IN RE: the Application of NEWSDAY

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Supreme Court, Albany County, New York.

IN RE: the Application of NEWSDAY, INC., Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. STATE OF NEW YORK DEPARTMENT OF TRANSPORTATION, Respondent.

Decided: October 08, 2003

McNamee, Lochner, Titus & Williams, P.C., Albany, attorneys for petitioner. Eliot Spitzer, Attorney General State of New York, Albany (Charles J. Quackenbush, Assistant Attorney General of Counsel), attorney for respondent.

DECISION/ORDER/JUDGMENT

In 1958 Congress declared that it was in the national interest to develop a nationwide highway system to be financed through Federal aid (see, 23 USC § 101[b] ).  In furtherance of this objective Congress, in 1966, adopted the Highway Safety Act (see, Pierce County v. Guillen, 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 [2003] ).  The purpose of the Act was to improve highway safety by encouraging closer federal and state cooperation with respect to road improvement projects (see, id., at p. 133, 123 S.Ct. 720).  Towards this end, Congress, in 1973, adopted what is known as the Highway Hazard Elimination Program (see id.;   see also, 23 USC § 152).   Under the Program, each State was required to systematically prepare and maintain an engineering survey of all public roads.   The purpose of the survey was to identify roadside hazards and hazardous conditions, to assign priorities for the correction of hazards, and to establish and to implement a schedule of projects for their improvement (see, id.).  In 1987, Congress adopted 23 USC § 409 (hereinafter “ § 409”) which generally provided (as relevant here) that information compiled by States pursuant to 23 USC § 152 could not be admitted into evidence in any action for damages.  23 USC § 409 was amended in 1991 to direct that such information not only is not admissible at trial, but also it may not be the subject of discovery.

On September 13, 2002 petitioner submitted an application to the respondent pursuant to Public Officers Law Article 6, commonly known as the Freedom of Information Law (“FOIL”).   As relevant here, the application requested disclosure of respondent's priority list of hazardous intersections and locations for Regions 10 and 11 and the schedule of projects for improving each priority, as well as related data.   The documents which petitioner seeks are referred to as Priority Investigation Location (“PIL”) lists and Priority Investigation Intersection (“PII”) lists.   By letter dated November 8, 2002 respondent denied the application pursuant to Public Officers Law § 87(2)(a) on grounds that the information was exempt from disclosure under 23 USC § 409.   The statute in question recites as follows:

Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.

23 USC § 409

Petitioner submitted an administrative appeal of the FOIL denial.   By letter dated January 9, 2003, respondent granted petitioner access to a portion of the information sought, specifically, a list of projects whose benefits include safety improvements for locations on the priority lists.

Petitioner maintains, inter alia, that the plain language of 23 USC § 409 makes clear that its purpose was not to render such materials confidential, but rather to assure that they could not be subject to discovery, or used as evidence in actions for damages.

The Assistant Counsel for the respondent characterizes the PIL and PII lists as confidential records generated by the respondent's traffic engineers under the Highway Safety Improvement Program administered by respondent pursuant to 23 UCS § 152.   The lists are described as indications, based upon preliminary statistical analysis, of the advisability of investigating particular highway locations or intersections based upon accident rates.   It is indicated that respondent's Traffic Division prepares the PIL and PII lists on a regional basis to assist the Regional Traffic Engineers in planning the annual work of the engineers under their supervision, in furtherance of the Highway Safety Improvement Program.   Respondent indicates that it has adopted a policy, pursuant to Public Officers Law § 87(2)(a) and 23 USC § 409 under which the PIL and PII lists are deemed exempt from disclosure under FOIL.

Respondent's Records Access Officer indicates that a significant portion of the FOIL requests which she handles come from attorneys representing clients in highway tort claims litigation.   In her view the FOIL applications are motivated by the attorneys' desire to supplement records obtained from the office of the New York State Attorney General through the pre-trial discovery process.

Among the arguments advanced by respondent in opposition to the FOIL request, respondent maintains that if the request is granted (thus opening the doors of such FOIL requests to personal injury litigants), parties to personal injury actions will attempt to examine State officers and employees concerning information gleaned from the lists.   This, in turn, will result in burdensome and time-consuming motion practice as the State makes application for various forms of protective relief under 23 USC 409.   Respondent also raises an argument predicated on a theory of Federal preemption.

