Supreme Court, New York County Index No.

106213/2011

To be argued by SUSAN PAULSON

NEW YORK SUPREME COURT APPELLATE DIVISION: FIRST DEPARTMENT SERGIO HERNANDEZ, Petitioner-Respondent, For a Judgment Under Article 78 of the Civil Practice Law and Rules, -againstOFFICE OF THE MAYOR OF THE CITY OF NEW YORK, Respondent-Appellant. BRIEF OF APPELLANT MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for RespondentAppellant, 100 Church Street, New York, New York 10007. (212) 788-1362 or 1055 spaulson@law.nyc.gov FRANCIS F. CAPUTO, JEFFREY S. DANTOWITZ, SUSAN PAULSON, Of Counsel July 9, 2012

REPRODUCED ON RECYCLED PAPER

Page TABLE OF CONTENTS TABLE OF AUTHORITIES......................................... iii PRELIMINARY STATEMENT.......................................... 1 QUESTION PRESENTED............................................. 1 STATEMENT OF RELEVANT FACTS.................................... 2 A. Ms. Blacks Selection as New York City Schools Chancellor................ 2 B. Petitioners FOIL Request.................... 4 C. Article 78 Proceeding........................ 6 D. Supreme Court Decision....................... 7 RELEVANT STATUTORY AUTHORITY................................... 8 ARGUMENT THE CITY PROPERLY INVOKED THE INTRA-AGENCY EXEMPTION TO WITHHOLD RESPONSIVE RECORDS THAT REFLECT THE DELIBERATIVE PROCESS OF GOVERNMENT INVOLVED IN PROMOTING THE SMOOTH TRANSITION OF EXECUTIVE POWER............................................9 A. The Documents At Issue Were Properly Withheld to Protect the Deliberative Process of Government.................................. 12 B. The Documents At Issue Were Properly Withheld Because, During the Relevant Time Period, Ms. Black Was Acting In An Advisory Role to the City As An Agent Of, Or Consultant To, the City................................ 18

Page C. The Documents At Issue Were Properly Withheld to Protect the Confidentiality Necessary For Candid and Effective Communications Between the City And Its Prospective Employee................ 22 CONCLUSION.................................................... 25 PRINTING SPECIFICATIONS STATEMENT............................. 26 PREARGUMENT STATEMENT...........................................

ii

Page TABLE OF AUTHORITIES CASES Burke v. Crosson, 85 N.Y.2d 10 (1995) ........................................ 12 Cirale v. 80 Pine Street Corp, 35 N.Y.2d 113 (1974) ....................................... 13 Cleveland v. Caplaw Enters., 448 F.3d 518 (2d Cir. 2006) ................................ 20 Columbia Broad. Sys., Inc. v. Stokely-Van Camp, Inc., 522 F.2d 369 (2d Cir. 1975) ................................ 20 Department of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1 (2001) ...................................... 17, 18 Goodstein & West v. O'Rourke, 201 A.D.2d 731 (2d Dept. 1994) ............................. 16 Gould v. New York City Police Dept., 89 N.Y.2d 267 (1996) ........................................ 9 Gulf Ins. Co. v. Transatlantic Reins. Co., 69 A.D.3d 71 (1st Dept. 2009) .............................. 19 In re Shulman Transp. Enterprises, Inc., 744 F.2d 293 (2d Cir. 1984) ................................ 20 Itel Containers Intl Corp. v. Atlant-Trafik Express Service, Ltd., 909 F.2d 698 (2d Cir. 1990) ........................... 19 Kheel v. Ravitch, 93 A.D.2d 422 (1st Dept. 1983), affd, 62 N.Y.2d 7 (1984) .............................. 14, 25 Matter of Sea Crest Constr. Corp. v. Stubing, 82 A.D.2d 546 (2d Dept. 1981) .................. 12, 21, 22, 25 Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 77 A.D.3d 224 (3d Dept. 2010), affd in part and modified in part by 18 N.Y.3d 652 (2012) ........................................................ 15, 16

