Rattner FOIL Petition

8/8/2019 Rattner FOIL Petition

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- NEW YORKSUPREME COURT OF TH E STATE OF NEW YORK COUNTY CtERKS OFFICECOUNTY OF NEW YORK NOV 18 2ilf

HO ARODMN NOT CC40t!PAREDHOWAR D. OLDMN, )WITH COPY FILEPetitioner,)

Fo r a Judgment Pursuant to Article 78)of the Civil Practice Law and Rules, ) VERIFIED PETITIONin the Nature of Mandamus,) ) Index No.

V.)NEW YORK STATE OFFICE OF TH E AsindJdeATTORNEY GENERAL,

Respondent.)HOWARD D. GOLDMAN, ("Petitioner") by his attorneys Wilmer Cutler Pickering

Hale and Dorr LLP and Cleary Gottlieb Steen & Hamilton LLP, alleges the following:I. This Article 78 proceeding is brought to reverse the determination of the Freedom

of Information Law ("FOIL") appeals officer of the New York State Office of the AttorneyGeneral ("Respondent") and to compel Respondent to disclose, pursuant to FOIL, certain recordsin its possession.

2. Steven Rattner, who successfully rebuilt Detroit as the "car czar" in the Obamaadministration, was recently the subject of repeated improper leaks. The leaks related to theinvestigation of Mr. Rattner by Respondent and occurred during the gubernatorial campaign inwhich Andrew Cuomo, the Attorney General, was a candidate. Petitioner filed a FOIL demandwith Respondent to obtain communications between a small number of OAG personnel and theCuomo campaign and the press in an effort to determine the source of the repeated leaks.


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3. Respondent declined to produce the requested records, even though the AttorneyGeneral had made transparency for others a campaign theme. Instead, the Attorney General'sstaff said that Respondent had begun a "diligent"search for the records, and that they would getback to Petitioner about their "progress within 20 business days." Such a delay is impermissibleunder the FOIL statute and directly contrary to opinions of the Committee on Open Governmentabout the proper application of the statute's provisions.

4. When Petitioner appealed directly to the Attorney General to turn over the recordsin the period required by statute, the Attorney General had his Chief of Staff deny the appeal.The Chief of Staff claimed that it would be too "time-consuming" for government employees tohave to locate their communications with a political campaign and the press in September andOctober because they had other "important" duties.

5. Petitioner no w seeks an order from this Court directing Respondent to turn overthese available, readily retrievable records.

THE PARTIES6. Petitioner is a resident ofNew York City and a citizen of the State ofNew York.

Petitioner served as an agent for Steven Rattner in pursuing certain government records underFOIL.

7. Petitioner has standing under FOIL to obtain public records. JohnP. v. Whalen,429 N.E.2d 117, 122 (N.Y. 1981) ("[T]he standing of one who seeks access to records under theFreedom of Information Law is as a member of the public, and is neither enhanced nor restrictedbecause he is also a litigant or potential litigant.") (internal citations omitted).


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8. Respondent, the New York State Office of the Attorney General, is an office ofthe New York State Department of Law and an "agency" for purposes of FOIL. See PublicOfficers Law ("POL") 86(3).

PROCEDURAL HISTORY

9. On October 12, 2010, Petitioner filed the following FOIL request for a set ofdocuments from the OAG that was narrowly tailored both in time and in subject matter:

(1) All communications from the Office of the Attorney General ("OAG") to or fromthe press concerning Alan Hevesi or Steven Rattner between September 1, 2010and the present.(2) All communications from the Office of the Attorney General ("OAG") to or from

any person involved in Attorney General Andrew Cuomo's 2010 New Yorkgubernatorial campaign ... concerning Alan Hevesi or Steven Rattner betweenSeptember 1, 2010 and the present.A copy of the request is attached hereto as Exhibit A.

10. Respondent replied to the request on October 19, 2010, on the'final day of thefive-day statutory period penmitted for responses. POL 89(3)(a). It acknowledged receipt ofthe request and stated that it was "performing a diligent search" for the requested records andwould "notify [Petitioner] of [its] progress within 20 business days." In essence, Respondentinformed Petitioner that it would be at least 25 days before Respondent would even givePetitioner a status report on his request. This response failed to comply with the requirements ofPOL 89(3)(a) that, within five days of the request, the OAG either make the records available,"deny such request in writing" or "furnish a written acknowledgment of the receipt of suchrequest and a statement of the approximate date, which shall be reasonable under thecircumstances of the request, when such request will be granted or denied," as the OAG did notgrant the request, deny the request or provide a date certain on which the request would begranted or denied. A copy of the response is attached hereto as Exhibit B.

