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,

RJINo.:
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 ("CPLR"), New York Public Officers Law 84 et seq. (the "Freedom of Information Law" or "FOIL"), 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 of the express statutory mandate of FOIL.
PARTIES, JURISDICTION AND VENUE

3.

Petitioner Sergio Hernandez is a freelance journalist based in New York City. He

cmTently reports for ProPublica, located at One Exchange Place, 55 Broadway, 23rd Floor, New York, NY 10006. 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. 7. Respondent denied the request by letter dated January 13, 2011. Mr. Hernandez appealed the denial by email dated January 19, 2011. His appeal

was denied by letter dated January 26, 2011, from Deputy Mayor Carol Robles-Roman on behalf of the 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 89(4)(b), 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 specifically enjoined upon it by law.

FACTS

11.

On November 19, 2010, Mr. Hernandez submitted a FOIL request to Respondent

seeking disclosure of all "[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 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 "interagency 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 Mr. Hernandez noted that blanket assertions of FOIL

Respondent's denial of his request.

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 true 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

the denial of the initial request.

(A true and correct copy of Respondent's denial of Mr.

Hernandez's appeal is annexed hereto as Exhibit D.)

FAILURE TO DISCLOSE

15. forth herein. 16.

Petitioner hereby repeats and re-alleges paragraphs I through 14 as if fully set

Under FOIL, all documents in the possession of governmental entities, including

the Office of the 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 government'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.

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. forth herein. 24.

Petitioner hereby repeats and re-a!leges paragraphs 1 through 22 as if fully set

In responding to Mr. Hernandez's FOIL request, Respondent has failed to provide

a specific and particularized 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. 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. 27. Petitioner has no adequate remedy other than this proceeding, and no previous

application for the relief requested herein has been made.

WHEREFORE, Petitioner respectfully requests this Court to grant judgment:

(a)

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 p01iion thereof that it believes to be exempt from disclosure; Awarding Petitioner his costs and attorneys' fees pursuant to Public Officers Law 89(4)(c); and Awarding Petitioner such other and further relief as the Court deems just and proper.

(b)

(c)

(d)

Dated: New York, New York May 26, 2011 Respectfully submitted, SCHLAM STONE & DOLAN LLP

By:

~
Attorney for Petitioner

26 Broadway, 19th Floor New York, New York I 0004 Telephone: (212) 344-5400 Facsimile: (212) 344-7677 E-Mail: ewolstein@schlamstone.com

VERIFICATION

STATE OF NEW YORK

) ) ss.: COUNTY OF NEW YORK )

SERGIO HERNANDEZ, being duly sworn, states:

1.

I am the Petitioner in this proceeding to compel disclosure under the New York

Freedom ofinformation Law. 2. I 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, I believe them to be true.

Dated: May 25,2011 New York, New York

Sworn to before me this 25 1h day of May, 2011

' ELIZABETH WOLSTEIN
~

Notary Public - State of New York No. 02W06217226 Qualified in New York County
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Commission Expires02/08/2014

Exhibit A

Tuesday, January 18, 2011 7:06 PM

Subject: RE: FOIL Request: E~mail correspondence between City Hall, Cathie Black, and hearst.com

Date: Friday, November 19, 2010 5:09PM

From: Hernandez, Sergio <shernandez@Vi!lageVoice.com>

To: <acrowell@cityhall.nyc.goV> 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 Officer New York State Education Department 89 Washington Ave., Room 977 EBA Albany, NY 12234 foil@mail.nysed.gov Dear Records Access Officer:
REQUEST OF RECORDS Pursuant to the New York State Freedom of Information Law ("FOIL"), Article 6 84 et. seq. of the New York State Public Officers Law ("POL"), 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 hearst.com. 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 25 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

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Should my request be denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the Law and release all segregable portions of otherwise exempt material, as well as the name and address of the 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 days, as the statute requires, and thank you for your attention to this request.
Sergio Hernandez

Reporter, Runnin' Scared The Village Voice

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Exhibit B

-~--~---------

THE CITY OF NEW YORK

OFFICE

OF" THE

MAYOR

NEW YORK, N.Y. 10007

ANTHONY W_ CROWELL
CuuN:>ElOR Tll THE MAYOR

January 13, 2011

Sergio Hernandez Village Voice PO Box 230381 New York, NY 10023 Dear Mr. Hernandez: I write in response to your Freedom oflnfcnmation Law request for emails sent between the Mayor's Office and Cathleen Black. Please be advised that we are withholding responsive documents pursuant Public Officers Law Section 87(2)(b), which allows agencies to withhold information that "if disclosed would constitute an unwarranted invasion of personal privacy;" and Public Officers Law Section 87(2)(g), 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 Offrcer, at City Hall, New York, NY 10007. Thank you. Sincerely,

