SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Application for a Judgment under Article 78 of the CPLR and other relief by SERGIO HERNANDEZ, Index No.: Petitioner, RJI No.: v. VERIFIED PETITION OFFICE OF THE MAYOR OF THE CITY OF NEW YORK, Respondent. TO THE SUPREME COURT OF THE STATE OF NEW YORK: Petitioner Sergio Hernandez by and through undersigned counsel, respectfully alleges as follows: l. This is a special proceeding brought against Respondent Office of the Mayor of the City of New York ("Respondent") pursuant to Article 78 of the New York Civil Practice Law and Rules New York Public OfEcers Law 84 ei seq. (the "Freedom of Information Law" or and CPLR 3001. 2. This action arises out of Respondent's failure to disclose documents requested by Mr. Hernandez relating to New York City's controversial hiring of Ms. Cathleen "Cathie" Black as New York City Schools Chancellor, in violation ofthe express statutory mandate of FOIL. PARTIES, JURISDICTION AND VENUE 3. Petitioner Sergio Hernandez is a freelance journalist based in New York City. He currently reports for ProPublica, located at One Exchange Place, 55 Broadway, 23rd Floor, New York, NY At the time of the events set forth below, Mr. Hernandez was reporting for the Village Voice, with its place of business located at 36 Cooper Square, 3rd Floor, New York, NY 10003. 4. Respondent Office of the Mayor of the City of New York is an "agency" within the meaning of Public Officers Law 86(3). Upon information and belief, Respondent's place of business is located at City Hall, New York, NY 10007. 5. As set forth below, Mr. Hernandez submitted a FOIL request to Respondent seeking documents relating to the New York City's hiring of Cathie Black as its new Schools Chancellor. He submitted his FOIL request by email dated November 19, 2010. 6. Respondent denied the request by letter dated January 13, 201 1. 7. Mr. Hernandez appealed the denial by email dated January 19, 201 l. His appeal was denied by letter dated January 26, 2011, from Deputy Mayor Carol Robles-Roman on behalf ofthe Respondent. Petitioner has exhausted his administrative remedies. 8. Respondent violated its FOIL obligations in denying Mr. Hernandez's FOIL request based on its blanket and conclusory assertion that the requested documents fall under two statutory exemptions to FOIL, and by failing to provide a particularized justification for denying disclosure. 9, The actions of Respondent complained of herein are final in nature and cannot be reviewed adequately by another court, entity or officer. This Court thus has jurisdiction over this matter pursuant to Public Officers Law Article 78 of the CPLR and CPLR 3001. 10. Pursuant to CPLR 506(b) and CPLR 7804(b), venue is proper in this Court because Respondent is located in this County, and because this County is within the judicial district in which Respondent made the determinations complained of and refused to perform the duties specincally enjoined upon it by law. 2 1 1, On November 19, 2010, Mr. Hernandez submitted a FOIL request to Respondent seeking disclosure of all messages sent from or received by any state electronic mail accounts assigned to the Office of the Mayor to or from an individual named Cathleen Prunty 'Cathie' Black or e-mail addresses containing the domain hearst.com," (A true and correct copy of Mr. Hernandez's FOIL request is attached hereto as Exhibit A). 12. Respondent denied the request on January 13, 2011. Without identifying any of the withheld documents by date or otherwise, Respondent's denial letter simply asserted that all requested documents were withheld under FOIL's exemptions for records that "if disclosed, would constitute an unwarranted invasion of personal privacy" and records that constitute "inter- agency and intra-agency materials." (A true and correct copy of Respondent's denial of Mr. Hernandez's request is attached hereto as Exhibit B), 13. On January 19, 2011, Mr. Hernandez filed a timely administrative appeal of Respondent's denial of his request. Mr. Hernandez noted that blanket assertions of FOIL exemptions, such as those provided by Respondent, do not satisfy Respondent's FOIL obligations, and emphasized that Cathie Black was a private citizen, such that communications with her could not constitute either "inter--agency or intra?agency" communications. Mr. Hernandez also stressed that to the extent the requested records contained private information concerning individuals, they could be produced in redacted form. (A tme and correct copy of Mr, Hernandez's administrative appeal is attached hereto as Exhibit C.), 14. On January 26, 2011, Respondent denied Mr. Hernandez's appeal in its entirety. Although Public Officers Law 89(4)(a) requires that Respondent fully explain, in writing, the reasons for further denial, Respondent's denial simply repeated the blanket denials contained in 3 the denial of the initial request. (A true and correct copy of Respondentfs denial of Mr. l-Iernandez's appeal is annexed hereto as Exhibit D.) FAILURE T0 DISCLOSE 15. Petitioner hereby repeats and re-alleges paragraphs 1 through l4 as if fully set forth herein. 