ii

Page Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 18 N.Y.3d 652 (2012) ................................ 9, 15, 16 Matter of Tuck-It-Away Assoc., L.P. v. Empire State Development Corp., 54 A.D.3 154 (1st Dept. 2008) ........................ 16 New York Times Co. v. City of New York Fire Dept., 4 N.Y.3d 477 (2005) .................................... 12, 13 One Beekman Place v. City of New York, 169 A.D.2d 492 (1st Dept. 1991) ........................ 13, 14 Professional Standards Review Council of America, Inc. v. New York State Dept. of Health, 193 A.D.2d 937 (3d Dept. 1993) ............................. 13 Rothenberg v. City University of New York, 191 A.D.2d 195 (1st Dept.) app. denied, 81 N.Y.2d 710 (1993) .......................... 13 Ryan v. Dep't of Justice, 617 F.2d 781 (D.C. Cir. 1980) .............................. 17 Tigue v. United States DOJ, 312 F.3d 70 (2d Cir. 2002) ................................. 17 Xerox Corp. v. Webster, 65 N.Y.2d 131 (1985) ............................... 11, 12, 15 STATUTES 5 United States Code 552(b)(5).............................. 17 Civil Practice Law and Rules 5519(a)........................... 8 Civil Practice Law and Rules 5701(a)(1)....................... 11 Civil Practice Law and Rules 5701(a)(2)....................... 11 Civil Practice Law and Rules 5701(c).......................... 11 Education Law 3003(1).................................... 3, 22 Education Law 3003(3).................................... 3, 23 Public Officers Law 87(2)............................... passim

iii

Page Public Officers Law 87(2)(b)................................. 5 Public Officers Law 87(2)(g)............................ passim Public Officers Law 89(4)(c)............................. 6, 12 TREATISES Restatement (Second) of Agency 1 cmt. b (1958).............. 20 Restatement (Second) of Agency 26 (1958).................... 19 REGULATIONS 8 New York City Rules and Regulations 80-3.10(b)(3)(iii)..... 3

iv

PRELIMINARY STATEMENT Petitioner-respondent Sergio Hernandez, a reporter

affiliated with the Village Voice, requested certain documents from the Office of the Mayor of the City of New York

(hereinafter the City) pursuant to the New York State Freedom of Information Law (FOIL). These documents relate to the

hiring of Ms. Cathleen Black to serve as the New York City Schools Chancellor. exemptions from The City denied the FOIL request claiming based on unwarranted invasion of By

disclosure

privacy and for inter-agency and intra-agency materials.

Order of the Supreme Court, New York County (Schlesinger, J.), entered December 6, 2011, the Supreme Court granted Hernandezs Article 78 petition and directed the City to release the

requested documents.

The City appeals from that portion of the

Courts ruling that found that the documents are not exempt from disclosure as intra-agency records. QUESTION PRESENTED Did the Supreme Court err in finding that the subject documents are not exempt as intra-agency records under New York Public Officers Law 87(2)(g) where, at all times relevant to this action, Ms. Black was acting as an agent of, or consultant to, the City of New York or Mayor Michael Bloomberg and, in this capacity, communicating with City officials as part of the

deliberative process underlying the Citys filing of a School

District Leader Certificate request on her behalf in order to promote the smooth transition of government? STATEMENT OF RELEVANT FACTS A. Ms. Blacks Selection as New York City Schools Chancellor. In early November 2010, Mayor Michael Bloomberg

selected Cathleen P. Black to be the Chancellor of the City school district, upon the pending resignation of the then-

serving Chancellor, Joel Klein.

Record on Appeal (R.) 43.

Mayor Bloomberg publicly announced his selection of Ms. Black to be the next Chancellor on November 9, 2010. Id.

Ms. Black did not meet the eligibility requirements of Education that, Law 3003(1) for a superintendent requisite certificate of in

although she

she did

possessed not

the

Bachelor

Arts or any

degree,

possess R.

the 43.

graduate The

coursework of

experience

requirements.

selection

individual to a high-level government position is subject to scrutiny and debate, and this was especially true with regard to the selection of Ms. Black because she did not meet the

eligibility requirements for appointment as Chancellor. 44.

R. 43-

Thus, in order for Ms. Black to serve as Chancellor, she

was required to obtain a School District Leader Certificate from the New York State Education Department pursuant to Education Law 3003(3). R. 44. By letter dated November 17, 2010, Mayor

Bloomberg wrote to David Steiner, the Commissioner of Education

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of the New York State Education Department, requesting that he provide Ms. Black a School District Leader Certificate pursuant to Education Law 3003(3) and 8 NYCRR 80-3.10(b)(3)(iii). Id. After her selection in early November 2010, Ms. Black, City staff and Hearst Corporation staff assigned to assist Ms. Black in her transition to City government were required to communicate with one another in order to appropriately prepare the request to Commissioner Steiner, respond to routine queries that are customary for high-level mayoral appointees, and engage in outreach planning to the community to address concerns that had been publicly raised regarding Ms. Blacks qualifications. R. 44. Ms. Black was both directly communicating with, as well Id. of These emails Ms. Blacks

as copied on, emails between these parties. included discussions concerning

clarification

background, discussions related to proposed and actual contacts with various government officials and other stakeholders

regarding Ms. Blacks selection, and drafts of the letter to be sent to Commissioner Steiner requesting a School District Leader Certificate for Ms. Black. It was Id. that the communication and

well-understood

outreach efforts described above were to be coordinated through the Office of the Mayor, and that Ms. Black and the staff

assigned to assist her in her transition to City government

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would be expected to participate in and support these efforts, as would any other high-level mayoral appointee. R. 44.

