SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

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Application for a Judgment under Article 78 of the CPLR and other relief, SERGIO HERNANDEZ Petitioner -againstOFFICE OF THE MAYOR OF THE CITY OF NEW YORK, Respondent.
VERIFIED ANSWER

Index No. 106216/11 lAS Part 16 (Schlesinger, J.)

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Respondent, by and through its attorney, Michael A. Cardozo, Corporation Counsel for the City of New York, as and for its Answer to the Verified Petition herein, alleges as follows:
1.

Denies the allegations contained in paragraph 1 of the Petition, except

admits that Petitioner purports to proceed as set forth therein. 2. Denies the allegations contained in paragraph 2 of the Petition, except

admits that Petitioner purports to proceed as set forth therein. 3. Denies knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragraph 3 of the Petition. 4. 5. Admits the allegations contained in paragraph 4 of the Petition. Denies the allegations contained in paragraph 5 of the Petition, except

admits that Petitioner purportedly sent an e-mail on November 19, 2010 to Anthony Crowell

requesting certain records, and respectfully refers the Court to the email annexed to the Petition as Exhibit A, for a complete and accurate statement of its contents. 6. 7. Admits the allegations contained in paragraph 6 of the Petition. Denies the allegations contained in paragraph 7 of the Petition, except

admits that Petitioner purportedly sent an e-mail on January 19, 2011 to Deputy Mayor Carol Robles-Roman purportedly appealing the denial of is FOIL request, and that Deputy Mayor Robles-Roman denied the appeal by letter dated January 26, 2011, and respectfully refers the Court to the email dated January 19, 2011 and letter dated letter January 26,2011, annexed to the Petition as Exhibits C and D, respectively, for a complete and accurate statement of their contents. 8. 9. Denies the allegations contained in paragraph 8 of the Petition. Makes no response to the allegations contained in paragraph 9 of the

Petition, insofar they assert legal conclusions. To the extent a response is required, Respondent denies the allegations contained therein, and respectfully refers the Court to the statutes cited therein for a complete and accurate statement of their provisions. 10. Make no response to the allegations contained in paragraph 10 of the

Petition, insofar they assert legal conclusions. To the extent a response is required, Respondent denies the allegations contained therein, except admits that Respondent is located within New York County, and that New York County is within the county in which the Respondent made the determination complained of, and respectfully refers the Court to the statutes cited therein for a complete and accurate statement of their provisions. 11. Denies the allegations contained in paragraph 11 of the Petition, except

admits that Petitioner purportedly sent an e-mail on November 19, 2010 to Anthony Crowell

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requesting certain records, and respectfully refers the Court to the email annexed to the Petition as Exhibit A, for a complete and accurate statement of its contents. 12. Denies the allegations contained in paragraph 12 of the Petition, except

admits that Anthony Crowell sent a letter to Petitioner dated January 13, 2011, and respectfully refers the Court to the letter annexed to the Petition as Exhibit B, for a complete and accurate statement of its contents. 13. Denies the allegations contained in paragraph 13 of the Petition, except

admits that Petitioner purportedly sent an e-mail on January 19, 2011 to Deputy Mayor Carol Robles-Roman, and respectfully refers the Court to that letter, annexed to the Petition as Exhibit C, for a complete and accurate statement of its contents. 14. Denies the allegations contained in paragraph 14 of the Petition, except

admits that Deputy Mayor Robles-Roman sent Petitioner a letter dated January 26, 2011, and respectfully refers the Court to that letter, annexed to the Petition as Exhibit D, for a complete and accurate statement of its contents. 15. Repeats and realleges each and every response set forth in paragraphs 1

through 14 above as if set forth fully hereat. 16. Makes no response to the allegations contained in paragraph 16 of the

Petition, insofar they assert legal conclusions. To the extent a response is required, Respondent denies the allegations contained therein, and respectfully refers the Court to New York's Freedom of Information Law, N.Y. Public Officers Law 84, et seq. and the interpretive case law thereunder, for a complete and accurate statement of their requirements. 17. 18. Denies the allegations contained in paragraph 17 of the Petition. Denies the allegations contained in paragraph 18 of the Petition.