16. Under FOIL, all documents in the possession of governmental entities, including the Office ofthe Mayor of the City of New York, are presumed open and available for inspection by the public. Documents may be withheld only if they fall within a specific exemption to FOIL's disclosure mandate. The limited statutory exemptions are to be construed narrowly and it is the govermnent's burden to demonstrate, based on particular and specific justification, that the withheld documents fall within the asserted exemption, 17. In responding to Mr. Hernandez's FOIL request, Respondent has wrongly withheld documents under claimed statutory exemptions that do not properly apply. 18. In responding to Mr. Hernandez's FOIL request, Respondent has failed to segregate exempt material from non--exempt material, and failed to satisfy its legal obligation to provide redacted copies of documents with only exempt material withheld, 19. By its actions, Respondent has refused to perform the duty of disclosure enjoined upon it by FOIL, made a determination in violation of FOIA's mandate that only records that fall squarely within a FOIL exemption may be withheld, and erred as a matter of law in concluding that records requested fall within the exemptions it has asserted. 20. The information and documents requested are of significant interest to the general public, and Respondent lacks any lawful basis for withholding the records from public disclosure. 4 21. Respondent's denial has caused, and continues to cause, immediate and irreparable harm to the rights guaranteed to Mr. Hernandez and to the public at large under FOIL. 22. Petitioner has no adequate remedy other than this proceeding, and no previous application for the relief requested herein has been made. FAILURE TO JUSTIFY NON-DISCLOSURE 23. Petitioner hereby repeats and re-alleges paragraphs through 22 as if fully set forth herein. 24. In responding to Mr. Hernandez's FOIL request, Respondent has failed to provide a specific and pmticularized justification for withholding the requested documents, in violation of its obligations under FOIL. 25. By its actions, Respondent has refused to perform a duty enjoined upon it by FOIL and erred as a matter of law in failing to provide a specific and particularized justification for withholding the records requested by Mr. Hernandez. 26. Respondenfs denial has caused, and continues to cause, immediate and irreparable harm to the rights guaranteed to l\/Ir. Hernandez and to the public at large under FOIL. 27. Petitioner has no adequate remedy other than this proceeding, and no previous application for the relief requested herein has been made. 5 WHEREFORE, Petitioner respectfully requests this Court to grant judgment: Declaring that Respondent has acted unlawfully in failing to disclose the documents requested by Petitioner, which are not properly exempt from disclosure under FOIL, and enjoining Respondent immediately to provide Mr. Hernandez with copies of all the documents requested in his November 19, 2010 FOIL request to Respondent; Enjoining Respondent to provide Petitioner with a specific and particularized justification for withholding each document or portion thereof that it believes to be exempt from disclosure; Awarding Petitioner his costs and attorneys' fees pursuant to Public Officers Law and Awarding Petitioner such other and further relief as the Court deems just and proper. Dated: New York, New York May 26, 2011 Respectfully submitted, SCHLAM STONE DOLAN LLP . By: Eli eth Wolstein 26 Broadway, 19th Floor New York, New York 10004 Telephone: (212) 344-5400 Facsimile: (212) 344-7677 E-Mail: ewolsteinfdischlamstonecom Aitorneyfor Pelitioner 6 VERIFICATION STATE OF NEW YORK ss.: COUNTY OF NEW YORK SERGIO HERNANDEZ, being duly sworn, states: l. I am the Petitioner in this proceeding to compel disclosure under the New York Freedom of lnformation Law. 2. have reviewed the annexed Petition. To my knowledge the statements in the Petition are true, except as to matters alleged on information and belief As to those matters, believe them to be true. Dated: May 25, 2011 New York, New York i GIO EENANDEL, Sworn to before me this 25m day of May, 2011 ELIZABETH WOLSTEIN Notary Public -- State of New York Nu. 02v\/06217226 Qualified in New York County i Commission Expires 02/08/2014 Not Public Exhibit A Tuesday, January 18, 2011 7:06 PM Subiect: RE: Request: E-mail correspondence between City Hall, Cathie Black, and hearstcom Date: Friday, November 19, 2010 5:09 Pix/I From: Hernandez, Sergio To: Please disregard the recipient's address at the top of this FOIL request. It is intended for the Office of the Mayor; not the State Education Department. Thank you. From: Hernandez, Sergio Sent: Friday, November 19, 2010 5:03 PM To: 'acrowell@cityhall.nyc.gov' Subject: FOIL Request: E~mail correspondence between City Hall, Cathie Black, and hearst.com Importance: High Sergio Hernandez Reporter, Village Voice PO Box 230381 New York, NY 10023 Friday, November 19, 2010 Records Access Ofncer New York State Education