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,
Petitioner,
v.
THE OFFICE OF THE MAYOR OF THE CITY OF NEW YORK,
INDEX NUMBER: 106213/2011
lAS Part 16 (Schlesinger, J.)
Res o n d e n ~
REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PETITION
FOR A JUDGMENT DIRECTING PRODUCTION OF
RECORDS UNDER FREEDOM OF INFORMATION LAW
SCHLAM STONE & DOLAN LLP
Elizabeth Wolstein, Esq.
26 Broadway, 19th Floor
New York, New York 10004
Telephone: (212) 344-5400
Facsimile: (212) 344-7677
Attorney for Petitioner
Sergio Hernandez
TABLE OF CONTENTS
PRELIMINARY STATEMENT ..................................................................................................... 1
ARGUMENT .................................................................................................................................. 2
I. RESPONDENT CONCEDES THAT THE REQUESTED EMAILS ARE
NOT PROTECTED BY FOIL'S PERSONAL PRIVACY EXEMPTION ......................... 2
II. RESPONDENT OFFERS NO LEGITIMATE BASIS TO WITHHOLD
THE BLACK EMAILS UNDER THE INTER- AND INTRA-AGENCY
EXEMPTION AND THEY SHOULD BE PRODUCED ................................................... 4
A. Ms. Black And Her Hearst Colleagues Are Not Agencies Within The
Meaning Of FOIL And Therefore Are Not Subject To The Exemption ................. 4
B. The Black Emails Are Not Subject To Withholding As Material Prepared
By A Consultant Retained By An Agency .............................................................. 7
III. PETITIONER IS ENTITLED AN AWARD OF ATTORNEYS' FEES ............................ 9
CONCLUSION ............................................................................................................................. 12
TABLE OF AUTHORITIES
CASES
Burtis v. N.Y. Police Dep't,
240 A.D.2d 259 (1st Dep't 1997) ................................................................................ .3
Data Tree, LLC v. Romaine,
9 N.Y.3d 454 (2007) ..................................................................................................... 3
Dep 't of the Interior v. Klamath Water Users Protective Ass 'n,
532 U.S. I (2001) .............................................................................................. 8, 9, II
Gulf Ins. Co. v. Transatlantic Reinsurance Co.,
886 N.Y.S.2d 133 (1st Dep't 2009) .............................................................................. 5
Ho Myung Moo/san Co.,
665 F. Supp. 2d 239 (S.D.N.Y. 2009) .......................................................................... 5
Matter of Gould v. New York City Police Dep't,
89 N.Y.2d 267 (1996) ................................................................................................... 6
Matter of Humane Soc y of US. v. Brennan,
861 N.Y.S.2d 234 (3d Dep't 2003) .............................................................................. 3
Matter of New York Times Co. v. City of N.Y. Fire Dep't,
4 N.Y.3d 477 (2005) ..................................................................................................... 6
Matter of Xerox Corp. v. Town a/Webster,
65 N.Y.2d 131 (1985) ............................................................................................... 7, 8
Miller v. N.Y. State Dep 't of Trans.,
871 N.Y.S.2d 489 (3d Dep't 2009) ........................................................................ 6, II
N.Y. Comm . .for Occupational Safety and Health v. Bloomberg,
72 A.D.3d !53 (1st Dep't 2010) ................................................................................. ..4
Obiajulu v. City of Rochester,
213 A.D.2d 1055 (4th Dep't 1995) ............................................................................. .4
Powhida v City of Albany,
147 A.D.2d 236 (3d Dep't 1989) ................................................................................. 9
Tuck-It-Away Assoc., L.P. v. Empire State Dev. Corp.,
861 N.Y.S.2d 51 (!
51
Dep't 2008) ...................................................................... 6, 8, 12
Washington Post Co. v. New York State Ins. Dep 't,
61 N.Y.2d 557 (1984) ................................................................................................... 3
11
Woods v. Kings County Dis/. Atty 's Office,
234 A.D.2d 554 (2d Dep't 1996) ................................................................................ .4
STATUTES
N.Y. Pub. Off. Law
86(3) .......................................................................................................................... 5, 11
87(2)(b ) ............................................................................................................................ 2
87(2)(g) .......................................................................................................................... 10
89(2)(c)(i) ........................................................................................................................ 3
89(4)(c) ............................................................................................................................ 9
89(4)(c)(i) ........................................................................................................................ 8
OTHER AUTHORITIES
Restatement (Second) of Agency 1, crnt. b ( 1958) ............................................................... 5
Ill
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,
Petitioner,
v.
