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To Be Argued By: ELIZABETH WOLSTEIN

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT
SERGIO HERNANDEZ, Petitioner-Respondent, -againstOFFICE OF THE MAYOR OF THE CITY OF NEW YORK, Respondent-Appellant. New York County Clerks Index No.: 106213/2011

BRIEF FOR PETITIONER-RESPONDENT

SCHLAM STONE & DOLAN LLP Michael C. Marcus Elizabeth Wolstein Raffi Melkonian 26 Broadway 19th Floor New York, New York 10004 Telephone: (212) 344-5400 Facsimile: (212) 344-7677 ewolstein@schlamstone.com Attorneys for Petitioner-Respondent Sergio Hernandez

REPRODUCED ON RECYCLED PAPER

TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................ iii-v PRELIMINARY STATEMENT ............................................................................... 1 COUNTER STATEMENT OF QUESTION PRESENTED ..................................... 4 COUNTER STATEMENT OF FACTS .................................................................... 4 A. B. C. D. The Appointment Of Cathleen Black As New York City Schools Chancellor ............................................................................................. 4 Mr. Hernandezs FOIL Request And Administrative Appeal .............. 6 The Trial Court Proceedings ................................................................. 8 The Trial Courts Decision .................................................................. 10

RELEVANT STATUTORY BACKGROUND ...................................................... 11 ARGUMENT ........................................................................................................... 13 I. THE JUDGMENT SHOULD BE AFFIRMED BECAUSE FOILS INTER- AND INTRA-AGENCY EXEMPTION DOES NOT APPLY TO THE MAYORS OFFICES COMMUNICATIONS WITH A PRIVATE CITIZEN SUCH AS MS. BLACK ............................................. 13 A. The City Bears The Burden Of Showing That The Black E-mails Fall Within The Inter- And Intra-Agency Exemption, Which Like All FOIL Exemptions Must Be Narrowly Construed ......................... 13 The Court of Appeals Decision in Town of Waterford Requires Affirmance........................................................................................... 15 1. Withholding Of The Black E-mails Cannot Be Justified Through Policy Arguments When The Documents Indisputably Lie Beyond The Scope Of The Inter- and Intra-Agency Exemption As Written ...................................................................................... 16 2. Ms. Black Was Not A Consultant To The Mayors Office As A Factual Or Legal Matter........................................................ 21
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B.

a. Ms. Black Was Not Engaged As And Did Not Function As A Consultant Retained By The City .................................... 24 b. In Communicating With The Mayors Office, Ms. Black Was Acting In Her Own Interest To Promote Her Own Candidacy For High City Office ................................................................. 25 3. Even If Ms. Black Was An Agent Of The Mayors Office Which She Was Not That Would Not Make Her An Agency For Purposes Of The Inter- And Intra-Agency Exemption So As To Bring The Requested E-mails Within The Exemption ....... 27 C. The E-mails Are Also Beyond The Scope Of The Inter- And Intra-Agency Exemption Because They Are Not Predecisional Or Deliberative According To The Citys Own Description .............. 30

II.

MR. HERNANDEZ IS ENTITLED TO AN AWARD OF REASONABLE ATTORNEYS FEES AND COSTS PURSUANT TO FOIL SECTION 89(4)(C) ....................................................................... 32

CONCLUSION ........................................................................................................ 36

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TABLE OF AUTHORITIES CASES Center for Auto Safety v. Dept of Justice, 576 F. Supp. 739 (D.D.C. 2002)...........................................................................19 County of Madison v. United States Dept of Justice, 641 F.2d 1036 (1st Cir. 1981) ..............................................................................19 Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 849 N.Y.S.2d 489 (2007)........................................................ 14-15 Dept of the Interior v. Klamath Water Users Protective Assn, 532 U.S. 1 (2001) ......................................................................................... passim Dow Jones & Co. v. Dept of Justice, 917 F.2d 571 (D.C. Cir. 1990)..............................................................................27 FBI v. Abramson, 456 U.S. 615 (1982) .............................................................................................20 Gould v New York City Police Department, 89 N.Y.2d 267, 653 N.Y.S.2d 54 (1996)................................................................7 Gulf Ins. Co. v. Transatlantic Reinsurance Co., 69 A.D.3d 71, 886 N.Y.S.2d 133 (1st Dept 2009) ..............................................28 Ho Myung Moolsan Co Ltd. v. Manitou Mineral Water, Inc., 665 F. Supp. 2d 239 (S.D.N.Y. 2009) ..................................................................28 Lesher v. Hynes, 19 N.Y.3d 57, 945 N.Y.S.2d 214 (2012)........................................................ 12-13 Matter of Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 513 N.Y.S.2d 367 (1985)............................................................14 Matter of Fedn of New York State Rifle & Pistol Clubs, Inc. v. New York City Police Dept., 73 N.Y.2d 92, 538 N.Y.S.2d 226 (1989)..............................................................15
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Matter of Newsday, Inc. v. Empire State Dev. Corp., 98 N.Y.2d 359, 746 N.Y.S.2d 855 (2002)............................................................14 In the Matter of Sea Crest Const. Corp. v. Commissioners of Public Works, 82 A.D.2d 546, 442 N.Y.S.2d 130 (2d Dept 1981) ............................................24 Matter of Town of Waterford v. New York State Dept of Envl Conservation, 18 N.Y.3d 652, 944 N.Y.S.2d 429 (2012).................................................... passim Matter of Westchester Rockland Newspapers v. Kimball, 50 N.Y.2d 575, 430 N.Y.S.2d 574 (1980)............................................................15 Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 490 N.Y.S.2d 488 (1985)............................................................21 Miller v. N.Y. State Dept of Trans., 58 A.D.3d 981, 871 N.Y.S.2d 489 (3d Dept 2009) ........................................ 31, 33 Mothers on the Move, Inc. v. Messer, 236 A.D.2d 408, 652 N.Y.S.2d 773 (2d Dept 1997) ..........................................35 One Beekman Place, Inc. v. City of New York, 169 A.D. 2d 492, 564 N.Y.S.2d 169 (1st Dept 1991) .........................................20 Pekelnaya v. Allyn, 25 A.D.3d 111, 808 N.Y.S.2d 590 (1st Dept 2005) ............................................28 People for the American Way Found. v. U.S. Dept of Educ., 516 F.Supp.2d 28 (D.D.C. 2007)..........................................................................26 Ryan v. United States Dept of Justice, 617 F.2d 781 (D.C. Cir. 1980).................................................................. 25-26, 27 In re Shulman Transp. Enter., Inc., 744 F.2d 293 (2d Cir. 1984) .................................................................................28 Tigue v. United States Dept of Justice, 312 F.3d 70 (2d Cir. 2002) ...................................................................................26

