SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF ALBANYIn the Matter of the Application of HOWARD 1. SMITH,Petitioner,For a Judgment Pursuant to Article 78of the Civil Practice Law and Rules Index No. -against-THE NEW YORK STATE OFFICE OF THEATTORNEY GENERAL,Respondent.MEMORANDUM OF LAW IN FURTHERSUPPORT OF RESPONDENTS MOTIONSDEAND FOR PERMISSION TO APPEAL, ANDIN OPPOSITION TO CROSS-MOTION TO COMPELANDREW CUOMOAttorney General of the State of New YorkAttorney for Respondent New York State O?i?eof the Attorney GeneralAdrienne I . KerwinAssistant Anomey GeneralOf CounselTelephone: (518) 47443 340Fax: (518) 473-1572 (Not for service of papers) Table of Contentslimi 1Pre nary tatemen ..Argument .. ITHE MOTIONS FOR LEAVE TORENEW AND REARGUE AND ORPERMISSION TO APPEAL SHOULD BEGRANTED, AND RESPONDENTSCROSS-MOTION T0 COMPEL SHOULDBE DENIED .. 1Conclusion ..9 Preliminary StatementThis memorandum of law is submitted on behalf of respondent New York State O?iee of theAttorney General in reply to petitioner?s opposition to the motions for leave torenew and reargue and for permission to appeal, and in opposition to petitioner's cross-motion tocompel.In his motion papers, petitioner concedes that the OAG was not required to search the entireAI litigation record in order to comply with its obligations under FOIL and this Court?s July 8, 2009order. Instead, he sccond?guesses the selection of records to search and argues that, sincethe OAG searched somewhat different records than he would have and apparently did not ?nd whathe expected the OAG to ?nd, the OAG must not have searched in good faith. But the reality is thatthe OAG conducted an extensive and reasonable search, and produced to petitioner 848 pages ofdocuments; petitioner can only speculate that a different search would have produced more. Becausethe OAG has satis?ed its obligations under FOIL as well as this Court?s order, this Court should grantthe motion and deny the petitioner?s. ArgumentMOTIONS FOR LEAVE TORENEW AND REARGUE AND FORPERMISSION TO APPEAL SHOULD BEGRANTED, AND RESPONDENTSCROSS-MOTION TO COMPEL SHOULDBE DENIEDThe petitioner has failed to articulate any non-speculative reason to deny the motionsfor leave to renew and reargue and for permission to appeal, and has similarly failed to offer anyevidence to support his contention that the OAG has failed to comply with this court's July 8, 2009order.First of all, Petitioner barely acknowledges that, since this Court's July order, the OAG hasconducted an extensive search and has disclosed 848 pages of documents to the petitioner in responseto his FOIL request. These 848 pages were culled from a review of (1) hardcopy ?les of formerAttorney General Eliot Spitzer Dean af?miation at 1129) and OAG press officers DarrenDopp and Marc Violette assigned to handle the AIG matter (id. at 1130); (2) a database of externalOAG emails (id. at 1127), including any sent from Spitzefs OAG email account (Dean affirmation at (3) ?ve boxes of hardcopy ?les that had been culled earlier from a larger setof 85 to 100 boxes of OAG employee ?les for purposes of the Enforcement Action, as potentiallyresponsive to discovery requests 14/09 Dean a?irmation at 1127); (4) two hardoopy ?les maintainedby the Enforcement Team speci?cally for press articles (id. at 1134) and (5) the internal emails of Mr.Spitzer,? as well as those of Press O?icers Dopp and Violette. (Id. at 1130) iAll of this search was conducted prior to the forty-?ve day deadline imposed by this Court?sJuly 8, 2009 order in a good faith attempt to comply with that order and provide the petitioner withresponsive documents from the sources most likely to contain them. It was done voluntarily,notwithstanding that a stay of this Court?s order was automatically invoked pursuant to CPLR55 l9(a)(l) as a matter of law by the service of its motion for leave to appeal and additional(though unnecessary) affidavit of intent to ?le an appeal. And it was done, in large part, despite theTo the extent our motion papers suggested that this office would not search the internal emails ofMr. Spitzer, that was an inadvertent oversight. In fact, the of?ce searched that database, butfound no responsive records. Dean af?rmation at 1(4)2 lack of an indexing system that allowed for the identi?cation of documents relating tocommunications with the press.? IIn light of these actions, it is puzzling that Petitioner views the motion as a simplerequest for a ?do-over,? rather than a true motion to renew. See Smith Mem. of Law at 1. Theextensive review and production of documents are the new facts upon which the motion to renew is based. And