It is settled law that FOIL is based on the overriding policy consideration that “the public is vested with an inherent right to know, and that official secrecy is anathematic to our form of government” (Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463).  The Court of Appeals has repeatedly held that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government (see, Capital Newspapers v. Whalen, 69 N.Y.2d 246, 252, 513 N.Y.S.2d 367, 505 N.E.2d 932;  Matter of Washington Post Co. v. New York State Ins. Dept., 61 N.Y.2d 557, 564, 475 N.Y.S.2d 263, 463 N.E.2d 604, Matter of Fink v. Lefkowitz, supra, p. 571, 419 N.Y.S.2d 467, 393 N.E.2d 463;  Matter of Citizens For Alternatives To Animal Labs, Inc. v. Board of Trustees of the State University of New York, 92 N.Y.2d 357, 681 N.Y.S.2d 205, 703 N.E.2d 1218 [October 22, 1998] ).

 All agency records are presumptively available for public inspection and copying, unless the documents in question fall within one of the enumerated exemptions set forth in Public Officers Law § 87(2) (see, Matter of Encore Coll. v. Auxiliary Serv., 87 N.Y.2d 410, 417, 639 N.Y.S.2d 990, 663 N.E.2d 302;  Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750;  Matter of Legal Aid Society of Northeastern N.Y. v. New York State Dept. of Social Servs., 195 A.D.2d 150, 152, 605 N.Y.S.2d 785).  Blanket exemptions for particular types of documents are inimical to FOIL's policy of open government (see, Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 569, 505 N.Y.S.2d 576, 496 N.E.2d 665;  Gould v. NYC Police Dept. 89 N.Y.2d 267, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996] ).  The exemptions available are to be narrowly construed, and “the agency seeking to prevent disclosure bears the burden of demonstrating the applicability of the particular exemption claimed” (Matter of Legal Aid Society of Northeastern N.Y. v. New York State Dept. of Social Servs., supra, at 153, 605 N.Y.S.2d 785;  see, POL § 89(4)(b);  see, Matter of Hanig v. State of New York Dept. of Motor Vehicles, supra, at 109, 580 N.Y.S.2d 715, 588 N.E.2d 750;  see also, Daily Gazette v. Schenectady, 93 N.Y.2d 145, 158-159, 688 N.Y.S.2d 472, 710 N.E.2d 1072 [1999] ).  The agency at issue must “articulat[e] a particularized and specific justification for denying access” to the requested documents (Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, supra, p. 566, 505 N.Y.S.2d 576, 496 N.E.2d 665;  Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463;  Gould v. NYC Police Dept. supra, p. 275, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996] ).

Petitioners point out that at least two foreign state courts have dealt with the applicability of 23 USC 409 in public records disclosure proceedings.   In Seaton v. Johnson, 898 S.W.2d 232 [Tenn. Ct. Apps., 1995] the petitioner, pursuant to the Tennessee Public Records Act (see, Tennessee Code Annotated § 10-7-503), sought records compiled and kept by the Tennessee Department of Transportation.   The Tennessee Court of Appeals found that § 409 preempted the Tennessee Public Records Act, thus barring disclosure of the records.   In Guillen v. Pierce County, 144 Wash.2d 696, 31 P.3d 628 [2001], reversed 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 [2003] the applicant sought records under Washington State's Public Disclosure Act (see, RCW Chapter 42.17).   The Washington State Supreme Court, determined that the 1995 amendment to § 409 violated the Federal Commerce Clause.   The United States Supreme Court reversed, holding that the 1995 amendment to § 409 did not violate the Federal Commerce Clause (see, Pierce County v. Guillen, 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 [2003] ).  Significant to this proceeding, the Washington Supreme Court never questioned the applicability of § 409 to a proceeding brought pursuant to Washington State's Public Disclosure Act.

