RauhGonenFiling 11 23

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

In the Matter of
VERIF'IED ANSWER
GRACE RAUH, TWC NEWS AND LOCAL

PROGRAMMING LLC, YOAV GONEN and NYP
HOLDINGS, INC.,
Petitioners-Pl aintiffs,
Index No. 157525/2016
Motion Seq. No. I

I.A.S. Part 6 (Lobis, J.)
-against-
BILL DE BLASIO, in his official capacity as Mayor of the

City of New York; and the OFFICE OF THE MAYOR OF
THE CITY OF NEW YORK,
Respondents-Defendants
Respondents-Defendants,
Bill de Blasio in his. official capacity
as Mayor of the
City of New York and the Office of the Mayor of the City of New York ("Respondents"), by
their attorney, Zachary V/. Carter, Corporation Counsel of the City of New York, as and for their
Verified Answer to the Verified Petition, dated September 7,2016, respectfully allege
as
follows:
1.
Paragraph
"1" of the Verified Petition is a description of the proceeding that
requires no response. To the extent a response is required, admit that the Petition purports to
proceed as set forth therein and that
2.
Bill
de Blasio is the Mayor of the City of New York.
Deny the allegations set forth in paragraph "2" ofthe Verified Petition, except
admit that Petitioners have served Freedom
of
Information Law ("FOIL") requests upon
Respondents seeking certain comr.nunications between Mayor de Blasio, members of Mayor de
Blasio's staff and Jonathan Rosen, and that Respondents responded to the FOIL requests by
producing many records to Petitioners and by withholding other records based upon the assertion
of
exemptions
to production under FOIL.
Respondents deny that the assertion
of
exemptions violates FOIL and respectfully refer the Court to the FOIL requests and
these
to
the
Respondents' Determinations in response to the FOIL requests for a complete and accurate
statement of their contents.
3.
Paragraph
o'3" of the Verified Petition is a description of the relief Petitioner
seeks which requires no response. To the extent a response is required, deny the allegations set
forth in paragraph "3" of the Verified Petition, deny that the relief that Petitioners seek should be
granted, and deny that Petitioners have exhausted their administrative remedies as to portions of
their FOIL requests.
4.
Deny knowledge or information sufficient to forrn a belief as to the truth of
the allegations set forth in paragraph "4" of the Verified Petition, except admit, upon information
and belief, that
NYl
broadcasts from 75 Ninth Avenue, New York,
NY 10011 and that Grace
Rauh is a political reporter who has reported on New York politics and New York's City Hall.
5.
Deny knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph "5" of the Verified Petition.
6.
Deny knowledge or information sufficient to form a belief as to the truth of
the allegations set tbfth in paragraph "6" of the Verified Petition, except admit, upon information
and belief, that NYP Holdings, Inc. is related to the New York Post, which has a broad
circulation and claims to be the oldest, continuously published daily newspapers in the United
States, having first been published by Alexander Hamilton.
7.
Deny knowledgei or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph
"'7" ofthe Verified Petition, except admit that Yoav Gonen
/,
is a reporter who has reported for the New York Post concerning City Hall and the Mayor's
Office.
8.
Admit the allegations in paragraph "8" of the Verified Petition.
9.
Paragraph
"9" of the Verified Petition is a legal contention which requires
no
response. To the extent a response is required, admit the allegations set forth in paragraph "9" of
the Verified Petition.
10. Paragraph
"10" of the Verified Petition is a legal contention which requires no
response. To the extent a response is required, adr.nit the allegations set forth in paragraph "10"
of the Verified Petition.

11. Paragraph
"ll"
of the Verified Petition is a legal contention which requires no
response. To the extent a response is required, deny the allegations set forth in paragraph
of the Verified Petition, in that the Court lacks subject matter jurisdiction over
"ll"
Respondents'
assertion of the unwarranted invasion of personal privacy exemption and the records withheld
pursuant thereto.
12.Paragraph"lT" of the Verified Petition is a legal contention which requires no

response. To the extent a response is required, deny the allegations set forth
in
patagtaph
"l2"
of the Verified Petition.

13.
Admit the allegations set forth in the first sentence of paragraph
"I3" of the
Verified Petition that Ms. Rauh submitted a FOIL request on or about February 18,2015 seeking
correspondence and respectfully refer the Court to the February 18,2015 FOIL request for a
complete and accurate statement of its contents. (A copy of Petitioner Rauh's February 18, 2015
FOIL request is annexed hereto as Exhibit "1.") Deny the allegations set forth in the second
sentence
of paragraph "13" of the Verified Petition, and respectfully refer the Court to the
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February 18, 2015 FOIL request for a complete and accurate statement of its contents. Admit
that Exhibit
A to the Verified Petition is a true and correct copy of the August 7, 2015 FOIL
Determination of Kiren Gopal, Records Access Officer, responding to the February 18, 2015
FOIL Request and that the Office of the Mayor assigned the February 18, 2015 FOIL Request ID
# 2015-0052. (A copy of the August 7,2015 FOIL Determination is annexed hereto
as
Exhibit
,rzrt..)
14.
Deny the allegations set forth in paragraph "L4" of the Verified Petition,
except admit that Exhibit A to the Verified Petition is a true and correct copy of the August 7,
2015 FOIL Determination of Kiren Gopal, Records Access Officer, responding to the February
18,2015 FOIL Request, and respectfully refer the Court to the August 7,2015 FOIL
Determination for a complete and accurate statement of its contents. (Exhibit
"2"
annexed
hereto.)
15.
Deny the allegations set forth in paragraph "15" of the Verified Petition,
except admit that on
April l, 2016
the Records Access Officer sent Ms. Rauh a second FOIL
Determination concerning her February 18, 2015 FOIL Request, admit that Exhibit B to the
Verified Petition is a true and correct copy of the May L3,20L6 FOIL Appeal Determination by
Henry Berger, Records Appeals Officer, and respectfully refer the Court to the April 1, 2016
FOIL Determination for a complete and accurate statement of its contents. (A copy of the April
I,2016 FOIL Determination is annexed hereto as Exhibit "3".)
16.
except admit that on or about Aprll29,2016, Petitioner Rauh appealed the April 1, 2016 FOIL
Determination and respectfully refer the Court to Ms. Rauh's April 29, 2O16 appeal for
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complete and accurate statement of its contents. (A copy of Petitioner Rauh's April 29,201,6
FOIL appeal is annexed hereto as Exhibit "4.")

17.
except admit that on May 13, 20I6,Mr. Berger, the Records Appeals Officer, rendered a FOIL
Appeal Determination on Ms. Rauh's April29,2016 appeal and respectflly refer the Court to
the May 13,2016 FOIL Appeal Determination for a complete and accurate statement of its
contents. (A copy of the May 13, 2016 FOIL Appeal Determination is annexed here as Exhibit
rr5.t')
18. Deny the allegations set forth
in paragraph "18" of the Verified Petition, and
respectfully refer the Court to the May 13, 2016 FOIL Appeal Determination for a complete and
accurate statement of its contents. (Exhibit'05" annexed hereto.)
. Admit the allegations set forth in paragraph'!19"
of the Verified Petition, and
respectfully refer the Court to the May 13, 2016 FOIL Appeal Determination for a complete and
accurate statement of its contents.
20. Admit the allegations set forth in paragraph
21.
"20" ofthe Verified Petition.
except admit that on or about May 19, 2016, Mr. Kadushin, the Communications Advisor to the
Mayor's Office, responded to Petitioner Rauh's query, and admit that Exhibit C to the Verified
Petition is a true and correct copy of Mr. Kadushin's May 19, 2016 email to Ms. Rauh, and
respectfully refer the Court to this May 19, 2016 emailfor a complete and accurate statement of
its contents.
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22. Deny the allegations set forth in paragraph "22" of the Verified Petition, and
respectfully refer the Court to Mr. Kadushin's May 19, 2016 emall for a complete and accurate
statement of its contents.
Z3.Deny the allegations set forth in paragraph "23" of the Verified Petition,
except admit that on or about April 3, 20L5, Petitioner Gonen submitted a FOIL request, and
respectfully refer the Court to Mr. Gonen's April 3, 2015 FOIL request for a complete and
accurate statement of its contents. (A copy of the April 3,2015 FOIL request is annexed hereto
as
Exhibit "6.")
24.Deny the allegations set forth in paragraph "24" of the Verified Petition, and
respectfully refer the Court to Petitioner Gonen's April 3, 2015 FOIL request for a complete and
accurate statement of its contents.
25.Deny the allegations set forth in paragraph "25" of the Verified Petition,
except admit that on or about April 3, 20L5, the Office of the Mayor sent Petitioner Gonen an
email acknowledging receipt of his FOIL request, adrnit that Exhibit E to the Verified Petition is
a true and correct copy
of the April
3,Illsemail
sent to Mr. Gonen, admit that the Office of the
Mayor assigned Mr. Gonen's FOIL request ID # 2015-0110, and respectfully refer the Court to
the April 3,2015 email for a complete and accurate statement of its contents. (A copy of the
April 3, 2015 acknowledgment email is annexed
hereto as Exhibit
"7.")
26.Deny the allegations set forth in paragraph "26" of the Verified Petition that
the August 7, 2015 FOIL Determination was a "preliminary response," and affirmatively state
that although the Determination indicated that a search for additional records would
conducted,
it
be
was a final determination which stated that Mr. Gonen had 30 days to appeal the
Determination and admit that Exhibit F to the Verified Petition is a true and correct copy of the
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August 7, 2015 FOIL Determination by the Records Access Officer to Mr. Gonen's April 3,
2015 FOIL request and respectfully refer the Court to the August 7,2015 FOIL Determination
for a complete and accurate statement of its contents. (A copy of the August 7, 2Ol5 FOIL
Determination is annexed hereto as Exhibit "8.")
27. Admit the allegations
set
forth in paragraph "27" of the Verified Petition, and
affirmatively state that the Gonen FOIL request was also broader than the Rauh FOIL request in
that Petitioner Gonen sought records generated over a somewhat longer period of time than did
Petitioner Rauh and, in addition, Petitioner Gonen sought communications with all Mayor's
Office employees whereas Petitioner Rauh sought communications with a number of named
high-level employees of the Mayor's Office.
28. Deny the allegations set forth in paragraph
"28" ofthe Verified Petition,
and
respectfully refer the Court to the August 7, 2015 FOIL Determination for a complete and
accurate statement of its contents. (A copy is annexed hereto as Exhibit "8.")
29. Admit the allegations in the first sentence of .paragraph "29" of the Verified
Petition and affirmatively state that additional records were produced to Mr. Gonen on June
10,
2016. Deny knowledge or information sufficient to form a belief as to the truth of the allegations
in the second sentence of paragraph"2g" of the Verified Petition, except admit that Exhibit G to
the Verified Petition is a true and correct copy of Petitioner Gonen's May 22,2016 appeal and
respectfully refer the Court to Mr. Gonen's Mray 22,20L6 appeal for a complete and accurate
statement of its contents. (A copy of Petitioner Gonen's May 22,2016 appeal is annexed hereto
as
Exhibit "9.")
in paragraph "30" of the Verified
Petition,
except admit that Exhibit H to the Verified Petition is a true and correct copy of the June 7 ,2016
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FOIL Appeal Determination by Henry Berger, the Records Appeals Officer, of Mr. Gonen's
i|.4ay 22, 2O16 appeal, and respectfully refer the Court
to the June 7, 2016 FOIL Appeal
Determination for a complete and accurate statement of its contents. (A copy of the JtneT ,2016
FOIL Appeal Determination is annexed hereto as Exhibit "l0.")
31.Deny the allegations set forth in paragraph "31" of the Verified Petition,
except admit that Exhibit I to the Verified Petition is a true and correct copy of the June 10,2016
FOIL Determination by Kiren Gopal, the Records Access Officer, in response to Mr. Gonen's
April 3, 2015 FOIL Request, and respectfully refer the Court to the June 10, 2016 FOIL
Determination for a complete and accurate statement of its contents. (A copy of the June 10,
2016 FOIL Determination is annexed hereto as Exhibit "11.")
32.Deny the allegations set forth in paragraph "32" of the Verified Petition, and
respectfully refer the Court to the June 10,2016 FOIL Determination for a complete and accurate
statement of its contents.
in paragraph "33" of the Verified Petition,
except admit that Exhibit J to the Verified Petition is a true and correct copy of Mr. Gonen's
June 16, 2016 appeal to the FOIL Appeal Officer, and respectfully refer the Court to Mr.
Gonen's June 16, 2016 appealto the FOIL Appeal Officer for a complete and accurate statement
of its contents. (A copy of Petitioner Gonen's June 16, 2016 FOIL appeal is annexed hereto
as
Exhibit "12.")
in paragraph "34" of the Verified' Petition,
except admit that Exhibit K to the Verified Petition is a true and correct copy of the June 30,
2016 FOIL Appeal Determination by the Records Appeals Officer of Mr. Gonen's appeal, and
respectfully refer the Court to the June 30, 2016 FOIL Appeal Determination for a complete and
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accurate statement of its contents. (A copy of the June 30, 2016 FOIL Appeal Determination is
annexed hereto as Exhibit
"13.")
35. Deny the allegations set forth in paragraph "35" of the Verified Petition, and
respectfully refer the Court to the June 30, 2016 FOIL Appeal Determination for a complete and
acurate statement of its contents.
in paragraph "36" of the Verified Petition,
except admit that Mr. Rosen represents clients with business before various agencies of the City
of New York.
37.In response to paragraph':37" of the Verified Petition, Respondents repeat and

reallege their responses to paragraphs
through 36 of the Verified Petition as
if fully set forth
herein.
38. Paragraph "38" of the Verified Petition is a legal contention which.requires no
response.
39.Paragraph"39" of the Verified Petition is a legal contention which requires no

response.
40.Paragraph"40" of the Verified Petition is a legal contention which requires no

response. To the extent a response is required, Respondents deny the allegations set forth in
paragraph "40" of the Verified Petition.
4I.Pangraph"4l" of the Verified Petition is a legal contention which requires no

response. To the extent a response is required, Respondents deny the allegations set forth in
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42. Paragraph "42" of the Verified Petition is a legal contention which requires no
Tesponse. To the extent a response is required, Respondents deny the allegations set forth in
43. Paragraph "43" of the Verified Petition is a legal contention which requires no
response. To the extent a response is required, Respondents deny that Petitioners have exhausted
their administrative remedies as to the assertion of the unwarranted invasion of personal privacy
exemption.
44. Admit the allegations set forth in paragraph "44" of the Verified Petition.
AS AND FOR A STATEMENT OF

PERTINENT AND MATERIAL FACTS,
RESPONDENTS RESPECTFULLY ALLEGE:
45.It is a longstanding and widely-accepted practice for elected officials
to
periodically consult with private individuals and firms on matters within those individual's and
firm's experience, expertise
and knowledge. These consultants are not necessarily compensated
by the government, and may include predecessors to the elected officials, trusted campaign
advisors, relatives and personal friends. They serve as confidants and special advisors, and are
called upon to render confidential advice and guidance as needed, at the behest of the official.
This practice advances the deliberative process, by better informing public officials
and
allowing them to make more considred decisions.