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11 . On October 20, 2010, Petitioner, through his attorney, appealed in writing toRespondent. That appeal informed Respondent that its failure to comply with the requirementsof POL 89(3)(a) "constitut[ed] a denial" of the request pursuant to the statute. Id at 89(4)(a).Petitioner therefore requested that Respondent provide access to the records within the seven-dayappellate period provided for by the FOIL regulations promulgated by the New York Departmentof Law. See 13 NYCRR 120.30(c).1 A copy of Petitioner's appeal is attached hereto asExhibit C.

12. On October 29, 2010, the final day of the seven-day appellate period, Respondentinformed Petitioner that Petitioner's FOIL appeal had been denied. Respondent contended thatbecause the OAG staff members who would be required to gather documents in response to therequest "have abundant other job responsibilities," and because gathering communications to thecampaign and the press would be a "time-consuming effort" requiring consultation with "severaldozen" OAG employees for an "extremely broadly defined set of records," Respondent'sconstructive denial of Petitioner's original request and failure to comply with the requirements ofthe FOIL statute was "appropriate." A copy of the response is attached hereto as Exhibit D.

13. Twenty-one business days have passed since Respondent promised it wouldinform Petitioner of Respondent's progress. Petitioner has received no such update, nor anyrecords responsive to his request. Respondent's October 29 letter did not indicate thatRespondent is still searching for these records.

14. Petitioner therefore brings this petition to seek an order from the Court directingRespondent to produce its records forthwith.

' The OAG has promulgated regulations that provide a shorter time period for its determinationof FOIL appeals than the statute itselfwould have permitted. Compare 13 NYCRR 120.30(c)with Public Officers Law 89(4)(a).


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THE PURPOSE AND REQUIREMENTS OF FOIL15. The purpose of FOIL is to provide maximum access to government documents

and liberal public disclosure. The legislature has recognized that because "the people's right toknow the process of governmental decision-making and to review the documents and statisticsleading to detenminations is basic to our society," access to such information "should not be-thwarted by shrouding it with the cloak of secrecy or confidentiality." POL 84.

16. FOIL therefore provides guidelines, applicable to all state agencies, for disclosureof records to "the public, individually and collectively and represented by a free press." Id .Agencies must provide access to all records with only a few exceptions, such as if a requestwould require the disclosure of trade secrets or would jeopardize state security interests. Id at 87(2).

17. An agency in receipt of a FOIL request provide a response "within five businessdays." Id. at 89(3)(a). By statute, that response may only take one of three forms: (1) theproduction of the requested records, (2) a denial of the requested records "in writing," or (3) a"written acknowledgment of the receipt of such request and a statement of the approximate date,which shall be reasonable under the circumstances of the request, when such request will begranted or denied." Id . Any response that does not conform with one of these three options"shall constitute a denial" of the request. Id at 89(4)(a).

18. The statute fuirther provides that if an agency determines to grant a request bu t"4circumstances prevent disclosure to the person requesting the record or records within twentybusiness days from the date of the acknowledgement of the receipt of the request," the agency"shall state, in writing, both the reason for the inability to grant the request within twenty


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business days and a date certain within a reasonable period, depending on the circumstances,when the request will be granted in whole or in part." Id. at 89(3).

19. If a FOIL request is either directly or constructively denied, such denial may beappealed to the head of the agency. Id at 89(4)(a). The agency head must, within a set period,either state in writing the reasons for further denial, or provide access to the records sought. Id

20. Once an agency head denies a FOIL appeal, the person or entity that lodged theoriginal request may initiate an Article 78 proceeding pursuant to the Civil Practice Law andRules. Id at 89(4)(b). It is the agency's burden at such a proceeding to show that the requestwas denied because the records requested fell within one of the narrow exceptions to the statute.Id

OAG'S DENIAL OF PETITIONER'S FOIL REQUEST WAS IMPERMISSIBLE21. Respondent's failure to provide Petitioner a statutorily acceptable answer to his

FOIL request constituted a constructive -- and, because the records Petitioner requests arediscoverable pursuant to FOIL, impermissible -- denial of Petitioner's request.