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TOA Const. Co., Inc. v. Tsitsires, 54 A.D.3d 109, 861 N.Y.S.2d 335 (1st Dept 2008) ..............................................6 Tuck-it-Away Assocs., L.P. v. Empire State Dev. Co., 54 A.D.3d 154, 861 N.Y.S.2d 51 (1st Dept 2008) ....................................... 13, 30 United States Dept of Justice v. Tax Analysts, 492 U.S. 136 (1989) .............................................................................................15 STATUTES, RULES AND OTHER AUTHORITIES New York Freedom of Information Law, 86(3) ............................................................................................................ 12, 18 87 .........................................................................................................................1 87(2) ...................................................................................................................11 87(2)(b) ................................................................................................. 1, 7, 8, 34 87(2)(g) ................................................................................................. 1, 7, 9, 12 89(4)(c) ................................................................................................... 8, 32, 36 New York State Education Law 3003(3) ................................................................5 8 N.Y.C.R.R. Part 80-3.10(b)(3)(iii)..........................................................................5 Restatement (Third) of Agency 1, cmt. B (2006) .................................................28

PRELIMINARY STATEMENT Nearly two years ago, Respondent Sergio Hernandez, a journalist, made a request under New Yorks Freedom of Information Law, Pub. Off. Law 84 et seq. (FOIL), for e-mails sent and received between Appellant Office of the Mayor of the City of New York (the City or the Mayors Office) and Ms. Cathleen Cathie Black, who at the time of the request was Mayor Bloombergs nominee for the post of New York City Schools Chancellor. The City denied the request on the basis of two FOIL exemptions, the personal privacy exemption, Pub. Off. Law 87(2)(b), and the exemption for inter-agency and intra-agency materials, Pub. Off. Law 87(2)(g). By the time Mr. Hernandez commenced this proceeding, the City had abandoned its privacy argument, and in opposing the Article 78 Petition asserted only the inter- and intra-agency exemption to justify its withholding of communications between the Mayors Office and a private individual. Nearly one year ago, the trial court granted the Petition and ordered the City to disclose the requested documents. The court characterized the Citys assertion of the inter- and intra-agency as particularly specious, since the exemption by definition involves communications between or within governmental agencies, and Ms. Black was quite obviously not one of those. After the City filed its notice of appeal, the New York Court of Appeals decided Matter of Town of Waterford v. New York State Department of Environmental Conservation, 18 N.Y.3d 652, 944 N.Y.S.2d 429 (2012). As a result, the Citys

litigating position has gone from specious to completely indefensible and downright frivolous. It is inexplicable that the City did not withdraw its appeal. The public is left to infer that the Cathie Black e-mails are so politically toxic that the Mayors Office would rather litigate in defiance of the governing law than let the e-mails see the light of day. In Town of Waterford, the Court of Appeals ruled that communications between a state agency and the federal Environmental Protection Agency (EPA) were not exempt from disclosure under the inter- and intra-agency exemption, because the definition of agency under FOIL does not include federal agencies. Even though the EPA was an agency in the ordinary sense, the fact that it did not fall within the statutory definition of the term precluded application of the exemption. The Court further held that the state agencys policy justifications for protecting the disputed communications were of no significance, since the courts are required to interpret the exemption as written. Finally, the Court rejected the argument that EPA was a consultant to the state agency, so as to come within the exemption, since although the state and federal agencies worked together toward the same goal on the project that was the subject of the disputed communications, EPA was not retained as a consultant, did not function as an employee, and represented a distinct constituency. The Citys appeal is foreclosed by Town of Waterford. Ms. Black is not an agency as defined in FOIL so communications between her and the City do not fall
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within the inter- and intra-agency exemption. That is the governing rule of decision and without more it disposes of the Citys appeal and requires affirmance. Each one of the Citys arguments that attempt to get around this doctrine which effects no change to existing law furthermore, was rejected by the Court of Appeals in Town of Waterford. This Court may not reverse the judgment on the grounds that it would be good policy (according to the City) to shield the requested emails so that prospective City employees can communicate candidly with their prospective employing agencies, when such communications are plainly beyond the scope of the exemption. And even if, as the City argues, Ms. Black can be considered an agent of the Mayors Office a proposition devoid of factual support in the record her communications are beyond the scope of the exemption since she was not an agency as defined in FOIL. Finally, Town of Waterford forecloses the Citys argument that Ms. Black should be considered a consultant for purposes of the inter- and intra-agency exemption. Ms. Black was not retained by the City as a consultant, did not function as a consultant or employee, and communicated with the Mayors Office as a selfadvocate to advance her own interest in securing the Chancellor position. The Citys only argument that the Mayors Office and Ms. Black worked jointly toward a mutually desired goal is precisely the argument the state agency advanced in Town of Waterford and the Court of Appeals rejected.
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The City has never had any reasonable basis to withhold the requested e-mails on the basis of either of the FOIL exemptions it asserted in response to Mr. Hernandezs FOIL request. Its appeal is now manifestly frivolous in light of Town of Waterford. The City should be directed to release the e-mails immediately and Mr. Hernandez should be awarded his reasonable attorneys fees and costs as FOIL provides. COUNTER STATEMENT OF QUESTION PRESENTED Question: Has the City properly withheld, under the FOIL exemption for predecisional inter-agency and intra-agency materials, e-mails between an agency and a private citizen, where the private citizen is not an agency as defined in FOIL, or a consultant retained by the withholding agency? The Court below correctly answered No.

COUNTER STATEMENT OF FACTS


A.

The Appointment of Cathleen Black as New York City Schools Chancellor In November 2010, New York City Mayor Michael R. Bloomberg announced

the appointment of Cathleen P. Black to be the next chancellor of the Citys school system. (R. 43). Due to her lack of education credentials and experience, Ms. Black did not meet the statutory eligibility requirements for the position. (R. 43).

