The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER). DECISION + ORDER ON MOTION Upon the foregoing documents and oral argument held before the court on September 21, 2023, the court denies Petitioner Clayman Rosenberg Kirshner & Linder LLP’s (“Petitioner”) Verified Petition without costs to any party. Petitioner brought this Article 78 proceeding against Respondent New York County District Attorney’s Office (“Respondent”) seeking an order compelling Respondent to search for documents responsive to Petitioner’s FOIL requests; compelling Respondent to perform a document-by-document analysis of those responsive documents; compelling Respondent to produce to Petitioner responsive documents which do not fall under any of the FOIL exemptions permitting the government to withhold responsive documents; compelling Respondent to provide Petitioner with a log explaining which documents it has withheld from Petitioner and the reason why they were withheld; and awarding attorneys’ fees and reasonable litigation costs as allowed under New York Public Officers Law (“POL”) §89. In essence, Petitioner challenges two of Respondent’s alleged policies of failing to comply with New York’s discovery laws and violating its discovery obligations in criminal cases under Criminal Procedure Law (“CPL”) §245.70. Petitioner alleges that Respondent fails to abide by the provision requiring it to produce discovery materials without redaction, adulteration, or censorship, unless Respondent moves for a protective order and demonstrates to the court that good cause exists to impose a condition on the discovery. Petitioner alleges in substance that Respondent’s first policy, referred to as Respondent’s “Watermark Policy,” violates its discovery obligations by improperly adulterating discovery materials by imposing an intrusive and obscuring watermark on materials without seeking the court’s permission to do so. Petitioner alleges in substance that the watermark obscures the text beneath it and prevents the text from being searched with common viewing programs like OCR text recognition. Secondly, Petitioner alleges in substance that Respondent’s policy of refusing to produce certain materials to both defendant and defense counsel without a court order, even if Respondent is unable or unwilling to articulate good cause for such relief, in cases involving allegations of unlawful surveillance violates its discovery obligations. Petitioners call this policy Respondent’s “Unlawful Surveillance Policy.” Petitioner further alleges in substance that Respondent improperly imposes conditions on the review of discovery without having the court’s permission to do so. On October 28, 2022, Petitioner served Respondent with a FOIL request seeking records related to both policies. Specific to Respondent’s alleged “Watermark Policy,” Petitioner sought records, including training, procedures, policies and protocols, like IT methods, related to such policy or practice; a list of specific cases where Respondent added watermarks to discovery material; and all motions filed by Respondent seeking to impose watermarks or to defend their use of watermarks. Specific to Respondent’s alleged Unlawful Surveillance Policy, Petitioner sought records, including training, procedures, policies and protocols, like IT methods, related to such policy or practice; Respondent’s policies regarding protective orders issued pursuant to CPL Article 245; the disclosure of images and/or recordings in cases involving unlawful surveillance; all records related to any motions filed by Respondent seeking a protective order conditioning or restricting disclosure of such materials; all records related to informing Assistant District Attorneys Danielle Turcotte and Shannon Lucy, who are assigned to a case involving one of Petitioner’s clients, being informed of such policies; all records regarding Respondent’s appeals bureau providing comments, guidance, or any other input on such policies; and all records relating to any defense attorney violating a protective order issued pursuant to CPL §245.70. There were three separate determinations, productions and appeals filed regarding Petitioner’s FOIL request. On November 2, 2022, Respondent’s Records Access Officer (“RAO”) advised Petitioner to expect a determination or update by December 2, 2022. On November 17, 2022, Petitioner filed a motion in the criminal case seeking material on these alleged policies. On December 6, 2022, Respondent denied Petitioner’s FOIL request finding that disclosure would interfere with the criminal proceeding, under POL §87(2)(e)(i), as there was a pending criminal case and a pending motion. On December 19, 2022, Petitioner appealed Respondent’s denial to Respondent’s Appeals Officer (“AO”). On December 19, 2022, Respondent’s AO remanded the matter for the RAO to search for general policy/training records regarding the alleged watermark and protective order policies and affirmed the remainder of the denial. On January 18, 2023, Respondent’s RAO disclosed to Petitioner redacted copies of two of Respondent’s policy manuals entitled “Work Product and Discovery Policy” and “Sex Crimes Unit Policies and Procedures,” with an explanation in support of the redactions. On January 31, 2023, Petitioner appealed this determination. On February 15, 2023, Respondent’s AO remanded the matter to the RAO and instructed the RAO to remove the redaction of a statute in one of the manuals and to either provide Petitioner with any additional non-exempt records responsive to the two policies or to confirm that no other records had been located despite a diligent search. The AO affirmed the remainder of the RAO’s determination. On March 3, 2023, the RAO disclosed to Petitioner the material required by the AO’s second decision, the RAO verified that no additional responsive records were located and she provided an updated redacted copy of Respondent’s “Updated Protective Order Notice and Motion Template.” Unfortunately, this third response had the