Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision 2020 NY Slip Op 35578(U) June 26, 2020 Supreme Court, Albany County Docket Number: Index No. 907522-19 Judge: Christina L. Ryba Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: ALBANY COUNTY CLERK 06/26/2020 03:56 PM INDEX NO. 907522-19 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/26/2020
STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY
In the Matter.of the AppHcation of APPELLATE ADVOCATES, Petitioner, DECISION/JUDGMENT -against- Index No. 907522-19 RJI No. 01_;19-ST0677 NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
APPEARANCES:
LETITIA JAMES Attorney General of the State of New York Christopher Hummel, Esq. (Assistant Attorney General, of Counsel) Attorney for Respondents The Capitol Albany~ New York12224-0341
Ron Lazebnik, Esq. For Petitioner Lincoln Square Legal Services Inc. 'Fordham Law School 150 W 62nd St. FL .9 New York, New York 10023
RYBAJ.f
Petitioner, a nonprofit public defender organization that represents criminal defendants who
cannot afford counsel, made a request pursuant to Freedom of Information Law (Public Officers
Law art 6 [hereinafter FOIL]) to respondent for certain documentation that it believed would
provide insight into the process by which the New York State Board of Parole makes
detem1inations relating to applications for parole release. The 18 demands set forth in the March
19, 2018 FOIL request sought documentation regarding a specific inmate's application for parole,
release and other more ·generalized documentation relating to the organizational, procedural and •
Filed in Albany County Clerk's Office 06/26/2020 03:56:23 PM 1 of 6 Index# 907522-19 Clerk: KT [* 1] FILED: ALBANY COUNTY CLERK 06/26/2020 03:56 PM INDEX NO. 907522-19 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/26/2020
:reporting structure of the Board of Parole. Responden t's Records Access Officer provided
responsive documents on a rolling basis? for a total of five responses containing approximately
1,500 pages of documents, along with an explanation of the reasons that certain documents had
been withheld or redacted. Petitioner's administrative challenge to the response was unsuccessful;
prompting . petitioner to commence this CPLR Article 78 proceeding seeking to compel full
compliance with its FOIL request by providing complete unredaded responses to all ofits demands.
Petitioner also seeks an award of attorney's fees. Prior to the service of respondent 's answer, the
parties executed a stipulation and order ofpartial settlement pursuant to which respondent disclosed
an additional 400 responsive documents and petitioner discontinued all. claims set forth in the
petition, with the. exception of its challenge to the remaining 11 documents which respondent
continued to withhold in response to Section 12 of petitioner's FOIL request. Respondent has since
answered the petition, providing the 11 disputed documents for the Court's in camera review, and
the matter is now ripe for determination,
Section,12 of petitioner's FOIL request sought production of:
Any and all .records,, documents, and files referencing or relating to . compensation and performance of Board of Parole training, including but not limited to training polices, procedures, manuals, handbooks, and outlines received or created by Board of Parole commissioners, their employees, staff members, and agents.
In response to this request; respondent produced n 9 pages of training materials and indicated that certain documents were being withheld pursuant to the FOIL exemptions for and inter/intra agency
materials (see, Public Officers Law§ 87 [2] [g]), and for materials specifically exempted by statute
;is protected by attorney-client privilege and attorney work product ( see, CPLR 4503 [a]; CPLR 3101.
[c]). The 11 responsive. documents still being withheld by respondent consist of handouts, legal
2 of 6 [* 2] FILED: ALBANY COUNTY CLERK 06/26/2020 03:56 PM INDEX NO. 907522-19 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/26/2020
memoranda and presentation slides prepared by staff attorneys employed by the Board of Parole's
Counsel's Office. According to respondent, these 11 documents were prepared by staff attomeY.s
for the purpose of furnishing advice to Board ofParole Commissioners on how to properly apply the
law when conducting parole interviews and reaching parole determinations, Petitioner contends that
respondent has failed to establish that the withheld documents fall within the FOIL exemptions for
attorney-client privilege 1 attorney work product and/orinter/intra agency materials.
