In the Matter of Pamela A. Madeiros, Appellant,v.New York State Education Department et al., Respondents.

Brief

N.Y.September 5, 2017

To be Argued by: CYNTHIA E. NEIDL (Time Requested: 20 Minutes) APL-2016-00073 Albany County Clerk’s Index No. 6312-13 Court of Appeals of the State of New York In the Matter of Application of PAMELA A. MADEIROS, Petitioner-Appellant, - against - NEW YORK STATE EDUCATION DEPARTMENT; JOSEPH CONROY, in his official capacity as the Records Access Officer of the New York State Education Department; and JOHN B. KING, Jr., in his official capacity as the Records Access Appeals Officer of the New York State Education Department, Respondents-Respondents. For an Order and Judgment Pursuant to CPLR Article 78. BRIEF FOR PETITIONER-APPELLANT GREENBERG TRAURIG, LLP Cynthia E. Neidl Attorneys for Petitioner-Appellant 54 State Street, 6th Floor Albany, New York 12207 Tel.: (518) 689-1400 Fax: (518) 689-1499 Date Completed: June 24, 2016 i TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION ..................................................................................................... 1 PRELIMINARY STATEMENT ............................................................................... 1 JURISDICTIONAL STATEMENT .......................................................................... 6 QUESTIONS PRESENTED ...................................................................................... 6 STATEMENT OF FACTS AND PROCEDURAL HISTORY ................................ 7 A. Fiscal Oversight of Special Education Preschool Programs .......................... 7 B. Ms. Madeiros’s FOIL Request ........................................................................ 9 C. SED’s Blanket Denial on the Grounds Disclosure Would Purportedly “Interfere with Investigations of Compliance”.............................................. 10 D. SED Ignores Ms. Madeiros’s Appeal, Requiring Her to Bring Suit ............. 10 E. Faced with Impending Judicial Review, SED Finally Produces All Records Responsive to the FOIL Request ..................................................... 11 F. Supreme Court’s Judgment ........................................................................... 13 G. Proceedings in Appellate Division, Third Department ................................. 14 ARGUMENT ........................................................................................................... 16 I. Section 87(2)(e) Does Not Permit the Withholding of Routine Audit Materials ...................................................................................................... 16 A. Agency Records Are Presumptively Open and Exemptions Are Narrowly Construed ....................................... 16 B. Section 87(2)(e) Is Inapplicable Because the Subject Records Were Not Compiled for Law Enforcement Purposes .................................................................................... 17 ii C. Section 87(2)(e)(i) Is Inapplicable Because There Are No Existing Law Enforcement Investigations or Judicial Proceedings ............................................................................... 22 D. Routine Fiscal Audit Procedures Do Not Constitute “Criminal Investigative Techniques and Procedures” Within the Scope of POL§87(2)(e)(iv) .................................... 25 II. The Appellate Division Erred in Permitting SED to Raise a FOIL Exemption for the First Time on Appeal .................................................... 28 III. The Appellate Division Erred in Finding that Ms. Madeiros Did Not Substantially Prevail Where SED Unjustifiably Withheld Public Records Until After Suit Was Brought ....................................................... 29 CONCLUSION ........................................................................................................ 35 iii TABLE OF AUTHORITIES Page(s) CASES Acme Bus Corp. v. County of Suffolk, 136 A.D.3d 896 (2d Dep’t 2016) ............................................................ 30, 31 Allnutt v. United States Department of Justice, 99 F. Supp. 2d 673 (D. Md. 2000) ................................................................. 18 Aurigemma v. New York State Department of Taxation & Finance, 128 A.D.3d 1235 (3d Dep’t 2015) ................................................................. 26 Badran v. United States Department of Justice, 652 F. Supp. 1437 (N.D. Ill. 1987) ................................................................ 24 Belgrave v. Ward, 72 A.D.2d 898 (3d Dep’t 1979) .................................................................... 28 Bevis v. United States Department of State, 801 F.2d 1386 (D.C. Cir. 1986) .................................................................... 24 Bottom v. Fischer, 129 A.D.3d 1604 (4th Dep’t 2015) .............................................................. 