46. While the emails sought in this case are those between (i) Jonathan Rosen and
BerlinRosen and (ii) the Mayor and the staff of the Office of the Mayor, other consultants to the
Mayoralty are also included on some of these emails.
47. During his campaign for Mayor,
Bill de Blasio consulted with certain private
firms and individuals regarding various political matters, tapping into their knowledge
and
experience to seek their guidance and advice on matters of public concem. These firms and
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individuals included Jonathan Rosen of BerlinRosen, John Del Cecato of AKPD Message and
Media, LLC ("AKPD"), and
Bill
Hyers and Nick Baldick of Hilltop Public Solutions, LLC
("Hilltop"). Each of these public relations firms had proven
success
working for Democratic
Party candidates, and Bilt de Blasio's campaign retained their services
for the 2013 mayoral
election.
48.
In
addition, during his mayoral campaign,
Bill de Blasio
consulted with
Patrick Gaspard, who has been a close personal friend and confidant since their joint service in
Mayor Dinkins' administration. Patrick Gaspard long ago left City service. Throughou
2013
and continuing to the present, he has been a fulltime employee of the federal government; in
October 2OL3 he was named Ambassador to South Africa and he continues to serve in that
position.
49. Patrick Gaspard did not receive any payment for the advice that he provided
to Bill de Blasio during the campaign; Patrick Gaspard advised Bill de Blasio in his capacity as a
close personal friend.
50. These relationships continued after
Bill de Blasio was inaugurated
as Mayor.
Indeed, Mayor de Blasio and his staff continued to confer and consult with Patrick Gaspard on
various matters of policy. Patrick Gaspard provided his advice based solely on his long-standing
friendship with the Mayor. Ambassador Gaspard has not been compensated for the advice that
he provided to the Mayor and his staff.
51. The three public relations firms retained during the campaign also continued
their consultancy relationships after Mayor de Blasio's inauguration. In December 2013 the
Mayor-elect supported the formation of a not-for-profit coqporation, the Campaign for One New
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York ("CONY"), to advance the Mayor's policy agenda. CONY could raise funds to, among
other things, retain the services of public relations firms to advance the Mayor's policy agenda.
52. CONY was established on or about December 12,2013. (A copy of the New
York Secretary of State's receipt for filing of CONY's Certificate of Incoqporation,
dated
l,
2014
December 12, 20L3 is annexed hereto as Exhibit "14.") Shortly after the January
inauguration of Mayor de Blasio, CONY retained BerlinRosen, AKPD and
Hilltop.
Each of
these firms was retained by and paid by CONY to provide services that would further the
Mayor's policy agency through assistance provided to the Mayor and the Mayor's staff.
53. On or about January 8,2014, CONY also retained Joshua Gold, a lawyer with
extensive experience in operating political campaigns, to conduct a public relations campaign to
advance UPKNYC, which stands
for
Universal Pre-Kindergarten New York
City.
The
establishment of universal pre-kindergarten in the City was one of Mayor de Blasio's key policy
objectives.
54. Communications between these advisors and employees in their firms, with
the Mayor's staff and the Mayor, was frequently via email. These emails often solicited advice
by the Mayor's staff, and included the exchange of confidential advice, recommendations and
opinions about various matters of concern to the Mayor and his staff.
55. As set forth
in an Opinion by the City of New York Conflicts of
Interest
Board ("COIB"), dated June 10, 2015, CONY was established to further the Mayor's agenda and
is a 'o'partner' of the Office of the Mayor." (A copy of the COIB Opinion is annexed hereto
Exhibit
"15.")
as
This COIB Opinion was rendered in response to a request made to COIB which
sought a waiver from the rule barring former City employees from appearing before their former
City office for one
year.
The request was made on behalf of two former employees of the
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Mayor's Office who wanted to become fulltime employees of CONY. COIB granted the waiver,
concluding that "CONY is a not-for-profit organization bringing private resources to bear in an
effort, coordinated with the Office of the Mayor, to support and advance Mayor de Blasio's
policy agenda and is therefore a not-for-profit 'partner' of the Office of the Mayor
..."
(Exhibit
"15" annexed hereto.)

56. Petitioners further assert that Jonathan Rosen and BerlinRosen have other
clients with business before various City agencies and that this creates actual or potential
conflicts of interest with the interests of the City and the Mayor.
57. Respondents have produced
all
responsive email communications with
Jonathan Rosen and BerlinRosen which involve any other client of Berlin Rosen.
58. The only records that have been withheld pursuant to the inter-/intra-agency
exemption are deliberative email communications
in which Jonathan Rosen or
employees are consulting with the Mayor's staff or the Mayor on issues
Berli.nRosen
of public policy in
furtherance of the Mayor's policy agenda. Jonathan Rosen and BerlinRosen have been retained
and paid by CONY to provide these consultative services to the Mayor and his staff.
59. As
for the other consultants who are participants on some of the withheld
email communications, two have no clients who conduct any business before any City agency.
60. Ambassador Patrick Gaspard does not have any such clients, and as stated
above, he has not been compensated for the advice he has have provided in his capacity as a
close personal friend of the Mayor.
61. AKDP
is a public relations firm that is based in Chicago. We have been
informed that AKDP does not have any clients that conduct any business before City agencies.
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62. Josh Gold is an independent contractor retained by CONY. We are informed
that Mr. Gold has one client, the New York Hotel Trades Council, which may conduct business
before City agencies. However, none of the responsive emails contain any subject related to the
New York Hotel Trades Council or hotels or the hotel industry.

63. Finally, we have been informed that Hilltop, and its principals,
Bill Hyers and
Nick Baldick, have some clients that conduct business before various City agencies. However,
the only responsive email communications which include either of these principals or any Hilltop
employees that Respondents have withheld, are deliberative communications
in which
these
Hilltop principals and/or employees are consulting with the Mayor and his staff on issues of
public policy in furtherance of the Mayor's policy agenda. Hilltop has been retained and paid by
CONY to provide such consulting services to the Mayor and his
staff
These deliberative emails
emails concerning the Mayor's policy agenda are within the inter-/intra-agency exemption.
and The
64. The procedural background giving rise
to this
proceeding/action
is
not
disputed. By email dated February L8, 2015, Petitioner Rauh submitted a FOIL request to
Respondents seeking communications durin g 20L4 between Mayor de Blasio and certain
identified senior members of his staff with Jonathan Rosen. (Exhibit "1" annexed hereto.)
65. By FOIL Determination dated August 7,2015, Respondents' Records Access
Officer provided some responsive records but withheld disclosure of others pursuant to Public
Officers Law g$ 87(2Xb) and (g), the exemptions from disclosure based on "unwarranted
invasion of personal privacy" and inter-agency or intra-agency communications, respectively.
(Exhibit
"2"
annexed hereto.) The
August7,2Ol5 Determination advised Petitioner Rauh that
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she had
thirty days to appeal. Petitioner did not appeal this Determination. Accordingly,
the
August 7,2015 FOIL Determination is final.

66. On
April
1, 2016, Respondents' Records Access Officer issued a second FOIL
Determination informing Petitioner Rauh that additional responsive records had been located but
that they were exempt from disclosure as inter-/intra-agency material pursuant to Public Officers
Law $$ S7(2)(. (Exhibit "3" annexed hereto.)
67.8y email dated Apr|29,2016, Petitioner Rauh
appealed the
April 1,2016
FOIL Determination withholding records based on the inter-/intra-agency exemption. (Exhibit
"4" attrexed hereto.)

68. The Appeal was denied
in
FOIL Appeal Determination dated lday 13,2016
by Respondents' Records Appeals Officer. (Exhibit "5" arnexed hereto.) This FOIL Appeal
Determination cited various cases concerning the inter-/intra-agency exemption, and concluded
that:
Acting as a consultant to the Mayor, Mr. Rosen's aim was to

advance the Mayor's govemmental agenda and thus ths interests of
the people of New York. Accordingly, the advice Mr. Rosen
offered was part of the deliberative process. The withheld
documents relate to communications in which Mr. Rosen was not
acting on behalf of any clients nor interests they represent. In these
particular communications Mr. Rosen's advice represents solely
the interests of the Mayoralty and the City. As such, he meets that
test and his advice is protected under the exemption.
69. On or about
April 3, 2015, Petitioner Gonen submitted a somewhat broader
FOIL request seeking similar communications between (i) the Mayor and any employees of the
Mayor's Office and (ii) Jonathan Rosen and any of his employees at BerlinRosen, from January
1,2014 to April 3,2015. (Exhibit "6" annexed hereto.) An email acknowledging receipt of the
FOIL request was sent on April 3,2OI5. (Exhibit "'1" annexed hereto.)
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70. By FOIL Determination
dated August 7 ,2015, Respondents' Records Access
Officer disclosed certain records but, as in the first FOIL Determination in response to Petitioner
Rauh's FOIL request, stated that certain responsive records were being withheld pursuant to
Public Officers Law $$ S7(2Xb) and (g), the exemptions for an unwarranted invasion of personal
privacy and inter-/intra-agency communications, respectively. (Exhibit "8" annexed hereto.) The
FOIL Determination further advised that a search would continue for additional records. The
August 7,2015 FOIL Determination notified Petitioner Gonen that he had thirty days to appeal
the FOIL Determination. Petitioner did not appeal this Determination. Accordingly, the August
7,2015 FOIL Determination is final.

71. Over nine months later, on May 22, 2A16, Petitioner Gonen filed a FOIL
appeal. (Exhibit "9" annexed hereto.) This was not an appeal of the August 7, 20L5 FOIL
determination. Instead, Petitioner Gonen challenged the length of time that had passed without
any additional production of records or further Determination. Petitioner Gonen argued that this
period of time was not reasonable and constituted a constructive denial of his FOIL request.
72.8y FOIL Appeal Determination dated June 7, 2016, the Records Appeal
Officer granted Petitioner Gonen's appeal to the limited extent of directing the Records Access
Officer to provide any further required disclosure within ten business days. (Exhibit "10"
annexed hereto.) By FOIL Determination dated June 10, 2)I6,Respondents' Records Access
Officer disclosed additional responsive records that had been identified, but withheld others,
explaining that they were exempt pursuant to Public Officers Law $$ 87(2X(b) and (g). (Exhibit
"11" annexed hereto.)

73. Petitioner Gonen appealed the June L0, 2016 FOIL Determination by email
dated June 16, 2016, arguing that Jonathan Rosen "is a member of the public not paid by the
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administration and, as such, his and his firm's communications with and advice to the mayor's
office should be provided . . . ." (Exhibit
"l2"
anexed hereto.)
74.8y FOIL Appeal Determination dated June 30, 2016 (Exhibit "13"
annexed
hereto), the Records Appeals Officer denied Petitioner Gonen's appeal for the same reasons set
forth in his May 13,2016 FOIL Appeal Determination in response to Petitioner Rauh's appeal.
(Exhibit "5.)
75. Petitioners commenced this proceeding-action on September
7,2016, seeking
a declaration pursuant to CPLR 3001 that Respondents have acted unlawfully in withholding
responsive records, either in whole or in part, pursuant to the exemption for inter-intra-agency
communications at Public Officers Law $ 87(2)(9). They seek an order directing Respondents to
produce all disclosable responsive records within twenty (20) days of the Court's order, and an
award of costs and attomeys' fes.
76.In the alternative, Petitioners request that the Court conduct an in camera
review of a representative sample of withheld records, to determine whether the exemption was
properly invoked.
77. Respondents believe that they have demonstrated that the withheld records are
exempt from disclosure. However, if the Court has any questions as to whether the records were
properly withheld, then in the alternative, Respondents also respectfully request that the Court
conduct an in camera review of a representative sample of the records. By FOIL Determination
dated November 23,2016, Respondents made a supplemental production of responsive records.
Respondents have now produced over 18,000 pages of responsive records to Petitioners.
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AS AND FOR A FIRST DEFENSE

78. The Verified Petition fails to state a cause of action.
AS AND FOR A SECOND DEFENSE
79.
Respondents' actions were in all respects legal, proper, reasonable, and in
conformity with all applicable laws and regulations,

AS AND FOR A THIRD DEFENSE
80.
Respondents properly withheld records that consist
of
inter-agency or
intra-agency deliberative communications, pursuant to Section 87(2)(g) of the Public Officers

Law.
AS AND FOR A FOT]RTH DEFENSE
81. As a separate and independent ground, Respondents properly withheld these
records pursuant to the common-law official information privilege, also known as'the public
interest privilege, which attaches to confidential communications between and to public officers
in the performance of their duties.

