William Grey Law Off. PLLC v City of New York 2025 NY Slip Op 30939(U) March 24, 2025 Supreme Court, New York County Docket Number: Index No. 159412/2024 Judge: Lyle E. Frank 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. INDEX NO. 159412/2024 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/24/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 159412/2024 WILLIAM GREY LAW OFFICE PLLC MOTION DATE 10/09/2024 Petitioner, MOTION SEQ. NO. 001 -v- THE CITY OF NEW YORK S/H/A THE NEW YORK CITY DECISION + ORDER ON DEPARTMENT OF PROBATION, MOTION Respondent. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 16, 17, 18, 19, 27, 28, 29, 30, 31, 33 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .
Upon the foregoing documents, the petition is remanded for Respondent to provide a
privilege log to Petitioner, and Petitioner is granted attorneys’ fees.
Background
In June of 2024, the William Grey Law Office PLLC (“Petitioner”) made a FOIL request
to the New York City Department of Probation (“Respondent”) regarding medical exams for
individuals who had passed the Probation Officer Exam. The FOIL request had six categories of
documents. Two of them (the third and fourth categories) were denied by Respondent, citing the
inter-agency exemption to FOIL. Respondents denied being in possession of the fifth category of
documents and granted the other three requested categories. The two categories that were denied
requested 1) all written and electronic communications between employees of the New York
City Department of Probation and the New York City Police Department concerning the job
duties and responsibilities or essential requisites of the job for the title Probation Officer from
October 5, 2022 to present; and 2) a similar set of communications between the two agencies, but
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concerning how to conduct the medical review of persons who were being reviewed for
employment pursuant to a specific Probation Officer exam number.
Petitioner then appealed the two denials and requested a certification for the search on the
fifth category. Respondent’s determination on the appeal upheld all three denials, and did not
provide a certification on the fifth category. Petitioner brought the present timely Article 78
proceeding contesting that final determination, seeking a declaration that Respondent had acted
unlawfully in withholding the documents and an order directing the Respondent to provide
Petitioner with immediate access to the records. Respondent has answered and opposes the
petition. Oral argument was held on March 21, 2025.
Discussion
Essentially, Petitioner argues that Respondent was required to redact the documents
responsive to the two denied requests and turn over the redacted versions. Respondent argues
that the requested docs constitute inter-agency pre-decisional advising and therefore they were
not required to produce the documents. At oral argument, the parties agreed that Respondent
would provide Petitioner with a privilege log regarding the contested documents, resolving the
petition. The main point of contention remaining is whether Petitioner would be entitled to
attorneys’ fees in this matter. For the reasons that follow, Petitioner is entitled to attorneys’ fees
because they have substantially prevailed, and Respondent failed to articulate a reasonable basis
for withholding the documents in question.
Standard of Review
In an Article 78 proceeding, a court “may assess, against such agency involved,
reasonable attorney’s fees and other litigation costs reasonably incurred by such person in any
case [when] such person has substantially prevailed, and when the agency failed to respond to a
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request or appeal within the statutory time.” NY Pub. Off. Law § 89(4)(c)(i). But when a
petitioner substantially prevails and “the court finds that the agency had no reasonable basis for
denying access”, the award of attorney’s fees and costs is mandatory. NY Pub. Off. Law
§ 89(4)(c)(ii).
Petitioner Substantially Prevailed
As a threshold issue, a petitioner must have substantially prevailed in order to be awarded
attorneys’ fees and costs under either prong of Section 89(4)(c). The Court of Appeals has held
that even when an agency’s redactions of provided documents is upheld as appropriate, a
petitioner is considered to have substantially prevailed when the agency in question “made no
disclosures, redacted or otherwise, prior to petitioner’s commencement of this CPLR article 78
proceeding.” Matter of Madeiros v. New York State Educ. Dept., 30 N.Y.3d 67, 79 (2017); see
also Matter of Jaskaran v. City of New York, 210 A.D.3d 428, 428 (1st Dept. 2022) (holding that
it was undisputed that a petitioner substantially prevailed when during the pendency of an Article
78 proceeding, the requested FOIL records were produced with redactions); Matter of Dioso
Faustino Freedom of Info. Law Request v. New York City, 191 A.D.3d 504, 504 (1st Dept.
2021)(adopting a Third Department holding that the voluntariness of disclosure of FOIL
requested documents is “irrelevant to the issue of whether petitioner substantially prevailed”).
Therefore, the issue becomes whether Respondent had a reasonable basis for withholding the
redacted documents (in which case, a fee award would not be mandatory) or if they failed to
respond to the appeal within the statutory time (in which case, a fee award would be
discretionary).
