Bahnken v. New York City Fire Department

17 A.D.3d 228, 794 N.Y.S.2d 312, 2005 N.Y. App. Div. LEXIS 4214

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 2005
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered February 18, 2004, which denied the petition to direct respondent to furnish unredacted copies of documents previously supplied in a redacted form, reversed, on the law, without costs, and the petition granted.

This appeal involves the propriety of respondent’s claimed exemption from disclosure of contract provisions relating to compensation, patient billing, insurance and internal hospital quality assurance programs under the Freedom of Information Law (FOIL). Petitioner sent respondent a FOIL request for copies of all contracts entered into since January 1, 1997 between any ambulance service company operating in the 911 system and a number of designated private hospitals and/or their affiliates. After respondent advised the hospitals of the FOIL request, a number of them took the position that the entire contract should be deemed a trade secret and/or that disclosure would cause substantial injury to their competitive position. Respondent reviewed the contracts and determined that they were not exempt from disclosure under FOIL, except for those portions dealing with compensation, patient billing, insurance and internal hospital quality assurance programs. Respondent thereafter redacted those portions of the contracts, maintaining that disclosure of those provisions would cause substantial injury to the competitive position of the hospitals and they were therefore exempt from disclosure (Public Officers Law § 87 [2] [d]). The redacted contracts were duly provided to petitioner who appealed respondent’s determination, arguing that respondent had not met its burden of articulating a justification for denying access. The Appeals Officer upheld the redaction, and petitioner thereafter moved to obtain unredacted copies of the contracts.

Although the hospitals in question signed the standard Fire Department agreement required of all hospitals participating in the 911 system, the ambulance providers for those hospitals did not. The contracts in question involve private agreements between the participating hospitals and their ambulance contractors, to which respondent is not a party. Respondent claims the contracts were provided to it with the understanding that confidentiality would be maintained, anticipating that several of the hospitals would intervene in the proceeding, but there is no indication in the record that any did. After conducting an in camera inspection of the contracts, the motion court decided respondent had a rational basis for making the redactions, and upheld the determination as neither arbitrary nor capricious.

A party claiming exemption from disclosure of a particular document requested pursuant to FOIL bears the burden of proving entitlement to the exemption (Public Officers Law § 89 [5] [e]; Matter of Laureano v Grimes, 179 AD2d 602 [1992]). Thus, the motion court erred in applying the normal CPLR article 78 “arbitrary and capricious” standard of review.

While it is true that records containing “trade secrets . . . which if disclosed would cause substantial injury to the competitive position of the subject enterprise” are exempt from disclosure (Public Officers Law § 87 [2] [d]), the basis for the exemption must be “a particularized and specific justification for denying access” (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]). Disclosure provisions must be given an expansive interpretation to meet FOIL’S declared purpose of ensuring open government, and exemptions must be narrowly construed (Matter of Gould v New York City Police Dept., 89 NY2d 267 [1996]; see also Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359 [2002]; Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]).

Respondent attempts to set forth a particularized justification for exemption by arguing that the private voluntary hospitals in question are commercial enterprises actively competing for ambulance services, and disclosure would affect their ability to contract for identical services. This argument is speculative and unsupported by any evidentiary documentation. Despite the argument that there is a potential for injury, respondent has yet to demonstrate that any potential injury would be substantial enough to fall squarely within the exemption under Public Officers Law § 87 (2) (d).

Even our colleague in the dissent is constrained to posit the same conclusory argument as respondent, lacking the specificity and evidentiary detail necessary to meet the burden warranting nondisclosure. Clearly the hospitals themselves would have seen fit to intervene if this issue were as crucial to their well-being as argued by respondent. Their declination to do so speaks for itself.

Although Public Health Law § 3006 protects from disclosure any records or proceedings with respect to a hospital’s quality assurance program, contract terms requiring the establishment of such a committee are subject to FOIL disclosure. Respondent has shown no particularized justification to the contrary. Concur—Mazzarelli, J.P., Friedman, Sweeny and Catterson; JJ.