IN RE: the Application of Robert A Cox (2026)

Petitioner, Robert A. Cox ("Petitioner"), brought this proceeding, pursuant to Civil Practice Law and Rules ("CPLR") Article 78, seeking to annul responses made by the City School District of New Rochelle (the "District") and its Superintendent, Dr. Corey Reynolds (collectively, "Respondents") to three Freedom of Information Law ("FOIL") requests, and to compel further responses and document productions. Petitioner further seeks an award of attorneys' fees and costs pursuant to Public Officers Law ("POL") § 89(4)(c).

The Court read and considered the following papers electronically filed via NYSCEF in making its decision:

• Notice of Petition, Petition, Affirmation Robert Cox in Support, Exhibits A-F, Request for Judicial Intervention ("RJI"), Amended RJI, and Affirmation of Service (NYSCEF Doc. Nos. 1-11, 15-18).

• Notice of Motion to Dismiss, Affirmation of Michael Liptrot, Esq. in Support, Exhibits A-C (NYSCEF Doc. Nos. 25-29).

• Affirmation of Robert Cox in Opposition to Motion to Dismiss and Exhibit G (NYSCEF Doc. Nos. 30-31).

• Verified Answer and Exhibit A (NYSCEF Doc. Nos. 33-34).

• Reply Affirmation of Robert Cox in Further Support of Petition (NYSCEF Doc. No. 35).

• Correspondence from Petitioner and Respondents (NYSCEF Doc. Nos. 37-38, 41).

By Decision and Order dated April 28, 2026, the Court granted in part and denied in part Respondent's motion to dismiss (see NYSCEF Doc. No. 32). Petitioner's claim as to one of the three FOIL requests, described below, survived dismissal. Respondents have since answered the surviving claim, and Petitioner has replied.

At issue now in this proceeding is a FOIL request submitted by Petitioner to the District for "[a]ll invoices and payments for legal services provided to the District in reference to Shrub Oak International School (2019 to Present)" (see Petition [NYSCEF Doc. No. 1], ¶ 5). The District eventually provided Petitioner with 380 pages of legal billing statements from the law firm of Ingerman Smith, LLP, all heavily redacted, in response to this request (see Ex. A to Answer [NYSCEF Doc. No. 34]). All individual billing entries in said records were redacted in whole or in part (see id.).

Following receipt of the foregoing records, Petitioner submitted an administrative appeal of the District's response to Dr. Corey Reynolds, the District Superintendent (see Ex. G to Affirmation of Robert Cox in Opposition to Motion to Dismiss [NYSCEF Doc. No. 31]). Therein, Petitioner alleged that the District made excessive and overbroad redactions to the produced records with no explanation or justification provided for the redactions (see id.). Petitioner asserts that Respondents failed to determine the appeal within ten business days as required under POL § 89(4)(a), and there is no evidence in the record of this proceeding that Respondents ever responded to this administrative appeal.

By this proceeding, Petitioner alleges that the District failed to comply with FOIL in that it made excessive and overbroad redactions to the produced records with no explanation or justification provided. Petitioner further contends that the District failed to provide a Vaughn index or otherwise cite any specific statutory exemptions to disclosure.¹

Discussion

A. General Requirements under FOIL

Pursuant to FOIL, a government agency must make all its records presumptively available for public inspection and copying, except that the agency may deny access to records, or portions thereof, that fall within one or more specifically enumerated exemptions (see POL § 87[2]). "To promote open government and public accountability, the FOIL imposes a broad duty on government to make its records available to the public All government records are thus presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions to Public Officers Law § 87(2)" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274-275 [1996]). "To ensure maximum access to government documents, the exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" (id. at 275 [internal citations and quotation marks omitted]. See also Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 462 [2007]; Matter of Jaronczyk v Mangano, 121 AD3d 995, 996 [2d Dept 2014]).

"[T]he agency does not have carte blanche to withhold any information it pleases. Rather it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the court for in camera inspection, to exempt its records from disclosure" (Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]). "Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed" (Matter of Livson v Town of Greenburgh, 141 AD3d 658, 660 [2d Dept. 2016], quoting Matter of Dilworth v Westchester County Dept. of Correction, 93 AD3d 722, 724 [2d Dept. 2012]).

An agency's failure to comply with the procedural requirements of FOIL constitutes a constructive denial of a FOIL request (see POL § 89[4][a]).

B. Standard of Review

Judicial review of an agency's determination of a FOIL request, presuming all administrative remedies have been exhausted, may be obtained by way of a proceeding under CPLR Article 78 (see POL § 89[4][b]). In such an Article 78 proceeding, the appropriate standard of review is whether the respondent's determination "was affected by an error of law," and not the more common "arbitrary and capricious" standard (see Matter of Prall v New York City Dept. of Corr., 129 AD3d 734, 735 [2d Dept. 2015]; Matter of Jewish Press, Inc. v New York City Police Dept., 190 AD3d 490, 490 [1st Dept. 2021]; CPLR § 7803[3]).