far from asking this Court to rule differently on the same questionsearlier presented, the DAG primarily asks this Court to adjudicate the precise question that Petitioneralso puts before the Court whether the OAG has thereby complied with its obligations underFOIL.There similarly is no basis for petitioner?s contention that OAG is precluded from puttingthese facts and arguments before this Court now because it did not exercise the proper ?diligence?in presenting its case earlier. See id at 16. The OAG could not have described its search and thed'6Eunients occur until thisCourt?s July order. And far tiom originating ?om a lack of ?diligence,? the 0AG's initial denial ofpetitioner's FOIL request was based on a good faith belief that the items requested were protectedby the blanket law enforcement exemption recognized in cases such as Legal Aid Society v. New YorkCity Police Dep 274 207 Dep?t 2000), Iv denied, 95 NY. 2d 956 (2000), and Pittariv. Piero, 258 202 (2d Dep?t 1999), Ivdenied, 94 755. As a result, no search forresponsive documents was undertaken at that time.2 The external emails were indexed for communications with the press. 14/09 Dean a?irmationat 1119)Having now undertaken that search, however, the OAG is now is entitled indeed obligatedto redact the documents it discloses in accordance with the privacy provisions of Public Of?cersLaw at this stage of its FOIL disclosure. It was no position to claim thisexemption anysooner; until this Court?s July ruling rejecting its reliance on the blanket law exemption, the OAG hadnot identi?ed speci?c documents that would be responsive to petitione-r?s request. In complying withthis Court?s July order, however, the OAG has now located responsive documents, and some include,inter alia, the personal telephone numbers and email addresses of members of the press. Thisinformation is clearly exempt from disclosure by Public O?icers Law and petitioner doesnot argue otherwise. In any event, even if the OAG could be faulted for failing to claim theexemption earlier which it cannot the protection of personal information of members of thepublic cannot be ?waived? by a state agency?s failure to identify that information within a speci?c timeperiod. The protection does not belong to the agency, and so cannot be waived by that agency.Un the merits, the OAGhas not ful?lled its obligations under FOIL. As an initial matter, and notwithstanding his rhetoricsuggesting that it is somehow improper for the OAG to ?cherry-pick the files that it will search,? id.at I7, petitioner appears to agree that it was wholly proper for the OAG to make judgment callsregarding which of its many ?les that are not indexed for this FOIL request are most pro?tably searched for responsive materials. For example, for the first time, petitioner concedes that the was not required to search materials it obtained through discovery in People v. Greenberg,notwithstanding that it is likely that those materials contain documents responsive to petitioner?sbroad request. Id. Similarly, petitioner concedes that the OAG need? not search the boxes ofmaterials collected through its Starr Foundation investigation. Id at 18. Most notably, petitioner for the first time concedes that the OAG need not search the ?les of all ?fty-seven OAG employeeswho worked on the AIG investigation, but rather need search, at most, only those ?les of employeesknown to have been ?involved in communications with the press? with respect to the AIGinvestigation. Id. at 18. And for the first time, he sets forth which employees? ?les he believes wouldbe most fruitfully searched. Id at 18 n. 12. Accordingly, while petitioner repeatedly asserts without citation to caselaw that the OAG may not ?choose a limited subset of documents to searc to comply with an extremely broad FOIL request (petitioner's memorandum at 19), as apractical matter, petitioner himself appears to agree that the OAG is free to do just that, whilequibbling over the details of which documents to search.The petitioner is certainly free to now describe with more particularity the search he wouldlike the OAG to perform. Having never before done so, however, he can hardly argue that the OAGhas failed to comply with the FOIL request he actually made, or the order this Court actually issued, neither of which described the requested search with anything resembling this iiarticuladty.Moreover, because the OAG has no way of knowing which of the 57 individuals most of whomno longer work for the OAG (8/l4/09 Dean A?irmation at ?16) -- were ?involved incommunications with the press?