AS AND FOR A FIFTH DEFENSE
82.
The Verified Petition requests,
Respondents to submit a fepresentative sample
in the alternative, an Order
directing
of withheld records to the Court for an in camera
inspection. See Verified Petition atp. Iz;Relief i.equested Paragraph "c."
83.
Without waiving any defenses, Respondents also request,
in
the
alternative, an in camer inspection of a representative sample of records so that the Court may
evaluate whether the applicable the inter/ intra-agency communications exemption, pursuant to
Section 87(2)(g) of the Public Officers Law, and the official information privilege were properly
applied to these records
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84. Respondents respectfully request forty-five days from the date of the Court's
Order directing an n camera inspection to produce such records to the Court.
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WHEREFORE, Respondents respectfully request that the Verified Petition be

denied in its entirety and the relief sought therein be denied in all respects, with costs and
disbursements. In the alternative, Respondents request that the Court conduct an in camera
inspection
of a
representative sample
of the withheld
records
to
determine whether the
exemption and privilege at issue were properly applied.
Dated:
New York, New York

November 23,2016
ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorney for Respondents
100 Curch Street, Room 2-110,2-121,2-180
New York, New York 10007
(2I2) 356-0872, -0876, -2083
mrichter@law.nyc.gov
throbert@law.nyc.gov
jdantowi@law.nyc.gov
By:
THOMAS
JEFFERY S. DANTOWTTZ
Assistants Corporation Counsel
To:
Douglas B. Maynard
Estela Diaz
Jessica Oliff Daly
AKIN GUMP STRAUSS HAUER & FELD LLP
One Bryant Park
New York, NY 10036
Counselfor Petitioners Grace Rauh and TWC News and Local Programming LLC
ElizabethA. McNamara
Jeremy A. Chase
DAVTS WRIGHT TREMAINE LLP
1251 Avenue of the Americas, 2l't Floor
New York, NY 10020
Counselfor Pettoners NYP Holdings, Inc. and Yoav Gonen
-20 -
YERT'ICATION
STATE OFNEW
YCIRK
)
SS.:
coUNTYoFNEWYORK )
Paul Rodriguez, being duly sworn, deposes, and says, that he is the Acting
Counsel to the Mayor for the Office of the Mayor of City of New York, that he is acquainted
with the facts heren, that he has read the foregoing Verified Answer and it is true based on his
own knowledge and information obtained from the records of the Office of the Mayor,
statsments made by employees
of
the,
Office of the Mayor and other city employecs,
and
and
employees and representatives of various consultants to the Mayoralty, except as to matters

stated therein to be bascd on information and belief and, as to those matters, he believes them to
be true. He further states that this verifcation is not made by Respondent
this proceeding is brought against him in his official capacity.
Sworn to before me this

23rd day of November 2016
NOTARY PUBLIC
}IEIIFYlBERGER
llotrry- Publlq Stlc ol NewYo*
No.028E4018672
Oullliad in Quacns GounlY
Commission Erircr Novambor 30, 2017
2L-
Bill
de Blasio because
Index No. 15752512016

COUNTY OF NEW YORK
In the Matter of
GRACE RAUH, TWC NEWS AND LOCAL
PROGRAMMING LLLC, YOAV GONEN ANd NYP
HOLDINGS, INC.,,
Petitioners-Plaintiffs,
-against-
Mayor of
THE
the City of New York; and the OFFICE OF
MAYOR OF THE CITY OF NEW YORK,
BILL DE BLASIO, in his official capacity
as
Respondents-Defendants.
VERIFIED ANSWER
ZACHARY W. CARTER
Atto rney fo r Re sp ondent s
100 Church Street
New York, N.Y. 10007
Of Counsel: M. Rchter, T. Roberts

Tel: (212) 356-20872, -2083
Matter #. 2016-036138
Due and timely service is hereby admtted.
New York, N.Y,
.,........ r 20
...,.,.., Esq,
Anorney
for
Index No. 15752512016 IAS Part
(Lobis, J.)

COUNTY OF NE}V YORK
In the Matter of
GRACE RAUH, TV/C NEV/S AND LOCAL
PROGRAMMING LLC, YOAV GONEN and NYP
HOLDINGS,INC.,
Petitioners-Plaintiffs,
- against -
BILL DE BLASIO, in his official capacity
Mayor of
the City of New York; and the OFFICE OF THE
MAYOR OF THE CITY OF NEV/ YORK,
as
Respondents-Defendants.
RESPONDENTS.DEFBNDANTS' MEMORANDUM
OF LA\ry IN OPPOSITION TO THE PETITION
ZACI{A.RT W. CARTER
Anorney for Re spondents - D efendants
100 Church Street, Room 2-I10
New York, N.Y. 10007
Of Counsel: Thomas Roberts

Marilyn Richter
Jeff ey S. Dantowitz
Tel: (212) 356-0872
PRBLIMINARY STATEMENT
This memorandum of law is submitted on behalf of Mayor Bill de Blasio and the Office
of the Mayor of the City of New York (collectively, "Respondents") in support of their Verified
Answer in this proceeding brought pursuant to CPLR Article 78 and the Freedom of Information
Law ("FOIL"), N.Y. Public Officers Law $ 84, et seq. In this proceeding, Petitioners
seek
disclosure of email communications between (i) the Mayor and his staff, and (ii) Jonathan Rosen
and BerlinRosen, Ltd., the public relations
firm of which Mr. Rosen is a co-founder. Mr. Rosen
is a private individual and trusted advisor of Mayor de Blasio, and due to this relationship the
Campaign for One New York ("CONY") retained Mr. Rosen and his firm to be consultants to
the Mayor and the Mayor's staff to help advance certain elements of the Mayor's agenda,
including the universal pre-kindergarten program for the City of New York ("UPKNYC").
As discussed more fully below, Respondents withheld disclosure of some of the

responsive records based on the inter-/intra-agency exemption codified in Public Officers Law
87(2)(9)
-- specifically, emails
exchanged between the Mayor's Office and
BerlinRosen concerning advice and opinions

Respondents have disclosed
all
Mr. Rosen
and
on matters of public concern. Notably,
responsive records
that ae not deliberative and
all
communications (deliberative or otherwise) that involve any of Mr. Rosen's other clients. The
only exception is
relatively small number of redactions that are of
purely personal nature that
were withheld based on the unwarranted invasion of personal privacy exemption codified in
Public Officers Law $ 87(2Xb).
The issue presented here is one of significance: does FOIL permit Respondents to
withhold disclosure of deliberative communications between members of the Office of the
Mayor (including the Mayor) and a consultant acting in an advisory role who is not paid by the
City? The answer is, as it must be, a resounding "yes."

Petitioners argue that the inter-/intra- agency exemption is not applicable here
because
Mr. Rosen was not paid by the City for his advice. This argument must be rejected
as
it
rests on the faulty and unsupported premise that consultancy is established only by means of a
payment made by the
evidence relevant
City. This is incorrect. While payment by a governmental entity may
to a determination of whether a consultancy relationship exists,
be
case law
clearly provides that a consultancy relationship is determined by an examination of the function

played by the consultant. Indeed, consideration of payment is at best a minor element of the
analysis established in the applicable decisional law.
Petitioners also argue that because BerlinRosen has other clients, Mr. Rosen and
his firm have an inherent conflict of interest which prevents them from rendering impartial
advice to the Mayor's Office which, in turn, precludes them from being deemed a consultant for
FOIL proposes. However, Respondents have now disclosed all responsive records that involve
BerlinRosen's other clients. In so doing, Respondents have eliminated the underpinnings of
Petitioners' conflict argument.
In the alternative,
Petitioners request that the Court conduct an
inspection of a representative sample of the withheld records to determine
if
in
camera
the exemption was
properly applied. The withheld records are exempt from disclosure, however,
if the Court
has
concern about the applicability of the exemption or of the common-law privilege (as discussed
below) to the withheld records, then Respondents also request, in the alternative, that the Court
conduct an in camer inspection of the withheld records.
FACTS
It is a longstanding and widely-accepted practice for our elected officials to periodically

consult with private individuals and firms on matters within those individual's and firm's
experience, expertise and knowledge. These consultants are not necessarily on the government
payroll and may include predecessors, trusted campaign advisors, relatives and personal friends,
many
of whom have had a relationship with the elected official for years. They
serve
as
confidants and special advisors, and are called upon to render confidential advice and guidance
as needed, at the behest
of the official. This practice advances the deliberative process, by better
informing public officials and allowing them to make more considered decisions.
Prior to his election as Mayor and during his campaign for Mayor,
Bill de Blasio
consulted with certain private firms and individuals regarding various political matters, tapping
into their knowledge and experience to seek their guidance and advice on matters of public
concern. These firms and individuals included Jonathan Rosen of BerlinRosen, John Del Cecato
of AKPD Message and Media,LLC ("AKPD", and Bill Hyers and Nick Baldick of Hilltop
Public Solutions, LLC
("Hilltop"). Each of these public relations firms had proven success
working for Democratic Party candidates, and
Bill
de Blasio's campaign had retained their
services during the 2013 mayoral election.
In addition, during his mayoral campaign, Bill de Blasio consulted with Patrick Gaspard,
who has been a close personal friend and confidant since their joint service in Mayor Dinkins'
administration. Mr. Gaspard long ago left City service. Throughoutz)L3 and continuing to the
present, Mr. Gaspard has been a fulltime employee of the federal government; in October 2013
he was named Ambassador to South Africa and he continues to serve in that position.
Ambassador Gaspard did not receive any payment for the advice that they provided to
Bill
de
Blasio during the campaign; and Mr. Gaspard advised Bill de Blasio in his capacity as a close
personal friend.
While the emails sought in this case are those between (i) Jonathan Rosen
and
BerlinRosen and (ii) the Mayor and the staff of the Office of the Mayor, these other consultants
to the Mayoralty are also included on some of these emails. Accordingly, it is necessary to
discuss all of these consultants to the Mayoralty.
These relationships continued after
Bill
de Blasio was inaugurated as Mayor. Indeed,
Mayor de Blasio and his staff continued to confer and consult with Ambassador Gaspard on
various matters of
policy.
Ambassador Gaspard provided his advice to the Mayor without
compensation based solely on his long-standing friendship with the Mayor.
In addition, the above mentioned public relations firms also continued their consultancy
relationships after the inauguration. Specifically, in December 2013 the Mayor-elect supported
the formation of a not-for-profit corporation that could raise funds to, among other things, retain
the services of the public relations firms in order to advance the Mayor's policy agenda. To this
end, the Campaign for One New York ("CONY") was established on or about December 12,
2013. (See Receipt of filing CONY's Articles of Incorporation, Exhibit 14 attached to

Respondents' answer.) Shortly after the January
l,
the
2014 inauguration, CONY retained
BerlinRosen, AKPD and Hilltop for each of them to separately provide services to CONY by
assisting the Mayor and the Mayor's Office. On or about January 8,2014, CONY also retained
Joshua Gold, a lawyer with extensive experience in operating political campaigns, to conduct a
(
public relations campaign to advance UPKNYC. The establishment of universal prekindergarten in the City was one of Mayor de Blasio's key policy objectives.
Communications with each
of these advisors and their firms often took the form of
emails, exchanged with one or more of them, which emails solicited advice and included the
exchange
of
confidential advice, recommendations and opinions about various matters of
concern to the Mayor and his staff.
It is significant that CONY was established to further the Mayor's
agenda and has been
described as a "'partner' of the Office of the Mayor." Specifically, on or about June 3, 2015, the
Office of the Mayor sought a waiver concerning CONY from the City of New York Conflicts of
Interest Board ("COIB") from the one year bar. on former employees appearing before their
former city office. This request was made on behalf of two former employees of the Mayor's
Office so as to permit them to immediately work for CONY. COIB granted the waiver
concluding that "CONY is a not-for-profit organization bringing private resources to bear in an
effort, coordinated with the Office of the Mayor, to support and advance Mayor de Blasio's
policy agenda and is therefore a not-for-profit 'partner' of the Office of the Mayor
..." (Exhibit
15 attached to the Respondents' answer.)
Respondents have produced all responsive email communications with Jonathan Rosen
and BerlinRosen which involve any other client of Berlin Rosen. The only records that have
been withheld pursuant
to the
inter-/intra-agency exemption
are deliberative email
communications in which Jonathan Rosen and BerlinRosen are consulting with the Mayor's staff
or the Mayor on issues of public policy in furtherance of the Mayor's policy agenda. Jonathan
Rosen and BerlinRosen have been retained and paid by CONY to provide these consultative
services to the Mayor and his staff.
As for the other consultants who are participants on some of the withheld email
communications, two have no clients who conduct any business before any
City
agency.
Ambassador Gaspard does not have any private clients and has provided advice in his capacity as
a close personal
friend of the Mayor. AKDP is a public relations firm based in Chicago that does
not have any clients that conduct business before City agencies.
Similarly, Josh Gold is an independent contractor retained by CONY. Mr. Gold

has one client, the New York Hotel Trades Council, which may conduct business before City
agencies, howevero none of the responsive emails that have been withheld contain any subject
related to the New York Hotel Trades Council, hotels or the hotel industry.
Finally, although Hilltop and its principals Bill Hyers and Nick Baldick have
clients that conduct business before City agencies, Respondents have only withheld responsive
email communications including them that are deliberative, concern issues of public policy in
furtherance of the Mayor's policy agenda, and do no involve Hilltop's clients. Like BerlinRosen,
Hilltop has been retained and paid by CONY to provide such consulting services to the Mayor
and his staff, but the deliberative emails that have been withheld concern the Mayor's policy
agenda and are within the inter-/intra-agency exemption.
The FOIL Requests and The Instant Proceedinq
The procedural background giving rise to this proceeding/action is not disputed

and is set forth in Respondents' Verified Answer and summarized below.
By email dated February 18, 2015, Petitioner Rauh submitted a FOIL request to
Respondents seeking communications between Mayor de Blasio and senior members
administration with Jonathan Rosen during
2014. (Exhibit I
attached
of
his
to the Respondents'
answer.) By FOIL Determination dated August 7,2015, Respondents'Records Access Officer

provided some responsive records but withheld disclosure of others pursuant to Public Officers
Law $$ 87(2)(b) and (g), the exemptions from disclosure based on "unwarranted invasion of
personal privacy" and inter-agency or intra-agency communications, respectively. (Exhibit 2

attached to the Respondents' answer.) The Augus
Rauh that she had thirty days
t l,
2015 Determination advised Petitioner
to appeal. Petitioner did not appeal this Determination.
Accordingly, the August 7 ,2015 FOIL Determination is final.
By letter dated April 1, 2016, Respondents' Records Access Officer issued
second FOIL Determination informing Petitioner Rauh that additional responsive records had
been located but that they were exempt from disclosure as inter-/intra-agency communications
pursuant to Public Officers Law $ 8l(2)(. (Exhibit 3 attached to the Respondents' answer.)
By email dated April29,2016, Petitioner Rauh appealed the April
1, 2016
FOIL
Determination withholding records based on the inter-/intra-agency exemption. (Exhibit 4