Respondent Failed to Articulate a Reasonable Basis and Therefore Attorneys’ Fees are
Mandatory
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Respondent argues that their withholding of the requested documents under the inter-
agency exemption to FOIL constituted a reasonable basis. The inter-agency exception is found in
Pub. Off. Law § 87(2)(g) and exempts “inter-agency or intra-agency materials which are not (1)
statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) final
agency policy or determinations; (iv) external audits.” One “pertinent consideration in
determining whether the agency had a reasonable basis for denying a FOIL request is whether
the agency reasonably claimed the records were exempt from disclosure under Public Officers
Law § 87(2) although the denial may still have been reasonable even if the records are ultimately
deemed not to be exempt.” Matter of New York State Defenders Assn.
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William Grey Law Off. PLLC v City of New York 2025 NY Slip Op 30939(U) March 24, 2025 Supreme Court, New York County Docket Number: Index No. 159412/2024 Judge: Lyle E. Frank 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. INDEX NO. 159412/2024 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/24/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 159412/2024 WILLIAM GREY LAW OFFICE PLLC MOTION DATE 10/09/2024 Petitioner, MOTION SEQ. NO. 001 -v- THE CITY OF NEW YORK S/H/A THE NEW YORK CITY DECISION + ORDER ON DEPARTMENT OF PROBATION, MOTION Respondent. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 16, 17, 18, 19, 27, 28, 29, 30, 31, 33 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .
Upon the foregoing documents, the petition is remanded for Respondent to provide a
privilege log to Petitioner, and Petitioner is granted attorneys’ fees.
Background
In June of 2024, the William Grey Law Office PLLC (“Petitioner”) made a FOIL request
to the New York City Department of Probation (“Respondent”) regarding medical exams for
individuals who had passed the Probation Officer Exam. The FOIL request had six categories of
documents. Two of them (the third and fourth categories) were denied by Respondent, citing the
inter-agency exemption to FOIL. Respondents denied being in possession of the fifth category of
documents and granted the other three requested categories. The two categories that were denied
requested 1) all written and electronic communications between employees of the New York
City Department of Probation and the New York City Police Department concerning the job
duties and responsibilities or essential requisites of the job for the title Probation Officer from
October 5, 2022 to present; and 2) a similar set of communications between the two agencies, but
159412/2024 WILLIAM GREY LAW OFFICE PLLC vs. THE CITY OF NEW YORK S/H/A THE NEW Page 1 of 6 YORK CITY DEPARTMENT OF PROBATION Motion No. 001
1 of 6 [* 1] INDEX NO. 159412/2024 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/24/2025
concerning how to conduct the medical review of persons who were being reviewed for
employment pursuant to a specific Probation Officer exam number.
Petitioner then appealed the two denials and requested a certification for the search on the
fifth category. Respondent’s determination on the appeal upheld all three denials, and did not
provide a certification on the fifth category. Petitioner brought the present timely Article 78
proceeding contesting that final determination, seeking a declaration that Respondent had acted
unlawfully in withholding the documents and an order directing the Respondent to provide
Petitioner with immediate access to the records. Respondent has answered and opposes the
petition. Oral argument was held on March 21, 2025.
Discussion
Essentially, Petitioner argues that Respondent was required to redact the documents
responsive to the two denied requests and turn over the redacted versions. Respondent argues
that the requested docs constitute inter-agency pre-decisional advising and therefore they were
not required to produce the documents. At oral argument, the parties agreed that Respondent
would provide Petitioner with a privilege log regarding the contested documents, resolving the
petition. The main point of contention remaining is whether Petitioner would be entitled to
attorneys’ fees in this matter. For the reasons that follow, Petitioner is entitled to attorneys’ fees
because they have substantially prevailed, and Respondent failed to articulate a reasonable basis
for withholding the documents in question.
Standard of Review
In an Article 78 proceeding, a court “may assess, against such agency involved,
reasonable attorney’s fees and other litigation costs reasonably incurred by such person in any
case [when] such person has substantially prevailed, and when the agency failed to respond to a
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request or appeal within the statutory time.” NY Pub. Off. Law § 89(4)(c)(i). But when a
petitioner substantially prevails and “the court finds that the agency had no reasonable basis for
denying access”, the award of attorney’s fees and costs is mandatory. NY Pub. Off. Law
§ 89(4)(c)(ii).
Petitioner Substantially Prevailed
As a threshold issue, a petitioner must have substantially prevailed in order to be awarded
attorneys’ fees and costs under either prong of Section 89(4)(c). The Court of Appeals has held
that even when an agency’s redactions of provided documents is upheld as appropriate, a
petitioner is considered to have substantially prevailed when the agency in question “made no
disclosures, redacted or otherwise, prior to petitioner’s commencement of this CPLR article 78
proceeding.” Matter of Madeiros v. New York State Educ. Dept., 30 N.Y.3d 67, 79 (2017); see
also Matter of Jaskaran v. City of New York, 210 A.D.3d 428, 428 (1st Dept. 2022) (holding that
it was undisputed that a petitioner substantially prevailed when during the pendency of an Article
78 proceeding, the requested FOIL records were produced with redactions); Matter of Dioso
Faustino Freedom of Info. Law Request v. New York City, 191 A.D.3d 504, 504 (1st Dept.