Accordingly, in order for Ms. Black to serve as Chancellor, she was required to obtain

from the New York State Education Department a School District Leader certificate, pursuant to New York State Education Law 3003(3). (R. 44). Under that statute, the State Education Commissioner may issue the certificate required for an individual to serve as Chancellor to exceptionally qualified persons who do not meet all of the graduate course or teaching requirements of subdivision one of this section, but whose exceptional training and experience are the substantial equivalent of such requirements and qualify such persons for the duties of a superintendent of schools. N.Y. Education Law 3003(3). The relevant regulation further required that the City make a formal request to the State to issue the certificate, which had to include the job description, its rationale for requesting such certification of the individual, a statement identifying the exceptional qualifications of the candidate, the individuals completed application for certification, vitae and official transcripts of collegiate study. 8 N.Y.C.R.R. Part 80-3.10(b)(3)(iii). Mayor Bloomberg submitted his formal request for the required certificate on November 17, 2010. (R. 44). The State Education Department granted Ms. Black the requested certificate on November 29, 2010. (R. 45). She took office as Chancellor on January 1, 2011. (R. 45). Ms. Blacks lack of qualifications for the Chancellorship provoked significant public debate (R. 43-44), and within a few months, on April 7, 2011, she resigned the position. See Elissa Gootman & Michael Barbaro, Cathleen Black is Out as City
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Schools

Chancellor

(April

7,

2011,

10:45

AM),

http://cityroom.blogs.nytimes.com/2011/04/07/cathie-black-is-out-as-chancellor/.1
B.

Mr. Hernandezs FOIL Request and Administrative Appeal Respondent Sergio Hernandez is an independent journalist who was reporting

for the Village Voices Runnin Scared blog at the time of the Cathie Black controversy. (R. 21-22). On November 19, 2010, Mr. Hernandez submitted a FOIL request seeking 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. (R. 22, 29-30) (the E-mails or the Black E-mails). Mr. Hernandez asked the City to justify any withholding by reference to specific FOIL exemptions and release all segregable portions of otherwise exempt documents. (R. 20, 28). On November 30, 2010, Mr. Hernandez received a letter from the City acknowledging receipt of his request and informing him that he could expect a decision within twenty days. (R. 35). After more than thirty days passed without a response, on January 4, 2011, Mr. Hernandez questioned the Citys FOIL Officer as to the status of his request. (R. 35).

Although it is not material to the appeal, the Court may take judicial notice of the fact that Ms. Black resigned the Chancellorship on April 7, 2011. See, e.g., TOA Const. Co., Inc. v. Tsitsires, 54 A.D.3d 109, 115, 861 N.Y.S.2d 335, 339 (1st Dept 2008) (judicial notice of newspaper articles appropriate where asserted facts are matter[s] of common and general knowledge, wellestablished and authoritatively settled). 6

On January 13, 2011, fifty-five days after Mr. Hernandez submitted his FOIL request, the City denied the request in its entirety. (R. 32). Without identifying any of the withheld documents by date or otherwise, the Mayors Offices denial letter simply asserted that all requested documents were withheld under Pub. Off. Law 87(2)(b) and 87(2)(g)FOILs exemptions for records that if disclosed, would constitute an unwarranted invasion of personal privacy, and records that constitute inter-agency and intra-agency materials. (R. 32). Mr. Hernandez promptly filed an administrative appeal on January 19, 2011. (R. 34-36). Citing Gould v New York City Police Department, 89 N.Y.2d 267, 274275, 653 N.Y.S.2d 54, 56-57 (1996), Mr. Hernandez emphasized that an agency cannot categorically assert that its documents are exempt, as the Mayors Office had done, but rather must provide a particularized and specific justification for withholding requested documents. (R. 35). Mr. Hernandez further underscored that because his FOIL request covered the period before Ms. Black became Chancellor, Ms. Black was a private citizen and the requested e-mails between the Mayors Office and Ms. Black therefore could not constitute either inter-agency or intra-agency communications. (R. 35-36). One week later, by letter dated January 26, 2011, the Mayors Office denied Mr. Hernandezs appeal in its entirety. (R. 38). The Mayors Office again claimed that all the requested e-mails were exempt from disclosure under the personal privacy
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and inter- and intra-agency exemptions, 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 either of the claimed exemptions applied to any specific email or category of e-mails. (R. 38).
C.

The Trial Court Proceedings Mr. Hernandez timely filed an Article 78 Petition (the Petition) challenging

the Citys failure to disclose the requested e-mails. (R. 19-26). The Petition alleged that the City violated FOIL by improperly withholding documents that did not fall within either of the claimed statutory exemptions, and by failing to provide a particularized justification for the withholding as required by FOIL. (R. 24-25). The Petition sought an order (i) directing the City to produce the requested documents; (ii) directing the City to provide a specific and particularized justification for withholding any document it asserted was exempt from disclosure; and (iii) awarding Mr. Hernandez reasonable attorneys fees and costs pursuant to Public Officers Law 89(4)(c). In response to the Petition, the City did not assert, as it had throughout the administrative stage, that the E-mails were exempt from disclosure under the personal privacy exemption, Pub. Off. Law 87(2)(b), declining to brief the issue or otherwise

assert the privacy exemption as a justification for withholding the E-mails.2 Accordingly, the Citys only asserted basis for withholding the e-mails between the Mayors Office and Ms. Black, then a private citizen, was the exemption for inter- and intra-agency materials, Pub. Off. Law 87(2)(g). The Citys memorandum of law argued that this exemption should apply because Ms. Black was either an agent or consultant to the City during the period before she became Chancellor. The Citys only evidentiary submission in response to the Petition was its Verified Answer (the Answer). (R. 40-49). The Answer did not identify the withheld e-mails in any fashion. (R. 40-49). Rather, the only factual description of the e-mails asserted that they fell into the following three categories: (i) discussions concerning clarification of Ms. Blacks background; (ii) discussions related to proposed and actual contacts with various government officials and other stakeholders regarding Ms. Blacks selection; and (iii) drafts of the letter to be sent to Commissioner Steiner requesting a School District Leader certificate for Ms. Black. (R. 44). In describing Ms. Blacks role in the Mayors effort to secure her appointment to the Chancellor position, the Answer stated, upon information and belief, that it was well-understood (though by whom is unspecified) that Ms. Black would be
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In its response to the Petition, the City asserted only that cell phone numbers and personal email addresses contained in the Black E-mails should be withheld under the privacy exemption, a point not disputed by Mr. Hernandez. See Brief of Appellant (City Br.) at 7. 9

expected to participate in and support these efforts, (R. 44), and that while Ms. Black 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. (R. 45). The City offered no other facts bearing on the relationship between Ms. Blacks efforts to secure her own appointment and those of Mayor Bloomberg, and no facts to suggest that the Mayor exercised control over Ms. Blacks conduct during the period before she assumed the Chancellorship. D. The Trial Courts Decision In a memorandum decision and order dated November 23, 2011, the trial court granted the Petition and ordered the City to disclose the requested e-mails within 15 days. (R. 6). Summing up the rationale for its rejection of the Citys arguments, the court determined that the City in this case has wholly failed to apply either the policy declared by our Legislature or the dictates of our Court of Appeals. (R. 12). The court concluded that the Citys invocation of the inter- and intra-agency exemption was particularly specious, as [the exemption] by definition involves communications between or within governmental agencies. (R. 14). Because it is undisputed that Ms. Black and the Hearst employees were private citizens at the time the subject e-mails were written the court determined that the inter- and intra- agency exemption did not apply.