Department 89 Washington Ave., Room 977 EBA Albany, NY 12234 foil@maiI.nysed.gov Dear Records Access Oflicer: REQUEST OF RECORDS Pursuant to the New York State Freedom of Information Law Article 6 ?84 et. seq. of the New York State Public Officers Law I hereby request access to and copies of the following materials: E--mail messages sent from or received by any state electronic mail accounts assigned to the Office of the Mayor to or from an individual named Cathleen Prunty "Cathie" Black or e--mail addresses containing the domain hearstcom. Whatever records are available immediately, should, if possible, be furnished immediately; others as they become available I would appreciate it if you could inform me as materials become available. ASSESSMENT OF FEES For the purposes of assessing fees related to this request, please take note that I am a journalist working as a reporter for The Village Voice, a weekly local newspaper that serves roughly 240,000 readers each week, and that this request is made as part of a news?gathering effort and not for commercial use. I understand there is a fee of up to 25ct per page for duplication of the records requested. If you estimate that the fees will exceed $100, please notify me first. IN THE CASE OF DENIAL OR PARTIAL DENIAL Page 1 of 2 Should my request be denied in whole or part, I ask that you justify all deletions by reference to specific exemptions ofthe Law and release all segregable portions of otherwise exempt material, as well as the name and address ofthe person or body to whom an appeal should be directed I reserve the right to appeal your decision to withhold any information. As I am making this request as a daily journalist and this information is of timely value, please contact me by telephone or e-mail, rather than by mail, if you have questions regarding this request, I look forward to your reply within five business clays, as the statute requires, and thank you for your attention to this request. Sergio Hernandez Reporter, Runnin' Scared The Village Voice Page 2 cf 2 Exhibit 4 . Tm; Ctry OF New Y0?o?< OFFWCE OF THE MAYOR New YORK, 10007 ANTHONY w. ctzowtatt Cuumrtos ro mr M,woiz January 13, 2011 Sergio Hernandez Village Voice PO Box 230381 New York, NY 10023 Dear Mr. Hemandez: I write in response to your Freedom of Information Law request for emails sent between the Mayor's Office and Cathleen Black. Please be advised that we are withholding responsive documents pursuant Public Oflicers Law Section which allows agencies to withhold that "if disclosed would constitute an unwarranted invasion of personal privacy? and Public Oflicers Law Section which allows agencies to withhold "inter--agency and intra-agency materials? You may appeal this determination within 30 days to Deputy Mayor Carol Robles~Roman, Records Access Appeals Officer, at City Hall, New York, NY 10007. Thank you. Sincerely, C, Printed on paper clmtainmg 50% post-tonsurnci Exhibit Friday, February 4, 2011 7:20 PM Subject: RE: FOIL Appeal: E-mails between Office of the Mayor and Cathleen Black Date: Wednesday, January 19, 2011 1:48 PM From: Hernandez, Sergio To: Cc: "CroweII, Anthony" "Dvorkin, ArieI" Priority: Highest Addendum: I remind you that pursuant to POL your response to this appeal (which shall either fully explain, in writing, the reasons for further denial, or provide access to the records sought) is due within ten business days of its receipt. I therefore anticipate your response on or before Wednesday, February 2, 2011. Failure to issue a determination by that time will be considered a denial of access, permitting the commencement of an Article 78 proceeding pursuant to POL lf you have any questions regarding this appeal or request, please feel free to contact me via e-mail From: Hernandez, Sergio Sent: Wednesday, January 19, 2011 1:31 PM To: 'croman@cityhalI.nyc.gov' Cc: 'Crowell, Anthony'; 'Dvorkin, Ariel' Subject: FOIL Appeal: E?maiIs between Office ofthe Mayor and Cathleen Black Importance: High Sergio Hernandez Reporter, Village Voice PO Box 230381 New York, NY 10023 Wednesday, January 19, 2011 Carol RobIes--Roman Deputy Mayor City Hall New York, NY 10007 croman@cityhaII.nyc.gov Dear Records Access Appeals Officer: This is an appeal pursuant to the New York State Freedom of information Law Article 6 84 et. seq. of the New York State Public Officers Law On November 19, 2010, I filed a FOIL request with the Office of the Mayor seeking access to and copies of e-mail messages sent from or received by any state electronic mail accounts assigned to the Office of the Mayor to or from an individual named Cathleen Black or e--maiI addresses containing the domain "hearst.com." This request was sent via e-mail to Anthony Crowell at acrowell@cityhaII.nyc.gov and is attached to this appeal as Page 1 of 3 On November 30, 2010, I received a letter signed by Mr. Crowell and delivered via e?maiI by Mr. Ariel Dvorkin acknowledging my request and informing me that I could expect a decision within twenty days. This letter is attached to this appeal as On January 4, 2011, sent an e--mail to Mr. Dvorkin, following