Turning first to respondent's argument concerning Federal preemption, as stated in Monfort v. Larson, 257 A.D.2d 261, 693 N.Y.S.2d 286 [Third Dept., 1999], mot. for lv. to app. dismissed 94 N.Y.2d 875, 705 N.Y.S.2d 7, 726 N.E.2d 484:

Congressional preemptive intent is discernible in three alternate ways:  “(1) expressly in the language of the Federal statute;  (2) implicitly, when the Federal legislation is so comprehensive in scope that it is inferable that Congress intended to fully occupy the ‘field’ of its subject matter;  or (3) implicitly, when State law actually ‘conflicts' with Federal law” (Drattel v. Toyota Motor Corp., 92 N.Y.2d 35, 42, 677 N.Y.S.2d 17, 699 N.E.2d 376).

Monfort v. Larson, supra, at p. 263, 693 N.Y.S.2d 286 [Third Dept., 1999]

 While the Congress clearly declared that the records in question could not be the subject of discovery, or introduced into evidence within the context of an action for damages, the Court finds nothing in the language of § 409 to convey an intent on the part of Congress, either expressly or implicitly, to preempt the field as it relates to public records disclosure.   Nor does the Court discern a direct conflict between § 409 and FOIL.

Notably, by the time Congress amended § 409 in 1991 many States, if not all, had enacted public disclosure legislation.   It would have been an easy matter for Congress, at the time it was then expanding the scope of § 409, to make clear that the § 409 exemption also applied to public records disclosure.

The controlling principle, in the Court's view, is that which recites that FOIL is to be liberally construed, and that exemptions under FOIL are to be narrowly interpreted so that the public is granted maximum access to the records of government (Matter of Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252, 513 N.Y.S.2d 367, 505 N.E.2d 932, supra;  Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750;  Matter of Mantica v. New York State Department of Health, 94 N.Y.2d 58, 61, 699 N.Y.S.2d 1, 721 N.E.2d 17;  see, Matter of M. Farbman & Sons v. New York City Health & Hosp. Corp., 62 N.Y.2d 75, 80, 476 N.Y.S.2d 69, 464 N.E.2d 437).  In narrowly construing § 409, the Court finds that said section does not apply to FOIL requests.   Under the circumstances, the Court concludes that the petition must be granted.

 The petitioner has made a request for an award of counsel fees.   As stated in Matter of Corvetti v. Town of Lake Pleasant, 239 A.D.2d 841, 657 N.Y.S.2d 536 [Third Dept., 1997]:

“It is well settled that ‘[a] party may receive counsel fees in a FOIL proceeding when it is established that (1) the petitioner substantially prevailed, (2) the record requested was of “clearly significant interest to the general public”, and (3) “the agency lacked a reasonable basis in law for withholding the record” ’ * * * ” (Matter of URAC Corp. v. Public Serv. Commn. of State of N.Y., 223 A.D.2d 906, 907 [636 N.Y.S.2d 480], quoting Matter of Powhida v. City of Albany, 147 A.D.2d 236, 238 [542 N.Y.S.2d 865], quoting Public Officers Law § 89[4][c][i], [ii] [citation omitted] ).   However, even if these elements are met, an award of counsel fees remains within the discretion of the court (see, Matter of URAC Corp. v. Public Serv. Commn. of the State of N.Y., supra, at 907 [636 N.Y.S.2d 480];  see also, Public Officers Law § 89[4][c] ).

Matter of Corvetti v. Town of Lake Pleasant, supra, pp. 843-844, 657 N.Y.S.2d 536

It is evident from the foregoing that the petitioner has substantially prevailed in the proceeding and that the records in question are of “clearly significant interest to the general public”.   Upon the instant record however, and particularly in view of the interest which respondent sought to protect, the Court cannot find that the respondents did not have a reasonable basis to withhold the documents.   Under the circumstances, the Court finds that the application for attorneys fees and costs must be denied.

ORDERED and ADJUDGED, that the relief requested in the petition be and hereby is granted to the extent that that portion of respondent's determinations dated November 8, 2002 and January 9, 2003, which denied petitioner's Freedom of Information Request dated September 13, 2002, be and hereby are vacated and annulled;  and it is further

ORDERED and ADJUDGED, that, within thirty (30) days, respondent make available to petitioner the items specified in petitioner's Freedom of Information Application dated September 13, 2002 not previously furnished;  and it is further

ORDERED and ADJUDGED, that petitioner's application for costs and attorneys fees is denied.

GEORGE B. CERESIA, JR., Justice.

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