attached to the Respondents' answer.) The Appeal was denied by FOIL Appeal Determination
dated May 13, 2016 from Respondents' Records Appeals
Officer. (Exhibit 5 attached to the
Respondents' answer.) This FOIL Appeal Determination cited various cases explaining the
inter-/intra-agency exemption and concluded that:
Acting as a consultant to the Mayor, Mr. Rosen's aim was to

advance the Mayor's governmental agenda and thus the interests of
the people of New York. Accordingly, the advice Mr. Rosen
offered was part of the deliberative process. The withheld
documents relate to communications in which Mr. Rosen was not
acting on behalf of any clients nor interests they represent. In these
particular communications Mr. Rosen's advice represents solely
the interests of the Mayoralty and the City. As such, he meets that
test and his advice is protected under the exemption.
On or about April 3, 2015, Petitioner Gonen submitted a somewhat broader FOIL

request seeking similar communications between
(i) the Mayor and any employees of
the
Mayor's Office and (ii) Jonathan Rosen and any of his employees at BerlinRosen from January
I,
2014 to April 3,
2015. (Exhibit 6
attached
to the
Respondents' answer.)
By FOIL
Determination dated August 7,2015, Respondents' Records Access Officer disclosed certain
records but, as with the Determination addressed
to
Petitioner Rauh, stated that certain
responsive records were being withheld pursuant to Public Officers Law $$ 87(2Xb) and (g), the
exemptions
for an unwarranted invasion of
personal privacy and inter-/intra-agency
communications, respectively. (Exhibit 8 attached to the Respondents' answer.) Over nine

months later, on Mray 22,2016, Petitioner Gonen filed a FOIL appeal. (Exhibit
"9"
attached to
the Respondents' answer.) This was not an appeal of the August 1,2015 FOIL determination.
Instead, Petitioner Gonen challenged the length of time that had passed without any additional
production of records or further Determination. Petitioner Gonen argued that this period of time
was not reasonable and constituted a constructive denial of his FOIL request.
By FOIL Appeal Determination dated June 7, 2016, the Records Appeal Officer
granted Petitioner Gonen's appeal to the limited extent of directing the Records Access Officer
to provide any further required disclosure within ten business days. (Exhibit "10" annexed to
Respondents' answer.) By FOIL Determination dated June 10, 2016, Respondents' Records
Access Officer then disclosed additional responsive records that had been identified, but he
withheld others, explaining that they were exempt pursuant to Public Officers Law $$ 87(2Xb)
and (g).
(Exhibit
11 attached to the Respondents' answer.)
Petitioner Gonen appealed the June I0,2016 FOIL Determination by email dated
June 16, 2016, arguing that Jonathan Rosen "is a member of the public not paid by the
administration and, as such, his and his firm's communications with and advice to the mayor's
office should be provided .
. ."
(Exhibit 12 attached to the Respondents answer.) The appeal
was denied by FOIL Appeal Determination dated June 30, 2016 from Henry Berger, Records
Appeals Officer, for the same reasons set forth in his May 13,2016 FOIL Appeal Determination
to Petitioner Rauh. (Exhibit 13 attached to the Respondents' answer.)

Petitioners commenced this proceeding-action on September 7,2016 seeking
a declaration pursuant to CPLR 3001 that Respondents have acted unlawfully in failing to
disclose the responsive records, either in whole or in part, an order directing Respondents to
produce all discloseable responsive records within twenty (20) days of the Court's order, and an
award of costs and attorneys' fees. Petitioners argue that Mr. Rosen and BerlinRosen cannot be
acting as a consultant because they are not paid by the
City. Additionally, Petitioners contend
that communications with Mr. Rosen and BerlinRosen cannot be withheld because the firm
represents clients
with business before various agencies of the City whose interests may (or do)
conflict with the City's interests, and because Mr. Rosen allegedly used his access to the Mayor
and his staff to benefit some of BerlinRosen's clients.
By letter dated November 23,2016, Respondents made a supplemental production

ofresponsive records. Respondents have now produced over 18,000 pages ofresponsive records
to Petitioners.
10
POINT
AS JONATHAN ROSEN AND BERLINROSEN
\ryERE
ACTING AS A CONSULTANTS TO THE MAYOR, EMAILS

EXCHANGED BETWEEN TIIEM AND THE MAYOR'S
OFFICE ARE PROTECTED BY THE INTER./INTRA.
AGENCY EXEMPTION
A.
The Inter-/Intra-Asency Exemption

Pursuant to N.Y. Public Officers Law $87(2Xg), an agency may withhold records
that are inter-agency or intra-agency materials that are not:

l.
ii
nr.
iv.
statistical or factual tabulations or data;

instructions to staff that affect the public;
final agency policy or determinations; [or]
external audits, including but not limited to audits performed by the [New
York Statel comptroller and the federal government[.]
'oSuch material is exempt
persons
'to protect the deliberative process of the government by ensuring that
in an advisory role would be able to express their opinions freely to agency decision
makers."' Xerox Corp. v. Town of V/ebster. 65 N.Y.2d
I3I, 132 (1985) (quoting Sea Crest
Constr. Corp. v. Stubing, S2 A.D.zd 546,549 (2d Dep't 1981)). See New York Times Co. v. City
of New York Fire Dep't, 4 N.Y.3d 477, 488 (2005) (the intra- and inter-agency exemption was
enacted "to permit people
within an agency to exchange opinions, advice and criticism freely and
frankly, without the chilling prospect of public disclosure.")

Deliberative materials can take many forms, and include records that contain
opinions, advice, evaluations, deliberations, proposals, conclusions, recormendations, or policy
formulations
or other
subjective material. These records "provide necessary advice and
recommendations to aid the agency in carrying out its functions. They are not final opinions and
are prepared to aid in discussion before any final determination is reached." Kheel v. Ravitch, 93
A.D.2d 422,427-28 (1st Dep't 1983). "The exemption applies to records that are deliberative,
L1,
i.e., communications exchanged for discussion purposes not constituting final policy decisions
and includes communications shared between different agencies (e.g., the city and state taxing
authorities) in furtherance of the decision-making process." Moody's Corp.
&
Subsidiaries v.
New York State Dep't of Taxation and Finance,I4I 4.D.3d997 , 1001 (3d Dep't 2016) (internal
quotations and citations omitted). Indeed, any information that can be chanctezed as an
"internal government exchange" is protected by this exemption. Burtis v. New York Police
Dep't.
240
A.D.2d259,260 (1'tDep't 1997).

Given the important governmental interests at stake, courts routinely uphold the
denial of requests for disclosure of deliberative or pre-decisional materials. See, e.g., Matter of
Qmith r Nprr Vnrl Sfofa
l-f
^f
11"o f+^rmo.'
l-lan
116 A.D.3d 1209, 1212 (3d Dep't 2014)
(denying disclosure of emails reflecting internal deliberations, noting that "public disclosure of
materials reflecting the process by which respondent formulates its policy concerning statements
to and interactions with the press regarding ongoing litigation would, in our view, have
the
precise effect of stifling open, honest and frank communication that the intra-agency exemption
was designed to protect against"), Iv. denied, 24 N.Y.3d 9L2 (2014); and Mazzone v. New York
State Dep't of Transp., 95 A.D.3d 1423, 1425 (3d Dep't 2012) (finding emails containing advice,
opinions and recommendations exempt from disclosure).
B.
The Inter-/Intra-Agency Exemption Extends to

Consultants Who Function in an Advisorv Role
The exemption afforded by N.Y. Public Officers Law $87(2Xg) is not limited to
communications between and among individuals who are employed by an agency.
It also may
extend to communications exchanged with non-agency personnel, such as consultants acting at
the behest of the agency. As the Court of Appeals has recognized, "Opinions and
recommendations that would, if prepared by agency employees, be exempt from disclosure under
t2
the Freedom of Information Law as 'intra-agency materials' do not lose their exempt status
simply because they are prepared for the agency, at its request, by an outside consultant." Xerox
Corp., 65 N.Y.2d 132 (internal citation omitted). S Goodstein
&
West v. O'Rourke, 201
A.D.2d 731,732 (2d Dep't 1994).

In assessing FOIL requests for communications with non-agency employees, "it is
the actual function served by the outside party which must be considered in deciding whether the
communications are encompassed by the intra-agency exemption of the Freedom of Information
Law." Sea Crest Constr. Corp. ,82 A.D.2d at 549 (underlining added). Moreover,
determining the applicability of this

exemption are the nature of the relationship the outside entity had
with the state or municipal agency, as well as the content and
context of the communications sought to be disclosed. Moreover,
simply because the outside entity was a private concern and not
part of a state or municipal agency did not preclude application of
Factors considered
in
the exemption to their communications.
77 A.D.3d 224,231 (3d
York
Dep'r 2010), aff'd as modified,lS N.Y.3d 652 (2012) (internal citation omitted).
Applying these principles to the facts atbar, it is clear that the records that were
not disclosed are exempt from disclosure. Mr. Rosen and BerlinRosen were trusted advisors
retained by the de Blasio campaign in2013, and due to the value of their advice, CONY retained
them to consult with Mayor de Blasio and the Office of the Mayor about matters of public
interest. In communicating with Mayor de Blasio and his staff after Mr. de Blasio's inauguration
as Mayor,
Mr. Rosen (and others at BerlinRosen) continued to act in a confidential advisory
role.l The emails
at issue here were exchanged in discussions to aid the Mayor and his staff
Notably, the records involving BerlinRosen's clients have been produced. This supports the
conclusion that, in the communications that have been withheld, Mr. Rosen and BerlinRosen
were acting solely in a consultative role and not on behalf of BerlinRosen's other clients.
13
regarding potential decisions and courses of action and consist of requests for advice and the
exchange of confidential advice, opinions and recommendations about matters of public policy.
They are not final and are clearly deliberative. Had they been prepared by staff within the
agency and communicated only to other City employees, they would unquestionably be exempt.
And, as the Court of Appeals instructs, they do not lose their exempt status because they were
generated by or exchanged with one or more consultants. Xerox Corp., 65 N.Y.2d at 133.
Petitioners ignore the functional nature of the relationship between (i) the Mayor
and his staff and
(ii) Mr. Rosen and BerlinRosen, and the purpose of their
Instead, Petitioners argue
in favor of a monetary test - asserting that
used the word "retained" on occasion
communications.
because the courts have
in describing the relationship between consultant
and
client, FOIL requires that the consultant must be paid by the City for the inter-/intra-agency
exemption to apply. This contention, however, is not supported by the case law.
As noted above, the Court of Appeals has explained that deliberative materials do
not lose their exempt status because they were "prepared for the agency, at its request, by an
outside consultant." Xerox Corp., 65 N.Y.2
132. Nowhere is there any suggestion that the
method of the consultant's compensation is a significant factor in the analysis. Indeed,
it is
evident that courts use the word "fetained" simply to indicate that the relationship between the
official and the consultant needs to be formal or substantial
if
the exemption is to apply.
Notably, the courts do not use the words 'ohired," "paid" or "employed" to describe this
relationship, as they recognize that the relationship is defined by functional, not monetary,
considerations.2
2 Although the First Department
used the word "hired" in Tuck-It-Awa) Assoc.. L.P. v. Empire

State Dev. Corp., 54 A.D.3d 1 54, 156 (lst Dep't 2008), it did so only to describe the facts
presented therein -- "The question presented is whether an intra-agency or inter-agency
L4
Petitioners' desire to convert the functionality test into a monetary test should be
rejected. The Court of Appeal's reasoning in extending the inter-agency protections to

communications with consultants does not focus on compensation:
In connection with their deliberative process agencies may at times

require opinions and recommendations from outside consultants. It
would make little sense to protect the deliberative process when
such reports are prepared by agency employees yet deny this
protection when reports are prepared for the same purpose by
outside consultants retained by agencies.
Xerox _Corp., 65 N.Y.2d at 133. In support of its holding, the Court of Appeals cited with
approval the decision of the Second Department in Sea Crest, which held that
function served by the outside party which must be considered
in
"it is the actual
deciding whether the
communications are encompassed by the intra-agency exemption of the Freedom of Information
Law." Sea Crest Constr. Corp.,82 A.D.2d at 549. Notably, the existence of any compensation
paid to the consultant played no decisive role in the analysis in either of these seminal cases.
Nor do the
cases cited
by
Petitioners support
monetary
test. In
fact,
Respondents' position is supported by Hernandez v. Office of the Ma)or of the City of New
York, 2011 N.Y. Misc. LEXIS 5620 (Sup. Ct. N.Y. Co. Nov. 13,20II), a.ff'd. 100 A.D.3d 555
(1't Dep't 2012), cited by Petitioners (Ps' Supporting Br. at
l7). In Hernandez, the First
Department rejected the City's argument that Cathie Back, the Mayor's nominee for Schools
Chancellor, was acting as a consultant
in
assisting the Mayor's efforts
to obtain a waiver
permitting her to be appointed from the State Department of Education. Although the Court
rejected the argument that Black was acting as an outside consultant on behalf of the City, it did
exemption attaches to the government agency's communications with a firm hired as a consultant
by that agency" (at 156) -- and was not intended to define the necessary characteristics of the
relationship between an agency and a consultant entitled to the exemption.
15
so based on a functional analysis of the relationship between the Mayor and Black as evidenced
by the substance of the communications at issue. As explained by the lower court:

Here, the e-mails presumably do not relate to the State Education
Department's actual deliberative process in deciding whether to
grant Ms. Black the requested waiver. Instead, they involve efforts
by the City to obtain information to prepare the waiver request,
complete the mayoral appointment process, and address

community concerns about Ms. Black's qualifications for the
position. Ms. Black was the appointee, and not a consultant, in that
process.
2011 N.Y. Misc. LEXIS 5620 at
* II-I2.
As the communications were not deliberative, the
court found that Black was not acting as an agent or consultant in assisting the mayor to obtain
the waiver exemption.3 Of consequential importance was the function of the purported
consultant's role; not whether she was compensated by the City.4
Petitioner's reliance on Town of .Waterford v. New York State Dep't of Envt'l