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The court then rejected the Citys contention that Ms. Black and her staff were either consultants or agents of the City at the relevant time, determining that [n]either the facts nor the law on agency support [the argument that Ms. Black and her staff were acting as de facto agents or consultants for the City]. (R. 14). Specifically, the court found that as a mayoral nominee Ms. Black was not bound to act on the Mayors behalf, and the Mayor had no basis to exert control over Ms. Black before her appointment was confirmed. (R. 14). Rather, the Court held, Ms. Blacks cooperation with the Mayors Office served the interests of both parties. (R. 14). The Court determined that those facts do not constitute a principal-agent or consultant relationship. (R. 14). Finally, the court concluded that applying the inter-agency and intra-agency exemption would not serve the policy behind the exemption because communications with people outside the agency are not considered part of the governments deliberative process, and their disclosure will not inhibit decisionmaking within the government. (R. 15).3 RELEVANT STATUTORY BACKGROUND FOIL requires agencies to make available for public inspection and copying all records, unless they are subject to a specific statutory exemption set forth in FOIL.
The court also rejected the Citys argument that the E-mails could be withheld under the privacy exemption (R. 12), an argument that in any event the City had abandoned in response to Mr. Hernandezs Article 78 Petition. 11
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Pub. Off. Law 87(2). The only exemption asserted by the City to justify its withholding of the documents requested by Mr. Hernandez is the exemption for interagency or intra-agency materials, pursuant to which an agency may deny access to materials that: (g) 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; iv. external audits, including but not limited to audits performed by the comptroller and the federal government. Pub. Off. Law 87(2)(g). FOIL specifically defines the term agency as any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature. Pub Off. Law 86(3). In interpreting FOIL, New York courts may appropriately rely on federal cases interpreting the analogous federal Freedom of Information Act (FOIA). FOILs legislative history indicates that many of its provisions . . . were patterned after the Federal analogue. Accordingly, Federal case law and legislative history . . . are instructive when interpreting such provisions. Lesher v. Hynes, 19 N.Y.3d 57, 64,
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945 N.Y.S.2d 214, 218 (2012) (ellipses in original; internal quotation marks omitted); Tuck-it-Away Assocs., L.P. v. Empire State Dev. Co., 54 A.D.3d 154, 861 N.Y.S.2d 51, 57 (1st Dept 2008) (holding that federal case law is instructive with respect to inter- and intra-agency exemption). ARGUMENT I. THE JUDGMENT SHOULD BE AFFIRMED BECAUSE FOILS INTER- AND INTRA-AGENCY EXEMPTION DOES NOT APPLY TO THE MAYORS OFFICES COMMUNICATIONS WITH A PRIVATE CITIZEN SUCH AS MS. BLACK The Citys contention that the Black E-mails are exempt from disclosure under the inter- and intra-agency exemption is wrong and flies directly in the face of wellsettled law. While the Citys invocation of this exemption has always been

insupportable as both a legal and factual matter as the court below correctly ruled the Citys arguments are now demonstrably frivolous in light of the Court of Appeals March 2012 decision in Town of Waterford v. New York State Dept of Environmental Conservation, 18 N.Y. 3d 652, 944 N.Y.S. 2d 429 (2012). In that case, the Court of Appeals squarely rejected the identical arguments the City raises here except in Town of Waterford the facts were stronger because the agencys disputed external communications were with a federal agency rather than a private citizen. Yet as explained further below, the Court of Appeals still rejected the state agencys argument that the federal EPA was an agency for purposes of FOILs inter- and intra-agency exemption, and rejected the argument that EPA was a
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consultant based on precisely the rationale Mr. Hernandez advances here, which is also precisely why the court below found the argument meritless with respect to Ms. Black. A. The City Bears The Burden Of Showing That The Black E-mails Fall Within The Inter- And Intra-Agency Exemption, Which Like All FOIL Exemptions Must Be Narrowly Construed

It is well settled that 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, 513 N.Y.S.2d 367, 370 (1985). Thus, FOIL is to be liberally construed so that the public is granted maximum access to the records of government. Id; see also Matter of Newsday, Inc. v. Empire State Dev. Corp., 98 N.Y.2d 359, 362, 746 N.Y.S.2d 855, 856 (2002) (As we have repeatedly noted, FOILs declared purpose of ensuring open government requires giving its disclosure provisions an expansive interpretation.); Dept of the Interior v. Klamath Water Users Protective Assn, 532 U.S. 1, 8 (2001) (FOIAs limited exemptions do not obscure the basic policy that disclosure, not secrecy is the dominant objective of the act). For that reason, when an agency seeks to withhold from the public documents requested under FOIL, it is the agencys burden to establish that the material requested falls squarely within the ambit of one of these statutory exemptions. Town
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of Waterford, 18 N.Y.3d at 657, 944 N.Y.S.2d at 431. To meet that burden, the agency must articulate a particularized and specific justification for [denying] access. Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 463, 849 N.Y.S.2d 489, 494 (2007). If the agency fails to prove that a statutory exemption applies, FOIL compels disclosure, not concealment. Id. (citing Matter of Westchester Rockland Newspapers v. Kimball, 50 N.Y.2d 575, 580, 430 N.Y.S.2d 574, 577 (1980)). While FOILs disclosure requirements are to be broadly construed, its exemptions must be narrowly interpreted. Matter of Fedn of New York State Rifle & Pistol Clubs, Inc. v. New York City Police Dept., 73 N.Y.2d 92, 96, 538 N.Y.S.2d 226, 228 (1989); United States Dept of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (Consistent with the Acts goal of broad disclosure, these exemptions have been consistently given a narrow compass). Application of these well-settled interpretive principles ensures that the public is granted maximum access to the records of government. Town of Waterford, 18 N.Y.3d at 657, 944 N.Y.S.2d at 431. B. The Court of Appeals Decision in Town of Waterford Requires Affirmance