(id. at 111121, 28), that language still does not constitute a reasonablydescribed request unless it implicitly authorizes the OAG to make some judgment calls as to whichformer employees? ?les to search. The fact that the OAG, faced with petitioner's much broaderoriginal request, came to a somewhat di?erent conclusion from that of petitioner regarding whichemployees? ?les were most likely to contain responsive documents does not render the actionsunreasonable or improper.To the extent that petitioner has reasonably described a FOIL request, including by settingforth speci?c former OAG employees whose records he would like searched, the OAG has ?illycomplied with it. As clari?ed by the a?idavit of Peter Dean submitted with this memorandum, theOAG has now searched the hard copy ?les, external emails and internal emails of Mr. Spitzer, Mr.Dopp, and Mr. Violette. It had no related ?les of Mr. Baum to search, because Mr. Baum was notinvolved in the AIG Dean affirmation at 115) Petitioner?s argument that the search nonetheless failed to comply with his speci?c requests relies in large part on his disappointmentthat more responsive documents were not contained within the records searched.For example, petitioner believes it self-evident that the search must be de?cientbecause it did not produce ?a single communication from or to former Attorney General EliotSpitzer.? id at 1120. But it is uncontested that the OAG searched Spitzer?s hard copy file andthose of his e-mails that were preserved for purposes of the AIG investigation. Deana?imiationTtW7, 29; 9/ 15/09 Dean a?irmatton ar1m3-4) Petitioner has no basis for his assertionthat OAG found responsive e-mails but is hiding them out of embarrassment (petitioner?smemorandum of law at 20), or that OAG has not searched for them (petitioner?s memorandum of lawat 17).Similarly, while petitioner believes it is evidence of bad faith that the OAG has not searchedSpitzer?s private e-mail account, the reality is that the OAG lacks access to this account andpossession of whatever e-mails it may contain, thus rendering them beyond the scope of petitioner?sFOIL request both practically and legally.? Karp a?imtation at 114) While petitioner may3 Whether or not. Spitzer?s personal e-mail account was within the possession at the timethat Spitzer was Attorney General is irrelevant, since the FOIL request at issue here was made after Spitzeralreadyhad lefttheo?ice, 5 . believe that it ?strains credibility? that more responsive emails were not found from Darren Dopp(petitioner?s memorandum of law at 20 n.l5), he has no basis for questioning the validity of thesearch that was performed. And the OAG has not ?utterly disregard[ed]? petitioner?s request thatthe ?les of Richard Baum be searched (petitioner?s memorandumof law at 18 n. 12). Rather, Baumwas not identi?ed in discovery (long before this F011. request) as one of the ?fty-seven custodiansof AIG documents, and so there are no Baum AIG ?les to search. (9/15/09 Dean a?irmation at 115)Nor does petitioner offer any reason to think that the OAG acted unreasonably inconcentrating its page-by-page search of unindexed ?les on ?ve boxes of documents that were mostlikely to produce responsive documents, rather than searching another 85- 1 00 boxes. As explainedin the moving papers, the ?ve boxes that OAG searched contain documents that wereidenti?ed as possibly responsive to discovery requests made in the AIG enforcement action, includingarequest that was very similar to petitioner?s FOIL request 1/29/09 Dean a?irmation at 1111104 1).It is irrelevafit tl?ift??ddcuments p'e'tifioii'?f 's?ee?k? in theenforcement action (petitioner's memorandum at 19); that ruling by Justice Ramos was made afterOAG already had collected and organized potentially responsive documents, and so it did not affectthe indexing of the documents. Accordingly, the OAG reasonably concluded that these ?veboxw were most likely to contain documents responsive to petitioner?s FOIL request. Petitioner issimply wrong in asserting in conclusoty fashion that decision as to which ?les to search was?random? (petitioner?s memorandum of law at 19) and ?was not related to the likelihood of locatingdocuments relevant to Petitioner?s request? (petitioner's memorandum of law at 20).While petitioner asserts in conclusoiy fashion that ?reviewing 100 boxes of documents isclearly not burdensome? (petitioner?s memorandum at 18) and even contends that the OAG is? ?intentionally misleading? the Court as to this point (petitioner?s memorandum at 22) he does notactually address, let alone refute, the detailed explanation for why this search is soburdensome. Each document must be reviewed by