up on the status of this request and received no reply. This e-mail is attached as On January 18, 2011, I followed up once again via phone and received, via Mr. Dvorkin, a letter from Mr. Crowell denying my request. This letter is attached as This denial is in error. Neither the privacy nor the inter- and intra-agency materials provisions of the FOIL provide legal justifications for failing to heed the commandment that the Officer of the Mayor "make available for public inspection and copying" the records we seek. lt should be emphasized that prior to January 3, 2011, Ms. Black was a private citizen employed by Hearst Corporation, a privately-held media conglomerate based in New York City. Since at least June 22, 2009, Hearst Corporation has owned and controlled the Internet domain name "hearst.com" and e-mail accounts associated with that domain. Because the initial request was filed before Ms. Black came under the city's employ, and because the FOIL applies only to records that exist when the request is made, Ms. Black was still a private citizen within the scope and purpose of this request. POL 87(2)(b) - "Unwarranted Invasion of Privacy" While the initial request asked for copies of e-mail communications between the mayor's office and Ms. Black, it also requested communications between the mayor's office and any e-mail addresses containing the "hearst.com" domain. The Court of Appeals has held that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" [Gould in New York City Po/ice Department, 89 267, 275 (1996)l. In this instance, Mr. Crowell has denied access to the records at issue in their entirety. Even if there are portions ofthe records that might be justifiably withheld and your agency may delete or redact them, you are required to disclose the remainder. It appears that Mr. Crowell has not engaged in that process as required by law, but rather has engaged in a blanket denial ot access. Furthermore, it is unclear whose privacy interests are being protected. If the privacy interests involved are those of a city employee, the courts have provided substantial direction regarding the privacy of public officers and employees. It is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those persons are required to be more accountable than others. With regard to records relating to them, the courts have found that, as a general rule, records that are relevant to their duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy. lf the privacy interests involved belong to private entities, such as Ms. Black or other individuals using a @hearst.com e-mail address, it is clear that FOIL would at least permit disclosure of records following the deletion or redaction of personally identifiable details such names, addresses, etc.). POL 87j2)jg) - "Inter-agency and Intra-agency MateriaIs" FOIL ?86(3) defines the term "agency" to mean: state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or Page 2 of 3 proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature." In short, an agency is an entity of state or local government in New York. Therefore, communications between city officers or employees and private citizens or companies, such as it/ls. Black or the Hearst Corporation, are neither "inter--agency" nor "intra--agency materials? Because that is so, the exception pertaining to those materials, cannot properly be asserted as a basis for denying access to communications between city officials and l\/ls. Black or any other private citizen. As stated by the Court in Gould, that exception pertains to an "internal government exchange" reflective of "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making? I ask that you reverse l\/lr. Crowell's denial and make available the records we seek immediately. Thank you. Sergio Hernandez Reporter, Runnin' Scared The Village Voice 36 Cooper Square, 3 Fl New York, NY 10003 cz 5628055035 f: 212.475.8944 runninscaredcom twitter.com/villagevoiceFtS Page 3 of 3 Exhibit new q, if . --ii `jii Tm; Carr OF New Yoon Orme; or rm; MAYOR New i January 26, 20l 1 CAROL ROBLESROMAN Darrow Mworz rox Leon, Amari; Counsar ro rmi Mmioiz Sergio llernandez Reporter Village Voice PO Box 230381 New York, NY 10023 Dear Mr. Hernandez: ani writing in response to your appeal of the Freedom of Information Law request denial sent to you by Anthony Crowell, the lVlayor`s Office Records Access Officer, concerning emails sent Cathleen Black or c--mail addresses containing, the domain hearstcom and staff within the Mayor's Office, Alter reviewing all documents responsive to your request, have determined that Mr. Crowell properly withheld these documents. The withheld documents are exempt from disclosure under provisions governing interagency or communications (Public Ofiicers Law or communications that, if disclosed, would result in an unwarranted invasion of personal privacy (Public Oflicers Law This constitutes a final determination. lf you wish to appeal this determination, please be advised you may do so via CPLR Article 78 in a court of competent jurisdiction. Sincerely, .. Carol Rohles--Roman