The City has failed to meet its burden of demonstrating that the requested emails fall squarely within the ambit of the inter- and intra-agency exemption. Town of Waterford, 18 N.Y.3d at 657, 944 N.Y.S.2d at 431. Indeed, the City does not even argue that the documents fall within the exemption, but appeals instead to what it believes are the worthy policies that would be served by protecting from disclosure a
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new category of communications not covered by the exemption: those between City agencies and their prospective appointees. (See City Br. at 9-14). In addition, the City argues that the E-mails are covered by the exemption because Ms. Black was acting as either the Citys agent or its consultant. Each argument is foreclosed by Town of Waterford. 1. Withholding Of The Black E-mails Cannot Be Justified Through Policy Arguments When The Documents Indisputably Lie Beyond The Scope Of The Inter and IntraAgency Exemption As Written

In Town of Waterford, a municipality sought disclosure under FOIL of documents exchanged between the New York Department of Environmental Conservation (DEC) and the federal EPA relating to remediation of PCBs in the Hudson River, a project that was affecting the towns water supply. Id., 18 N.Y.3d at 655, 944 N.Y.S.2d at 430. DEC resisted disclosure based on the inter-agency exemption, arguing that because EPA was an agency under the plain meaning of the term, any communications between DEC and EPA were exempt from disclosure under FOILs inter- and intra-agency exemption. Id. The Court of Appeals rejected the argument and concluded that DEC has failed to meet its burden of showing that the communications between DEC and EPA were covered by the statutory exemption. Id., 18 N.Y.3d at 658, 944 N.Y.S.2d at 431. The Court explained that FOILs definition of the word agency must be used in interpreting the statutory terms inter-agency and intra-agency, rejecting as
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meritless DECs argument that the definition of agency should not be applied to the statutory phrases inter-agency and intra-agency. 18 N.Y.3d at 657, 944 N.Y.S.2d at 431. It necessarily followed that because by its plain terms the statutory definition [of agency] does not include federal agencies, but rather is limited to state and municipal entities, the disputed communications were not protected from disclosure. Id. The Court thus rejected the notion that an agency for purposes of the exemption could be something other than FOILs statutory definition of the term, even if the proposed non-statutory definition was consistent with the common-sense meaning of an agency Although the EPA would be an agency within the definition of that term as it is commonly understood, that fact is of no assistance to respondent when the term is clearly defined in the statute. Since the EPA is not an agency for purposes of FOIL, the inter-agency exemption does not apply to materials exchanged between these entities. Id. The City therefore has it precisely backward in arguing that courts have adopted a functional, or common sense approach to the definition of intra-agency, City Br. at 9, for which it cites Town of Waterford, a case holding exactly to the contrary. Interagency and intra-agency means between and within an agency as defined in FOIL, not whatever a functional meaning of those terms would be in a particular case.

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Because the Court concluded that the inter- and intra-agency exemption had to be interpreted as written, it also had no difficulty in rejecting DECs argument that policy considerations demanded protection of the materials exchanged between EPA and DEC. As the Court explained, to the extent that there is resonance to the argument that the exemption should apply in order to protect the pre-decisional joint deliberative process, that issue must be addressed to the Legislature. Id., 18 N.Y.3d at 657, 944 N.Y.S.2d at 431. Town of Waterford readily disposes of the Citys arguments on this appeal. Under FOILs definition of the term, an [a]gency means any state or municipal department, bureau, division, commission, committee, public authority, public corporation, council, office, or other governmental agency performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature. N.Y. Pub. Off. Law 86(3). It is undisputed that Ms. Black and other Hearst employees were both (i) private individuals at the time of the communications at issue, and (ii) not among the entities described in the statutory definition. Accordingly, none was an agency within the meaning of FOIL, and communications between the Mayors Office and Ms. Black or her Hearst colleagues 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.
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Town of Waterford also makes clear that the Citys views concerning the policy benefits of creating a new communications with high-level nominees exemption are irrelevant, as a matter of law, to the question whether the E-mails may be properly withheld under the inter- and intra-agency exemption. According to the City, such disclosure would discourage candidates from considering [high-level] positions for fear of disclosure of their candid communications, and [e]xpose the deliberations of agency personnel to second-guessing. (City Br. at 14). But the Court of Appeals rejected the States analogous policy arguments for extending the exemption to a different category of communications which, like the Black E-mails, fell outside the plain terms of the exemption. Its rationale is controlling here: these kinds of policy arguments for extending the exemption as written must be addressed to the Legislature. Town of Waterford, 18 N.Y. 3d at 657, 944 N.Y.S.2d at 431. This has long been the rule courts have applied to repeatedly reject agencies arguments for withholding documents based on policies they believe worthy but that are not reflected in the statute. See Klamath, 532 U.S. at 15-16 (refusing to read an Indian Trust exemption into the federal FOIA statute because [t]here is simply no support for the exemption in the statutory text, which we have elsewhere insisted be read strictly in order to serve FOIAs mandate of broad disclosure); Center for Auto Safety v. Dept of Justice, 576 F. Supp. 739, 748 (D.D.C. 2002) (The Court is sympathetic to the DOJs predicament. Disclosure of these documents may arguably
19

stifle consent decree negotiations. These factors, however, are for legislative not judicial concern.); County of Madison v. United States Dept of Justice, 641 F.2d 1036, 1041 (1st Cir. 1981) (requiring that sound policy arguments, however appealing, be grounded in a reading of statutory language that fairly reconciles rather than simply ignores the FOIAs phrasing). In short, the enactment of FOIA and FOIL established a system of categorical exclusions and required disclosures; it did not invite a judicial weighing of the benefits and evils of disclosure on a case-by-case basis. FBI v. Abramson, 456 U.S. 615, 631 (1982). Consequently, whatever one thinks of the Citys policy arguments, they provide no basis, as a matter of law, for this Court to hold that the Black E-mails were properly withheld under the inter- and intra-agency exemption. And as to the important policies underlying the inter- and intra-agency exemption as enacted, the Citys appeal to such considerations, see City Br. at 9, 14, is also misplaced because, as the lower court concluded, communications with people outside the agency are not considered part of the governments deliberative process, and their disclosure will not inhibit decision-making within the government. (R. 15).4

For this reason the Citys citation of One Beekman Place, Inc. v. City of New York, 169 A.D. 2d 492, 564 N.Y.S.2d 169 (1st Dept 1991), is particularly inapposite, since that case, which did not involve a FOIL request but a motion to compel documents withheld in discovery, addressed whether an agency staffs internal analyses, opinions, and recommendations could be withheld under the public interest privilege. 169 A.D.2d at 492, 564 N.Y.S.2d at 169. Not only are internal agency analyses, opinions, and recommendations of an entirely different character than the Mayors Offices external communications at issue here, the public interest privilege, unlike the FOIL inter- and intra-agency exemption, requires a balancing of the policies that would be served by protecting such internal deliberations against those to be served by disclosing them. Given those critical distinctions, the policy justifications invoked by the One

20

2.