FOIL creates a broad standard of disclosure in order to ensure that the public is granted
maximum access to government records (see, Matter of Encore Coll. Bookstores v Auxiliary Serv~
Corp. of State Univ. ofNYatFarmingdale, 87NY2d 410,416 [1995]). Accordingly, government
records are presumptively available to the public unless a statutory exemption applies (see, Matter
of Hearst Corp. v New York State Police, 109 AD3d 32~34 [2013]; MatterofMacKenziev Seiden,
J06AD3d 1140, 1141 [2013]: Matter ofTJS ofNew York v New York State Dept; of Taxation &
Fin., 89 AD3d 239, 241 [2011]). Courts must construe FOIL liberally in favor of disclosure and
construe exemptions narrowly, with the agency that seeks to prevent disclosure bearing the burden
of demonstrating "that the requested material falls squarely within an exemption by articulating a
particularized and specific justification for denying access" (Matter ofCapital Newspapers Div. of
Hearst Corp.v Whalen,69 .NY2d 246; 252 [1987]; see, Schenectady Cty. Soc. 'ForPrevention of
Cruelty To Animals, Inc. v Mills, 74 AD3d J417 [2010], aff'd 18 NY3d 42 [2011]; Matter of
Carnevale v City of Albany. 68 AD3d 1290, 1292 [2009])~ Notably, "the agency does not have carte
blanche. to withhold any information it pleases" (Freidman v Rice, 30 NY3d 461, 475 [2017]
[citations om1tted]), and its response may not "merely parrot" the statutory language of the FOIL
exemptions (Matter of West Harlem Bus. Group v. Empire State Dev. Corp., 13 NY3d 882; 884
3 of 6 [* 3] FILED: ALBANY COUNTY CLERK 06/26/2020 03:56 PM INDEX NO. 907522-19 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/26/2020
[2009]). Rather, the agency must sufficiently describe the documents withheld and state the reasons
for withholding them (see, Matter of Moody's Corp. v :New York State Dept. of Taxation & Fin.,
141 AD3d 997,999 [2016t Matter ofMillerv New York State Dept. ofTransp.? 58 AD3d 981,984
[2009], lvdenied 12 NY3d 712 [2009]), ·
In support ofits contention that the 11 documents are exempted from disclosure as privileged
attorney-client. communications and attorney work product, respondent submits the affidavit of
Kathleen Kiley, an attorney who is employed by respondent as Counsel to the Board of Parole. Kiley
avers that each of the 11 documents, was prepared for utilization in training sessions for Board of
Parole Commissioners with regard to the legal standards fo be applied during parole interviews and
deliberations. Kiley specifically identifies each of the withheld documents in her affidavit and
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Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision 2020 NY Slip Op 35578(U) June 26, 2020 Supreme Court, Albany County Docket Number: Index No. 907522-19 Judge: Christina L. Ryba Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: ALBANY COUNTY CLERK 06/26/2020 03:56 PM INDEX NO. 907522-19 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/26/2020
STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY
In the Matter.of the AppHcation of APPELLATE ADVOCATES, Petitioner, DECISION/JUDGMENT -against- Index No. 907522-19 RJI No. 01_;19-ST0677 NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
APPEARANCES:
LETITIA JAMES Attorney General of the State of New York Christopher Hummel, Esq. (Assistant Attorney General, of Counsel) Attorney for Respondents The Capitol Albany~ New York12224-0341
Ron Lazebnik, Esq. For Petitioner Lincoln Square Legal Services Inc. 'Fordham Law School 150 W 62nd St. FL .9 New York, New York 10023
RYBAJ.f
Petitioner, a nonprofit public defender organization that represents criminal defendants who
cannot afford counsel, made a request pursuant to Freedom of Information Law (Public Officers
Law art 6 [hereinafter FOIL]) to respondent for certain documentation that it believed would
provide insight into the process by which the New York State Board of Parole makes
detem1inations relating to applications for parole release. The 18 demands set forth in the March
19, 2018 FOIL request sought documentation regarding a specific inmate's application for parole,
release and other more ·generalized documentation relating to the organizational, procedural and •
Filed in Albany County Clerk's Office 06/26/2020 03:56:23 PM 1 of 6 Index# 907522-19 Clerk: KT [* 1] FILED: ALBANY COUNTY CLERK 06/26/2020 03:56 PM INDEX NO. 907522-19 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/26/2020
:reporting structure of the Board of Parole. Responden t's Records Access Officer provided
responsive documents on a rolling basis? for a total of five responses containing approximately
1,500 pages of documents, along with an explanation of the reasons that certain documents had
been withheld or redacted. Petitioner's administrative challenge to the response was unsuccessful;
prompting . petitioner to commence this CPLR Article 78 proceeding seeking to compel full
compliance with its FOIL request by providing complete unredaded responses to all ofits demands.