22. Respondent's response to Petitioner's FOIL request stated that it would "notify[Petitioner] of [its] progress" with respect to Petitioner's request "within 20 business days." Asdetailed in Paragraph 17 above, however, this response is not one of the three statutorilypermissible responses to a FOIL request. If, within the five-day statutory response period,Respondent was unable to either firmly grant or deny Petitioner's request, Respondent wasobligated to set forth an "approximate date, which shall be reasonable under the circumstances ofthe request, when such request will be granted or denied." PO L 89(3)(a). Respondentprovided no such date in its response.


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23. Respondent contends that it did not respond to Petitioner's request includingbecause (1) it has to respond to other similar FOIL requests at the same time as Petitionerssrequest2 and (2) because OAG employees "have abundant other job responsibilities" unrelated toFOIL requests generally. Ex. D at 5. These excuses are no t re'cognized by the statute and do notexcuse Respondent's failure to follow the requirements of PO L 89(3).

24. Respondent also contends that, despite its failure to comply with the clearrequirements of PO L 89(3), its initial response was permissible because the statute providesthat "if an agency determines to grant a request" but "circumstances prevent disclosure" withintwenty business days, the agency may state "the reason for the inability to grant the requestwithin twenty business days and a date certain within a reasonable period, depending on thecircumstances, when the request will be granted in whole or in part." Id. at 89(3)(a).Respondent stated that its initial response "properly promises this second letter." Exhibit D at 4.

25. This argument is similarly unpersuasive. The language cited by Respondent wasadded to the FOIL statute in 2005, and the Committee on Open Government -- the state bodyresponsible for overseeing and advising agencies with regard to FOIL -- explained that theamendment was "clearly [] intended to prohibit agencies from unnecessarily delaying disclosure"and was "not intended to permit agencies to wait until the fifth business day following the receiptof a request and then twenty additional business days to determine rights of access" in situationswhere "records are clearly available to the public under [FOIL]" and "readily retrievable." SeeCommittee on Open Government Advisory Opinion, FOIL-AO- 16131 (August 25, 2006).

2 Respondent complains specifically about the burden imposed by another FOIL request made byMr. Goldman. Not surprisingly, Respondent has similarly failed to respond in a timely fashionto that request. This is no t the first time that the OAG under Attorney General Cuomo hasrefused to comply with the statute's requirements. See, e.g., Jimmy Vielkind, In Dark on CuomoSchedules, The Times Union, Oct. 18, 2010.


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26. Here, Respondent cannot simply wait twenty-five days to provide a properresponse to Petitioner's request because the records are both "clearly available" and "readilyretrievable." As discussed above, Respondent does no t contest that Petitioner's requestedrecords do not fall into any of the exemptions to the statute set forth in POL 87(2). Respondentdoes suggest -- though no t in its initial response, as required by statute -- that its failure to timelyproduce records is due to fact that gathering such records is a "time-consuming" task because itwould require asking "several dozen" OAG employees to search their email accounts forcommunications to the Cuomo campaign and the press over a period of 42 days. Exhibit D at 5.This is simply untenable. A simple email from the OAG FOIL officer to relevant staff directingthem to provide copies of their email accounts and files could provide the relevant documents ina short period. This is no t a case of files in off-site storage or large volumes of recordsmaintained in manual systems. 3 Just the opposite, these recent emails and communications arethe very paradigm of being "readily retrievable." And, of course, there can be no question ofwhether the communications might contain exempt m aterials that require additional time forscreening and analysis, as they were, by definition, all provided to individuals or entities outsideof the government.

27. Moreover, Respondent's initial response did not state that it would grantPetitioner' s request, and therefore it cannot avail itself of the cited language from POL 89(3)(a)(i.e., "If an agency detenmines to grant a request .. . and if circumstances prevent disclosure ...within twenty business days .. . the agency shall state. ... oth the reason for the inability to3The Committee on Open Government has provided some guidance on the kinds ofmaterialsthat might not be readily retrievable, such as records "transferred to a different site for storage,""maintained in manual systems," or "older records [that] may be more difficult to locate thanthose pertaining to recent transactions." Comm-ittee on Open Government Advisory Opinion,FOIL-AO-12822 (July 23, 2001). None of the records responsive to Petitioner's requestremotely qualifyr as such material.