OFFICE OF THE MAYOR OF THE CITY OF
NEW YORK,
Respondent.
Index Number.: l 06213/20 ll
!AS Part 16 (Schlesinger, J.)
Petitioner Sergio Hernandez respectfully submits this reply memorandum oflaw in
fmiher support of his petition for a judgment directing production of records under the
Freedom of Information Law.
PRELIMINARY STATEMENT
In response to Mr. Hernandez's November 2010 FOIL request, the Mayor's Office
asserted two exemptions to justify its refusal to disclose em ails among the Mayor's Office,
Cathleen Black, and other Hearst Corporation employees relating to the Mayor's selection of
Ms. Black to be New York City Schools Chancellor- the personal privacy exemption and
the exemption for inter- and intra- agency documents reflecting the government's
deliberative process. In opposing Mr. Hernandez's petition in this Court, however, the
Mayor's Office has abandoned its privacy justification, declining to dispute Petitioner's
showing that FOIL's privacy exemption is inapplicable in these circumstances and thereby
confirming that the requested emails (apart fiom cell phone and personal email data
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contained within them) are not, and have never been, properly withheld under that
exemption,
The Mayor's Office's reliance on its sole remaining exemption is similarly
misguided. The Mayor's Office argues that the requested emails (the "Black Emails" or the
"Emails") are protected because Ms. Black was the Mayor's agent and therefore their email
correspondence constitute inter or intra-agency communications. FOIL, however, provides
its own clear definition of an "agency" as governmental entity, and private individuals like
Ms. Black are not included. Nor are the Emails protected as within the consultant corollary
to the inter- and intra-agency exemption, since Ms. Black was not retained by any agency to
participate in its deliberative process, and was advancing her own interest in promoting her
candidacy while engaging in the withheld communications.
Respondent has therefore failed to demonstrate any valid basis for withholding the
Black Emails, and they should be produced.
ARGUMENT
I. RESPONDENT CONCEDES THAT THE REQUESTED EMAILS ARE NOT
PROTECTED BY FOIL'S PERSONAL PRIVACY EXEMPTION
Despite having asserted FOIL's privacy exemption as a basis for withholding the
Black Emails, Respondent offers no argument defending its initial withholding of the Emails
on that basis. FOIL's privacy exemption protects records that "if disclosed would constitute
an unwarranted invasion of personal privacy." N.Y. Pub. Off. Law 87(2)(b). Petitioner's
opening brief showed that the Black Emails are not protected by the exemption because the
Mayor's Office failed to show that the requested emails contained "intimate, private
information," and because there is a strong public interest in disclosure of information about
governmental hiring practices. See Memorandum of Law in Support of Petition ("Pet. Br.")
at 7-11. By failing to dispute (or even address) this point, Respondent has conceded that the
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emails as a whole are not properly withheld under the personal privacy exemption, and,
necessarily, that its assertion of the privacy exemption as a basis for withholding the Emails
was entirely without merit.
Instead, Respondent asserts only that cell phone numbers and personal email
addresses contained in the Black Emails should be withheld under the privacy exemption.
Memorandum of Law in Support of Verified Answer ("Opp.") at I2-I4. Disclosure of
private telephone numbers may constitute an unwarranted invasion of privacy in some
circumstances. See, e.g., Burtis v. NY Police Dep't, 240 A.D. 2d 259,260 (1st Dep't
I 997). However, the proper method for protecting this information is not the wholesale
withholding of otherwise disclosable documents, but rather redaction of the private
information and production of the remainder of the document. See, e.g,. Washington Post
Co. v. New York State Ins. Dep't, 61 N.Y.2d 557, 567 (1984); (requiring agency to produce
documents with segregable exempt information redacted, unless agency can establish that
documents are exempt in their entirety); see also Data Tree, LLC v. Romaine, 9 N.Y.3d 454,
464 (2007) (citing N.Y. Pub. Off. Law 89(2)(c)(i)) (holding that "even when a document
subject to FOIL contains such private, protected information, agencies may be required to
prepare a redacted version with the exempt material removed"). Indeed, FOIL expressly
mandates such an approach, by dictating that "disclosure shall not be construed to constitute
an unwarranted invasion of personal privacy .. when identifying details are deleted." N.Y.