Ms. Black Was Not A Consultant To the Mayors Office As A Factual Or Legal Matter

The Citys other principal argument that the requested e-mails are protected because Ms. Black was acting as a consultant to the Mayors Office is bereft of any factual basis in the record and is foreclosed by Town of Waterford and the U.S. Supreme Courts decision interpreting the analogous FOIA exemption in Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). Ms. Black was never retained by the City as a consultant, did not fulfill the function of a consultant or employee, and corresponded with the Mayors Office as a selfadvocate in her own interest. As a matter of law, therefore, she was not a consultant within the meaning of the inter- and intra-agency exemption. Under the consultant corollary to the inter- and intra-agency exemption, records may be considered intra-agency material even though prepared by an outside consultant at the behest of an agency, if the records are prepared as part of an agencys deliberative process by the outside consultants retained by the agency. Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131,133, 490 N.Y.S.2d 488, 490 (1985); see also Klamath, 532 U.S. at 11 (some Courts of Appeals have held that in some circumstances a document prepared outside the Government may nevertheless qualify as an intra-agency memorandum); Town of Waterford, 18 N.Y.3d at 658,
Beekman court and cited by the City, see City Br. at 13-14 to encourage candid discussion and representation of views among government employees involved in the development of policy, One Beekman Place, 169 A.D. 2d at 493 have no arguable relevance to whether the Citys withholding was proper here.

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944 N.Y.S.2d at 432 (observing that the work product of consultants retained by agencies may be exempt from disclosure under FOIL when their reports are prepared for the same purpose as reports by employees). In Town of Waterford, DEC argued that the collaborative efforts of the federal EPA and state DEC made the EPA the equivalent of an outside consultant. Town of Waterford, 18 N.Y.3d at 658, 944 N.Y.S.2d at 432. The Court rejected the argument. It concluded that because DEC had not retained EPA as a consultant it could not be a consultant: EPA was not retained by the DEC and does not function as its employee or agent. Id. In addition, the Court of Appeals found determinative the fact that unlike typical consultants, these agencies represent different constituencies and their interests may diverge. Id. In so holding the Court of Appeals relied on the U.S. Supreme Courts decision in Klamath, 532 U.S. at 10-11. In that case, a federal agency, the Bureau of Indian Affairs (BIA or the Bureau), argued that its consultations with the Klamath Indian Tribe fell within FOIAs inter-agency exemption because the Tribe was acting as a consultant or agent of the BIA. The Supreme Court disagreed and held that the consultant corollary can only apply where the purported consultant does not represent an interest of its own and functions just as an employee would be expected to do: In such cases, the records submitted by outside consultants played essentially the same part in an agencys process of
22

deliberation as documents prepared by agency personnel might have done. To be sure, the consultants in these cases were independent contractors and were not assumed to be subject to the degree of control that agency employment could have entailed . . . But the fact about the consultant that is constant in typical cases is that the consultant does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it. Its only obligations are to truth and its sense of what good judgment calls for, and in those respects the consultant functions just as an employee would be expected to do. Id. at 11. By contrast, the consultant corollary is inapplicable where the supposed consultant is representing its own interests, such as the Klamath Tribes were, potentially at the expense of others: The Tribes, on the contrary, necessarily communicate with the Bureau with their own, albeit entirely legitimate interests in mind. While this fact alone distinguished tribal communications from the consultants examples recognized by the several Courts of Appeals, the distinction is even sharper, in that the Tribes are self-advocates at the expense of other seeking benefits inadequate to satisfy everyone. Klamath, 532 U.S. at 12. Thus, the outside partys acting in its own interest is not, as the City erroneously argues, merely a factor to be balanced in assessing whether the outside party is acting as a consultant to an agency, see City Br. at 16, but rather a fact which, if present bars the outside party from being characterized as a consultant for purposes of the inter and intra- agency exemption. a. Ms. Black Was Not Engaged As And Did Not Function As A Consultant Retained By The City
23

Ms. Black was the Mayors nominee for the Schools Chancellor job not a consultant retained by the City. (R. 43). There is not an iota of record evidence that she was retained by the City as a consultant to promote her own candidacy without regard to her own interest in obtaining the position, and indeed such an arrangement would be implausible and absurd if not unethical. She was not retained by the City as a consultant, not paid by the City to be a consultant, and as a nominee for the Chancellor position, did not function as the Citys employee or agent. Town of Waterford, 18 N.Y.3d at 658. For this reason, In the Matter of Sea Crest

Construction Corp. v. Commissioners of Public Works, 82 A.D.2d 546, 442 N.Y.S.2d 130 (2d Dept 1981), cited by the City, see City Br. at 20, is totally inapposite, since in that case there was a contract between the agency and the outside party in which the latter was designed a consultant. Id., 82 A.D.2d at 547, 442 N.Y.S.2d at 130. The fact that the E-mails are claimed to show that Ms. Black was working in tandem with Mayor Bloomberg in pursuit of a common goal does not make her a retained consultant, as the trial court correctly found. (R. 14). Indeed, that was exactly the relationship that the Court of Appeals concluded, in Town of Waterford, did not make the federal EPA a consultant to DEC as DEC had argued. According to the Court, the two agencies had a collaborative relationship and are presumably working together toward the same ameliorative goal. 18 N.Y.3d at 658, 944 N.Y.S.2d at 432. Just as the collaborative relationship and joint efforts between EPA
24

and DEC did not make EPA a consultant to DEC, they fail to make Ms. Black a consultant to the City here. b. In Communicating With The Mayors Office, Ms. Black Was Acting In Her Own Interest To Promote Her Own Candidacy For High City Office

Not only was Ms. Black not retained as a consultant to the City, she was undeniably acting in her own interest in communicating with the Mayors Office on matters relating to her nomination, even if her interest coincided with the Mayors interest in seeing her obtain the Chancellor position. That fact alone also precludes a finding that she was a consultant for purposes of the inter- and intra-agency exemption. Like the tribes in Klamath, Ms. Black sought a benefit appointment to a high-ranking position in City government necessarily at the expense of other applicants for the same benefit. If she was successful in becoming Chancellor, other potential nominees for the position would not be appointed. And like the EPA in Town of Waterford, see 18 N.Y. 3d at 658, she represented a different constituency than the Mayors Office did the constituency of herself and her candidacy for the Chancellorship. Thus, even if Ms. Black and the Mayors Office shared a broad interest in securing Ms. Blacks appointment, Ms. Blacks evident self-interest in securing her own appointment means that the consultant corollary to the inter-agency exemption cannot apply here.