31 Brown v. Goord, 45 A.D.3d 930 (3d Dep’t 2007) .................................................................... 15 Carson v. United States Department of Justice, 631 F.2d 1008 (D.C. Cir. 1980) ..................................................................... 24 Castle House Development Inc. v. New York City Police Department, 24 Misc. 3d 1222(A), 2009 WL 2163603, at *4 (Sup. Ct. N.Y. Cnty. July 10, 2009) ............................................................................................. 23 Church of Scientology of California v. United States Department of Army, 611 F.2d 738 (9th Cir. 1979) ......................................................................... 18 iv Church of Scientology of New York v. New York, 61 A.D.2d 942 (1st Dep’t 1978) .................................................................... 23 Citizens for Responsibility and Ethics in Washington v. United States Department of Justice, 658 F. Supp. 2d 217 (D.D.C. 2009) .............................................................. 24 Data Tree, LLC v. Romaine, 9 N.Y.3d 454 (2007) ...................................................................................... 16 Feerick v. Safir, 297 A.D.2d 212 (1st Dep’t 2002) .................................................................. 23 Matter of Fink v. Lefkowitz, 47 N.Y.2d 567 (1979) .............................................................................passim Gallogly v. City of New York, 51 Misc. 3d 296 (Sup. Ct. N.Y. Cnty. 2016) ................................................ 26 Gluckman v. United States Department of Labor, No. 3:13-CV-169, 2013 WL 6184957, at *6 (E.D. Va. Nov. 26, 2013) ........................................................................... 19 Gould Inc. v. General Services Administration, 688 F. Supp. 689 (D. D.C. 1988) .................................................................. 19 Gould v. New York City Police Department, 89 N.Y.2d 267 (1996) ............................................................................. 15, 34 Hanig v. New York State Department of Motor Vehicles, 79 N.Y.2d 106 (1992) .............................................................................. 16, 20 Hearst Corp. v. City of Albany, 88 A.D.3d 1130 (3d Dep’t 2011) ................................................................... 33 In re Yolanda D., 88 N.Y.2d 790 (1996) .................................................................................... 26 Jaronczyk v. Mangano, No. 28192012, 2012 WL 11980342 (Sup. Ct. N.Y. Cnty. June 2, 2012) ..... 32 v John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989)....................................................................................... 18 Kohler-Hausmann v. New York City Police Department, 133 A.D.3d 437 (1st Dep’t 2015) .................................................................. 31 Legal Aid Society v. New York State Department of Correction and Community Supervision, 105 A.D.3d 1120 (3d Dep’t 2013) ................................................................ 34 Matter of Lesher v. Hynes, 19 N.Y.3d 57 (2012) .................................................................... 17, 18 n.2, 23 Loudon House LLC v. Town of Colonie, 123 A.D.3d 1409 (3d Dep’t 2014) ................................................................ 28 M. Farbman & Sons, Inc. v. New York City Health and Hospitals Corp., 62 N.Y.2d 75 (1984) ...................................................................................... 16 Matter of Scherbyn v. Wayne-Finger Lakes Board of Cooperative Educational Services, 77 N.Y.2d 753 (1991) .................................................................................... 28 Miller v. New York State Division of Human Rights, 122 A.D.3d 431 (1st Dep’t 2014) .................................................................. 28 National Day Laborer Organization Network v. United States Immigration and Customs Enforcement Agency, 811 F. Supp. 2d 713 (S.D.N.Y. 2011) ........................................................... 18 Matter of Newsday, Inc. v. Sise, 71 N.Y.2d 146 (1987) .................................................................................... 16 New York Civil Liberties Union v. City of Saratoga Springs, 87 A.D.3d 336 (3d Dep’t 2011) .................................................................... 29 New York State Defenders Association v. New York State Police, 87 A.D.3d 193 (3d Dep’t 2011) ..................................................................... 31 Powhida v. City of Albany, 147 A.D.2d 236 (1989) .................................................................................. 33 vi Ragusa v. New York State Department of Law, 152 Misc. 2d 602 (Sup. Ct. N.Y. Cty. 1991) ................................................. 23 Rocovich v. Consolidated Edison Company, 78 N.Y.2d 509 (1991) .................................................................................... 