Indeed, the emails between the Office of the Mayor and Ms. Black (whether directly or as a cc) demonstrate that while Ms. Black and her staff were working in tandem with the Office of the Mayor in pursuit of a common goal, she did not act

independently, but only at the direction of the Office of the Mayor. R. 45. On November 29, 2010, the New York State Education Department granted Ms. Black the requested Certificate allowing her to serve as Chancellor. R. 45. R. 45. Ms. Black began serving as

Chancellor on January 1, 2011. B. Petitioners FOIL Request.

By email dated November 19, 2010, petitioner requested from the City copies of E-mail messages sent from or received by any state electronic email accounts assigned to the Office of the Mayor to Black or or from an individual addresses the New named Cathleen the Prunty domain of

Cathie

email to

containing York State

hearst.com

pursuant

Freedom

Information Law, Article 6 84, et seq.

R. 29-30.

Following a

reasonably diligent search of its records, the City located a number of responsive documents. R. 45. Each of these were

documents that Ms. Black either sent to someone at City Hall, or on which she was a recipient, either directly or as a cc. Id.

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There

were

no

responsive

documents

located

to

senders

or

recipients at a hearst.com domain other than those sent to or received from Ms. Black, as described herein. Id.

Although petitioner purportedly sent his FOIL request in order to gain insight and information into the process by which Ms. Black was selected to be Chancellor, none of the

responsive documents deal with the selection process. The responsive and Ms. documents Black to concern clarify the and efforts expound of on the Ms.

R. 46. Mayors Blacks

office

background to serve as Chancellor, to address questions about her qualifications and to discuss steps to ensure the success of her candidacy in order Id. to promote a smooth transition of

executive power.

None of these documents contains (i)

statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) a final agency policy or determination or (iv) external audits. By letter dated January 13, Id. 2011, the City denied

petitioners FOIL request pursuant to Public Officers Law 87(2)(b) and 87(2)(g) on the grounds that disclosure would

constitute an unwarranted invasion of personal privacy 1 and that the

1

requested

records

were

inter-agency

or

intra-agency

These documents contain the private cell phone numbers and email addresses of certain government officials and other stakeholders, who were to be contacted in furtherance of the Citys objectives. R. 46.

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materials.

R. 32.

Petitioner then appealed the denial of his R.

FOIL request to the Mayors Records Access Appeals Officer. 34-36. Officer

On January 26, 2011, the Mayors Records Access Appeals upheld the determination to deny petitioners FOIL

request, finding that it was proper to withhold the requested records pursuant to Public Officers Law 87(2)(b) on the ground disclosure would constitute an unwarranted invasion of personal privacy, and pursuant to Public Officers Law 87(2)(g) on the ground that the requested records were inter-agency or intraagency materials. C. R. 38.

Article 78 Proceeding. By Notice of Petition, dated May 26, 2011, petitioner

commenced the instant proceeding, challenging the Citys denial of his FOIL request and requesting attorneys fees pursuant to Public Officers Law 89(4)(c). R. 19, 21-27. In his petition,

petitioner asserts that the City failed to disclose documents in violation of the express statutory mandate of FOIL. R. 21-27.

In essence, petitioner argues that the City has wrongly withheld documents under claimed Id. statutory exemptions that do not

properly apply.

The City filed a Verified Answer, sworn to on July 21, 2011 asserting that it had fully complied with its statutory obligations. R. 40-49. In its accompanying memorandum of law,

the City argued that, because Cathleen Black and her staff were

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agents of the City during the relevant time period and because correspondence with Ms. Black and her staff was deliberative in nature, the City properly invoked the intra-agency exemption to withhold the responsive records. disclosure of private telephone The City further argued that numbers and email addresses

would constitute an unwarranted invasion of personal privacy. D. Supreme Court Decision. In a decision and order dated November 23, 2011 and filed on December 6, 2011, New York County Supreme Court

(Schlesinger, J.S.C.) granted the Article 78 Petition, directed the City to release the subject records 2 and ordered the parties to appear for a conference to further address the issue of

counsel fees.