incorrect address on the envelope, so Petitioner did not receive it until April 18, 2023. Also on April 18, 2023, Petitioner appealed the AO’s decision regarding the redactions to the “Protective Order Notice and Motion Template.” On April 28, 2023, the AO affirmed the RAO’s determination. On May 25, 2023, Respondent disclosed to Petitioner two additional responsive redacted documents regarding using watermarks on discovery materials produced to the defense. Petitioner challenges the decisions, including the basis for the denials and redactions, and seeks disclosure of additional responsive material. Respondent opposes the Verified Petition and argues in substance that the “Work Product and Discovery Policy” manual was properly redacted; that Petitioner failed to exhaust its claim that Respondent possessed additional responsive material; that such claim is moot based on the additional records produced to Petitioner; that Petitioner’s objections to the redactions to the “Protective Order Notice and Motion Template” and that Respondent has additional records that are responsive to this request are not properly before the court as Petitioner failed to exhaust its administrative remedy since the third appeal was still pending when the Petition was filed; that the Petition is moot as to the claims regarding disclosure of images and/or recordings in unlawful surveillance cases since an additional disclosure was made with proper redactions; the denials were proper; and attorney’s fees are unavailable to Petitioner. All government records are presumptively open for public inspection and copying unless they fall within enumerated exemptions of POL §87(2) (see Gould v. New York City Police Dep’t, 89 NY2d 267, 275 (1996). Exemptions to FOIL’s policy of broad disclosure are to be narrowly interpreted as to permit maximum access to the government records (see Matter of Data Tree, LLC v. Romaine, 9 NY3d 454, 462 [2007]). In circumstances where none of the enumerated exemptions to disclosure are applicable, the court “must decide whether any invasion of privacy…is ‘unwarranted’ by balancing the privacy interests at stake against the public interest in disclosure of the information” (see Matter of Harbatkin v. New York City Dept. of Records & Info. Servs., 19 NY3d 373, 380 [2012], quoting Matter of N.Y. Times Co. v. City of N.Y. Fire Dep’t, 4 NY3d 477 [2005]). In an Article 78 proceeding, the scope of judicial review is limited to whether a governmental agency’s determination was made in violation of lawful procedures, whether it was arbitrary or capricious, or whether it was affected by an error of law (see CPLR §7803[3]; Matter of Pell v. Board of Educ., 34 NY2d 222, 230 [1974]; and Scherbyn v. BOCES, 77 N.Y.2d 753, 757-758 [1991]). In reviewing an administrative agency’s determination, courts must ascertain whether there is a rational basis for the agency’s action or whether it is arbitrary and capricious in that it was without sound basis in reason or regard to the facts (Matter of Stahl York Ave. Co., LLC v. City of New York, 162 AD3d 103, 109 [1st Dept 2018]; Matter of Pell, 34 NY2d at 231). Where the agency’s determination involves factual evaluation within an area of the agency’s expertise and is amply supported by the record, the determination must be accorded great weight and judicial deference (Testwell, Inc. v. New York City Dept. of Bldgs., 80 AD3d 266, 276 [1st Dept 2010]). When a court reviews an agency’s determination it may not substitute its judgment for that of the agency and the court must confine itself to deciding whether the agency’s determination was rationally based (Matter of Medical Malpractice Ins. Assn. v. Superintendent of Ins. of State of N.Y., 72 NY2d 753, 763 [1st Dept 1988]). Furthermore, an agency is to be afforded wide deference in the interpretation of its regulations and, to a lesser extent, in its construction of the governing statutory law, however an agency cannot engraft additional requirements or assume additional powers not contained in the enabling legislation (see Vink v. New York State Div. of Hous. and Community Renewal, 285 AD2d 203, 210 [1st Dept 2001]). Here, the court finds that Petitioner failed to demonstrate its entitlement to the relief requested in its Verified Petition. The court finds that Respondent’s Appeals Officer set forth sufficient reasons for affirming the majority of the denial of disclosure of documents and provided a reasonable explanation for the redactions. All of the decisions were thoughtful and rationally based. They were not made in violation of lawful procedures, they were not arbitrary or capricious, and they were not affected by an error of law. The Appeals Officer remanded the matter twice and explained why the exemptions applied to each request in which disclosure was denied or redactions were made. Additionally, the court finds that Petitioner is not entitled to attorneys’ fees, as it has not substantially prevailed in this matter and Respondent had a reasonable basis for denying access to the requested material. However, the court agrees with Petitioner that the subsequent production of certain material does not make the Petition moot and that Petitioner exhausted its administrative appeals prior to filing the Petition, since there was no reason for Petitioner to know that Respondent sent the determination to the incorrect address. Therefore, the court denies the Verified Petition and dismisses it in its entirety. The court has considered all arguments raised by the parties which were not specifically discussed herein and the court denies any additional relief not expressly granted herein. As such, it is hereby ORDERED and ADJUDGED that the court denies Petitioner Clayman Rosenberg Kirshner & Linder LLP’s Verified Petition and the court dismisses it as against Respondent New York County District Attorney’s Office, without costs to any party. This constitutes the decision and order of the court. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: November 29, 2023