25 Schenectady County Society for Prevention of Cruelty to Animals, Inc. v. Mills, 18 N.Y.3d 42 (2011) ..................................................................................... 34 Scott, Sardano & Pomeranz v. Records Access Officer of City of Syracuse, 65 N.Y.2d 294 (1985) ................................................................................... 16 FEDERAL STATUTES 5 U.S.C. § 552(b)(7)(A) ............................................................................... 18 n.2, 23 5 U.S.C. § 552(7)(E) ................................................................................................ 27 NEW YORK LAWS AND REGULATIONS 2006 New York Laws, Chapter 492 (S. 7011-A) .................................................... 30 2013 New York Laws, Chapter 57, pt. A, § 24 ......................................................... 8 New York Civil Practice Law and Rules § 5602 ....................................................... 6 New York Education Law § 4410(1)(g) .............................................................. 7 n.1 New York Education Law § 4410(11)(c)(i) .............................................................. 7 New York Education Law § 4410(c) ....................................................................... 22 New York Education Law § 4410(c)(i) ..................................................................... 8 New York Public Officers Law § 84 ....................................................................... 15 New York Public Officers Law § 87(2) ............................................................passim New York Public Officers Law § 87(2)(e) .......................................................passim vii New York Public Officers Law § 87(2)(e)(i) ...................................................passim New York Public Officers Law § 87(2)(e)(iv) .................................................passim New York Public Officers Law § 87(2)(g) ........................................................ 12, 22 New York Public Officers Law § 89(4)(a) .............................................................. 10 New York Public Officers Law § 89(4)(b) ........................................................ 10, 11 New York Public Officers Law § 89(4)(c) .......................................... 5, 7, 11, 29, 30 8 New York Codes Rules and Regulations § 200.18(b)(2) ....................................... 8 1 INTRODUCTION Petitioner-Appellant Pamela A. Madeiros respectfully submits this brief in support of her appeal from the Memorandum and Order of the Appellate Division, Third Department, dated November 5, 2015, which affirmed the Judgment of the Supreme Court, Albany County (Hon. Francis T. Connelly), dated April 1, 2014 (“Judgment”). In the Judgment, Supreme Court denied in part Ms. Madeiros’s Petition, brought pursuant to New York’s Freedom of Information Law (“FOIL”), Article 6 of New York Public Officers Law (“POL”), §§ 84-90 et seq., for an order to obtain public records withheld by Respondents New York State Education Department (“SED”), Joseph Conroy, SED Records Access Officer, and John B. King, Jr., SED Records Access Appeals Officer. For the reasons presented in the Record, and as discussed more fully herein, this Court should reverse so much of the Judgment that denied the Petition and order the immediate disclosure of the records at issue in unredacted form. PRELIMINARY STATEMENT The decisions below reflect an unprecedented and substantial expansion of POL § 87(2)(e), commonly referred to as the “law enforcement exemption.” This provision permits an agency to withhold records or portions of records that: are compiled for law enforcement purposes and which, if disclosed, would: 2 i. interfere with law enforcement investigations or judicial proceedings; ii. deprive a person of a right to a fair trial or impartial adjudication; iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures. N.Y. Pub. Off. Law § 87(2)(e). At issue in this proceeding is whether records containing audit procedures used by municipalities to perform routine, fiscal audits are exempt under subparts (i) and/or (iv) of the law enforcement exemption. The Record establishes that the subject materials were not “compiled for law enforcement purposes,” that no pending or prospective investigations or judicial proceedings exist, and that the materials include no criminal investigative techniques or procedures. Nonetheless, the courts below held that the records were exempt, and in doing so conflated subparts (i) and (iv) based on a concern regarding how the records could be used. This Court should reverse. First, the Record establishes that the materials at issue were not “compiled for law enforcement purposes” within the meaning of POL § 87(2)(e). The materials were not compiled in the context of any pending investigation or enforcement proceeding. Nor were they compiled by an agency acting in an investigative or