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Ms. Blacks self-interest in obtaining the Chancellor position distinguishes her role from that of the entities held to be consultants in the remaining cases cited by the City, Tigue v. United States Dept of Justice, 312 F.3d 70 (2d Cir. 2002), and Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980). In Tigue, the Second Circuit held that a task force convened by the Internal Revenue Service (IRS) to review the effectiveness of the agencys Criminal Investigations Department was acting as a consultant to the IRS when it requested from United States Attorneys Office (USAO) the disputed document, a memorandum outlining the USAOs opinions and recommendations as to how the [IRS] should conduct criminal tax investigations. Id. at 73. The court reasoned that the task force functioned as a consultant because it was not acting on its own behalf in requesting the memorandum, but made the request to assist [the IRS] with developing policy recommendations regarding the CID. Id. at 78. That is remote from the position of Ms. Black, who was not communicating with the Mayors Office to provide disinterested advice, but to assist in her transition to City government (R. 44), i.e., in the promotion of her own candidacy. Finally, even in the sui generis case Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980), protection of the documents provided to an agency by several United States Senators turned on the finding that the Senators had been solicited by

26

the Department of Justice as part of a policy making process and had no personal interest in the Department of Justices deliberations.5 Id. at 798. 3. Even If Ms. Black Was An Agent Of The Mayors Office Which She Was Not That Would Not Make Her An Agency For Purposes Of The Inter- And Intra-Agency Exemption So As To Bring The Requested E-mails Within The Exemption

The Citys final argument, that the requested e-mails are exempt because Ms. Black was an agent of the Mayors Office in communicating with the Mayors Office, see City Br. at 18-19, is also plainly foreclosed by Town of Waterford. As explained above, in that case, even a federal agency was held not to be an agency for purposes of the inter- and intra-agency exemption because a federal agency does not fall within FOILs statutory definition of agency. See supra at 24. Since a private individual nominated for a City job also does not fall within FOILs definition of agency, it necessarily follows, from the holding in Town of Waterford, that the e-mails between Ms. Black and the Mayors Office are not within the inter- and intra-agency exemption, without regard to whether Ms. Black can be characterized as an agent of

Since the Supreme Courts Klamath decision, courts have recognized that Ryan at most represents the outer limit of the inter-agency exemption. See, e.g., People for the American Way Found. v. U.S. Dept of Educ., 516 F.Supp.2d 28, 37 (D.D.C. 2007) (noting that while Klamath did not expressly abrogate Ryan [the Supreme Court] noted that [Ryan] fell outside the normal ambit of cases exemplifying the consultant corollary); see also Dow Jones & Co. v. Dept of Justice, 917 F.2d 571, 574 (D.C. Cir. 1990) (documents provided by Department of Justice to Congress not protected by FOIAs inter- and intra-agency exemption since Congress was not an agency within the meaning of FOIA). Even to the extent that Ryan remains good law in the D.C. Circuit, moreover, its approach is at odds with that of the New York Court of Appeals, which has directed that the analogous FOIL exemption be interpreted based on a strict adherence to the statutory text. 27

the Mayors Office. The court need go no further than that to reject the Citys nominee-as-agency argument. Still, the trial court was undeniably correct in concluding that the Citys characterization of Ms. Black as an agent of the City is [w]holly devoid of merit. (R. 14). As the City recognizes, see City Br. at 19, common law agency results from a manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, as well as from the consent of the other to act. Gulf Ins. Co. v. Transatlantic Reinsurance Co., 69 A.D.3d 71, 96, 886 N.Y.S.2d 133, 152 (1st Dept 2009) (citation omitted); see also Restatement (Third) of Agency 1, cmt. B (2006). The principals control over the agent is essential to establishing the existence of such a relationship. See, e.g., Pekelnaya v. Allyn, 25 A.D.3d 111, 808 N.Y.S.2d 590 (1st Dept 2005) (It is well settled that a principal-agency relationship exists where on retains a degree of direction and control over the other); In re Shulman Transp. Enterprises, Inc., 744 F.2d 293, 296 (2d Cir. 1984) (An essential characteristic of an agency relationship is that the agent acts subject to the principals direction and control); see also Ho Myung Moolsan Co Ltd. v. Manitou Mineral Water, Inc., 665 F.Supp.2d 239, 258 (S.D.N.Y. 2009) (agency exists where the principal prescribes what the agent shall or shall not do). There is no basis in the record to support the argument that an agency relationship existed between Mayor Bloomberg and Ms. Black during the period
28

covered by the E-mails, i.e., before Ms. Black became Chancellor. The Citys Answer states that during this period Ms. Black acted on advice and guidance from the Office of the Mayor (R. 45); that the E-mails show (if we are to take the Citys word for it) that Ms. Black and her staff were working in tandem with the Office of the Mayor in pursuit of a common goal (R. 45) (emphasis added); that the parties efforts were to be coordinated through the Office of the Mayor (R. 44); and that Ms. Black would be expected to participate in and support these efforts. (R. 44) (emphasis added). None of these factual assertions reflects or even suggests that the Mayor had a right to control Ms. Blacks activities. The Court should not be misled by the Citys misrepresentation of these pages as stating that Ms. Black acted at the direction of the Mayor, City Br. at 19 (emphasis added); there is no such statement in the record, nor could there be given Ms. Blacks status as a nominee rather than an appointee to the Chancellor position. Based on the foregoing evidentiary facts that actually do appear in the record, the court below correctly found that as a mayoral nominee Ms. Black was not bound to act on the Mayors behalf, and the Mayor had no basis to exert control over Ms. Black before her appointment was confirmed. (R. 14). There is no basis to dispute the lower courts further finding that while the interests of both parties may well have been served by obtaining the information needed to address Commissioner Steiners concerns, those facts do not constitute a principal-agent or consultant relationship.
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(R. 14). In short, while there is no legal consequence to be drawn from the Citys argument that Ms. Black acted as the Mayors agent that could bring the Black Emails within the inter- and intra-agency exemption, the necessary factual premise of the argument is non-existent. C. The E-mails Are Also Beyond The Scope Of The Inter- And IntraAgency Exemption Because They Are Not Predecisional Or Deliberative According To The Citys Own Description