the Investor Protection Bureau, with adetermination made as to the document?s responsiveness to the FOIL request. Any responsivedocuments must then be reviewed by the OAG FOIL o?cer for the applicability of any exemptions.Karp a?irmation at $15) An exemption log must then be prepared, and any necessaryredactions must be made. The responsive documents must then be copied, and a responseprepared. This process would occur while the FOIL o?icer is processing many other FOILrequests. In short, requiring the OAG to review 100 additional boxes would impose a heavyburden on the office. In light of this extensive and time consuming process, if this Court nonethelessshould ?nd that the OAG must search these boxes and produce responsive documents, it should be given a reasonable period of time to do so. As explained in the affidavit of Amy Karp, depending onwhleuthaer and how many responsive documents are found in a particular box, a singlebox ofdocuments can take as much as a month to review. (Id. at 1110)Nor is there any basis for petitioner?s conclusory assertion that the OAG was required tomaintain an indexing system that would permit it to more readily search these boxes of materials forpress communications (petitioner?s memorandum at 3). Neither the OAG nor any other agency isrequired to maintain an indexing system that can identify responsive documents to every conceivableFOIL request. Instead, it isonly legally required to maintain a subject matter list that describes"categories of records in detail suf?cient to permit an applicant to identify the category of records thatmay include the records sought" Marina v. Morgenthau, 1 275 (1st Dept. 2003), appealdismissed 2 780, appeal dismissed by, appeal denied by, motion dismissed by, 2 N. Y.3d 780 (2004). Neither the subject?matter list nor its records retention policy includescommunications with the press (9/1 5/09 Kaip a?irmation at 1J6). Petitioner offers no reason to thinkthat these policies are inadequate.ConclusionFor the reasons discussed above, and those discussed in respondent?s moving papers,respondent OAG respectfully requests that this court issue an order (1) granting the OAG leave torenew or reargue or, in the alternative, (2) extending the compliance deadline in the court?s July 8,2009 order or, in the alternative, (3) granting the OAG leave to appeal the court?s July 8, 2009 orderto the Appellate Division, Third Department, (4) denying petitioner?s cross-motion to compel and(5) granting the OAG any ?irther relief that court deems just, proper and equitable.Dated: Albany, New YorkSeptember 15, 2009ANDREW M. CUOMOAttorney General of the State of New YorkAttorney for pondent York State'O?iceof the Atto Assistant Attorney General, of CounselTelephone: (518) 474-3340Fax: (518) 473-1572 (Not for service of papers)TO: Wutston Stravvn, LLPVincent A. Santa, Esq.Attorneys for Petitioner200 Park AvenueNew York, NY 10166-4193Printed [Reproduced] on Paper 9 .. Affirmation (Dean) -i .2 585SUPREME COURT or THE STATE or NEW voaxCOUNTY OF ALBANYIn the Matter of the Application of i Index No.1 3670-03HOWARD l. SMITH. IorPetitioner, against -rm; NEW vonx sure OFFICE OFTHE ATTORNEY GEN ERAL,Respondent.STATE OF NEW YORK couurv or NEW YORK . Peter C. Dean, an attorney duly admitted to practice law before the Courts of the Stgte of?New York, pursuant to CPLR 2106 al?nns the following to be true unoer penalties of perjury:l. I am an assistant attorney general in the Office of the New?York State AttorneyGeneral, Andrew M. Cuomo respondent in the above.-captioned action and counsel forplaintiffs. in a? related enforcement proceeding captioned The People of the State ofNew Yorkby Andrew M. uorno, Attorney General ofthe State of New for}: Mattrice R. Greenberg ondHoward liismith, Index No. 401720/20.05 (hereinafter ,1 submit this .af?rmation, on personal knowledgeand upon inforxnation/and? belief, in further support of the046.6?: motions forleave to renew and reargue in the abovoceptioned proceeding and ?for A .permission to appeal this Court?s July 8, 2009 order. I write to clarify what steps were taken tosearch for Eliot Spitzer and Richard Batzm e-mails that are responsive to Smith's September 1 l,2007. $011. request (?FOll. Request").It5862_ Eliot Spitzer was identified as one of the 57 different custodians who may havehad documents responsive to the broad discoverydemands? served by defendants in theEnforcement Action. (See August 14; 2009 DeanAff., p. 5.13 His emails were collected anddeposited into the internal and external e-mail databases described in my prior af?miation. August 14, 2009 Dean A?i. PP- 6-7.1? 