enforcement capacity. SED’s regulations require municipalities 3 that choose to conduct fiscal audits to submit proposed audit plans to SED for review and approval. Accordingly, the records at issue were compiled as a result of SED’s general oversight activities. Supreme Court failed to analyze, as a discrete requirement, whether the materials were in fact compiled for law enforcement purposes. The Appellate Division discounted this threshold requirement, holding it was sufficient that the materials were “compiled with law enforcement purposes in mind.” (R. 137.) Such a loose interpretation renders the statutory requirement meaningless, and flouts this Court’s frequent admonition that FOIL exemptions must be narrowly construed. Second, the Record establishes that the audit materials do not fall squarely within either subpart (i) or (iv) of the law enforcement exemption. POL § 87(2)(e)(i) would apply only if disclosure of the subject records would interfere with pending or prospective investigations. The audit materials relate to generic, routine fiscal audits, not to any pending or threatened investigation or enforcement action. At best, a future audit could theoretically lead to a referral by a municipality to a law enforcement agency, and then theoretically that agency could choose to conduct an investigation. Nonetheless, both Supreme Court and the Appellate Division broadly interpreted the term “law enforcement investigation” to include non-specific, future, routine fiscal audits. This interpretation is inconsistent with the ordinary meaning of the exemption and contrary to this Court’s precedent. 4 Section 87(2)(e)(iv) is also inapplicable as it applies only to criminal investigative techniques and procedures. The Record establishes that the audits are administrative in nature, not criminal. Notably, until the appeal to the Appellate Division, SED never claimed that the records included criminal investigative techniques or were exempt under subpart (iv). Thus, the Supreme Court did not expressly rely on or even mention § 87(2)(e)(iv). The Appellate Division, however, perceived “no meaningful distinction” between subparts (i) and (iv), and embraced SED’s untimely assertion of a new FOIL exemption on appeal. It also disregarded the term “criminal” in Section 87(2)(e)(iv) when it concluded that the exemption applied to procedures that are unquestionably non-criminal. Both courts erroneously found dispositive this Court’s decision in Matter of Fink v. Lefkowitz, 47 N.Y.2d 567 (1979). At issue in that case was whether certain portions of an office manual compiled by a Special Prosecutor for use in investigating and prosecuting nursing homes was exempt under POL § 87(2)(e)(iv). The manual, entitled “Materials on the Nursing Home Investigation,” included “detailed, specialized methods of conducting an investigation” and “time-tested techniques which have led to numerous successful prosecutions.” Id. at 573. The information indisputably was “compiled for law enforcement purposes” and constituted “criminal investigative techniques and procedures,” and therefore 5 exempt under POL § 87(2)(e)(iv). Neither the circumstances underlying Matter of Fink, nor the records at issue in that case, are anything like those present here. The Appellate Division also erred in concluding that Ms. Madeiros did not “substantially prevail” for purposes of an award of attorneys’ fees pursuant to POL § 89(4)(c). SED withheld all documents responsive to Ms. Madeiros’s FOIL request and failed to respond to her administrative appeal, thus requiring her to bring an Article 78 proceeding. Only after she commenced litigation did SED produce the requested documents, only some of which contained redactions. Ignoring this history, the Appellate Division determined that Ms. Madeiros did not substantially prevail because a majority of SED’s redactions were upheld. Such a ruling rewards SED for its FOIL violations, and serves to encourage SED and other agencies to withhold public records unless and until their actions are challenged by those with the resources to do so. If permitted to stand, the Appellate Division’s holding would substantially restrict the public’s existing statutory right of access to government records. The Comptroller and many State agencies frequently perform routine audits as a function of their regulatory oversight responsibilities. Expansion of the law enforcement exemption to shield materials relating to such audits is contrary to the ordinary meaning of the exemption and clear legislative intent to impose a broad 6 standard of disclosure upon State agencies. The decisions below should be reversed. JURISDICTIONAL STATEMENT Jurisdiction to hear this appeal exists under CPLR § 5602 because this Court granted Petitioner-Appellant’s motion for leave to appeal on April 5, 2016. (R. 132-33.) QUESTIONS PRESENTED 1. Whether records that are compiled in connection with an agency’s routine oversight activities are “compiled for law enforcement purposes” and thus within the scope of New York’s law enforcement exemption, POL § 87(2)(e). The trial court did not address this issue, and the Appellate Division concluded that it was sufficient if the records were compiled with law enforcement purposes in mind. 2. Whether future, unspecified, routine fiscal audits constitute “law enforcement investigations or judicial proceedings” within the meaning of POL § 87(2)(e)(i). The courts below answered this question in the affirmative. 