Pub. Off. Law 89(2)(c)(i).
Accordingly, courts routinely require redaction of email addresses and phone
numbers fiom documents that otherwise are not properly withheld, and order production of
the redacted version. See, e.g., Matter of Humane Soc 'y of U.S. v. Brennan, 53 A.D.3d 909,
91 I (3d Dep't 2008) (requiring production of responsive documents with telephone numbers
"
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redacted); Woods v. Kings County Dist. Atty's Office, 234 A.D.2d 554, 556 (2d Dep't 1996)
(same). Redaction is appropriately limited to "private, protected infmmation" that would
identify an individual. See, e.g, NY Committee for Occupational Safety and Health v.
Bloomberg, 72 A.DJd 153, 160 (1st Dep't 2009) (ordering New York City Mayor's Office
to produce redacted workers compensation records, which would "preserve the personal
privacy of any claimants who might be identified therein"); Obiajulu v. City of Rochester,
213 A.D.2d 1055, 1056 (4th Dep't 1995) (ordering disclosure of work performance
evaluations "with 'identifying details' redacted"). Here, then, while identifying phone
numbers and email addresses may be redacted from the Black Emails, Respondent has
offered no privacy-related justification for withholding the emails as a whole, and the
remaining portions of each doctm1ent should therefore be produced.
II. RESPONDENT OFFERS NO LEGITIMATE BASIS TO WITHHOLD THE
BLACK EMAILS UNDER THE INTER- AND INTRA-AGENCY
EXEMPTION AND THEY SHOULD BE PRODUCED
A. Ms. Black And Her Hearst Colleagues Are Not Agencies Within The
Meaning Of FOIL And Therefore Are Not Subject To The Exemption
The Mayor's Office argues that Ms. Black was a common law agent of the Mayor
once the Mayor selected her to become Chancellor, and therefore that the inter- and intra-
agency FOIL exemption applies to her communications. See Opp. at 7 ("[I]t is clear that
Ms. Black was acting as Respondent's agent. ... Thus, the responsive documents ... are
intra-agency documents and may be withheld from disclosure."). The argument is utterly
devoid of merit and indeed borders on the frivolous.
As an initial matter, the suggestion that a mayoral nominee is an agent of the Mayor
before she takes office is tmpersuasive, because she is not bound to act on his behalf and he
has no basis to exert control over her. Common law agency exists where there has been a
"manifestation of consent by one person to another that the other shall act on his behalf and
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subject to his control," as well as "the consent of the other to act." Gulf Ins. Co. v.
Transatlantic Reinsurance Co., 886 N.Y.S.2d 133, 152 (1st Dep't 2009) (citation omitted);
see also Restatement (Second) of Agency 1, cmt. b (1958). As the Mayor's Office points
out, the principal's control over the agent is essential, and is established where "the principal
prescribes what the agent shall or shall not do before the agent acts, or at the time the agent
acts, or both." Ho Myung Moo/san Co., 665 F. Supp. 2d 239,258 (S.D.N.Y. 2009) (internal
quotation marks and citation omitted).
But the Mayor's Office nowhere asserts that Ms. Black was controlled by the Mayor.
Rather, she acted on "Respondent's advice and guidance." Opp. at 7 (citing Verified
Answer 36); see also id. (describing Ms. Black as "having acted under
Respondent's guidance"). Thus, by Respondent's own admission, Ms. Black's actions were
not prescribed by the Mayor's Office as an agent's would be, but rather were suggested as
way to advance their mutual interests. See Opp. at 6 ("Ms. Black indisputably shared"
Mayor's interest in addressing public concerns about her nomination, and "she acted in
furtherance and support of this goal"). Respondent's papers therefore fall short of providing
a factual basis to support its argument that Ms. Black and other Hearst Corporation
employees were Respondent's common law agents during the period covered by the Em ails.