Further, "[j]udicial review of an administrative determination [of a FOIL request] is limited to the grounds invoked by the agency" (Matter of New York Civ. Liberties Union v New York State Off. of Ct. Admin., 45 NY3d 226, 232 [2025], quoting Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 74 [2017]). " 'If the reasons an agency relies on do not reasonably support its determination, the administrative order must be overturned and it cannot be affirmed on an alternative ground that would have been adequate if cited by the agency' An agency wishing to deny disclosure based on a FOIL exemption must do so expressly during the administrative process, and it cannot change its justification for the denial during the course of litigation" (id. at 237, quoting Matter of National Fuel Gas Distrib. Corp. v Pub. Serv. Commn. of the State of NY, 16 NY3d 360, 368 [2011]).

C. Respondents' FOIL Response was Inadequate

Here, the record before the Court reflects that Respondents failed to provide any legal justification to Petitioner for substantially redacting the responsive records. Although Respondents, in their answer to the petition, deny Petitioner's allegation that the District failed to cite any statutory exemption justifying the substantial redactions made to the produced documents, nowhere in Respondents' papers is there any assertion affirmatively controverting Petitioner's allegation. Nor has the Court been provided with any such record evidence. The only pertinent exhibits filed by Respondents are copies of the initial email acknowledgment of Petitioner's FOIL request and subsequent extension notices, as well as a copy of the redacted records that were produced (see NYSCEF Doc. Nos. 27, 34). It is Respondents' burden to file the administrative record and "affidavits or other written proof showing such evidentiary facts as shall entitle [them] to a trial of any issue of fact" (CPLR § 7804[e]). As Respondents did not establish that a FOIL response was sent to Petitioner stating a specific statutory exemption or other justification for its redactions, the Court must conclude that there was no such response.

While Respondents now cite the attorney-client privilege to justify the redactions, it appears to the Court that the first such invocation of this statutory exemption was made in response to the petition in the instant proceeding. Importantly, though, the Court's review is limited to the grounds invoked by Respondents at the administrative level in their response to Petitioner's FOIL request (see Matter of New York Civ. Liberties Union, 45 NY3d at 232). The Court may not uphold a denial or a partial denial based upon legal grounds advanced for the first time during litigation (see id. at 237; Matter of New York Civ. Liberties Union v Suffolk County, 84 Misc 3d 952, 956-957 [Sup Ct, Suffolk County 2024]). "To provide the respondent the benefit of justifications it did not advance in the first instance 'contravenes Court of Appeals precedent as well as the spirit and purpose of FOIL' " (Matter of Aron Law, PLLC v Town of Hempstead, 242 AD3d 880, 882-883 [2d Dept 2025], quoting Matter of Madeiros, 30 NY3d at 75). Accordingly, and in the absence of any legal grounds advanced by Respondents to Petitioner at the administrative level, Respondents may not now rely upon POL § 87(2)(a) and CPLR § 4503 to justify their redactions and avoid disclosure (see id.).

D. The Court's In Camera Review

The Court directed Respondents to submit the subject records to the Court for in camera review. Respondents advised the Court that the records consist of monthly billing statements that include matters, some sensitive, that are wholly unrelated to and nonresponsive to Petitioner's FOIL request (see NYSCEF Doc. No. 37). Over Petitioner's objection, the Court allowed Respondents to leave redacted those portions of the records comprised of information that is entirely unrelated to and nonresponsive to the subject FOIL request (see NYSCEF Doc. Nos. 39-40). Notably, the Court's role in this review is not to determine what records, or portions thereof, are responsive in the first instance. Rather, the Court's role is to determine whether the legal grounds asserted for exemption of otherwise responsive records are valid (see Matter of Fink, 47 NY2d at 571; Matter of Gould, 89 NY2d at 275). Respondents were directed to leave all other portions of the records, including all responsive information to which Respondents claim exemption from disclosure as privileged, unredacted for the Court's in camera review.

Respondents submitted the records, consisting of monthly billing statements, to the Court as a single 381-page PDF document.² The Court's review reveals that the vast majority of the billing entries remained redacted, reflecting that most of the entries in the billing statements are unrelated to and nonresponsive to the subject FOIL request. Certain billing entries on the pages noted below were unredacted in the version submitted to the Court, reflecting responsive materials:

*See footnote 2.

Because the Court must limit its review in this proceeding to the legal grounds invoked by Respondents at the administrative level, and because there is no evidence in the record that Respondents invoked any such legal grounds in response to Petitioner's FOIL request, Respondents' redactions, representing a partial constructive denial of the FOIL request, cannot stand (see Matter of New York Civ. Liberties Union, 45 NY3d at 232, 237; Matter of Aron Law, PLLC, 242 AD3d at 882-883; Matter of Madeiros, 30 NY3d at 75).