3. Whether routine fiscal audit procedures used by municipalities to assess compliance with administrative requirements constitute “criminal investigative techniques or procedures” within the meaning of POL § 87(2)(e)(iv). 7 The trial court did not address this question, and the Appellate Division answered this question in the affirmative. 4. Whether an agency may be permitted to invoke for the first time on appeal a FOIL exemption not raised during the administrative process or in the trial court. The trial court answered this question in the negative, and the Appellate Division answered this question in the affirmative. 5. Whether a FOIL petitioner has “substantially prevailed” pursuant to POL § 89(4)(c) where the agency issued a blanket denial and unjustifiably refused to produce any documents responsive to a FOIL request until after an Article 78 proceeding was commenced, admittedly had no basis for withholding responsive documents, and the documents produced contained no or limited redactions. The trial court did not address this question, and the Appellate Division answered this question in the negative. STATEMENT OF FACTS AND PROCEDURAL HISTORY A. Fiscal Oversight of Special Education Preschool Programs New York State Education Law § 4410 authorizes, but does not require, any municipality1 and any board of education of a city of one million or more persons 1 Education Law § 4410(1)(g) defines the term municipality as “a county outside the city of New York or the city of New York in the case of a county maintained within the city of New York.” 8 to perform a fiscal audit of special education preschool services or programs for which it bears fiscal responsibility. N.Y. Educ. Law § 4410(11)(c)(i). SED’s regulations require that, if a municipality or board chooses to conduct fiscal audits of preschool special education services and programs, it must submit to SED for approval “a detailed audit plan and audit program for the proposed audit[.]” See 8 N.Y.C.R.R. § 200.18(b)(2). In 2013, Section 4410(c)(i) was amended to direct SED to “provide guidelines on standards and procedures to municipalities and boards, for fiscal audits of services and programs.” 2013 N.Y. Laws, Ch. 57, pt. A, § 24. As a result, SED amended its regulations to provide that any audit plans or audit programs submitted to SED must be consistent with SED’s guidelines on audit standards and procedures. (R. 87.) See 8 N.Y.C.R.R. § 200.18(b)(2). SED issued its fiscal audit guidelines and requirements on May 28, 2013. (R. 89.) The purpose of the audits is to ensure that information submitted to SED for reimbursement is accurate, complete and supported by appropriate documentation. (R. 94.) SED’s guidelines set forth five specific objectives of the audits.  To determine that expenses are properly reported in accordance with applicable guidelines, regulations and instructions.  To determine the accuracy of the reported full time equivalent enrollment and/or units of service used in the calculation of tuition. 9  To determine that all applicable revenue has been offset against reimbursable expenses as mandated by Section 4401 of the Education Law.  To verify that tuition is billed and the related revenue is accurately reported for all full time equivalent students as determined by audit.  To determine if costs related to tuition rates are allowable through verification of supporting documentation, appropriateness of allocation methodologies, and compliance with the Reimbursable Cost Manual. (R. 91-92.) Thus, the overall purpose of the optional fiscal audits is to verify the costs and expenses incurred to render services, not to uncover fraud or other illegal activity. (R. 102 ¶ 8; see id. 105 ¶ 16 (“Financial audits verify that costs are properly reported and that improper costs are not reimbursed.”).) A municipality or board may retain one hundred percent of any overpayments uncovered by an audit. (R. 104.) However, neither municipalities nor boards are authorized to take any criminal or other action as a result of the audits. Rather, if potential fraud is somehow detected, the municipality or board may choose to refer the matter to another agency for investigation and prosecution. B. Ms. Madeiros’s FOIL Request By letter dated September 19, 2013, Ms. Madeiros submitted a written request to SED pursuant to FOIL