Conservation, 18 N.Y.3
652 (2012),
is similarly misplaced. There, it was determined that the
federal EPA was not acting as a consultant to the State's Department
of
Environmental
Conservation. Again, the nature of the relationship was determinative. As the Court of Appeals
explained:
V/e reject respondent's argument that the EPA is the equivalent of

an outside consultant under the present circumstances. Here, EPA
and DEC have a collaborative relationship and are presumably
working together toward the same ameliorative goal. However,
EPA was not retained by the DEC and does not function as its
It is clear the court's decision - that Black was not an agent or consultant of the mayor - was
based on the fact that the communications at issue were not deliberative in nature and that the
mayor could not exercise control over Black prior to her appointment. Here, in contrast, the
communications are unquestionably deliberative.
Hernandez also does not support Respondents' position because here, unlike in Hernandez,
the communications at issue directly involve the deliberative process and were exchanged in
furtherance of the decision-making process.
L6
employee or agent. To the contrary, EPA

agency for the dredging project.
is
actually the lead
Town of V/aterford, 18 N.Y.3d at 658.
Again, the nature of the asserted relationship between the agency and
purported consultant was determinative
the
of whether the exemption applied, not whether the
consultant was being paid by the agency. Indeed, if payment were the determinative factor, there
would have been no reason for the Court in either Waterford or Hernandez to engage in its
analysis, as it is clear that neither the EPA nor Black was being paid by the agency at the time
the requested records were prepared. Instead, the issue of compensation played little,
if any, role
in these decisions.
Petitioners' reliance on an Advisory Opinion from the Committee on Open

Government
is also unavailing. As Petitioners correctly note, such Advisory Opinions
neither authoritative nor entitled to deference. John P. v.
'Whalen,
are
54 N.Y.2d 89,96 (1981) (the
opinions of the Committee are "neither binding upon the agency nor entitled to greater deference
in an article 78 proceeding than is the construction of the agency"). This is particularly true here,
where the question addressed to the Committee presented only Petitioners' description of the
issue and was devoid
of the facts on which
Respondents base their current position: "The
question, therefore, in your words, is 'whether a person who is not employed by, paid by, or
retained by the City of New York can be considered an agent of the City such that his or her
communications with the Mayor would properly be exempt from disclosure under FOIL."'
FOIL-AO-19463 (Aug. 3, 2016), annexed to the Daly Affirmation as Exhibit
X.
In concluding
that the records were not exempt, the Advisory Opinion relied exclusively on its incorrect
understanding that a consultant must be paid in order for the exemption to attach ("a person or
firm must be 'retained,' i.e., monetarily compensated by an agency.") In so doing, the Advisory
T7
Opinion made no mention
of the substance of the relationship between the Mayor
and his
advisors and wholly ignored the functional analysis required by the Court of Appeals.s
The communications at issue here are undeniably deliberative in nature. That

none of the consultants on the emails were paid by the City for their advice and opinions
- and
instead several were paid by CONY - does not render them any less deliberative, nor strip their
confidential communications from protection. Accordingly, they are exempt from disclosure
pursuant to Public Officers Law $ 87(2Xg).
C.
The Withheld Records Present No Conflict of Interest
Petitioners also argue that the Mayor's advisors, such as
conflicts
of
interests which preclude the application
Mr.
Rosen, have
of the intra-agency exemption.
This
argument, too, should be rejected
Here, none of the Mayor's advisors is an agency of another jurisdiction that, like
the EPA in V/aterford, cannot be a consultant because it has a mandated mission. Moreover,
unlike the EPA, in rendering advice to the Mayor, the consultants were not simultaneously
working collaboratively on the same project to advance their own interests, mission or pulpose.
Rather, the consultants were working to advance the Mayor's agenda. These advisors were
periodically consulted by the Mayor and his staff and render advice at their behest, concerning
specific matters on which the consultants have specialized knowledge, experience or expertise.
Unlike Cathie Black
in
Hernandez,
in the communications that have been withheld from
production, the consultants were working
in support of the Mayor's agenda, not in their
own
interest or in the interest of other clients.
5 Notubly,
under this reading, no person who volunteered his advice as a consultant to the City
such as Mr. Gaspard - would be.entitled to the FOIL exemption.
18
Petitioners, however, argue that Mr. Rosen and BerlinRosen have clients which
could benefit from the information imparted to Mr. Rosen by the Mayor or from the outcome of
the deliberations in which they are asked to engage. Petitioners contend that this presents
conflict of interest which prevents these advisors from rendering impartial advice to the Mayor
and, therefore, precludes them from being deemed consultants protected by the FOIL exemption.
Respondents agree that communications between the Mayor and his advisors that
involve the advisors' other clients would create a conflict of interest that could make the
exemption inapplicable. To moot this concern, Respondents disclosed to Petitioners all records
in
which Mr. Rosen and/or BerlinRosen advised the Mayor on matters that involve
BerlinRosen's (or the other advisors') other clients.6 Accordingly, none of the withheld records
concerns a matter involving BerlinRosen's (or the other advisors') other clients.
Because the withheld records do not implicate a potential conflict
of interest, the
present matter does not present the inherent conflict of loyalties with which the First Department
was concerned in Matter of Tuck-It-Awa] Assoc.. L.P. v. Empire State Dev. Corp., 54 A.D.3d
154 (lst Dep't 2008), where the consultant is "serving two masters." Thus, the substance of the
withheld records do not preclude Respondents from invoking the inter-/intra-agency exemption.
{<tr<*
The First Department has explicitly recognized the need to permit government
agents
to
confer with private, non-government consultants and the benefit derived from
protecting such communications

6
Afpp
is a political consultant located in Chicago and during all pertinent times had no other
clients doing business with the City of New York. During all pertinent times, Joshua Gold had
one additional client, the New York Hotel Trades Council. None of the withheld records involve
the New York Hotel Trades Council. Hilltop has other clients that appear before City agencies,
but like BerlinRosen, Respondents have disclosed to Petitioners all responsive records that
involve Hilltop's other clients.
79
In discussing the underlying purpose of the exemption in relation

to governmental operation, the court relied upon the need to
protect the deliberative process so as to ensure the uninhibited right
and need of the agency to rely upon opinions and
recommendations not only of its own employees, but also of
temporary consultants since "efficient government operation
requires open discussions among all government policy makers
and advisors, whether those giving advice are officially part of the
agency or are solicited to give advice only for specific projects."
Kheel v. Ravitch,g3 A.D.2d 422,429 (1't Dep't 1933) (quoting Sea Crest, 82 A.D.2d, at549).
Were the Court to adopt Petitioners' argument and deny Respondents the ability
to apply the intra-agency

consequences
exemption
to the withheld
records,
it
would have detrimental
to the workings of City government, as the Mayor and members of
his
administration could no longer freely and confidentially confer with, among others, their
predecessors, their public relations consultants, or their long-term personal advisors (such as Mr.
Gaspard) without fear that their deliberations would be disclosed. This would chill discussion,
limit the official's ability to benefit from her predecessor's experience, and severely discourage
the free flow of ideas. FOIL was not intended to limit the solicitation of guidance and advice
from those who, while not on the City payroll, have specialized knowledge, insight or experience
which could be of value in serving the interests of the City. As the deliberative nature of these
communications (containing advice, opinions and recommendations) is substantively the same as
those exchanged between/among agency personnel on the City payroll

undeniably be exempt from disclosure
which would
the interests in protecting these communications are the
same, and the protections to be afforded such confidential communications should not be limited
simply because these advisors are not on the City payroll.
20
POINT
II
AS A
SEPARATE AND INDEPENDENT

GROUND, THE WITHHELD RECORDS ARE
PROTECTED FROM DISCLOSURB BY TTIE
OFFICIAL INFORMATION PRIVILEGE
Even
if the court held that the intra-agency exemption did not apply,
Respondents
properly withheld the records under the common law official-information privilege, also known
as the public interest privilege.
In Cirale v. 80 Pine Street Corp, 35 N.Y.2d 113, I 17 (1g74),the Court of Appeals

recognized that certain government records may be withheld
if
the public interest would be
harmed by disclosure. In One Beekman Place. Inc. v. Citv of New York, 169 A.D.zd 492,493
11st
Dep't 1991), the First Department expressly recognized the public interest in encouraging
candid discussion among government employees in the development of policy and reaching
agency decisions. See also Steering Committee v. Port Authorit] of New York and New Jersey
(V/orld Trade Center Bombing Litig.), 93 N.Y.2d 1, 9 (1999); and Delaney v. Del Bello, 62
A.D.2d 281,287 (2d Dep't 1978).
FOIL "did not abolish the common-law privilege for official information."
Delane
62 A.D.2d at 287 (citing Cirale, 35 N.Y.2d at Il7 , n.l). See /so Rodriguez v. Johnson,
66 A.D.3d 536 (lst Dep't 2009) (applying public interest privilege to records requested under
FOIL); One Beekman Place, 169 A.D.2d 492,494 (lst Dep't l99I); Pinks v. Turnbull,
13 Misc.
3d 1204A,824 N.Y.S.2d758;2006 N.Y. Misc. LEXIS 2346 (Sup. Cr., N.Y. Co. 2006) ("The
FOIL preserves the common law privilege, known as the public interest privilege
privilege attaches
officers,
to "confidential
communications between public officers, and
in the performance of their duties, where the public
.")
to
The
public
interest requiies that such
confidential communications or the sources should not be divulged." World Trade Ctr. Bombing
2L
Litig., 93 N.Y.2d at 8 (quoting Cirale, 35 N.Y.2d at 117). That is, the privilege applies
if
"disclosure would be more harmful to the interests of the government than the interests of the
party seeking the informationl.l" Id. at

interest might otherwise be harmed
9.
"The justification for the privilege is that the public
if extremely sensitive material were to lose this special shield
of confidentiality." Id. at 8. The privilege applies here to the records withheld by the Office of
the Mayor.
The application of the public interest privilege depends on a balancing of the

various interests involved:
Public interest encompasses not only the needs of the government,

but also the societal interests in redressing private wrongs and
arriving at a just result in private litigation. Thus, the balancing
that is required goes to the determination of the harm to the overall
public interest. Once it is shown that disclosure would be more
harmful to the interests of the government than the interests of the
party seeking the information, the overall public interest on
balance would then be better served by nondisclosure. While the
need of a litigant for the information would present a strong
argument for disclosure, the court should balance such need
against the government's duty to inquire into and ascertain the facts
of a serious accident for the purposes of taking steps to prevent
similar occurrences in the future.
Cirale, 35 N.Y.2d at 118. Se Pinks, 13 Misc. 3d 1204A,824 N.Y.S .2d 7581'2006 N.Y. Misc.
LEXIS 2346 ("In determining whether the public interest privilege applies, the court must
balance the harm to the public interest
if
the confidential information is disclosed, against the
harm to the party seeking disclosure if the information is withheld.")
To assess the merits of the public interest privilege, this court's

function is to weigh "plaintiffs' interest in obtaining disclosure
lwith] defendants' interest in preserving the confidentiality of this
material" (Espady v. Cit) of New York, 40 A.D.3d 475, 476-417
(1st Dep't 2007); see Matter of Langert v. Tenney, 5 A.D.2d 586,
588 (lst Dep't l958Xframing the issue as "whether the public
interest is better served by disclosure or by keeping the seal of
confidence")).
22
Matter of 91st St. Crane Collapse Litie., 31 Misc. 3d I20l (A), 930 N.Y.S.2d 175; 2010 N.Y
Misc. LEXIS 6623 (Sup. Ct. N.Y. Co. Oct. 2I,2010). Under this balancing test, "[o]nce it is
shown that disclosure would be more harmful
to the interests of the government than
[nondisclosure would be to] the interests of the party seeking the information, the overall public
interest on balance would then be better served by nondisclosure"' V/orld Trade Ctr. Bombing
Litig., 93 N.Y.2d at 8-9 (quoting Cirale, 35 N.Y.2d at 118) (parentheticals supplied; internal
citations removed).
In the instant matter, even if the withheld records are found to be not covered by
the inter-/intra-agency exemption of Public Officers Law $ 8l(2)(g), the public interest privilege
compels their non-disclosure.
As previously
explained, these records consist
of
email
communications between the Mayor's Office (including the Mayor himself) and some of the
Mayor's closest advisors concerning decisions relating to matters of City importance. These
discussions were understood to be held in the strictest of confidence and consisted of advice,
opinions and recommendations and were no less deliberative than had they been conducted
between and among employees of the Mayor's Office.
As discussed above, disclosure of this material would be no less injurious to the

government interest than disclosure
of all-employee deliberative material, and would stifle
productive discussion and deliberation. This is particularly true where the communications
concerned matters or potential actions under consideration that were not taken or pursued. As
the U.S. Supreme Court recognized, the "public is only marginally concerned with
reasons
supporting a policy which an agency has rejected[.]" NLRB v. Sears. Roebuck & Co.,42I U.S.
132, t52 (t975).
23
Rather than discouraging the Mayor and his staff from seeking advice from
trusted individuals over matters on which they may,have specialized experience, knowledge or
expertise
disclosure
which would be the practical result were such communications not protected from
the Mayor and his staff should be permitted the opportunity to engage in discussibn
freely, without the chilling prospect of disclosure, so that the deliberative process can be fully
engaged in, the best advice can be obtained, and the best course of action chosen.
POINT
III
IN THB ALTERNATIVE, IF THE COURT HAS ANY
DOUBTS ABOUT THE PROPRIETY
OF
RESPONDENTS WITHHOLDING OR RECORDS,

SHOULD CONDUCT AN IN CAMERA REVIEW
IT
As discussed above, Respondents have amply demonstrated that the withheld

records are exempt from disclosure. This should obviate the need for any in camera review of
the withheld records. See Davidson v. Police Dep't of the Cit) of New York, 197 A.D.zd 466,
467
(lst Dep't 1993) (holding in camera review
warranted only where respondent fails to
establish the application of a statutory exemption).
However,
if the Court has any questions
and privilege, Respondents agree with Petitioners (Br.
as to the application
at
23-24)
of this exemption
that an in camer review of
representative records should be conducted so that the Court may better understand the substance
of the communications and the nature of the relationship between the Mayor's advisors
personnel at the Mayor's
and
Office. Gould v. N.Y.C. Police Dep't,89 N.Y.2d267,275 (1996)
(citing Xerox Corp., 65 N.Y.2d at 133; Farbman
&
Sons v. New York Cit] Health
&
Hosps.
Corp., 62 N.Y.2d 75, 83 (1984)). See Mood]'s Corp. & Subsidiaries v. New York State Dep't
of Taxation and Finance, 141 A.D.3d 997,1002 (3d Dep't 2016) (court conducted n camera
review to uphold agency's exemption under $ S7(2Xg)); V/eisshaus v. Port Auth. of N.Y. & N.J.,
24
49 Misc. 3d 550 (Sup. Ct. N.Y. Co. 2015) (directing in camera review to determine applicability
of claimed exemption); Sell v New Ynrk Cifv T)en'f nf F.drc 2014 N.Y. Misc. LEXIS 2382;
2014 NY Slip Op 31340(U) (Sup. Ct. N.Y. Co. i|l4ay 27,2014)(Lobis, J.) (directing in camera
review to determine application of exemptions, including $ 87(2Xg)).
POINT IV
AN AWARD OF ATTORNBYS' FEES AND