Exhibit C

Friday, February 4, 2011 7:20PM Subject: RE: FOIL Appeal: E-mails between Office of the Mayor and Cathleen Black Date: Wednesday, January 19, 20111:48 PM From: Hernandez, Sergio <shernandez@VillageVoice.com> To: <croman@cityhall.nyc.gov> Cc: "Crowell, Anthony" <ACrowell@cityhall.nyc.gov>, "Dvorkin, Ariel" <ADvorkin@cityhall.nyc.gov> Priority: Highest

Addendum: I remind you that pursuant to POL 89(4)(a), 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 89(4)(b). If you have any questions regarding this appeal or request, please feel free to contact me via e-mail (shernandez@villagevoice.com).

----------------------From: Hernandez, Sergio Sent: Wednesday, January 19, 2011 1 :31 PM To: 'croman@cityhall.nyc.gov' Cc: 'Crowell, Anthony'; 'Dvorkin, Ariel' Subject: FOIL Appeal: E-mails between Office of the Mayor and Cathleen Black Importance: High
Sergio Hernandez Reporter, Village Voice PO Box 230381 New York, NY 10023 Wednesday, January 19, 2011 Carol Robles-Roman Deputy Mayor City Hall New York, NY 10007 croman@cityhall.nyc.gov Dear Records Access Appeals Officer: This is an appeal pursuant to the New York State Freedom of Information Law ("FOIL"), Article 6 84 et. seq. of the New York State Public Officers Law ("POL"). 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-mail addresses containing the domain "hearst. com." This request was sent via e-mail to Anthony Crowell at acrowell@cityhall.nyc.gov and is attached to this appeal as "ATTACHMENT 1."
Page 1 of 3

On November 30, 2010, I received a letter signed by Mr. Crowell and delivered via e-mail by Mr. Ariel Dvorkin (advorkin@cityhall.nyc.gov), acknowledging my request and informing me that I could expect a decision within twenty days. This letter is attached to this appeal as "ATTACHMENT 2." On January 4, 2011, I 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 "ATTACHMENT 3." 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 "ATTACHMENT 4." 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 FOIL's commandment that the Officer of the Mayor "make available for public inspection and copying" the records we seek. It 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)(bl- "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 v. New York City Police Department, 89 NY2d 267, 275 (1996)]. In this instance, Mr. Crowell has denied access to the records at issue in their entirety. Even if there are portions of the 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 of 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. If 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 (e.g., names, addresses, etc.).

POL 87(2)(g)- "Inter-agency and Intra-agency Materials"

FOIL 86(3) defines the term "agency" to mean: " ... any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or
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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 Ms. Black or the Hearst Corporation, are neither "inter-agency" nor "intra-agency materials." Because that is so, the exception pertaining to those materials, 87(2)(g), cannot properly be asserted as a basis for denying access to communications between city officials and Ms. 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 Mr. 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 c: 562.805.5035 1: 212.475.8944 runninscared.com twitter.com/villagevoiceRS

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Exhibit D

THE CITY OF NEW YORK

0FF!CE OF THE MAYOR NEW YORK, N.Y. 10007

January 26, 2011

CAROL ROBLES-ROMAN
DEPUTY MAYOR fOR LEGAL AFFAIRS COUNSEL TO THE MAYOR

Sergio Hernandez Reponer Village Voice PO Box 230381 New York, NY I 0023

Dear Mr. Hernandez:

I am writing in response to your appeal of the Freedom of lnforn1ation Law

request denial sent to you by Anthony Crowell, the Mayor's Office Records Access Officer, concerning emails sent between Cathleen Black or e-mail addresses containing the domain hearst.com and staff within the Mayor's Office. After reviewing all documents responsive to your request, I have determined that Mr. Crowell properly withheld these documents. The withheld documents are exempt from disclosure under FOIL's provisions governing inter-agency or intra-agency communications (Public Officers Law 87(2)(g)), or communications that, if disclosed, would result in an unwarranted invasion of personal privacy (Public Officers Law 87(2)(b)). This constitutes a final determination. If you wish to appeal this determination, please be advised you may do so via CPLR Article 78 in a court of competent jurisdiction.

Sincerely,

(dk,l(~
Carol Robles-Roman