But even assuming that Ms. Black and the Hearst Corporation staff were
Respondent's common law agents, that does not make them "agencies" within the meaning
of FOIL. The statute provides an unambiguous definition of"agency." An '"[a]gency'
means any state or municipal department, bureau, division, commission, committee, public
authority, public corporation, cotmcil, office, or other governmental agency performing a
governmental or proprietary function for the state or any one or more municipalities thereof,
except the judiciary or the state legislature." N.Y. Pub. Off. Law 86(3).
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The definition could not be clearer: an agency is (i) an "entity," and (ii)
"goverm11ental." It does not encompass (i) individuals, or (ii) private (non-governmental)
actors. Ms. Black, however, during the period of the Emails, was both an individual (not an
entity), and a private citizen (not a governmental actor). Respondent's argument that Ms.
Black's status as a common law agent makes her an agency whose communications are
immune from disclosure under the inter- and intra-agency exemption is at odds with the
plain language of the statute.
Respondent's argument is also inconsistent with the rationale behind the inter- and
intra-agency exemption. The exemption exists to allow uninhibited decisionmaking within
government by permitting "people within an agency to exchange opinions, advice and
criticism freely and frankly, without the chilling prospect of public disclosure." Matter of
New York Times Co. v. City of N. Y Fire Dep 't, 4 N.Y.3d 477, 488 (2005); see also Matter of
Gould v. New York City Police Dep 't, 89 N.Y.2d 267, 276 (1996); Tuck-It-Away Assoc., L.P.
v. Empire State Dev. Corp., 54 A.D. 3d 154, 166 (lst Dep't 2008). It is therefore recognized
that records "which consist of communications with people outside the agency" are not part
of the government's deliberative process, and their disclosure will not inhibit
decisionmaking within the government. See Miller v. N. Y State Dep 'I of Trans., 58 A.D. 3d
981, 984-85 (3d Dep't 2009).
Ms. Black and her Hearst colleagues were not making governmental decisions
during the period covered by the Emails, while her appointment was pending. She was a
private citizen waiting for the government to make a decision about her- whether she would
be excused fiom the normal eligibility requirements for the Chancellor position. See
generally n s w e r ~ ~ 30-37. The Emails do not relate to the State Education Department's
deliberative process in deciding whether to grant Ms. Black the requested waiver, but rather
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to preparation of the request for a waiver, "routine queries" relating to mayoral appointees,
and community outreach "to address concerns that had been publicly raised regarding Ms.
Black." A n s w e r ~ 33; see also id. ~ 34 (withheld emails discuss Ms. Black's background,
contacts with govemment officials, and drafts of letter to State Education Commissioner
requesting waiver from Chancellor qualification requirements). There is no reasonable
argument that keeping such communications secret would serve the purpose of the inter- and
intra-agency communications exemption.
B. The Black Emails Are Not Suh.iect To Withholding As Material
Prepared By A Consultant Retained By An Agency
Respondent also falls short in arguing that the Black Emails are intra-agency
communications because "Ms. Black's function ... was similar to that of a consultant."
Opp. at 10.) While "records may be considered 'intra-agency material' even though
prepared by an outside consultant at the behest of an agency," Matter of Xerox Corp. v.
Town of Webster, 65 N.Y.2d 131,133 (1985), Ms. Black's purpmied similarity to a
consultant is not enough to invoke this doctrine. Protected consultant communications are
only those that are prepared by individuals "retained by the agency" to assist in a
deliberative process and that serve essentially the same purpose as documents prepared by
agency employees, id., requirements that clearly are not met here.
Consultant communications are protected if they originate with consultants who are
retained by the agency in order to assist in the agency's deliberative process. Xerox Corp.,
65 N.Y.2d at 133 (holding that communications are protected when, inter alia, they are
prepared as part of an agency's deliberative process by "outside consultants retained by
agencies"). Ms. Black and other Hearst employees did not fulfill this role. Respondent
makes no suggestion that Ms. Black or other Hearst employees were hired or contracted
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with the City, and thus they cannot fairly be considered "outside consultants retained by the
agency," Xerox Corp., 65 N.Y.2d at 133.
