Tuesday, December 15, 2009

Court of Appeals smacks down ESDC in FOIL case related to Columbia expansion

Another court--this time the state's highest court--has expressed skepticism about the operations of the Empire State Development Corporation (ESDC), this time regarding its responsiveness to Freedom of Information Law (FOIL) request regarding the Columbia University expansion in West Harlem.

The Court of Appeals still must hear an appeal by the ESDC on eminent domain in the case, but the unanimous ruling, known as Matter of West Harlem Business Group vs. Empire State Development Corporation, gives some momentum to the effort by property owner Nick Sprayregen and attorney Norman Siegel.

They must convince the Court of Appeals to uphold the 3-2 Appellate Division ruling blocking the use of eminent domain, a decision that appears in conflict with the Court of Appeals' decision in the Atlantic Yards case but might be distinguished on the grounds of more clear bad faith on the part of the ESDC.

From the decision

The decision notes that the ESDC resisted disclosure of documents relating to a July 2004 agreement between Columbia and the ESDC, citing the exemption that disclosure "would impair present or imminent contract awards or collective bargaining negotiations." On administrative appeal, ESDC affirmed that determination, relying upon the same exemption.

The West Harlem Business Group (WHBG) then went to court, arguing that ESDC failed to articulate a particularized and specific justification for withholding the requested documents. ESDC said it not only had fully complied with its obligations under FOIL but also asserted that the documents were exempt either as intra- or inter-agency material or privileged attorney-client communications.

The Supreme Court tried to examine all documents in-camera, but, according to the ruling, ESDC failed to identify which documents fell within each particular exemption, asserting only that the documents were either non-responsive, exempt intra- or inter-agency office records, or had been previously disclosed.

At issue were five documents; the Appellate Division agreed they should be disclosed, and that was appealed.

The Court of Appeals said that "this litigation could have been avoided, or significantly limited, had ESDC in the first instance complied with the dictates of FOIL." For example, the appeals officer "merely parroted the same language" of the access officer in denying the appeal, which constituted a failure by ESDC to "fully explain in writing" as required by FOIL "the reasons for further denial."

Only in the context of the lawsuit did the ESDC claim the document were exempt under a different section of the law

To argue for an exmption, ESDC was required to "articulate particularized and specific justification" for not disclosing them, the court said, but instead it made "conclusory characterizations" of the records sought:
None of the affidavits submitted by ESDC employees sufficiently identified the particular exemption to which the submitted records were subject, leaving that task to Supreme Court. ESDC cannot now be heard to complain that Supreme Court improperly labeled the documents in the manner it did, as it is not the function of Supreme Court to apply the exemptions for the agency. Since ESDC failed to meet its burden of proof relative to the exemptions, Supreme Court properly ordered disclosure of the documents.
ESDC response

ESDC spokesman Warner Johnston told the Observer the decision imposes new burdens:
This was a transparent process and none of these documents affects the merits of ESDC's findings. In ordering the release of these 7 documents, the Court of Appeals today has articulated a clearer, higher standard for agencies to meet in order to avail themselves of the exemptions from disclosure properly provided for in the Freedom of Information Law. The heightened standard articulated by the Court today to support FOIL exemption imposes substantial additional burdens, at a time of severe fiscal constraint, on this and other agencies which will result in additional time and expense in responding to the multiplicity of expansive FOIL requests regularly received with respect to large, complex projects. ESDC continues to believe in the importance of transparency in government and will release the 7 documents in question, in compliance with today's decision.
Siegel's response

The Columbia Spectator reported:
But Siegel, Sprayregen’s lawyer, said in an interview that the decision establishes an important precedent for government agencies: “It sends a signal to the ESDC that if they don’t comply with the law, they are going to be held accountable.”

He added, “FOIL matters. It is significant. But laws are only significant, if people exercise their rights under the law.”

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