R. 7-16.

In relevant part, the Supreme Court

concluded that, because Ms. Black was a private citizen at the time the subject emails were written, the exemption relating to intra-agency records does not apply. R. 14. The Court rejected

the Citys claim that Ms. Black and her staff were agents of the City during the relevant time and concluded that communications with people outside the agency are not part of the governments deliberative process and thus, their disclosure will not inhibit decision-making within the government. R. 14-15.

Petitioner did not dispute that private cell phone numbers and email addresses should be redacted and thus, such redactions were allowed by the Court. R. 13.

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The Supreme Court directed the City to release the subject records within fifteen days of the date of its decision. R. 15. During that fifteen-day time period, the City filed its R. 5. Accordingly, the judgment of the

Notice of Appeal.

Supreme Court is automatically stayed pursuant to CPLR 5519(a). R. 5. RELEVANT STATUTORY AUTHORITY Article 6 of the Public Officers Law is known as the "Freedom of Information Law." Public Officers Law 84, et seq.

This law requires public agencies to make available for public inspection and copying all records, except those subject to

certain enumerated exceptions.

Public Officers Law 87(2).

Thus, an agency may, among other grounds, deny access to records or portions thereof that: (g) are inter-agency or intraagency materials which are not: i. statistical tabulations or data; ii. instructions affect the public; or to factual that or

staff policy

iii. final agency determinations;

iv. external audits, including but not limited to audits performed by the comptroller and the federal government; Public Officers Law 87(2)(g).

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ARGUMENT THE CITY PROPERLY INVOKED THE INTRA-AGENCY EXEMPTION TO WITHHOLD RESPONSIVE RECORDS THAT REFLECT THE DELIBERATIVE PROCESS OF GOVERNMENT INVOLVED IN PROMOTING THE SMOOTH TRANSITION OF EXECUTIVE POWER. The Citys determination to withhold the responsive records was entirely proper. The purpose of the intra-agency

exemption from FOIL is to protect the deliberative process of government by ensuring that persons in an advisory role will be able to express their opinions freely to agency decision makers. See Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 18 N.Y.3d 652, 658 (2012), Gould v. New York City Police Dept., 89 N.Y.2d 267, 276 (1996). further process, the vital consultative adopted a purposes of this or In order to deliberative common sense

courts

have

functional,

approach to the definition of intra-agency in order to protect advice received by agencies from outside entities. See Matter

of Town of Waterford, 18 N.Y.3d at 658 (noting that it would make no sense to protect the deliberative process when reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside entities). At the relevant time period here, Ms. Black was acting in an advisory role to the City - as the Citys agent or consultant in assisting the City to minimize any disruption occasioned by

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the transition in Chancellors by helping to prepare its request that Commissioner Steiner issue her a School District Leader Certificate. The responsive emails are intra-agency records

reflecting the deliberative process underlying the Certificate request and, because they do not contain any of the information excluded from the intra-agency exemption as set forth in Public Officers Law 87(2)(g), they were properly withheld from

disclosure. It is critically important to the smooth transition of government that incoming and outgoing administrations and

administrators of government agencies are able to communicate with each other freely and openly without concerns that those communications will be subject to disclosure. Declining to

apply the intra-agency exemption to circumstances such as those at bar would inhibit government agencies from communicating with their incoming employees, would compromise the quality of agency decisions, and would discourage candidates for government office from engaging in the type of candid communication necessary for government consideration of potential high-level employees.

Here, where Ms. Black had already been selected as the Mayors appointee to serve as Chancellor, it was vitally important that she candidly communicate about her background and qualifications and participate in the give and take of the consultative process to assist the City in the presentation of the Certificate

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request.

Simply because Ms. Black was selected from the private

sector, instead of from within City government, should not mean that her communications with the City during her transition to government are not entitled to the protection afforded by the intra-agency exemption. See e.g. Xerox Corp. v. Webster, 65

N.Y.2d 131, 133 (1985) (records may be considered "intra-agency material" even though prepared by an outside consultant at the behest of an agency as part of the agency's deliberative

process). of

Because these communications are precisely the sort documents that the intra-agency exemption

pre-decisional

protects, the Supreme Courts order directing disclosure should be reversed. Because the Supreme Court did not resolve the issue of counsel fees, there may be a question as to whether the Citys appeal is reviewable as of right under CPLR 5701(a)(1).

Nonetheless, inasmuch as the Supreme Court directed the City to release the subject records, the City is aggrieved by the

Courts Order and is entitled to appeal.