In addition, Respondent's papers do not identify any "deliberative process" that Ms.
Black and other Hearst employees participated in that is reflected in the withheld emails.
The only "process" described in Respondent's papers as being reflected in the Emails was
the advocacy and outreach on behalf of her candidacy, which was not deliberative or indeed
connected to any decision involving Respondent addressed in the Emails. This alone dooms
the applicability of the consultant exemption because "[w] here the exemption has been
extended to consultants performing work on behalf of an agency, 'the records submitted by
outside consultants played essentially the same part in an agency's process of deliberation as
documents prepared by agency personnel might have done."' Tuck-It-Away Assoc., 54 A.D.
3d at 163 (quoting Dep 't of the Interior v. Klamath Water Users Protective Ass 'n, 532 U.S.
I, 10 (2001)). Accordingly, the Black Emails are not consultant communications exempt
from disclosure under the inter- and intra-agency exemption.
Finally, the Emails are also not exempt for the independent reason that Ms. Black
was communicating with the City in her own interest. Consultant communications "lose
their exemption if there is reason to believe that the consultant is communicating with the
agency in its own interest." Tuck-It-Away, 861 N.Y.S.2d at 58. In Klamath, the United
States Supreme Court clarified that an analogous doctrine under the federal Freedom of
Infonnation Act (FOIA) renders unprotected consultants' self-advocacy- a case the First
Department described as "instructive," Tuck-It-Away, 54 A.D.3d at 164. In Klamath, the
Department of the Interior asked several Native American tribes to consult the Department
concerning the allocation of water between competing uses and users. I d. at 1. The tribes,
which all had interests in the water allocations, see id. at 13, provided the Department with
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advisory memoranda. ld. at 1-2. When a nonprofit group filed a FOIA request for these
memoranda, the Department withheld them under FOIA's analogous inter- and intra-agency
exemption. Klamath, 532 U.S. at 2 The Court held that the exemption was not properly
invoked because the tribes, in their communications with the government, were acting as
"self-advocates at the expense of others seeking benefits inadequate to satisfy everyone."
Klamath, 532 U.S. at 12.
Respondent's submissions make clear that Ms. Black was likewise acting in her own
self-interest as a "self-advocate" in her communications with the Mayor's Office. See Opp.
at 6 (noting shared interest between Mayor and Ms. Black in addressing public concerns);
Answer '1[ 36 (withheld emails show Ms. Black and her staff were working with Mayor in
pursuit of common goal). This is also a matter of common sense, as Ms. Black's principal
interest in helping the Mayor with his "public outreach" and advocacy to the State Education
Commissioner was her self-interest in obtaining the Chancellor position. FOIL's inter- and
intra-agency communications exemption, however, does not protect from disclosure
communications relating to the self-advocacy of non-governmental employees.
In short; none of Respondent's inter- and intra agency theories justifies withholding
of the Black Emails, and the Court should order that they be produced.
III. PETITIONER IS ENTITLED AN AWARD OF ATTORNEYS' FEES
As the Mayor's Office notes, a FOIL petitioner may recover attorneys' fees if he
"substantially prevails" in the litigation. N.Y. Public Off Law 89( 4 )(c). A Petitioner
substantially prevails when "the agency has no reasonable basis for denying access" to the
requested documents. N.Y. Public Off. Law 89(4)(c)(i); see also Powhida v City of
Albany, 147 A.D.2d 236, 238 (3d Dep't 1989). Respondent's opposition papers make
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apparent that it had no reasonable basis for withholding the requested e-mails, and,
accordingly, Mr. Hernandez is entitled to an award of attorney's fees and costs.