18-21).3, During discovery, the external e-"mail database, including Spitzer?s en-mails, wassearched and. indexed for communications with the press. The external email database does notcontainan email to or from Spitzer reflecting any communications with the press. All of theexternal e-mails that reflect an OAG communication with the press were produced to Smith onAugust 14, 2009.4. i In seeking tocomply with time Court's Order, I reviewed Spitzer?s internal e-mailand found that there were no emails that reference any actual or proposed statement to orcommunication with the press. While my August 14. 2009, affidavit stated, on information and .belief, that the office intended to review the internal e-mail files of only Dopp and Violette (SeeAugust 14, 2009 Dean 1). l3,140), tliatwtfas an oversight. In fact; ultimately searched not only those but also those ofspitzer, as stated herein. Richard Baum had no involvement with the investigation of AIG, and so he wasnot identified in discovery as one of 57' custodians. Accordingly, there is no Baum Alf} filethat can be searched for documents that are responsive to the FOIL request. Moreoveriyinconducting the search of various MG-related files described in my affidavits, the GAG has not .found any Baum documents that are responsive to the litigation files connected? to the Enforcement Action.OIL Request maintained within the'1- -v t- 537affiant respectfully requests that the Court issue an order4 I )granting the OAG leave to renew and or reargue Of, in the alternative, (2) granting the DAG-Aleaxlre to appeal the Court?s My 8, 2009 order to the Appellate Division, ?Third Department and(3) granting the OAG any ?mher relief that Court deems just, properand Dated: September 15, 2009New York, New York?._588Affirmation (Karp)supmzma COURT 09 THE sum; or NEWYORKCOUNTY OF ALBANY In the Matter of the Application of . index No.: 3670-08I. SMITH,Petitioner,- I RMATION OF-against?-? - THE NEW Yoxx STATE or THE ATTORNEY GENERAL,. ilcspondent.. Amy C. Kaxp, an uttomcy duly admitted to practice lawin the State of New York, af?rmsthe following under penalty pursuant to Civil Practice Laws and Rules 21.06: -..- As Records Access Officer. I coordinate vesponses toircqucsts for records pursuant to the Freedomof Information L_.1w Pius: omcm Law ??s4-a9.2. I aim muy familiar with the facts and circumstance: of this proceeding. i havereviewed the CAG's fiies relating to Petitioner's FOIL at issueiin thieprocceding? t"!heA I3. I submit this affidavit in zesponsc to Petitioner's suggestion that the rev newof records was dc?cient because (1) the DOL did not search the private e-mail account of fonuer AAttorney General Eliot Spitzer._ and (2) the DOAL 's scorch of the of?cial OAC e-mail accounts of Mr.. ?pitz? andiother OAG employees _did not turn up any e-mails from Mr. Spitzef that respond to therequest at issue. 4. As the Records Access Officer, I have had? 3 number of conversations with ourinformation technology department related to the e~mails of Mr. Spitzer. in those conversations. Ihave learned that the GAG does not have access to the private e-mail account of Mr. Sptizer.Accordingly, yvhatever e-nulls are contained within that account are not records within the possession.5, With respect to petitioner's second concern, Peter Dean int"emted me that he searchedpreserved e-mails ?om the accounts of former press officers Darren Dopp and Marc Violette, butalso those preserved emails of Mr. Spitzer. for to the FOIL request at issuein this litigation. as indicated in Mr. Dean's at'l'idavit ot'August 2009. His search of those records. was commensurate with the usual practice in F011. matters, in which records are searchedfor responsive documents by the attorney who is their custodian. lt? the OAG ?required records to beby someone who is not their custodian, as petitioner suggests. both the burden ofthese searches weuldbe Agreatly increased.5, Finally, the OAG maintains a subject matter list in nccordzince tvit-it Public Officers Law Section 87(3)( The subject matter listdetineai categories of records kept by each bureau anddivision of the OAG. ?The categories are designed to inform requester of the type of documents maintained by the OAG so that a requester can idcnti?fy,tlte records that will contain the infomtation?he or she is seelting. Thus, a rcqnestor interested in correspondence related to a case. will learn that - kept in thclitigution ?le rather than a separate correspondence tile. The subjectmatter list does not contain a separate category for communications with the press.. 7 Dated: New York, New York I September 15, 2009 . rC. K3;-p