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19. 20. 21. 22.

Denies the allegations contained in paragraph 19 of the Petition. Denies the allegations contained in paragraph 20 of the Petition. Denies the allegations contained in paragraph 21 of the Petition. Denies knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragraph 22 of the Petition 23. Repeats and reaUeges each and every response set forth in paragraphs 1

through 22 above as if set forth fully hereat. 24. 25. 26. 27. Denies the allegations contained in paragraph 24 of the Petition. Denies the allegations contained in paragraph 25 of the Petition. Denies the allegations contained in paragraph 26 of the Petition. Denies the allegations contained in paragraph 27 of the Petition.

AS AND FOR A STATEMENT OF MATERIAL AND PERTINENT FACTS

28.

In early November 2010, Mayor Michael Bloomberg selected Cathleen P.

Black to be the Chancellor of the City school district, upon the pending resignation of the thenserving Chancellor, Joel Klein. 29. On November 9, 2010, Mayor Bloomberg publicly announced that he had

selected Ms. Black to be the next Chancellor. 30. Ms. Black did not meet the eligibility requirements of Education Law

3003(1) for a superintendent certificate in that, although she possessed the requisite Bachelor of Arts degree, she did not possess the graduate coursework or experience requirements. 31. Because Ms. Black did not meet the eligibility requirements and because

Ms. Black did not have any previous experience in the field of education, it was understood that her selection, as with the selection of any individual to a high-level government position, would

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be subject to scrutiny and debate.

Additionally, in order for Ms. Black to serve as Chancellor,

she was required to obtain a School District Leader certificate from the New York State Education Department pursuant to Education Law 3003(3). 32. By letter dated November 17, 2010, Mayor Bloomberg wrote to the

Commissioner of Education of the New York State Education Department, requesting that he provide Ms. Black a School District Leader certificate pursuant to Education Law 3003(3) and 8 N.Y.C.R.R. Part 80-3 .10(b)(3)(iii). 33. After her selection in early November 2010, Ms. Black, City staff and

Hearst Corporation staff assigned to assist Ms. Black in her transition to City government were required to communicate with one another in order to appropriately prepare the request to Commissioner Steiner, respond to routine queries that are customary for high-level mayoral appointees, and engage in outreach planning to the community to address concerns that had been publicly raised regarding Ms. Black. Ms. Black was both directly communicating with as well as copied on e-mails between these parties. 34. These emails included discussions concerning clarification of Ms. Black's

background, discussions related to proposed and actual contacts with various government officials and other stakeholders regarding Ms. Black's selection, and drafts of the letter to be sent to Commissioner Steiner requesting a School District Leader certificate for Ms. Black. 35. Upon information and belief, it was well-understood that the

communication and outreach efforts described above were to be coordinated through the Office of the Mayor, and that Ms. Black and the staff assigned to assist her in her transition to City government would be expected to participate in and support these efforts, as would any other high-level mayoral appointee.

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36.

Indeed, the emails between the Office of the Mayor and Ms. Black

(whether directly or as a "cc") show that while Ms. Black and her staff was working in tandem with the Office of the Mayor in pursuit of a common goal, she did not act independently, but only on the advice and guidance from the Office of the Mayor. 37. On November 29, 2010, the New York State Education Department

granted Ms. Black the requested certificate allowing her to serve as Chancellor. 38. 39. Ms. Black began serving as Chancellor on January 1, 2011. By email dated November 19, 2011 sent to Anthony Crowell,

Respondent's Records Access Officer, but addressed to the Records Access Officer of the New York State Education Department, Petitioner requested copies of "E-mail messages sent from or received by any state electronic email accounts assigned to the Office of the Mayor to or from an individual named Cathleen Prunty 'Cathie' Black or email addresses containing the domain hearst.com" pursuant to the New York State Freedom oflnformation Law, Article 6 84, et seq. By subsequent emails dated November 19, 2010, Petitioner clarified that his request was intended for the Office ofthe Mayor, not the State Education Department. A copy of Petitioner's emails ofNovember 19, 2011 (the "FOIL Request") is annexed to the Petition as Exhibit A. 40. A number of responsive documents were located following a reasonably

diligent search of Respondent's records. Each of these were documents that Ms. Black either sent to someone at City Hall, or on which she was a recipient, either directly or as a "cc." There were no responsive documents located to senders or recipients at a "hearst.com" domain other than those sent to or received from Ms. Black, as described herein.