Based upon the foregoing, the Court directs Respondents to disclose to Petitioner the subject billing statements without redactions to the responsive portions. However, Respondents may keep redacted those portions that are wholly unrelated to and nonresponsive to Petitioner's FOIL request. In other words, Respondents' disclosure must conform to the version of the records submitted to the Court for in camera review.

E. Attorneys' Fees and Litigation Costs

Petitioner asks the Court to award reasonable attorneys' fee and litigation costs pursuant to POL § 89(4)(c) (see Petition, p. 7).

In an Article 78 proceeding stemming from a denial or constructive denial of a FOIL request, a petitioner may recover reasonable attorneys' fees and litigation costs from the respondent agency. The petitioner must "substantially prevail" in the proceeding for there to be any assessment of attorneys' fees and costs (see POL § 89[4][c]). Such assessment is then discretionary if the agency failed to respond to a request or appeal within the statutory time, but mandatory if the court finds that the agency had no reasonable basis for denial (see id.; Matter of Acme Bus Corp. v County of Suffolk, 136 AD3d 896, 898-899 [2d Dept. 2016] ["The award of attorney's fees is intended to create a clear deterrent to unreasonable delays and denials of access "] [internal citation and quotation marks omitted]; Matter of New York Times Co. v City of New York Off. of the Mayor, 194 AD3d 157, 166 [1st Dept. 2021] ["The legislature's amendment to the fees provision, which made a fees award mandatory rather than 'precatory,' was intended to give more teeth to the public's right of access under FOIL"]).

Notwithstanding the foregoing, a pro se petitioner is generally not entitled to an award of attorneys' fees (see Matter of McCrory v Village of Mamaroneck, 34 Misc 3d 603, 630 [Sup Ct, Westchester County 2011], citing Matter of Leeds v Burns, 205 AD2d 540, 540 [2d Dept 1994]). However, a pro se petitioner may be entitled to recover the reasonable costs incurred for bringing the proceeding (see Matter of Baez v Brown, 124 AD3d 881, 884-885 [2d Dept 2015]).

Petitioner, who has been pro se throughout this proceeding, is not entitled to an award of attorneys' fees. But the Court finds that Petitioner is entitled to recover reasonable costs incurred for bringing this proceeding. Notably, Petitioner substantially prevailed in this proceeding, insofar as the subject FOIL request is concerned, as he ultimately succeeded in obtaining the records responsive to his FOIL request (see Matter of Edmond v Suffolk County, 197 AD3d 1297, 1299 [2d Dept. 2021]; Matter of LTTR Home Care, LLC v City of Mount Vernon, 179 AD3d 798, 800 [2d Dept. 2020]. Further, the record before the Court reflects that Respondents failed to timely respond to Petitioner's administrative appeal of the District's document production. It is the Court's determination that an award totaling $350.00, representing Petitioner's filing fees for bringing this proceeding, is appropriate under the circumstances.³

The parties' remaining contentions, to the extent not rendered academic or explicitly addressed herein, have been considered and found to be unavailing.

Accordingly, for all the foregoing reasons, it is hereby

ORDERED that the petition (motion sequence #1) is granted to the extent noted above, and Respondents shall make disclosure to Petitioner as directed above; and it is further

ORDERED that Petitioner shall recover from Respondents the sum of $350.00 for reasonable costs incurred in bringing this proceeding; and it is further

ORDERED that the Clerk of the Court shall enter judgment accordingly.

This constitutes the Decision, Order, and Judgment of the Court.

Dated: White Plains, New York

September 3, 2026

HON. SHERALYN PULVER

Acting Supreme Court Justice

FOOTNOTES

1.   A Vaughn index is a document that may be used in federal Freedom of Information Act ("FOIA") litigation in which the agency opposing disclosure lists each record withheld along with the claimed statutory exemption (see Vaughn v Rosen, 484 F2d 820 [DC Cir 1973]; New York Times Co. v U.S. Dept. of Justice, 762 F3d 233, 237 [2d Cir 2014]).

2.   The copy of the redacted records filed as Exhibit A to Respondents' answer (NYSCEF Doc. No. 34) contains 380 pages, but the version submitted to the Court for in camera review contains 381 pages. The page numbered 33 of the statement dated February 11, 2022 (Exhibit A, p. 148) was erroneously included twice in the version submitted to the Court. This appears to be the reason for the discrepancy in page numbers starting at page 149 of the respective PDFs.The table herein reflects the page numbers of the PDF submitted to the Court for in camera review. The corresponding page number of Exhibit A, if different, is noted in parentheses.

3.   The fees applicable to Petitioner include $210.00 for purchase of an index number; $95.00 for the RJI; and $45.00 for the Notice of Petition (see CPLR §§ 8018[a], 8020[a]; Legal Fees, Westchester County Clerk, https://westchesterclerkny.gov/legal-fees [last accessed Aug. 31, 2026]).

Sheralyn Pulver, J.