City of Newark v. Law Department

305 A.D.2d 28, 760 N.Y.S.2d 431, 2003 N.Y. App. Div. LEXIS 5568
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 15, 2003
StatusPublished
Cited by114 cases

This text of 305 A.D.2d 28 (City of Newark v. Law Department) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Newark v. Law Department, 305 A.D.2d 28, 760 N.Y.S.2d 431, 2003 N.Y. App. Div. LEXIS 5568 (N.Y. Ct. App. 2003).

Opinion

OPINION OF THE COURT

Friedman, J.

This appeal presents the issue of whether a confidentiality order issued by an arbitration panel can override the public’s right of access to government records under the Freedom of Information Law ([FOIL] Public Officers Law § 84 et seq.). We hold that such a confidentiality order does not override FOIL. However, the petition cannot be either granted or denied on the present undeveloped record, which does not afford a basis for determining the extent to which FOIL’S exemptions from disclosure apply to the requested records, and we therefore remand for further proceedings.

Respondent City of New York (NYC) is engaged in an arbitration against the Port Authority of New York and New Jersey (the NYC Arbitration), in which NYC alleges that the Port Authority has underpaid the rent due NYC under the Port Authority’s lease of LaGuardia and John F. Kennedy International Airports. At the same time, petitioner City of Newark is engaged in a separate arbitration against the Port Authority (the Newark Arbitration), in which Newark makes similar claims based on the Port Authority’s alleged underpayment of the rent due Newark under the lease of Newark Liberty [30]*30International Airport. The two arbitrations, each of which is before a different panel of accountant-arbitrators, raise similar issues in that each lease contains similar provisions for the calculation of rent based on operational revenues, and each municipality claims that the Port Authority has underpaid rent based on understatements of such revenues.

The present intercity dispute has its origin in a December 2001 order of the panel hearing the Newark Arbitration (the Newark Panel) that directed the Port Authority to disclose to Newark all documents relating to the NYC Arbitration. Thereafter, the panel hearing the NYC Arbitration (the NYC Panel) issued an order dated February 21, 2002, which designated as confidential for the duration of the NYC Arbitration all documents filed or exchanged therein. In response to the NYC Panel’s confidentiality order, the. Newark Panel modified its order for the disclosure of NYC Arbitration documents to provide that the Port Authority was required to disclose only those documents used in the NYC Arbitration that the Port Authority itself had generated.

Its ability to obtain NYC Arbitration documents from the Port Authority having been stymied by the Newark Panel’s deference to the NYC Panel’s confidentiality order, Newark sought to obtain the same documents from NYC by invoking FOIL. By letter dated April 17, 2002, Newark requested that NYC disclose, in essence, all documents that had been filed with the NYC Panel, exchanged between NYC and the Port Authority, or obtained by NYC from the Port Authority’s outside auditor, Deloitte & Touche LLP (D&T), in connection with the NYC Arbitration, as well as transcripts of all hearings and depositions conducted in the NYC Arbitration. By letter dated May 13, 2002, NYC denied this request in its entirety on the ground that NYC was “prohibited from disclosing records which are part of the arbitration process pursuant to an order of the NYC Arbitration panel.” In addition, NYC made a blanket assertion that all responsive records were exempt from disclosure under either: (1) Public Officers Law § 87 (2) (a), as attorney-client communications, attorney work product, or material prepared for litigation; (2) Public Officers Law § 87 (2) (d), as trade secrets; or (3) Public Officers Law § 87 (2) (g), as exempt inter-agency or intra-agency materials.

Newark subsequently submitted a second FOIL request to NYC, dated June 3, 2002, which sought copies of all communications received by NYC from third parties concerning the April request. By letter also dated June 3, 2002, NYC [31]*31denied the second request on the ground that the only third-party communication NYC had received concerning the prior request was a letter from D&T’s attorney on which Newark had been copied.

After the denials of Newark’s FOIL requests were upheld on administrative appeal, Newark, as well as its Mayor and the members of its Municipal Council in their individual and official capacities, commenced this proceeding under CPLR article 78, seeking to compel disclosure of the requested documents. NYC opposed the petition on the same grounds it had invoked to deny the requests. D&T, the Port Authority’s outside auditor, sought and was granted leave to intervene in the proceeding to oppose disclosure of documents it had produced to NYC in the NYC Arbitration under a confidentiality agreement. D&T contended that such documents, which it had created in connection with its audits of the Port Authority, were exempt from disclosure under Public Officers Law § 87 (2) (d) because they contained D&T trade secrets, whose disclosure would harm D&T’s competitive position.