See CPLR 5701(a)(2)

(party is entitled to appeal order that involves some parts of the merits or affects a substantial right). If, however, this

Court concludes that the Supreme Courts judgment is non-final because the issue of counsel fees remains unresolved, the City asks this Court to consider its notice of appeal as an

application for leave to appeal under CPLR 5701(c), convert the

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instant appeal into an appeal by permission, and accept the arguments presented herein. See Burke v. Crosson, 85 N.Y.2d 10,

18 (1995) (where request for attorneys' fees was an integral part of asserted causes of action, rather than a separate cause of action of its own, order that left pending assessment of attorneys' fees was non-final). Where the issue of counsel fees

under Public Officers Law 89(4)(c) requires an evaluation of whether the City had a reasonable basis for denying access to the requested materials, a decision from this Court will assist the Supreme Court in resolving the issue if its decision

granting the Article 78 petition is affirmed. A. The Documents At Issue Were Properly Withheld to Protect the Deliberative Process of Government. Public Officer Law 87(2)(g) exempts inter-agency or intra-agency materials from disclosure in order 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. Xerox Corp. v. Town of

Webster, 65 N.Y.2d at 132 (quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 A.D.2d 546, 549 (2d Dept. 1981)). See New

York Times Co. v. City of New York Fire Dept., 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

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public

disclosure). of

Indeed, which

the

denial

of

requests

for

disclosure evaluations,

materials

contain

opinions,

advice,

deliberations,

proposals,

conclusions,

recommendations or other subjective material is routinely and consistently upheld by the courts. See, e.g., Professional

Standards Review Council of America, Inc. v. New York State Dept. of Health, 193 A.D.2d 937, 939 (3d Dept. 1993) (comments, opinions contract and award recommendations exempt from of those involved under in making

disclosure

87(2)(g));

Rothenberg v. City University of New York, 191 A.D.2d 195, 196 (1st Dept.) app. denied, 81 N.Y.2d 710 (1993) (report containing committee recommendations concerning candidates for promotion

exempt from disclosure under 87(2)(g)). It has long been recognized that the public interest is served by keeping certain government documents privileged

from disclosure.

One Beekman Place v. City of New York, 169

A.D.2d 492, 493 (1st Dept. 1991) citing Cirale v. 80 Pine Street Corp, 35 N.Y.2d 113, 116 (1974) (holding that certain government documents may be withheld if the public interest would be harmed by disclosure). this Court In One Beekman Place, Inc. v. City of New York, recognized the public interest in

expressly

encouraging candid discussion among government employees in the development of policy and reaching agency decisions. 169 A.D.2d

at 493; see also New York Times Co., 4 N.Y.3d at 488-489 (point

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of

intra-agency

exception

is

to

permit

internal

exchange

of

candid advice and opinions without chilling prospect of public disclosure). Clearly, decision-making opinions, the candor would be of those assisting if they in the their were

process

impeded and

knew

deliberations,

analyses

recommendations

exposed to public scrutiny. discuss opinions and

The ability to freely voice and views is essential to an

conflicting

agencys ability to candidly assess competing facts and render well-reasoned A.D.2d at 493. decisions. See One Beekman Place, Inc., 169

Exposing the deliberations of agency personnel

to second-guessing would hinder this process, and undermine the agencys Ravitch, N.Y.2d 7 ability 93 to make 422, the best decisions. Dept. See Kheel affd, v. 62 in

A.D.2d (1984)

427-28

(1st

1983),

(pre-decisional

memorandum,

prepared

furtherance of the decisional process, is exempt from disclosure under 87(2)(g)). In addition, exposing the governments pre-

employment communications with prospective high-level employees could discourage candidates from considering such positions for fear of disclosure of their candid communications about their background and qualifications. Given deliberative the vital courts consultative have adopted purposes a of this or

process,

functional,

common sense approach to the definition of intra-agency in

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order

to

protect

advice

received

by

agencies

from

outside

entities.

See Matter of Town of Waterford, 18 N.Y.3d at 658.

In this regard, it has been well-recognized that while that term [inter-agency in FOIL, or it intra-agency has been materials] interpreted has to not been

defined

include

communications between state agencies and outside entities that . . . do not fall within the literal definition of agency contained in the statute. Matter of Town of Waterford v. New

York State Dept. of Environmental Conservation, 77 A.D.3d 224, 230-231 (3d Dept. 2010), affd in part and modified in part by 18 N.Y.3d 652 (2012). As the Court of Appeals has stated:

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. Accordingly, we hold that records may be considered 'intra-agency material' even though prepared by an outside consultant at the behest of an agency as part of the agency's deliberative process. Xerox Corporation, 65 N.Y.2d at 132. Thus, records that would,

if prepared by agency employees, be exempt from disclosure under the Freedom of Information Law (FOIL) as 'intra-agency

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materials' . . . do not lose their exempt status simply because they are prepared for the agency, at its request, by an outside consultant." see Matter Id. (quoting N.Y. Public Officer Law 87(2)(g)); of Tuck-It-Away Assoc., L.P. v. Empire State

Development Corp., 54 A.D.3 154 (1st Dept. 2008); Goodstein & West v. O'Rourke, 201 A.D.2d 731, 732 (2d Dept. 1994). Factors considered in determining the applicability of this exemption are the nature of the relationship the outside entity had with the government agency as well as the content and context of the communications sought to be disclosed. See

Matter of Town of Waterford, 77 A.D.3d at 231-232.