Petitioner also seeks an award of attorney's fees. Prior to the service of respondent 's answer, the
parties executed a stipulation and order ofpartial settlement pursuant to which respondent disclosed
an additional 400 responsive documents and petitioner discontinued all. claims set forth in the
petition, with the. exception of its challenge to the remaining 11 documents which respondent
continued to withhold in response to Section 12 of petitioner's FOIL request. Respondent has since
answered the petition, providing the 11 disputed documents for the Court's in camera review, and
the matter is now ripe for determination,
Section,12 of petitioner's FOIL request sought production of:
Any and all .records,, documents, and files referencing or relating to . compensation and performance of Board of Parole training, including but not limited to training polices, procedures, manuals, handbooks, and outlines received or created by Board of Parole commissioners, their employees, staff members, and agents.
In response to this request; respondent produced n 9 pages of training materials and indicated that certain documents were being withheld pursuant to the FOIL exemptions for and inter/intra agency
materials (see, Public Officers Law§ 87 [2] [g]), and for materials specifically exempted by statute
;is protected by attorney-client privilege and attorney work product ( see, CPLR 4503 [a]; CPLR 3101.
[c]). The 11 responsive. documents still being withheld by respondent consist of handouts, legal
2 of 6 [* 2] FILED: ALBANY COUNTY CLERK 06/26/2020 03:56 PM INDEX NO. 907522-19 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/26/2020
memoranda and presentation slides prepared by staff attorneys employed by the Board of Parole's
Counsel's Office. According to respondent, these 11 documents were prepared by staff attomeY.s
for the purpose of furnishing advice to Board ofParole Commissioners on how to properly apply the
law when conducting parole interviews and reaching parole determinations, Petitioner contends that
respondent has failed to establish that the withheld documents fall within the FOIL exemptions for
attorney-client privilege 1 attorney work product and/orinter/intra agency materials.
FOIL creates a broad standard of disclosure in order to ensure that the public is granted
maximum access to government records (see, Matter of Encore Coll. Bookstores v Auxiliary Serv~
Corp. of State Univ. ofNYatFarmingdale, 87NY2d 410,416 [1995]). Accordingly, government
records are presumptively available to the public unless a statutory exemption applies (see, Matter
of Hearst Corp. v New York State Police, 109 AD3d 32~34 [2013]; MatterofMacKenziev Seiden,
J06AD3d 1140, 1141 [2013]: Matter ofTJS ofNew York v New York State Dept; of Taxation &
Fin., 89 AD3d 239, 241 [2011]). Courts must construe FOIL liberally in favor of disclosure and
construe exemptions narrowly, with the agency that seeks to prevent disclosure bearing the burden
of demonstrating "that the requested material falls squarely within an exemption by articulating a
particularized and specific justification for denying access" (Matter ofCapital Newspapers Div. of
Hearst Corp.v Whalen,69 .NY2d 246; 252 [1987]; see, Schenectady Cty. Soc. 'ForPrevention of
Cruelty To Animals, Inc. v Mills, 74 AD3d J417 [2010], aff'd 18 NY3d 42 [2011]; Matter of
Carnevale v City of Albany. 68 AD3d 1290, 1292 [2009])~ Notably, "the agency does not have carte
blanche. to withhold any information it pleases" (Freidman v Rice, 30 NY3d 461, 475 [2017]
[citations om1tted]), and its response may not "merely parrot" the statutory language of the FOIL
exemptions (Matter of West Harlem Bus. Group v. Empire State Dev. Corp., 13 NY3d 882; 884
3 of 6 [* 3] FILED: ALBANY COUNTY CLERK 06/26/2020 03:56 PM INDEX NO. 907522-19 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/26/2020
[2009]). Rather, the agency must sufficiently describe the documents withheld and state the reasons
for withholding them (see, Matter of Moody's Corp. v :New York State Dept. of Taxation & Fin.,
141 AD3d 997,999 [2016t Matter ofMillerv New York State Dept. ofTransp.? 58 AD3d 981,984
[2009], lvdenied 12 NY3d 712 [2009]), ·
In support ofits contention that the 11 documents are exempted from disclosure as privileged
attorney-client. communications and attorney work product, respondent submits the affidavit of