Petitioner demonstrated in his opening brief that communications between Ms. Black
and the Mayor's Office are not properly withheld under FOIL's privacy exemption. See
Petit. Br. at 7-11. Even though this exemption was invoked by the Mayor's Office to justify
withholding the Black Emails in response to Mr. Hernandez's November 2010 request, the
Mayor's Office makes no opposing argument. Rather, its only contention concerning the
privacy exemption is that the cell phone nwnbers and e-mail addresses contained within the
emails should be withheld. See Opp. at 13. But the phone numbers and e-mail addresses are
not the subject of the Petitioner's FOIL request, and if their disclosure constitutes an
unwarranted invasion of privacy, the proper approach under FOIL is simply to redact them
from the produced documents. By abandoning its privacy justification and failing to dispute
Petitioner's showing that the Emails are not properly withheld under the privacy exemption,
Respondent has conceded that it had, and has, no reasonable basis for withholding them
under that exemption.
The Mayor's Office also has failed to demonstrate a reasonable basis for withholding
the requested emails under FOIL's inter- and intra-agency exemption. The Mayor's Office
argues that Ms. Black was the Mayor's common law agent, and that any communications
are therefore properly withheld under the intra- and interagency exemption. See N.Y. Pub.
Off. Law 87(2)(g). Respondent admits, however, that Ms. Black's actions were not
prescribed by the Mayor's Office, but merely guided by it. See supra at 5. Concededly,
then, before she was appointed Schools Chancellor, the Mayor exercised no control over
Ms. Black and she was under no duty to carry out his or his Office's suggestions. She
therefore fails to qualify as the Mayor's Office's common law agent.
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- 10-
Moreover, even if she could be deemed the Mayor's common law agent before she
was appointed to tl1e Chancellor position, that does not make her an "agency" for purposes
of the inter and intra-agency exemption. FOIL specifically defines an agency as "any state
or municipal department, bureau ... or other governmental entity performing a governmental
or proprietary function for the state or any one or more municipalities thereof. .. " N.Y. Pub.
Off. Law 86(3). Ms. Black, an individual who was privately employed during the period
of Petitioner's FOIL request, is not a "goverm11ental entity" performing a governmental
function, and is therefore not an agency within the meaning of FOIL. There is no
conceivable argument that Ms. Black meets the statutory definition, or that the statutory
definition is optional in FOIL litigation. The Mayor's Office therefore had no reasonable
basis for withholding the Black Emails under the inter- and intra-agency exemption. Its
effort to justify invocation of the exemption based on Ms. Black's similarity to a consultant
is similarly misplaced for the reasons explained in detail above, see supra at 7-9.
As if to justify its withholding of materials that plainly require disclosure,
Respondent attempts to depict this case as presenting an issue of first impression. The
argument lacks merit. The Black Emails date to the period after Ms. Black was nominated
for the Chancellor position but before she received the appointment, i.e., while she was a
private citizen. The facts, therefore, merely present the issue of whether communications
between a government agency and a person outside that agency fall within the intra- and
interagency exemption, which they plainly do not. Far from a case of first impression, this
is simply an example of the Mayor's Office attempting to withhold a category of
communications that by any measure is not exempt from disclosure under FOIL. See
Klamath, 532 U.S. at 10 (2001); Miller 58 A.D.3d 984-5 (communications with individuals
outside Department of Transportation not subject to intra- and inter agency exemption);
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Tuck-it Away, 861 N.Y.S.2d at 58 (communications between department and consultant
were not exempt from disclosure because consultant was an interested party); supra at 7-9.
CONCLUSION
For the foregoing reasons, and those set forth in Petitioner's opening memorandum
of law, this Court should grant Mr. Hernandez's Petition and enter judgment declaring that
Respondent has acted unlawfully, and enjoining Respondent to: (I) immediately produce all
documents responsive to Mr. Hernandez's FOIL request, and (2) provide a specific and
particularized justification for withholding each document, portion of a document, or
category of documents claimed to be exempt from disclosure; and awarding Mr. Hernandez
his litigation costs, including attorneys' fees, together with such other and further relief as is
just and proper under the circumstances.
Dated: New York, New York
August 16, 2011
By:
Eliz eth Wolstein
26 Broadway, 19th Floor
New York, New York I 0004
Telephone: (212) 344-5400
Facsimile: (212) 344-7677
E-Mail: ewolstein@schlamstone.com
Attorneys for Petitioner
1
This reply brief was prepared in large part by Jennifer Bishop, Jeffrey Love, and
Monika Isia Jsiewicz, law students in the Yale Law School Media Freedom and Information
Access Clinic.
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