Thus, simply

because an outside entity is a private concern and not part of a government agency does not preclude application of the exemption to their communications. represents a different Id. If however, the outside entity and its interests may

constituency

diverge from those of the government agency with which it is communicating, the intra-agency exemption will not apply. Matter of Town of Waterford, 18 N.Y.3d at 658 See

(rejecting

argument that EPA is equivalent of an outside consultant for purposes of applying intra-agency exemption). Likewise, federal courts have interpreted the

exemption for intra-agency memoranda in the federal Freedom of Information Act to apply to communications from consultants who

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effectively function as agency employees. 3

See e.g. Tigue v.

United States DOJ, 312 F.3d 70, 77 (2d Cir. 2002) (recognizing that agencies may require assistance from outside consultants in formulating policy, Court holds that scope of inter-

agency/intra-agency exemption does not turn on fact that reports were prepared by outside consultants rather than agency staff); accord Ryan v. Dep't of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980). In considering the scope of this exemption, the United

States Supreme Court has similarly observed that "the fact about the consultant that is constant in the typical cases is that the consultant does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it". Department of Interior v. Klamath Water Users

Protective Assn., 532 U.S. 1, 10-11 (2001) (rejecting claims that documents submitted by various Indian tribes to Department of Interior expressing tribes' positions on a water allocation project were "intra-agency" documents because tribes were The

interested parties competing for a government benefit).

United States Supreme Court explained that, in cases where the exemption for inter-agency or intra-agency materials has been

Under the Freedom of Information Act, 5. U.S.C. 552, interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency are exempt from disclosure. 5 U.S.C. 552(b)(5).

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extended to consultants performing work on behalf of an agency, "the records submitted by outside consultants played essentially the same part in an agency's process of deliberation as

documents prepared by agency personnel might have done." 10.

Id. at

Thus, consultants whose communications have typically been

held exempt have not been communicating with the Government in their own interest or on behalf of any person or group whose interests might be affected by the Government action addressed by the consultant, instead they are assisting the agency in the performance of its own functions. B. Id. at 12.

The Documents At Issue Were Properly Withheld Because, During the Relevant Time Period, Ms. Black Was Acting In An Advisory Role to the City - As An Agent Of, Or Consultant To, the City. The documents between at Ms. issue Black, in City this case are email Hearst

communications

staff

and/or

Corporation staff assigned to assist Ms. Black in her transition to City government. These communications concern the Citys

preparation of the request to Commissioner Steiner for a School District Leader Certificate for Ms. Black, responses to routine queries, and outreach planning to the community. emails included discussions concerning R. 44. of These Ms.

clarification

Blacks background, discussions related to contacts with various individuals regarding Ms. Blacks selection, and drafts of the letter to be sent to Commissioner Steiner. See id.

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In communicating with the City about her background and qualifications, Ms. Black was acting at the Citys behest, in furtherance of its Citys interest in having Commissioner Steiner issue the requested Certificate. See R. 44. Indeed,

the responsive documents show that Ms. Black and her staff did not act independently, but at the direction of the Mayor. R. 45. See

Ms. Black was, in effect, acting as the Citys agent or

consultant during this period of time. An express agency is created by written or spoken words or other conduct the on of the to principal believe which, that the reasonably principal Itel

interpreted, desires him

causes to

agent the

act

principals

account.

Containers Intl Corp. v. Atlant-Trafik Express Service, Ltd., 909 F.2d 698, 702 (2d Cir. 1990) (quoting Restatement (Second) of Agency 26 (1958)). Whether such an agency is formed

depends on the actual interaction between the putative principal and agent, not on any perception a third party may have of the relationship. Id. New York from a common law . . of . an agency by one

Under relationship

results

manifestation

consent

person to another that the other shall act on his behalf and subject to his control, and the consent by the other to act." Gulf Ins. Co. v. Transatlantic Reins. Co., 69 A.D.3d 71, 96-97 (1st Dept. 2009) (internal quotations and citations omitted);

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Restatement (Second) of Agency 1 cmt. b (1958).