(-flSTS IS Nf)T \[/ARR
Pursuant to N.Y. Public Officers Law $ 89(4)(c), the Court may assess
reasonable attorneys' fees and other litigation costs reasonably incurred in any
case under the provisions of this section in which such person has substantially
prevailed, when:
(i) the agency has no reasonable basis for denying
access;
or
(ii) the agency failed to respond to a request or appeal

within the statutory time.
"Even when these statutory prerequisites are met, the decision to grant or deny counsel fees still
lies within the discretion of the court." Henry Schein. Inc." v. Eristoff, 35 A.D.3d 1124, 1126 (3d
Dept 2006).
,See
Todd v. Craig,266 A.D.2d 626, 627 (3d Dep't 1999), Iv. denied,g4 N.Y.2d 760
(2000); Corvetti v. Town of Lake Pleasant,23g A.D.zd 841, 843 (3d Dep't IggT).
The only questions are whether Petitioners
and even
if
in part.
These two questions are
will substantially prevail in this matter
so, whether Respondents nonetheless had a reasonable basis for denying the requests,
to be determined independently. Should Petitioners not
substantially prevail, the inquiry is over and no fees are to be awarded. Even
if,
arguendo,
Petitioners were to prevail, however, the Court still must determine whether Respondents had a
reasonable basis for denying access to the requested records, as an agency's decision to withhold
requested records may be reasonable, even

2011 N.Y. Misc. LEXIS 5182, at
if it is rejected.
,Se
New York Times Co. v. NYPD,
17,2011 NY Slip Op 32857(U) (Sup. Ct. N.Y. Co. Oct. 2,

25
20II) (rejecting claim for attorneys'
fees where agency's reasons for denying access were not
unreasonable), aff'cl in part, modij.ed in part,103 A.D.3d 405
(l't Dep't 2013); Miller v. New
York State DOT' 58 A.D.3d 981, 985 (3d Dep't 2009) (although ordering records disclosed,
denying request for fees where respondents "had a rational basis for their belief that the majority
of the documents withheld were exempt from disclosure.")
In this proceeding, Respondents have demonstrated that the withheld records
are
exempt from disclosure pursuant to Public Officers Law $ 81(2)(g). Thus, Petitioners cannot be
deemed to have substantially prevailed
in this proceeding, See Madeiros v. New York State
Educ. Dep't, 133 4.D.3d962,965 (3d Dep't 2015) (denying attorneys' fees where court found
that challenged redactions were appropriate and, thus, petitioner had not substantially prevailed),
Iv to appeal granted,2T N.Y.3d 903 (2016).
Furthermore, the issue presented here is an important one, and is based on facts
which appear to present an issue of first impression. Even
if
the Court ultimately rejects
Respondents' argument and finds that some or even all the records should have been disclosed,
there should be no doubt that Respondents had a rational basis for their position, supported by
the case law.
Based on the foregoing, Petitioners' request for attorneys' fees and costs should
be denied.
26
CONCLUSION
For the reasons set forth above, Respondents respectfully requests that the Petition
be denied in its entirety, or in the alternative, that the Court conduct an in camer review of a
representative sample of the records, and that Respondents be granted such other and further
relief as this Court deems just and proper.

Dated: New York, New York
November 23,20L6
ZACHARY W. CARTER
Corporation Counsel for the City of New York
Attorney for Respondents
100 Church Street, Room
New York, NY 10007
2-121,2-ll0
(212) 356-0876; -o872
By:
Thomas B. Roberts
Jeffrey S. Dantowitz
Marilyn Richter
Assistant Corporation Counsel
27
EXHIBIT
IRM - Application Summary
11t22t2016
Expand All
tJ Freedom Of
lnformation Low 6Al Trac
fi'1". Submit a Request
Reqester Info
First Nme:
Last Name:
Grace
Rauh
Organization (if applicable):
Email:
grace.rauh@ nylnew3.com
Phone:
9L7-232-5478
Request Info
Description of Request:
Dear Re(ords Officer/FOIL Office:

Under the New York Freedom of Information Law, N.Y. Pub.
Off. Law sec. 84 et seq., I am requesting copies of
correspondence that Mayor de Blasio and/or senior members
of his administration conducted wth Jonathan Rosen in the

mayor's first year in office. I am requesting correspondence
including, but not limted to, e-mails, memos and text
messages between Jonathan Rosen and Mayor de Blasio,
Tny Shorris, Richard Buery, Alicia Glen, Lilliam Barrios-Paoli,
Emma Wolfe, Maya Wiley, Peter Ragone, Laura Santucc,
Dean Fuleihan, and Phil Walzak from January 1, 2014-Dec. 31,
20t4.
If there are any fees for searching or copying these records,
please inform me if the cost will exceed 25 cents/page.
However, I would also like to request a waiver of all fees in
that the disclosure of the requested information is in the
public interest. I am a reporter at NY1 News and I am seeking
the informaton for news gatherng purposes.
The New York Freedom of Information Law requires a
response time of five business days. If ccess to the records I
am requesting will take longer than ths amount of time,
please contact me with information about when I might
exect copies or the ability to inspect the requested records.
If you deny any or all of this request, please cite each specific
exemption you feel justifies the refusal to release the
information and notify me of the appeal procedures available
to me under the
law.
Thank you for considering my request.

Sincerely,
Grace Rauh
NYl News
https://a002-oom03.nyc.gov/lRM/EventAdmin/EventDetails/RegistrationForm.aspx?regld=dadga66a-1e4df$8701-1ccc8eb1f2a8
1t1
EXHIBIT 2
...-'::',.:,:,,,,.
i
W.
,',1,,3^:.
"b:*#.i
THE CITY OF NEV/ YORK

OFFICE OF THE MAYOR
NEW YORK, NY 1OOO7
Augnst 7,2415
Grace Rauh
NYl
News
gr ac e.r avh@ny
news.
co
Re: ID #2015-0052
Dear Ms. Rauh:
This letter is a response to your request pursuant to the Freedom of Information Law received on
February 18,2015, for the following records:
am requesting copies of correspondence that Mayor de Blasio andlor senior members of his
administration conducted with Jonathan Rosen in the mayor's first year in office. I am requesting
correspondence including, but not limited to, e-mails, memos and text messages between
Jonathan Rosen and Mayor de Blasio, Tony Shorris, Richard Buery, Alicia Glen, Lilliam
Barrios-Paoli, Emma'Wolfe, Maya V/iley, Peter Ragone, Laura Santucci, Dean Fuleihan, and
"I
Phil Walzak from January 1,2014-Dec. 31,2014."

After conducting a search, the Mayor's Office has identified records responsive to your request
under FOIL. The responsive records are attached. Please note that some responsive material has
been redacted in part or withheld in entirety as exempt from disclosure pursuant to Public
Officers Law $87(2)(b) and (g).
We will continue to search for any additional records responsive to this request. We estimate
making a further determination regarding whether any additional responsive records exist, on or
before October 9,2015.
You may appeal this determination in writing within thirty days by addressing such an appeal
to Henry Berger, Records Appeals Officer -- HBerger@cityhall.nyc.gov.
Sincerely,
Kiren Gopal
Special Advisor to the Counsel
Records Access Officer
EXHIBIT 3
THE CITY OF NEW YORK

OPPICE OF THE MAYOR
NEW YORK, NY 1OOO7
April 1,2016
Grace Rauh
NYl
News
grace.rauh @ ny I news.com
Re: ID #2015-0052
Dear Ms. Rauh:
February 18,2015, for the following records:
"I
am requesting copies of correspondence that Mayor de Blasio and/or senior members of his
administration conducted with Jonathan Rosen in the mayor's first year in office. I am requesting
correspondence including, but not limited to, e-mails, memos and text messages between
Jonathan Rosen and Mayor de Blasio, Tony Shorris, Richard Buery, Alicia Glen, Lilliam
Barrios-Paoli, Emma Wolfe, Maya V/iley, Peter Ragone, Laura Santucci, Dean Fuleihan, and
Phil V/alzak from January I,20I4-Dec. 31,2014."

On August 7,2015, we provided you with an initial set of responsive records. After conducting a
further search, the Mayor's Office has identified additional records responsive to your request
under FOIL. Pursuant to Public Officers Law $87(2)(9), the records responsive to your request
are exempt from disclosure.
Sincerely,
Kiren Gopal

EXHIBIT
Henry
Frorn:
Rauh, Grace
Sent:
Frida April29,2016 3:46 PM
lo:
Joseph, Brandon; Eerger, Henry

Gopal, Kiren;Chiu, Bess;Rodriguez, paul; Berger, Henry
Appeal ID #201.5-0052
Cc:
Subject:
<
grace,rauh@nylnews.com>
ear Mr. Berger,

On behalf of NY1 News I am appealing the denial of FOIL request fl2015-0052. We believe these records are not exempt
from disclosure. We expect a rnore detailed response from the adminstration s to why you believe these records re
erempt from disclosure or a wholesale reversal of your
decision.
Sincerely,
Grace Rauh
NY1 News
From : Joseph, Bra rdon lmailto: Joseph@giha ll.nvc.qov]
Sent Frlday, Aprll0t, 216 5:58 PM
Tor Rauh, Grace
Ccr Gopql, Kiren; Chlu, Bess; Rodriguez, paul
Subjecti FOIL Respnse
Dear Ms.rRauh:
Please see attached for a response to your FOII request.
Sincerely,
Brandon Joseph
Office of the Counsel to the Mayor
lllts [.nial] ;rd ;t'ry lrfitlr)ut
EXHIBIT

OFFICE OF TH MAYOR
NEW YORK, NY IOOOT
May 13,2016
Grace Rauh
NYI News
grace. raulrf? n.v I news. co m
Re: FOIL Appeal

Dear Ms. Rauh:
This is in response to your email dated April 29,2016 as an appeal relating to your FOIL request
to the Office of the Mayor submitted on February 18,2016 in which you requested,
copies of correspondence that Mayor de Blasio and/or senior membrs of his
administration conducted with Jonathan Rosen in the mayofs first year in oflice. I
am requesting correspondence including, but not lirnited to, e-mails, memos and text
messages between Jonathan Rosen and Mayor de Blasio, Tony Shonis, Richard
Buery, Alicia Glen, Lilliarn Barrios-Paoli, Emma lty'olfe, Maya lililey, Peter Ragone,
Laura Santucci, Dean Fuleihan, and Phil Walzak from January 1,2014-Dec.31,
2014.
An initial set of responsive records was provided on August 7,2015, Thereafter, by letter dated
April l, 2016, the Records Access Offrcer advised you that,
After conducting a further search, The Mayor's Ofice has identified additional
records responsive to your request under FOIL. Pursuant to Public Oflicers Law
$87(2Xg), the records responsive to your request are exempt from disclosure.
Your appeal of that determination states,

We believe these records are not exempt fborn disclosure. We expect a more detailed
response from the administration as to why you believe these records are exempt
from disclosure or a wholesale reversal of your decision.
Several dozen pages of responsive documents have previously been provided to you. At issue
here is whether certain other communications between Jonathan Rosen and the Mayor's Office
fall within the inter-agency and intra-agency exemption of the Public Officers Law$87(2)(g) (the
nexemption"). The purpose of this exemption is,
"to protect the deliberative process of the
government by ensuring that persons in an advisory role would be able to express their opinions
freely to agency decision makers." Matter of Sea Crest Construction Corp. v. H. D. Stubing, 82
AD2d 549, 55t (2d Dept. l98l). The communications at issue involved advice to the Mayor and
other members of the Mayor's Office provided by Mr. Rosen as a consultant to the Mayoralty.
ln the most common application of the inter-agency and intra-agency exemption, opinions,
recommendations and advice provided by agency personnel may fall rvithin the exemption as
"predecisional material, prepared to assist an agency decision maker,. .in arriving at his
decision." Matter of McAulay v. Board of Educ.,6l ADzd 1048 [2d Dept. 1978). The exemption
applies not only to employees but rnay also apply to outside advisors because "efficient
govemment operation requires open discussion among all governrnent policy makers and
advisors." Matter of Sea Crest Construction Corp.supra at 549. In discussing the applcability of
the exemption to reports prepared for a state agency by a private firm, the Court of Appeals
noted, "ln connection with their deliberative process agencies may at times require opinions and
recommendations from outside consultants. It would make little sense to protect the deliberative
process when such reports rire prepared by agency employees yet deny this protection when
reports are prepared for the same purpose by outside consultants retained by agencies."
of Xerox Comoratign v. Town of Webster,6S NY2d l3l (1985).
Iv!I
ln a decision interpreting a closely analogous provision of the lederal Freedom of Information

Act, the United States Supreme Court has stated that the test of an outside advisor's relationship
is whether the outside advisor "dos not represent an interest of its own, or the interest of any
other client .... Its only obligations are to truth and ie sense of what good judgment calls for."
Department of Interior v. Klamath lilater Users Protective Assn., 532 US l, l0-l l, 121 S Ct
1060, 1A67,149 LEd 2d87,97 (2001). Acting as a consultant to the Mayor, Mr. Rosen's aim
was to advance the Mayor's governmental agenda and thus the interests of the people ofNew
York. Accordingly, the advice Mr. Rosen offered was part of the deliberative process. The
withheld documents relate to communications in which Mr. Rosen was not acting on behalf of
any clients nor interests they represent. In these particular communications Mr. Rosen's advice
represents solely the interests of the Mayoralty and the City. As such, he meets that test and his
advice is protected under the exemption.
I therefore find that the determination to withhold the documents
as exempt under the nter- and
intra-agency exemption was correct and deny your appeal.
You may
seek
judicial review of this determination pursuant to CPLR A*icle 78.

