a),
87(2)() and 87(2)(g).
This is plainly insufficient as a matter of law. In Gould, the court explicitly rejected
Respondent's attempt to set forth a "blanket exemption" for law enforcement records; rather, the
Department was required to make "the requisite particularized showing" for any record or
portion of record claimed to be exempt. 89 N.Y.2d at 277-78. In Sustainable South Bronx Inc.
v. Horn, the court went a step further to require Respondents to prepare a "list or chart ...
specifically identifying and describing the documents withheld," listing a statement of the
exemption claimed and a particularized factual justification for the non-disclosure, similar to the
so-called "Vaughn" index required in federal FOIA cases. Sustainable So. Bronx, Inc. v Horn,
No.: 110278/07, 2008 WL 206957 (Sup. Ct. N.Y. Cnty. Jan. 15, 2008). Given its facially
inadequate response, and its wholly conclusory claim of exemptions, a similar detailed
explanation by the Mayor's Office should be required in this case.
Falling far short of the disclosure required in Sustainable South Bronx or Gould, the
Mayor's Office has made no showing whatsoever that any of the documents it possesses are
exempt under any of the claimed exemptions. Its conclusory invocation of exemptions fails to
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15
explain the nature of the information withheld or the interests that would be affected if the
documents were disclosed. Cornell Univ. v. New York City Police Dep't, 153 A.D.2d 515,517
(1st Dep't 1989) (finding NYPD failed to meet its burden because "[w]hile NYPD has invoked a
number of exemptions which might justify its failure to supply the requested information, it has
failed to specify with particularity the basis for its refusai.").Consequently, there is no way to
establish whether the Mayor's Office is properly withholding documents. See Daily News, L.P.
v. City of New York Office of Payroll Admin., 9 A.D.3d 308 (1st Dep't. 2004) (respondent did not
satisfy its burden of demonstrating that the material qualified for an exemption because
respondent provided no factual basis for its conclusion that the material was exempt); Cornell
Univ. v. New York City Police Dep 't, 153 A.D.2d 515, 517 (1st Dep't 1989) (finding NYPD
failed to meet its burden because "[ w ]hile NYPD has invoked a number of exemptions which
might justify its failure to supply the requested information, it has failed to specify with
particularity the basis for its refusal.").
In sum, because Responent's conclusory citation to exemptions is insufficient to justify
its withholdings, the Court should direct it to provide a detailed explanation of the factual basis
for withholding each document it claims is exempt from disclosure.
B. Respondent Is Required To Disclose The Segregah!e, Non-Exempt Portions
Of The Withheld Documents
Furthermore, even if an exemption did apply to some of the documents, the Mayor's
Office is required to produce those documents with the exempt information redacted, and to
disclose the rest. Washington Post Co. v. New York State Ins. Dep 't, 61 N.Y.2d 557, 564 (1984).
The Mayor's Office has provided no reason why it could not produce redacted versions of the
undisclosed documents, and this, too, is contrary to law. Data Tree, LLC, 9 N. Y.3d at 463-64
(noting that "even when a document subject to FOIL contains such private, protected
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16
information, agencies may be required to prepare a redacted version with the exempt material
removed").
Accordingly, if faced with an applicable exemption, the Mayor's Office must
nevertheless redact those portions of a document that are properly exempt from disclosure, and
also provide particularized justification for the redactions. See Siani v. Research Found of the
State Univ. ofN Y., No. 6976-06,2007 N.Y. Misc. LEXIS 9122, at *7 (N.Y. Sup. Mar. 26, 2007)
("considering that the records of an agency are presumptively open to public inspection and
copying, an agency may not redact non-exempt information from a document that is open to
inspection and is otherwise subject to inspection under FOIL") (citation omitted).
III. PETITIONER IS ENTITLED TO HIS LEGAL FEES AND COSTS
A party that substantially prevails in a FOIL proceeding may recover its attorneys' fees,
where the records sought are of clear significant interest to the public and the agency had no
reasonable basis for denying access. N.Y. Pub. Off. Law 89(4)(c); Powhida v. City of Albany,
147 A.D.2d 236, 239 (3d Dep't 1989). To be justified, an agency's denial must have a
"reasonable basis both in law and fact." Cross-Sound Ferry Servs. Inc. v. Dep 't of
Transportation, 219 A.D.2d 346, 350 (3d Dep't 1995) (internal quotation marks and citations
omitted). Under this standard, Petitioner should be awarded his fees and costs in being forced to
litigate to obtain access to the requested emails.
A "significant interest to the public" clearly exists in records such as those at issue here
that will contribute to the public's evaluation of whether its government is functioning properly
and efficiently. Powhida v. City of Albany, 147 A.D.2d at 239. As demonstrated above,
Respondent's refusal to release these records had no reasonable basis in law or fact, making this
exactly the kind of case in which attorneys' fees are properly granted. See, e.g., Powhida v. City
of Albany, 147 A.D.2d at 239; Banchs v. Coughlin, 168 A.D.2d 711, 712 (3d Dep't I 990).
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CONCLUSION
For each and all the foregoing reasons, this Court should grant Mr. Hernandez's Petition
and enter judgment declaring that Respondent has acted unlawfully, and enjoining the Office of
the Mayor of the City of New York to: (1) produce promptly all documents responsive to his
FOIL request; and (2) provide a specific and particularized justification for withholding each
document, portion of a document, or category of documents claimed to be exempt from
disclosure; and awarding Mr. Hernandez his litigation costs, including attorneys' fees, together
with such other and further relief as is just and proper under the circumstances.
Dated: New York, New York
May 26,2011
By:
Respectfully submitted,
SCHLAM STONE & DOLAN LLP
f a ~ ~
EllllJ)ethWO]Stein
26 Broadway, 19th Floor
New York, New York 10004
Telephone: (212) 344-5400
Facsimile: (212) 344-7677
E-Mail: ewolstein@schlamslone.com
Attorney for Petitioner
2
The papers submitted in support of Mr. Hernandez's Petition were prepared in large part by Jennifer
Bishop, Jeffrey Love, and Monika Isia Jsiewiez, law students in the Yale Law School Media Freedom and
Information Access Clinic.
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