The question

whether an agency relationship exists is highly factual and can turn on a number of factors, including: the situation of the parties, their relations to one another, and the business in which they are engaged; the general usages of the business in question and the purported principal's business methods; the

nature of the subject matters and the circumstances under which the business is done. Columbia Broad. Sys., Inc. v. Stokely-Van The critical

Camp, Inc., 522 F.2d 369, 375-76 (2d Cir. 1975).

factor in this assessment is the control of the agent by the principal. F.2d 293, See In re Shulman Transp. Enterprises, Inc., 744 296 (2d Cir. 1984). Nevertheless, the control

asserted need not "include control at every moment; its exercise may be very attenuated and, as where the principal is physically absent, may be ineffective." F.3d 518, 522 (2d Cir. 2006). Here, where Ms. Black was selected for the position of Chancellor but a State Certificate had to be obtained in order for her appointment to be approved, Ms. Black was acting as an agent of the City during the relevant time period. Having been Cleveland v. Caplaw Enters., 448

selected by the Mayor as the incoming Chancellor and having accepted that selection, to facilitate this transition, Ms.

Black acted under the Citys guidance in furtherance of its

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interest

in

having

that

selection

approved

through

Commissioner Steiners issuance of the requested certificate. In addition, as described above, Ms. Blacks role was akin to that of a consultant, communicating with the City at the Citys behest and in furtherance of its interest that she be awarded the requested School District Leader Certificate so that she could serve as Chancellor. independent interest of her Ms. Black did not represent an own separate from the Mayors

interest or the interest of any third party; instead she was assisting the City in performing its own function of obtaining the Certificate from the State. This is made clear by the

nature of the emails at issue which communicate information to assist the City in presenting the School District Leader

Certificate request, not information relating to an independent interest of Ms. Blacks. Thus, with regard to the documents at

issue, the intra-agency exemption applies as a result of Ms. Blacks role as a consultant. See Matter of Sea Crest Constr.

Corp., 82 A.D.2d at 548 (finding that requested correspondence, prepared by a consultant, falls within exemption for intra-

agency materials exempt from disclosure).

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C.

The Documents At Issue Were Properly Withheld to Protect the Confidentiality Necessary For Candid and Effective Communications Between the City And Its Prospective Employee. As discussed above, the underlying purpose of the

intra-agency exemption is the need to protect the deliberative process of government 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 outside individuals or entities. candid This extends as well to the governments need for with prospective employees about their

communications

background and qualifications for the job under consideration. A functional, or common-sense, application of the intra-agency exemption recognizes that such communications should be

protected regardless of whether the prospective employee comes from within government or from the private sector. of Sea Crest Constr. Corp., 82 A.D.2d at 549 See Matter (recognizing

courts use of a common sense interpretation of 'intra-agency' to accommodate realities of typical agency deliberative

process). Hear, in early November 2010, Mayor Bloomberg selected Ms. Black to serve as Chancellor upon the pending resignation of Joel Klein. R. 43. Because of Ms. Black Law did not meet the

eligibility

requirements

Education

3003(1),

Mayor

Bloomberg was required to request that Commissioner Steiner of

-22-

the New York State Education Department issue Ms. Black a School District Leader Certificate pursuant to Education Law 3003(3) so that she could serve as Chancellor. R. 43-44. Having

selected Ms. Black as the most suitable person to be the next Chancellor, the City had a clear interest in having Commissioner Steiner issue the requested certificate so that she could serve in that role. As with all high-level government appointees, however, it was understood that Ms. Blacks qualifications would be

subject to scrutiny and debate.

Because Ms. Black did not meet

the eligibility requirements for appointment as Chancellor and thus, in order for her to serve as Chancellor, the City was required to obtain a School District Leader Certificate from the State on her behalf, the City anticipated that there would be concerns raised which, if not addressed, might jeopardize the Mayors selection. Ms. Blacks R. 43-44. and Indeed, the concerns raised about qualifications following her

background

appointment were well-publicized and a matter of public record. Thus, in the weeks after Ms. Black was selected -- a period that includes the relevant time for petitioners FOIL request the City had an interest in addressing these concerns, and did so through its communication and outreach efforts designed to

clarify and expound on Ms. Blacks credentials and to address any concerns about her qualifications so as to ensure the

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success of her candidacy.

See R. 46.