Very truly yours,
Henry T. Berger
cr:
Records Appeals Ofcer

Brandon Joseph
Robert J. Freeman
Directoro Committee on Open Government
EXHIBIT
IRM - Application Summary
rt22016
+Expand All
Save
"Freedom Of lnformation Law (FOIL) Trac
'L. Submit a Request

PLEASE READ BEFORE SUBMTTTING
REQUEST:
to request ccess to certain records maintained by the Mayor's Office. This form may be
requests for records in the possession of the Office of the Mayor. To submit requests to other Cty agencies please contct tl
FOIL permits members of the public
In rder to help expedite your request, please be as specific as possible in describing the record or records to which you see
Please note that under state lw, certain types of records are not accessible vi FOIL. These include but are not limited to rec
would constitute an unwarranted invasion of personal privacy or interfere with a law enforcement investigation. In addition,
communications are not disclosable unless they are:
. statistcal or factual tabulations or data;

. instructions to staff that affect the public;
. final agency policy or determinatons; or
. external audits, including but not limited to audits performed by the comptroller and the federal government.
For a
full list of what records are and are not accessible via
Please also note that the Mayor's Office is not obligated
FOIL, click here. (http://www.dos.ny.gov/coog/foil2.html)
to create records that do not exist in response to
FOIL.
Should you have a question for the Mayor's Office that is not a request for records, you may do so here
http://www.nyc.gov/html/static/pages/officeofthemayor/contact.shtml
For other information about the City or to find out how
to lodge
(http://www.nyc.gov/html/statc/pages/officeofthemi
a complant regarding City matters, please call 311.
Requester Info
First Name:
Yoav
Last Name:
Gonen
Organization (if applicable):
The New York Post
Email:
ygonen@nypost.com
Phone:
646-229-8322
Request Info
Description of Request:
Any and all employees in the Mayor's Office, to or from

Jonathan Rosen or any and all employees of BerlinRosen,
between )an. L,2014 and April 3, 2015
Descrption Attachment:
,,
ol
OOM Reply info
https://a002-oom03.nyc.gov/lRM/EventAdmin/EventDetails/RegistrationForm.aspx?regld=6d632fl}7tr2&a52G719de0a576d8
1t1
EXHIBIT 7
From: e-FOIL <FOll@cityhall. >

Date: Fri, Apr 3, 2015 at 5:57 PM
Subject: FOIL Update - 2015-01 l0
To: vsonennvoost.com
Dear Mr./Ms. Gonen,
This email is to update you on your FOIL request submitted on 04103/2015 for:
"Any and all employees in the Mayor's Office, to or from Jonathan Rosen or any and all employees of
BerlinRosen, between Jan. 1, 2074 and April 3, 2015"
We have reviewed your request and estimate that we
will
be able to provide a dote.rrnination on or before
08/07120t5
Please note that although the Mayor's Office receives a significant volume of FOIL requests, the Mayor's
Office strives to respond to all FOIL requests in a timely manner in the order in which they are received and we
thank you for your patience.

Sincerely,
The Office of the Mayor
Yoav Gonen
City Hall Bureau Chief
New York Post
(646) 229-8322
@yoavgonen
EXHIBIT
THE CITY OF NEV/ YORK

OFFICE OF THE MAYOR
NEW YORK, NY 1OOO7
Angust 7,2015
Yoav Gonen
York Post
ygonen@nvpost.com
Re: ID #2015=0110
The New
Dear Mr. Gonen:
April 3, 2015, fol the following records:
'oAny and all employees in the Mayor's Office, to or from Jonathan Rosen or any and all
employees of BerlinRosen, between Jan. 1,2014 and April 3,2015"
Aftbr conducting a search, the Mayor's Office has identified records responsive to your request
under FOIL. The responsive records are attached. Please note that some responsive material has
been redacted in part or withheld' in entirety as exempt from disclosure pursuant to Public
Officers Law $87(2)(b) and (g).
We will continue to search for any additional records responsive to this request. We estimate
making a fuither determination regarding whether any additional responsive records exist, on or
before November 6, 2015 :
to Henry Berger, Records Appeals Officer -- HBerger@cityhall'.nyc.gov.
Sincerely,
Kiren Gopal

Recorcls Access Offcer
EXHIBIT
Berqer, Flenry
From:
Sent:
To:
Subject:
Yoav Gonen <ygonen@nypost.com>

Sunda May 22,2016 6:55 PM
Berger, Henry; FOIL; Robert Freeman; Yoav Gonen
FOIL Appeal
Dear FOIL Appeal Officer:
I hereby
appeal your offce's delacto denial of a FOIL that was submltted on April 3, 2015 seeking
the emib:f ani and all employees in the Mayor's Office, to or from lonathan.Rosen and his
employees at BerlinRosen between Jan. I, ZAt4 and April 3, 2015,"
To date, your office has provided only a limited response despite having more than 13 months to
fulfill the request. Given the length of time your offce has had to comply, and given the repeated
extensions by your office of a date certain to provide the requested communications, I am
considering the request defacto denied - and I'm appealing on that basis
Given the lengthy delay, I also seek to extend the end date of my request - from April 3, 2015 to
today's date, which is May 22,24t6.
As required by the Freedom of Information Law, the head or goveming body of an agency, or
whomever is designated to determine appeals, is required to respond withln 10 business days of the
receipt of an appeal. If the records are denied on appeal, please explain the reasons for the denial
fully in writing as required by law.
In addition, please be advised that the Freedorn of Information Law directs that all appeals and the
determinations that follow be sent to the Committee on Open Govemmen Department of Sbte, One
Commerce Plaza,99 Washington Ave., Albany, New York t223L.
Sincerety,
Yoav Gonen
Yoav Gonen
Cty Hall Bureau Chief
New York Post
(646) 22e-8322
@yoavgonen
EXHIBIT
10
THE CITY OF NEw YORK

OFFICE OF THE MAYOR
NEIW YORK, NY IOOOT
June 7,2016
Yoav Conen
The New York Post
vgonen@nypost.com
Re: FOIL Appeal
Dear Mr. Gonen:
This is in response 1o your email dated May 22,2016 as an appeal relating to your FOIL rcquest
to the Office of the Mayor received on April 3, 2015, in which you requested the follorvlng:
Any and all employees in the Mayor's Office to or from Jonathan Rosen or any and
allemployees of Berlin Rosen Between January 1,2104 and April 3,2015
The request was limely responded to by the Records Access Officer and an estimated
determination date was provided. Thereafter, the Records Access Officer, on August 7,2A15,
responded providing certain responsive records. The response noted:
We rvill continue to search for any additional records responsive to this rcquest. We
estimate making a further determination regarding whether any additional responsive
records exist, or before November
6,2t15.
Subsequently the Records Access Officer advised you that the estimated determination date was
being postponed multiple times, most recently to June 10,2016.
Your appeals note that you are "considering the request defacto denied
that basis."
- and lom appealing
on
The Office of the Mayor takes seriously the importance of disclosing information to the public
consistent with the law. Multiple postponements are certainly to be avoided whenever possible;
at times, however, they are necessary particularly when dealing with requests that are broad and
require the careful review of a large number of documents, Reviewing records to determine if
they are responsive and if they may be disclosed pursuant to the Public Ofcers Law $87 is a
time and labor intensive process and every effort is made to respond to each request in as timely
a manner as is possible.
Given the large number of documents that are being reviewed, I find that it would be appropriate
to grant your appeal to the limited extent of directing the Records Access Officer to provide any
disclosure that rnay be required by law no later than 1 business days ftom the date of this letter.
You may seekjudicial review of this determination pursuant to CPLR Article 78.
Very truly yours,
Ue_{-'-.Henry T. Berger
Records Appeals Offrcer
cc:
Brandon Joseph
Robert J. Freeman
Director, Committee on Open Government
EXHIBIT
II

OFFICE OF THE MAYOR
NEW YORK, NY 1OOO7
June 10,2016
Yoav Gonen
The New York Post
ygonen@nypost.com
Re: ID #2015-0110
Dear Mr. Gonen:
April 3, 2015, for the following recordb:
"Any and all employees in the Mayor's Office, to or from Jonathan Rosen or any and all
employees of BerlinRosen, between Jan. 1,2014 and April 3,2015"
On August 7,2015, we provided an initial set of responsive records. After conducting a further
search, the Mayor's Office has identified additional records responsive to your request under
FOIL. The final set of records responsive to your request is attached. Please note that some
responsive materials have been redacted in part or withheld in entirety as exempt from
disclosure pursuant to Public OfFrcers Laur $87(2Xb) and (g).
Sincerely,
Kiren Gopal

EXHIBIT
12
Berger, Henry
From:
Sent:
Yoav Gonen <ygonen@nypost.com>

Thursday, June 16,2016 5:21 PM
lo:
Berge Henry; treemae Robert J {DOS); Yoav Gonen

FOIL appeal
Gonen Determination 0610 16.pdf
Subject:
Attachments:
Dear FOIL Appeal Oflicer:
I hereby appeal your oflice's incomplete fulfillment of FOIL #2015-01l0 which sought copy of the emails of
any and all employees in the Mayor's Offce - including Mayor de Blasio - lo or from Jonathan Rosen or any
and all employees of BerlinRosen, between Jan. l, 2014 and April 3, 2015,
After your second of two responss was received on June 10,2016 - which provided a portion of the records
requested - your ofice wrote that it rvas the "final set ofecordsn responsive to my request (attached).
Based on publc statements by the rnayor, his generalcounsel and media reporls, I definitively know that further
informalion responsive to my records - specifically emails exchanged that don't contain communications related
to clients of BerlinRosen - has been withheld, presumably because of a determination by the mayor's office that
Rosen is an "agent of the city."
l'm appealing your provision of an incomplete set of responsive documents based on the knowledge that there
exist additional emails that ore responsive to rny initial request and that to my knowledge and belief have no
legal basis fbr being withheld. Rosen is a member of the public not pad by the administration and, as such, his
and his firm's communications with and advice to the mayor's ofce should be provided under New York's
public disclosure laws, as should the office of the mayor's communications to and from Rosen and his frm.
As required by the Freedom of Information Law, the head or governing body of an agency, or whomever is
designated to determine appeals, is required to respond within l0 business days of'the receipt of an appeal.
the records are denied on appeal, please explain the reasons for the denial fully in writing as required by law.
lf
In addition, please be advised that the Freedom of Information Law directs that all appeals and the
determinations ttrat follow be sent to the Committec on Open Govemment, Department oflState, One
Commerce Plaza,99 Waslringlon Ave., Albany, New York 12231,
Sincerely,
Yoav Gonen
Forwarded message
From: Fayctte, Kirn bcrly <KFavette@c i tvla I l.
Date: Fri, Jun 10,2016 at 7:54 PM
Subject: FOIL Response (Part l)
To : "y gonen@nvpost.gpE|" (ysonen@nypost.com>
Rodriguez, Paul"
C.r
Bess" <bchiutilcitvhlLn
"
<PRodriguez@citvh
, "Chiu,
EXHIBIT
13

OFFICE OF THE MAYOR
NEW YORK, NY IOOOT
June 30,2016
Yoav Gonen
The New York Post
yrionen@nvpost.com
Re: FOIL Appeal
Dear Mr. Conen:
This is in response to your email dated June 16, 2016 as an appeal relating to your FOIL request
to the Office of the Mayor submitted on April 3,2A15 in which you requested the following
records (which I interpret to mean communications between):
Any and all employees in the Mayor's Ofice, to or from Jonathan Rosen or any and
all employees of BerlinRosen, between Jan.l,2014 and April 3,2015,
An initial set of responsive records was provided on August 7,2015. Thereafter, by letter dated
April l, 2A16, the Records Access Officer advised you that,
After conducting a further search, The Mayor's Offce has identified additional
records responsive to your rcquest under FOIL. The final set of records responsive to
your request is attached. Please note that some responsive materials have been
redacted in part or withheld in entirety as exempt from disclosure pursuant to Public
Officers Law $S7(2Xg).
Your appeal of that determination states,
Based on public statements by the mayor, his general counsel and media reports, I
defnitively know that further information responsive lo my records - specifically
emails exchanged that don't contain communications related to clients of

BerlinRosen - has been withheld, presumably because of a determination by the
mayor's off that Rosen is an "agent of the city,"

I'm appealng your provision of an incomplete set of responsive documents based on
the knowledge that there exist additional emails that are responsive to my initial
request and that to my knowledge and belief have no legal basis for being withheld.
Rosen is a member of the public not paid by the adminislration and, as such, his and
his firm's communications with and advice to the mayor's office should be provided
under New York's public disclosure laws, as should the office of the mayor's
communications to and from Rosen and his firm.
issue here is whether certain u/ithheld communications between Jonathan Rosen and the
Mayor's Office fall within the inter-agency and intra-agency exemption of the Public Officers
At
Law$87(2)(g) (the "exemption"). The purpose of this exemption is, "to protect the deliberative
process of the government by ensuring that persons in an advisory role would be able to express
their opinions freely to agency decision makrs." Matter of Sea Crest Construction Corp. v. H.
D. Stubing,S2 ADJJ9, 550 (2d Dept. lgSl). The communications at issue involved advice to
the Mayor and other members of the Mayor's Office provided by Mr. Rosen as a consultant to
the Mayoralty.
In the most common application of the inter-agency and intra-agency exemption, opinions,
recommendations and advice provided by agency personnel may fall within the exemption as
"predecisional malerial, prepared to assist an agency decision maker...in arriving at his
decision." Matter of McAulay v. Board of Educ.,6l ADzd 1048 [2d Dept. 1978).The exemption
applies not only to employees but may also apply to outside advisors because "efficient
government operation requires open discussion among all government policy makers and
advisors.n Matter of Sea Crest Construction Corp. supm at 549. In discussing the applicability of
the exemption to reports prepared for a stafe agency by a private firm, the Court of Appeals
noted, "ln connection with their deliberative process agencies may at times require opinions and
recommendaticns from outside consultants. It would make little sense to protect the deliberative
process when such reports are prepared by agency employees yet deny this protection when
reports are prepared for the same purpose by outside consultants retained by agencies."
of Xerox Corporation v. Town of Webster,65 NY2d l3t (1985).
@!
In a decision interpreting a closely analogous provision of the federal Freedom of Information

Act, the United States Supreme Court has stated that the test of an outside advisor's relationship
is whether the outside advisor "does not represent an interest of its own, or the interest of any
other client .".. Its only obligations are to truth and its sense of what good judgment calls for."
Department of Interior v. Klamath Water Users Protective Assn.,532 US l, l0-l l, l2l S Ct
1060, 1A67, 149 LEd 2d 87 ,97 (2001). Acting as a consultant to the Mayor, Mr. Rosen's aim
was to advance the Mayor's govemmental agenda and thus the interests of the people ofNew
York. Accordingly, the advice Mr.
Rosen offered was part of the deliberative process. The
withheld documents relate to communications in which Mr. Rosen was not acting on behalf of
any clients nor interests they represent. In these particular communications Mr. Rosen's advice
represents solely the interests of the Mayoralty and the City. As such, he meets that test and his
advice is protected under the exemption,
I therefore find that the determination to withhold the documents as exempt under the inter- and
intra-agency exemption was correct and deny your appeal.
You may seek judicial review of this determination pursuant to CPLR Article 78.
Very truly yours,
\-f.8"-1...Henry T. Berger
Records Appeals Officer
cc;
Brandon Joseph
Robert J, Freeman
Director, Committee on Open Government
EXHIBIT
14
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EXHIBIT
15
CITY OF NEW YORK

CONFLICTS OF INTEREST BOARD
2l-afayette Street, Suite l0l0
New York, New York 10007
(2t2) 442-t4a0
Fax: (212) M2-1407 TDD: (212) 442-1443
June 10,2015
Ian BassirL Esq.