2021)(adopting a Third Department holding that the voluntariness of disclosure of FOIL
requested documents is “irrelevant to the issue of whether petitioner substantially prevailed”).
Therefore, the issue becomes whether Respondent had a reasonable basis for withholding the
redacted documents (in which case, a fee award would not be mandatory) or if they failed to
respond to the appeal within the statutory time (in which case, a fee award would be
discretionary).
Respondent Failed to Articulate a Reasonable Basis and Therefore Attorneys’ Fees are
Mandatory
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Respondent argues that their withholding of the requested documents under the inter-
agency exemption to FOIL constituted a reasonable basis. The inter-agency exception is found in
Pub. Off. Law § 87(2)(g) and exempts “inter-agency or intra-agency materials which are not (1)
statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) final
agency policy or determinations; (iv) external audits.” One “pertinent consideration in
determining whether the agency had a reasonable basis for denying a FOIL request is whether
the agency reasonably claimed the records were exempt from disclosure under Public Officers
Law § 87(2) although the denial may still have been reasonable even if the records are ultimately
deemed not to be exempt.” Matter of New York State Defenders Assn. v. New York State Police,
87 A.D.3d 193, 195 (3rd Dept. 2011). Respondent cited to the agency exemption in both the
original denial and the appeal. The issue of whether they had a reasonable basis for withholding
the documents (which were explicitly intra-agency materials) turns on whether the Respondent
reasonably considered the documents to not fall under one of the four enumerated exceptions to
the exemption, as well as whether Respondent was required to do more than state that the
documents “are exempt from disclosure pursuant to Public Officer Law § 87(2)(g) Inter-Agency/
Intra Agency Materials”, as Petitioner argues.
When an agency relies on the agency exemption, they bear the burden of establishing that
the requested documents fall under the exemption and are “required to articulate particularized
and specific justification for not disclosing them.” Matter of West Harlem Bus. Group v. Empire
State Dev. Corp., 13 N.Y. 3d 882, 885 (2009). An affidavit that “merely repeat[s] the statutory
phrasing of an exemption [is] insufficient to establish the requirement of particularity.” DJL
Restaurant Corp. v. Department of Bldgs., 273 A.D.2d 167, 168 – 69 (1st Dept. 2000).
Furthermore, the First Department has held that an agency’s burden of demonstrating the
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applicability of an exemption is not satisfied when they “withheld all of the requested records on
the basis of a blanket invocation of three statutory exemptions, without enumerating or
describing any of the documents withheld and without offering a specific basis for any of the
claims of exemption.” City of Newark v. Law Dep’t of N.Y., 305 A.D.2d 28, 34 (1st Dept. 2003).
Because here Respondent simply offered a blanket invocation of the agency exemption,
they did not have a reasonable basis for withholding the documents. Respondent argues that the
records are pre-decisional advising between agencies. These types of records are exempt from
FOIL disclosure. Rothenberg v. City Univ. of N.Y., 191 A.D.2d 195, 196 (1st Dept. 1993).
Petitioner argues that the requested documents fall under one of the four exceptions to the inter-
agency exemption, in that they are instructions to staff that affect the public. Determining which
party is correct in their assertions cannot be done without a review of the documents at issue. But
the issue here regarding reasonable basis is that Respondent did not address whether the
requested documents did or did not fall under one of the four exceptions, and only offered a
blanket invocation of the statutory language. In Dioso Faustino, the First Department held that in
order to establish a reasonable basis, “the agency must still fulfill its burden under Public
Officers Law § 89(4)(b) to articulate a factual basis for the exemption.” Dioso Faustino, at 505.
Failure to articulate a factual basis for the exemption means that the agency did not establish a
reasonable basis for withholding the documents. Therefore, because here Petitioner substantially
prevailed and there was not a reasonable basis articulated for withholding the documents,
attorneys’ fees are mandatory. Accordingly, it is hereby
ORDERED that the petition is remanded for Respondent to provide a privilege log to
Petitioner within 90 days of the notice of entry of this order; and it is further
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ORDERED that a hearing be held on the matter of attorneys’ fees to Petitioner on May 9,
2025, at 2:15 pm at Part 11, 60 Centre Street, Room 412.
3/24/2025 DATE LYLE E. FRANK, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□ □ GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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