The judgment appealed from denied the petition in its entirety. The IAS court, without discussing the particular FOIL exemptions NYC and D&T had invoked, held that the confidentiality order issued by the NYC Panel rendered all documents sought by Newark’s first request exempt from disclosure under FOIL. The court’s decision did not address the second request. Newark having appealed, we now reverse and remand for further proceedings to determine the extent to which the requested documents are subject to FOIL’S statutory exemptions (Public Officers Law § 87 [2]).

At the outset, we note that the fact that documents in the hands of the government have been created or obtained solely as the result of an arbitration does not ipso facto render such documents immune from FOIL disclosure. Under FOIL, “[a] 11 government records are presumptively open for public inspection unless specifically exempted from disclosure as provided in the Public Officers Law” (Matter of Fappiano v New York City Police Dept., 95 NY2d 738, 746 [2001]). FOIL defines a “Record” subject to its provisions as “any information kept, held, filed, produced or reproduced by, with or for an agency * * * in any physical form whatsoever” (Public Officers Law § 86 [4]). All documents falling within this broad definition are under FOIL’S purview (although potentially subject to a statutory exemption) regardless of “the function or purpose for which [such records] are generated or held” (Matter of Citizens for [32]*32Alternatives to Animal Labs v Board of Trustees, 92 NY2d 357, 361 [1998]; see also Matter of Capital Newspapers v Whalen, 69 NY2d 246, 253 [1987]), and regardless of the fact that the documents may have originated outside a government agency subject to FOIL (see Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 565 [1984]; see also Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359, 361, 363 [2002]).

Further, “the status, need, good faith or purpose of the applicant” is irrelevant to the availability of records under FOIL (Matter of Scott, Sardano & Pomeranz v Records Access Officer, 65 NY2d 294, 296 [1985], citing Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 79-80 [1984]).1 In particular, it is of no consequence that the records may be sought for purposes of litigation, even litigation against the agency to which the request is directed (see Matter of Gould v New York City Police Dept., 89 NY2d 267, 274 [1996]; Farbman & Sons, 62 NY2d at 78, 80-81; Matter of John P. v Whalen, 54 NY2d 89, 99 [1981]).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Diocese of Buffalo v. Office of the N.Y. State Attorney Gen.
2025 NY Slip Op 25147 (New York Supreme Court, New York County, 2025)
William Grey Law Off. PLLC v. City of New York
2025 NY Slip Op 30939(U) (New York Supreme Court, New York County, 2025)
Legal Aid Socy., Inc. v. City of New York Police Dept.
2025 NY Slip Op 30177(U) (New York Supreme Court, New York County, 2025)
Matter of Lost Lake Holdings LLC v. Hogue
2024 NY Slip Op 05265 (Appellate Division of the Supreme Court of New York, 2024)
Matter of Aron Law PLLC v. New York City Police Dept.
220 A.D.3d 608 (Appellate Division of the Supreme Court of New York, 2023)
Castorina v. Blasio
56 Misc. 3d 413 (New York Supreme Court, 2017)
Rose v. Albany County District Attorney's Office
111 A.D.3d 1123 (Appellate Division of the Supreme Court of New York, 2013)
Hearst Corp. v. New York State Police
109 A.D.3d 32 (Appellate Division of the Supreme Court of New York, 2013)
McCrory v. Village of Mamaroneck
34 Misc. 3d 603 (New York Supreme Court, 2011)
San Juan Agricultural Water Users Ass'n v. KNME-TV
2011 NMSC 011 (New Mexico Supreme Court, 2011)
Molloy v. New York City Police Department
50 A.D.3d 98 (Appellate Division of the Supreme Court of New York, 2008)
Norton v. Town of Islip
17 A.D.3d 468 (Appellate Division of the Supreme Court of New York, 2005)
Pennington v. Clark
16 A.D.3d 1049 (Appellate Division of the Supreme Court of New York, 2005)
Dupont v. Kings County District Attorney's Office
15 A.D.3d 480 (Appellate Division of the Supreme Court of New York, 2005)
City of Newark v. Law Department
8 A.D.3d 152 (Appellate Division of the Supreme Court of New York, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
305 A.D.2d 28, 760 N.Y.S.2d 431, 2003 N.Y. App. Div. LEXIS 5568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-newark-v-law-department-nyappdiv-2003.