Ms. Black indisputably

shared this interest and acted in furtherance and support of the Citys goal in this regard. As part of these efforts, Ms. Black, City staff and/or Hearst Corporation staff assigned to assist Ms. Black in her transition though to City about government the communicated of with the each other to

email

preparation

request

Commissioner Steiner for a School District Leader Certificate for Ms. Black, to the responses community. to routine R. 44. queries, These and outreach included

planning

emails

discussions concerning clarification of Ms. Blacks background, discussions related to contacts with various individuals

regarding Ms. Blacks selection, and drafts of the letter to be sent to Commissioner Steiner. Significantly, contains: statistical none or See id. of the responsive tabulations documents or data;

factual

instructions to staff that affect the public; or a final agency policy or determination. set forth in Public R. 46. Officer Where none of the exceptions Law 87(2)(g) applies, the

responsive documents -- emails exchanged between the City and Ms. Black -- are intra-agency documents and may be withheld from disclosure pursuant to Public Officers Law 87(2)(g). In sum, the intra-agency exemption recognizes that

"efficient government operation requires open discussions among

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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". Constr. Corp., 82 A.D.2d at 549. Matter of Sea Crest

Here, where the communications

with Ms. Black are pre-decisional deliberative communications, prepared to assist the City in carrying out its function of obtaining the School District Leader Certificate to facilitate the smooth transition of government, these records are exempt from disclosure under Public Officer Law 87(2)(g). v. Ravitch, 93 A.D.2d at 429. CONCLUSION THE ORDER OF THE SUPREME COURT SHOULD BE REVERSED AND THE PETITION SHOULD BE DISMISSED. Respectfully Submitted, MICHAEL A. CARDOZO Corporation Counsel, Attorney for Respondent-Appellant. By: SUSAN PAULSON FRANCIS F. CAPUTO, JEFFREY S. DANTOWITZ, SUSAN PAULSON, Of Counsel. See Kheel

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PRINTING SPECIFICATIONS STATEMENT This using Courier brief New was 12. prepared with to Microsoft the Word 2003,

According

aforementioned

processing system, the entire brief, including portions that may be excluded from the word count pursuant to 22 N.Y.C.R.R.

600.10(d)(1)(i), contains 6,479 words. Dated: New York, New York July 9, 2012 MICHAEL A. CARDOZO Corporation Counsel of the City of New York Respondent-Appellant By: Susan Paulson Assistant Corporation Counsel 100 Church Street New York, New York 10007

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PRE-ARGUMENT STATEMENT IN LIEU OF CPLR 5531 APPELLATE DIVISION OF THE SUPREME COURT FIRST JUDICIAL DEPARTMENT ----------------------------------------x

SERGIO HERNANDEZ, Petitioner-Respondent, - against THE OFFICE OF THE MAYOR OF THE CITY OF NEW YORK, Respondent-Appellant. ----------------------------------------x Index No.: 106213/11

PLEASE TAKE NOTICE, that the Respondent-Appellant, for its pre-argument statement, alleges as follows: 1. names, The full names of the original parties, and the and telephone numbers of counsel for the

addresses

parties, are as set forth below: Petitioner-Respondent: Attorneys for Petitioner-Respondent: SERGIO HERNANDEZ Schlam Stone & Dolan LLP th 26 Broadway, 19 Floor New York, New York 10004 (212) 344-5400

Respondent-Appellant: Attorneys for Respondent-Appellant:

THE OFFICE OF THE MAYOR OF THE CITY OF NEW YORK Michael A. Cardozo Corporation Counsel of the City of New York 100 Church Street New York, New York 10007 (212) 788-1010

2.

In this proceeding commenced under Article 78 of

the CPLR, Petitioner-Respondent challenged the determination of the Respondent-Appellant to deny Petitioner-Appellant access to documents requested pursuant to the New York Freedom of

Information Law, N.Y. Pub. Off. Law 84, et seq. 3. Appeal is taken from that portion of the Order

and Judgment of Justice Alice Schlesinger dated November 23, 2011 and entered in the office of the Clerk of New York County on December 6, 2011, pursuant to which Justice Schlesinger found that the subject documents were not exempt as inter-agency or intra-agency records under N.Y. Pub. Off. Law 87(2)(g) and, on that basis, granted the Petition and directed Respondent-

Appellant to release the subject records. 4. The grounds for appeal are that the Court erred

in finding that (i) Cathleen P. Black was not acting as an agent of, or consultant to, the City of New York or Mayor Michael Bloomberg after she had been appointed to serve as Chancellor of

the

City

school

district

but

prior

to

her

assuming

that

position; (ii) the nature of the communications contained in the requested documents was not deliberative; and (iii) on these grounds that subject records were not exempt as inter-agency or intra-agency records under N.Y. Pub. Off. Law 87(2)(g). Dated: New York, New York December 7, 2011 MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Respondent-Appellant 100 Church Street New York, New York 10007 (212) 788-1010

By: Leonard Koerner Chief, Appeals Division