Ms. Black was not an agency and did not function as a consultant to the City. The Court need go no further to affirm the trial courts judgment. But the E-mails also fall beyond the inter- and intra-agency exemption because they are neither predecisional nor deliberative. The City does not even bother to explain how the documents it describes could meet that standard. To fall within the inter- and intra-agency exemption, a document must be predecisional, which means it must be prepared to assist the policy maker in making a decision and it must be deliberative, which means actually related to the process by which policy is formulated. Tuck-It-Away, 54 A.D.3d at 161, 861 N.Y.S.2d at 57. There is no basis in the record to support the claim that the E-mails formed part of a governmental pre-decisional deliberative process. The E-mails were not communications with the State Education Department. Rather, they consisted of nothing more than communications between Ms. Black and the Mayors Office to appropriately prepare the request to Commissioner Steiner,
30

respond to routine queries that are customary for high-level mayoral appointees, and engage in outreach planning to the community. (R. 44). On that basis, as the trial court correctly recognized, the e-mails presumably do not relate to the State Education Departments actual deliberative process in deciding whether to grant Ms. Black the request waiver. (R. 15). The Citys suggestion that the Black E-mails are inter-agency records reflecting the deliberative process underlying the Certificate request, City Br. at 10 (emphasis added), is beside the point, and attempts to obscure the issue. The Mayors preparation of his formal request to the State Education Commission is not a policy decision, and the Citys attempt to collapse the Mayors request for the required certificate into the State Education Commissioners decision in response to the request is a sleight of hand that does not work. The E-mails were never sent to Commissioner Steiner; they were between Ms. Black, a private citizen, and the City. Thus, they could not have been deliberative or pre-decisional within the meaning of the exemption, and certainly not with respect to the State Education Commissioners decision in response to the Mayors request. See Miller v. N.Y. State Dept of Trans., 58 A.D.3d 981, 984, 871 N.Y.S.2d 489, 493-94 (3d Dept 2009) (communications with people outside the agency are not part of the governments deliberative process, and their disclosure will not inhibit decision-making within the government).

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II.

MR. HERNANDEZ IS ENTITLED TO AN AWARD OF REASONABLE ATTORNEYS FEES AND COSTS PURSUANT TO FOIL SECTION 89(4)(C)

While the City filed its Notice of Appeal before the court below could rule on Mr. Hernandezs claim for reasonable attorneys fees and costs (R. 16), no impediment exists to this Court determining Mr. Hernandezs entitlement to such an award under Public Officers Law 89(4)(c). The appropriateness of an award of fees and costs is a legal question that this Court can, and should, answer based on the record before the Court. If the Court agrees that Mr. Hernandez is entitled to such an award, the matter can be remanded to the trial court for a determination of the appropriate amount. FOIL provides for an award of reasonable attorneys fees and other litigation costs to a party that has substantially prevailed in an Article 78 proceeding, where (i) the agency had no reasonable basis for denying access, or (ii) the agency failed to respond to a request or appeal within the statutory time. Pub. Officers Law 89(4)(c). If ever there were a poster child for an agency withholding documents without a reasonable basis for doing so, this case is it. The Citys patently unreasonable invocation of the privacy and inter- and intra-agency exemptions have denied the public access to materials that are not protected by FOIL for what is now nearly two years. Given Ms. Blacks admitted lack of the required education and experience for the Chancellor position, how the Mayors Office and Ms. Black

32

worked together to pitch and build support for her nomination is precisely the kind of information that FOIL was meant to remove from the proverbial smoke-filled back room and bring to light. First, there has never been any reasonable basis for the City to assert that communications between Ms. Black and the Mayors Office are covered by the interand intra- agency exemption. She is manifestly not an agency as FOIL defines the term, so communications involving her cannot come within the inter- and intra-agency exemption under the plain language of the statute. For this reason, it is recognized that records which consist of communications with people outside the agency are not part of the governments deliberative process, and fall outside the exemption. Miller, 58 A.D. 3d 981, 984-85, 871 N.Y.S.2d at 494. The City should have admitted as much when Mr. Hernandez made his request, and turned over the E-mails. There is also no factual or legal basis to argue that this case comes within the consultant corollary to the exemption, in light of the seminal U.S. Supreme Court case on the subject, Klamath Water Users Protective Association, 532 U.S. at 1, since Ms. Black (a) was never retained as a consultant by the City, (b) did not function in the capacity of a consultant, and (c) joined in the Mayors efforts to secure her appointment based on her self-interest in getting the job, not because she was engaged by the City as a disinterested consultant on behalf of the City. The evidentiary record contains not a shred of material to support what the case law clearly specifies are the
33

factual attributes of a consultant under this doctrine. While Town of Waterford underscores the frivolity of the argument, it was insupportable based on the law and the facts when Mr. Hernandez made his November 2010 FOIL request, as the lower court correctly recognized. Second, the argument that communications from and to Ms. Black are protected by the inter- and intra-agency exemption based on her supposed status as an agent of the Mayor are equally lacking in any reasonable basis. At the outset, there is no factual basis for this argument since the Citys only evidentiary submission was conspicuously devoid of any facts showing that the Mayor had a basis to control Ms. Blacks activities in the period before she was a City employee, as would be necessary to establish a principal-agent relationship. Moreover, even if Ms. Black could be deemed an agent of the Mayors Office, that does not make her an agency so as to bring her within the exemption. Finally, the City effectively conceded that there was no reasonable basis for its assertion of the personal privacy exemption (R. 32, 38), Pub. Off. Law 87(2)(b), by abandoning the argument after Mr. Hernandez filed his Article 78 Petition. There was no colorable basis to assert the privacy exemption over e-mails between Ms. Black and the Mayors Office concerning clarification of Ms. Blacks background, discussions with government officials and others regarding Ms. Blacks selection, and drafts of the Mayors letter to the State Education Commissioner (R. 44); that is
34

not remotely the kind of intimate, private information the disclosure of which would be offensive to a reasonable [person] of ordinary sensibilities. Mothers on the Move, Inc. v. Messer, 236 A.D.2d 408, 410, 652 N.Y.S.2d 773, 775 (2d Dept 1997). Nonetheless, the Citys invocation of the privacy exemption at every step of the administrative process forced Mr. Hernandez to brief the issue in the lower court, only to have the City abandon the argument in response. In sum, there has never been any reasonable basis for the City to deny access to the Black E-mails. Rather, the City has multiplied the proceedings and advanced demonstrably insupportable arguments to delay disclosure of communications the Mayors Office would prefer to keep secret. An award of Mr. Hernandezs reasonable attorneys fees and costs is therefore appropriate.

35