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grant the request ... and a date certain ... when the request will be granted"). And even ifRespondent could rely on this provision, Respondent still failed to comply with its basicrequirements: Respondent neither explained wh y it was unable to grant the request withintwenty business days, nor set forth a date certain when the request would be granted.

28. Because Respondent failed to comply with the requirements of POL 89(3), bylaw its response to Petitioner's FOIL request constituted a denial of that request. See POL 89(4)(a).~

29. In its constructive denial of Petitioner's FOIL request, and again in its denial ofPetitioner's appeal of that FOIL request, Respondent failed to invoke any of the narrowexemptions set forth in the statute. As detailed above, agency records are presumptivelyavailable for public inspection and copying unless the requested documents fall within one of thethose exemptions. See PO L 87(2); Matter ofFappianov. New York City PoliceDep t, 95N.Y.2d 738 (2001); MatterofGould v. New York City PoliceDep't, 89 N.Y.2d 267 (1996).Because exemptions "are to be narrowly construed to provide maximum access" an agency"seeking to prevent disclosure carries the burden of demonstrating that the requested materialfails squarely within a FOIL exemption." Matter ofCapitalNewspapersDiv. ofHearstCorp. v.Burns, 67 N.Y.2d 562, 566 (1996).

30. Because Respondent did not contend that the requested records fall within a FOILexemption -- and Respondent cannot in fact demonstrate that such records qualify' for such anexemption -- Respondent's denial ofPetitioner's FOIL request was improper.

FIRST CAUSE OF ACTION4~Respondent argues that Petitioner's appeal was no t ripe because Respondent's initial responsedid not constitute a denial ofPetitioner's request. Ex. D at 3. Respondent misreads the statute,which clearly states that a failure to comply with the requirements of Section 89(3) constitutes adenial of the request. See PO L 89(4)(a).


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31. Under Section 7803(1) of the Civil Practice Law and Rules a mandamusproceeding properly lies when a public administrative agency has failed to perform a duty whichthe law has placed in the sole discretion of the agency.32.- Respondent has sole control over its own records and specifically the records to

which the Petitioner seeks access.33. Respondent's determination to deny Petitioner access to the requested records is,

for the reasons detailed above, illegal and was no t a proper administrative action.34. Petitioner has exhausted his administrative remedies and has no adequate remedy

at law.WHEREFORE, Petitioner requests that a judgment be entered:1 Ordering, adjudging and directing that Respondent grant access to all the records

previously requested by petitioners under FOIL by its October 12, 2010 letter.2. Declaring that Respondent's decision to deny access to the records requested was

arbitrary, capricious, an abuse of discretion and erroneous as a matter of law, and should be

annulled;3. Directing the OAG to produce all requested records in unredacted form and

awarding attorneys fees and costs under PO L 89(4)(c), together with such other relief as thecourt deems proper.

Respectfully submitted,

CLEARY GOTTLIEB-STEEN &HAMILTON LLPBy:_ Lewis J. LimanKimberly A. Parker, WILMER CUTLER

PICKERING HALE AND DoRR LLP


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VERIFICATIONSTATE OF NEW YORK )) ss.:COUNTY OF NEW YORK )

LEWIS J. LIMAN, being duly sworn, deposes and says:1 I am an attorney admitted to practice before the Courts of the State ofNew York.2. I am a member of the law firm of Cleary Gottlieb Steen & Hamilton, LLP,

attorneys for Petitioner.3. I have read the foregoing Verified Petition and know the contents thereof; and

that the same are true to my own knowledge, except as to the matters therein stated to be allegedupon information and belief, and as to those matters, I believe them to be true.

4. The sources of such information are records provided to me by Petitioner.

Dated: New York, New YorkNovember 18, 2010

LEWIS~j. LIMANSworn to before me this18 th day ofNovember, 2010

T YPu*ri4ct

My Cud Iai~~tIeem'1E~

Documents

Rattner FOIL Petition