Deputy Counsel to the Mayor
The City of New York
Oflice of the Mayor
New York, NY 10007
Re:
Conflicts of Interest Board Case No..20.15-343 (RebepSa..Kgtz_AK! Hayley Priqrl
Dear Mr. Bassin:
This is in response to your letter, dated June 3,2015, to the Conflicts of lnterest Board
(the "Boand"), * other communications betwesn your office and Board staff, requesting that
the Board grant a waiver pursuant to New York City Charter Section 260aG) to permit Rebecca
Katz nd Llayley Prim to appear before the Office of the Mayor (the "Office") on behalf of their
prospective employer, the Campaigr for One New York ("CONY"), within one year of their
departure from the Office.
You advise that Ms. Prim, who joined City service in February 20t 4, worked for the
overwhelming majority of that time as a Policy Analyst on the team of Deputy Mayor Alicia
Glen and that she left Ciry service on March 27,201.5, to take a position at Hilltop Public
Solutions ("Hilltop"), a strategic communications and public affairs firm. You also advise that
Ms. Katz, who joined City service on January 1,2014, served as a Special Advisor to the Mayor
until April 7,2015, when she Ieft City service also to take a position at Hilltop.
You further advise that Ms. Prim is proposing in coming days to terminate her
ernployment with Hilltop and to join the stafTof CONY as a fult-time hployee. You also advise
r
that Ms. Katz may consider doing the same.
You advise that CONY is a 501(c)(4) not-for-profit coporation established in
coordination with Mayor de Blasio for the exclusive purpose of receiying and expending private
funds to provide the people of New York City with an opportunity to organize in support of the
Mayor's policy agenda and to advocate on behalf of the City. You advise that CONY is a client
of'Hilltop and that at Hilltop Ms. Prim and Ms. Katz havc been doing work for CONY. You
COIB Case No, 2015-143

June 10,2015
PageZ of 4
advise that
if Ms. Prim and Ms. Katz become employees of CONY their work would
include
eforts to organize the follow-up to the Mayor's visit last month to Washington, D.C. where he
advocated for a series of policy priorities of inteiest to New Yorkers, inclucling an increase in the
minimum wage, paid family leave, and additional tax revenues to support investments that would
address the current inequality crisis; that, more particularly, CONY is currently engaged in time
sensitive work to follow up on that visit and is working to support a day of action later this
month; that to enable CONY to do so, the Mayor's Otfice needs to cocrdinate rvith CONY on the
content of these activities to ensure accu'acy and consistency in the presentation of information
to the public; and that in light of CONY's very small staff(CONY has only one other full-time
employee) the Ofco would need to communicate with Ms. Prim (and with Ms. Katz, should she
determine to leave Hilltop for a full-tme position at CONY).
By enclorsement to your letter to the Board, Mayor de Blasio approves of a waiver for
Ms. Prim and Ms. Katz to permit them to appear before the Olfice within one year of leaving
City employment in connection with their work as enrployees of CONY, stating his belief that
such appearances woulcJ not bc in conflict with the purposes and interests of the City.
Charter Section 2604(d) contains a number of provisions -- referred to as the posternployment restrictions -- regulating the conduct of individuals who have left; or are
contemplating leaving, City service.
Charter Section 2604(d)(2) provides that no former public servant shall, within a period
of one year after the termination of the public servant's service with the City, appear before the
agency served by the public servant. "Appear" means to make any cornmunication, including
personal appearnces, telephone calls, and letters, for compensation, other than those involving
ministerial matters. $-ee Charter Section 2601(4). A "ministeril mattsr" means an
administrative act, including the issuance of a license, permit, or other permission by the City,
that is camed out in a prescribed manner and does not involve substantial personal discretion.
See Charter Section 2601(15).
Charter Section 2604(dX4) provides that no former public servant shall appear, whether
paid or unpaid, before the City, or receive oompensation for any services rendered, o'in relation to
any particular rnatter involving the same party or parties with respect to which particular rflattet
such person had participated personally and substantially as a public servant through decision,
approval, recommendation, investigation or other similar activities." "Particular matter" means
any case, proceeding, application, request for a ruling or benett, dctermination, contract limited
to the duration of the contract as specified therein, investigation, charge, accusation, arrest, or
other similar action that involves a speeific party or parties, including actions leading up to the
particular matter. See Charter Section 2601(17).
Charter Section 204(dX5) provides that no public servant shall, afler leaving City
service, disclose or use fbr private aclvantage any confidential infbrmation gained from public
service that is not othcrwise made available to the public.
COIB Case No.20l5-343

June 10,2015
Page 3 of4
Charter Section 26A4@) provides, however, that a public servant may hold a position or
engage in conduct otherwise prohibited by Chapter 68 if the Board determines, after receiving
the written approval of the hcad of the agency or agencies involved, that such position or conduct
does not involve a conflict with the purposes and intorests of the City,
ln various Advisory Opinions starting rvith No. 91-8, the Board has rnade clear that
Section 260a@) would be interpreted to permit limited waivers of the post-employment
restrictions, and has further stated that, in determining whether to issue a waiver of the postemployment restrictions, the Board would consider a number of factors, including, but not
Iimited to: the relationship of the City to the public servant's prospective employer; the benefits
to the City (as opposed to the public servant) if the waiver were to be granted; and the likelihood
of harm to other organizations or companies similar to, or in competition with, a public servant's
prospective employer, if the waiver is granted. The Board has in the past granted such waivers
"sparingly, and only in exigent circumstances." See Advisory Opinion No. 94-15.
In Advisory Opinion No. 2000-2, in discussing the question of post-ernployment waivers,
particularly for public ssrvants leaving to work for not-for-profts that are closely associated with
the City, the Board noted that under certain circumstances public/private partnerships are so
significant to the welfare of the City that the City is well served to encourage formcr City
employees to remain effectively in public seruice and to lend their expertise to these not-forprofits. The Board firther stated that, when the City and the not'for-profits share an identity of
interest, the harms that the post-ernployment provisions were intended to address ("to prevent
public servants frorn exploiting public office for personal gain, subordinating the interests of the
City to those of a prospective employer, or exerting unclue influence on govemment decisionmaking"; Opinion No, 94-5 at 6-7) may be absent or at least negligible, and a waiver of the post'
employment restrictions shall be granted accordingly,
In Advisory Opinion No. 2008-4, the Board provicled further guidance for evaluating the
types of relationships that will be deemed public-private partnerships, stating that, when the
relationship between the prospective employer organization and the City is one of a compensated
provider of goods or services * that is, as a vendor - and a customer, the Board will judge the
request to waive the post-employment restrictions under the historic standard announced first in
Advisory Opinion No. 91-8 and will grant such requests "sparingly." However, the Board
further opined that when the prospective ernployer organiz.ation is a City-affiliated nofor-profit,
or an organizatian that contributes private resources to the City in collaboration with a City
agoncy, the prospective employer organization will more likely be deemed anlpartner," and the
Board will evaluate the application to waive the post-employment restrictions under the less
stringrt standard set forth in Advisory Opinion No. 2000-2. $ec Advisory Opinion No, 2008-4
at 12, Moreover, the Board further observed that the distinction between those private entities
that will be viewed as partncrs and those that will not is not precise; that a given entity may, over
time, "shift positions along the continuum;" and that, dopending on the particular work the
departing City nployees will be doing, waivers f'or City employees leaving to take positions at
such firms will be analyzed in light of the firm's hyhrid status as both a partner and a vendor,
See Advisory Opinion No. 2008-4 at 10.
COIB Case No. 2015-341

June 10,2015
Page 4
of4
Here, the Board determines that CONY is a not-for-profit organizaion bringing private
resources to bcar in an effort, eoordinated with the Office of the Mayor, to support ard advance
Mayor de Blasio's policy agenda and is therefore a not-for-profit "partner" of the Office of the
Mayor within the meaning of Advisory Opinion No. 2008-4. In light of the identity of interest
between the Office and CONY in advancing the Mayor's policy agenda, because Ms. Prim's and
Ms. Katz's proposed communications with the Office would help make it possible for CONY's
initiative to succeed, and because none of the evils, noted above, against which the postemployment restrictions v/ere aimed appeff substantially present here, Ms. Prim's and Ms.
Katz's proposed communications would not conflict with the purposes and interests of the City,
and the tsoard thus grants the requested waiver of the one-year appearance ban of Charter
Section 2604(d)(2) to permit Ms. Prim and Ms. Katz, shoul<i she too terminate her Hilltop
employment to join CONY full-time, to communicate with the Offce during their first postemployment year on trehalf of CONY.
You are accordingly advisecl that, based on your representations and Mayor de Blasio's
written approval, the Board has determined that it would not corflict with the purposes and
interests of the City for Ms. Prim and Ms. Katz to appear befbre the Office as full-tirne
nployees of CONY during the first twelve months following their departure from City service,
limited to their work for CONY as described above, provided that they may not, absent a frther
waiver granted by this Board on subsequent application, work on particular matters in which
they were personally and substantially involved while a pulilic selant and may not use for
private advantage or disclose any confidential information gained from public service that is not
available to the public. See Charter Sections 26A4G)$) and (d)(5).
'ltre advice conveyed in this letter is conditioned orr the correctness and completeness of
the facts supplie.d to us. If such facts are in any respect incorrect or incomplete, the advice we
have given to you may not apply. If'at any time you would like further advice based on a change
of circumstances or additional infbrmation, please contact us.
Very truly yours,
Richard Bnfault
Chair
Fernando Bohorquez
Anthony Crowell
Andrew Irving
Erika Thomas-Yulle
2015-343e.bd/wh

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RauhGonenFiling 11 23

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

GRACE RAUH, TWC NEWS AND LOCAL

Index No. 157525/2016

Motion Seq. No. I

BILL DE BLASIO, in his official capacity as Mayor of the

Bill de Blasio in his. official capacity

"1" of the Verified Petition is a description of the proceeding that

de Blasio is the Mayor of the City of New York.

admit that Petitioners have served Freedom

Information Law ("FOIL") requests upon

Respondents seeking certain comr.nunications between Mayor de Blasio, members of Mayor de

to production under FOIL.

Respondents deny that the assertion

o'3" of the Verified Petition is a description of the relief Petitioner

their FOIL requests.

Deny knowledge or information sufficient to forrn a belief as to the truth of

broadcasts from 75 Ninth Avenue, New York,

NY 10011 and that Grace

Deny knowledge or information sufficient to form a belief as to the truth of

the allegations set forth in paragraph "5" of the Verified Petition.

Deny knowledge or information sufficient to form a belief as to the truth of

Deny knowledgei or information sufficient to form a belief as to the truth of

the allegations set forth in paragraph

"'7" ofthe Verified Petition, except admit that Yoav Gonen

Admit the allegations in paragraph "8" of the Verified Petition.

"9" of the Verified Petition is a legal contention which requires

"10" of the Verified Petition is a legal contention which requires no

of the Verified Petition.

of the Verified Petition is a legal contention which requires no

12.Paragraph"lT" of the Verified Petition is a legal contention which requires no

of the Verified Petition.

Admit the allegations set forth in the first sentence of paragraph

# 2015-0052. (A copy of the August 7,2015 FOIL Determination is annexed hereto

except admit that on

the Records Access Officer sent Ms. Rauh a second FOIL

FOIL appeal is annexed hereto as Exhibit "4.")

in paragraph "18" of the Verified Petition, and

. Admit the allegations set forth in paragraph'!19"

of the Verified Petition, and

"20" ofthe Verified Petition.

sent to Mr. Gonen, admit that the Office of the

April 3, 2015 acknowledgment email is annexed

27. Admit the allegations

forth in paragraph "27" of the Verified Petition, and

"28" ofthe Verified Petition,

in paragraph "30" of the Verified

to the June 7, 2016 FOIL Appeal

FOIL Appeal Determination is annexed hereto as Exhibit "l0.")

33. Deny the allegations set forth

in paragraph "33" of the Verified Petition,

in paragraph "34" of the Verified' Petition,

in paragraph "36" of the Verified Petition,

37.In response to paragraph':37" of the Verified Petition, Respondents repeat and

through 36 of the Verified Petition as

if fully set forth

39.Paragraph"39" of the Verified Petition is a legal contention which requires no

40.Paragraph"40" of the Verified Petition is a legal contention which requires no

4I.Pangraph"4l" of the Verified Petition is a legal contention which requires no

AS AND FOR A STATEMENT OF

45.It is a longstanding and widely-accepted practice for elected officials

firm's experience, expertise

and knowledge. These consultants are not necessarily compensated