Kathleen Kiley, an attorney who is employed by respondent as Counsel to the Board of Parole. Kiley
avers that each of the 11 documents, was prepared for utilization in training sessions for Board of
Parole Commissioners with regard to the legal standards fo be applied during parole interviews and
deliberations. Kiley specifically identifies each of the withheld documents in her affidavit and
explains in detail the manner in which each is claimed to be exempt from disclosure as privileged
attorney work product and/or attorney-client communication. Kiley;s affidavit establishes, and the
Court's review of the in camera documents confirms, that the withheld documents were. submitted
in confidence to the Board of Parole Commissioners, contain discussion and analysis of the relevant
statutes? regulations and case law to be applied during the parole determination process, and set forth
legal advice and strategies relating to the interview and decision-making procedure. Viewing the
communications set forth in the 11 documents in their full content and context, the Court concludes
that the materials are clearly the unique product of an attorney's professional skills and were
confidentially disseminated to the Board of Parole Commissioners for the purpose ofrendering legal
advice (see, Matter of Gilbert v Office of the Governor of the State of NY,, 170 AD3d 1404 {2019],
1405-1406; Matter of Gartner v New York State Attorney General's Off.,160 AD3d 1087, 1091-
1092 [2018]; Matter of Shooters Committee on PoliticalEduc. v Cuomo, 147AD3d 1244, 1246
4 of 6 [* 4] FILED: ALBANY COUNTY CLERK 06/26/2020 03:56 PM INDEX NO. 907522-19 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/26/2020
[2017]}. Accordingly, they were properly withheld by respondent as exempt from FOIL disclosure
as privileged attorney-client communications and attorney work product. In addition, as the
documents contain counsel's recommendations and were disseminated confidentially in furtherance
of the decision making process prior to final determinations, they are also exempt from FOIL as
intra-agency materials ( see, Gartner v New York State Attomey Gen.'s Office, 160 AD3d an 091---,92
[2018])
As for petitioner's request for an award of attorney's fees, Public Officers Law§ 89 (4) ©
authorizes the Court to award reasonable attorney fees against a State agency where the litigant has
"substantially prevailed" in the FOIL proceeding and ''the agency failed to respond to a request or
appeal within the statutory time" (Cobado v Benziger, 163 AD3d 1103, 1004 [2018]). A petitioner
'substantially prevail[ s]' under Public Officers Law§ 89 (4) © when it receives all the information
that it requested and to which it is entitled in response to the underlying FOIL litigation (see, Matter
of Competitive Enter. Inst. v Attorney Gen. ofNew York. 161 AD3d 1283, 1286 [2018]; Matter of
New York State DefendersAssn. vNewYork State Police, 87 AD3d 193,196 [2011]). Here, as part
of the stipulation of settlement, petitioner agreed to voluntarily waive any claim for attorney's fees
relating to the documents that respondent voluntarily disclosed after this proceeding was
commenced. Thus, petitioner's request for attorney's fees under Public Officer's Law§ 89 (4) (c)
must be assessed only with regard to the 11 documents that formed the basis of this decision.
Inasmuch as the Court determined that respondent properly withheld these documents as exempt
under FOIL, petitioner cannot be deemed to have substantially prevailed herein. Accordingly,
petitioner's request for attorney's fees is denied.
For the foregoing reasons, it is
5 of 6 [* 5] FILED: ALBANY COUNTY CLERK 06/26/2020 03:56 PM INDEX NO. 907522-19 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/26/2020
ORDERED AND ADJUDGED that the petition is denied,. without costs.
This constitutes the Decision & Order of the Court, the original of which i.s being transmitted to the
Albany County Clerk for electronic filing and entry. Upon such entry, plaintiffs counsel shall
promptly serve notice ofentry on all other parties (see, Uniform Rules for Trial Courts [22 NYC RR]
§ 202.5-b [h] [I], [2]).
ENTER
Dated: .30Ae.... 1G ) Gl. 0 ~ a
HON. CHRISTINA L RYBA Supreme Court Justice
0612612020 I
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