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41.

Although Petitioner purportedly sent his FOIL request in order to gain

insight and information into the process by which Ms. Black was selected to be Chancellor, none ofthe responsive documents deal with the selection process. 42. The responsive documents concern the efforts of Respondent and Ms.

Black to clarify and expound on Ms. Black's background to serve as Chancellor, to address questions about her qualifications and to discuss steps to ensure the success of her candidacy. 43. These documents also contain the private cell phone numbers and email

addresses of certain government officials and other stakeholders, who were to be contacted in furtherance ofthese objectives. 44. None of these documents contains (i) statistical or factual tabulations or

data; (ii) instructions to staff that affect the public; (iii) a final agency policy or determination or (iv) external audits. 45. By letter to Petitioner dat~d January 13, 2011 from Anthony Crowell,

Respondent denied Petitioner's FOIL request pursuant to N.Y. Public Officers Law 87(2)(b) on the ground disclosure would constitute an unwarranted invasion of personal privacy, and pursuant to N.Y. Public Officers Law 87(2)(g) on the ground that the requested records were inter-agency or intra-agency materials. A copy of Mr. Crowell's letter of January 13, 2011 to Petitioner is annexed to the Petition as Exhibit B. 46. By emails dated January 19, 2011 sent to Deputy Mayor Carol Robles-

Roman, Respondent's Records Access Appeals Officer, Petitioner appealed the determination of January 13, 2011 denying is FOIL request. A copy of Petitioner's emails dated January 19, 2011, without attachments, is annexed to the Petition as Exhibit C.

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47.

By letter to Petitioner dated January 26, 2011, Deputy Mayor Carol

Robles-Roman upheld the determination to deny Petitioner's FOIL request, finding that it was proper to withhold the requested records pursuant to N.Y. Public Officers Law 87(2)(b) on the ground disclosure would constitute an unwarranted invasion of personal privacy, and pursuant to N.Y. Public Officers Law 87(2)(g) on the ground that the requested records were inter-agency or intra-agency materials .. A copy of Deputy Mayor Robles-Roman's letter of January 26, 2011 is annexed to the Petition as Exhibit D. 48. Petitioner commenced this proceeding on or about May 26, 2011.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE

49.

The Petition fails to state a claim on which relief may be granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

50.

Respondent fully complied with its statutory obligations.

AS AND FOR 'A THIRD AFFIRMATIVE DEFENSE

51.

There is no basis for an award of costs and attorneys' fees.

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WHEREFORE, Respondent respectfully requests that the Petition be denied in

its entirety, and that it be awarded such other and further relief as this Court deems just and proper. Dated: New York, New York July21,2011 MICHAEL A. CARDOZO Corporation Counsel for the City ofNew York Attorney for Respondent 100 Church Street, Room 2-121 New York, NY 10007 (212) 788-0 39

TO:

SCHLAM STONE & DOLAN LLP Attorneys for Petitioner 26 Broadway, 191h Floor New York, New York 10004 (212) 344-5400

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VERIFICATION

STATE OF NEW YORK COUNTY OF NEW YORK

) SS.: )

ANTHONY CROWELL, being duly sworn, deposes and says that he is Counsel

to the Mayor; that he has read the foregoing Answer and knows the contents thereof, and that it is true to his knowledge except as to the matters therein stated to be alleged upon information and belief, and as to those matters he believes them to be true; that the source of this information and the basis for his belief are the books and records of the Office of the Mayor and from statements made to him by certain officers or agents of

Sworn to before me this 21st day of July, 2011

Notary Public

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