seeking access to public records relating to SED’s oversight of municipalities and school districts with respect to fiscal audit 10 plans and programs of preschool special education programs. (R. 19, ¶ 20; see id. 24-25.) Specifically, the FOIL request sought copies of any of SED’s guidelines, standards and procedures for fiscal audits, copies of any audit program or audit plan submitted by any municipality or school district, and communications between SED and any municipality or school district relating to the standards and procedures for fiscal audits. (R. 24-25.) C. SED’s Blanket Denial on the Grounds Disclosure Would Purportedly “Interfere with Investigations of Compliance” SED acknowledged receipt of the FOIL Request on September 24, 2013. (R. 20, ¶ 23; id. 26.) By letter dated October 16, 2013, SED advised that, pursuant to POL § 87(2)(e), the entire request was denied. The reason for the denial was set forth in a single sentence: Please be advised that your request is denied pursuant to Public Officers Law § 87(2)(e) in that if released, it would interfere with investigations of compliance with the provisions of the reimbursable cost manual and the preschool special education rate setting system. (R. 20, ¶¶ 24-25; id. 28.) D. SED Ignores Ms. Madeiros’s Appeal, Requiring Her to Bring Suit By letter date October 24, 2013, Ms. Madeiros timely appealed SED’s October 16, 2013 FOIL denial. (R. 20, ¶ 26; id. 29-34.) Respondents were required to respond to Ms. Madeiros’s appeal within ten business days, but failed 11 to do so. See N.Y. Pub. Off. Law § 89(4)(a). Pursuant to POL § 89(4)(b), SED’s failure to acknowledge the appeal amounted to a constructive denial of the appeal. On November 18, 2013, more than a month after submitting her appeal, Ms. Madeiros commenced this Article 78 proceeding against SED, Joseph Conroy, in his official capacity as the Records Access Officer of SED, and John B. King, Jr., in his official capacity as the Records Access Appeals Officer of SED, to challenge SED’s blanket denial. (R. 14-39.) See N.Y. Pub. Off. Law § 89(4)(b) (authorizing an Article 78 proceeding for review of a FOIL denial). Ms. Madeiros sought a judgment and order: (1) vacating, overruling and prohibiting the enforcement of the FOIL denial; (2) directing SED to provide her with immediate access to the information and records specified in the FOIL request; and (3) awarding costs, disbursements and attorneys’ fees pursuant to POL § 89(4)(c). (R. 14-15; id. 22.) E. Faced with Impending Judicial Review, SED Finally Produces All Records Responsive to the FOIL Request Shortly before serving a response to the Petition, on January 7, 2014, SED provided Ms. Madeiros with an untimely response to her FOIL request, including 55 pages of documents. (R. 7-8; id. 46-100.) SED represented that the production constituted “all the documents and records specifically responsive to petitioner’s September 19, 2013 FOIL request[.]” (R. 106, ¶ 20.) The production included unredacted copies of documents concerning the amendment of SED’s regulations and SED’s fiscal audit guidelines and requirements. (R. 81-100.) The production 12 also included partially redacted copies of audit plans and audit programs submitted to SED by the New York City School District and Onondaga County (“Audit Plans”). (R. 46-80.) One week later, on January 15, 2014, SED filed its Verified Answer, the Affirmation of Suzanne Bolling, Esq., Executive Coordinator for Special Education for SED, and a memorandum of law. (R. 40-45, 101-128.) At that time, SED also submitted an unredacted copy of its FOIL production to the court below for in camera review. (R. 4, 42.) In its Verified Answer, SED asserted five objections in point of law, none of which included the assertion of the law enforcement exemption. (R. 42-43.) In its memorandum, SED argued that the Petition was rendered moot by SED’s untimely production. (R. 118-119.) Alternatively, SED argued that it had properly redacted information from the documents that was exempt under FOIL. (R. 120-124.) First, SED claimed - for the first time - that two pages of the production were exempt from disclosure pursuant to POL § 87(2)(g), because the documents were in draft form and thus constituted inter-agency or intra-agency records. (R. 120.) Second, SED claimed that the remainder of the withheld information, which had been redacted from the two Audit Plans, was “withheld because they fall within the investigative/law enforcement exemption pursuant to Public Officer’s 13 Law § 87(2)(e)(i).” (R. 107 ¶ 24.) SED explained that disclosure of the information would provide a preschool special education provider inappropriate insight into the specific protocols and procedures auditor’s (sic) use to examine and investigate a providers’ (sic) compliance with fiscal requirements. Access to this information, would, in turn, assist the provider evade (sic) or circumvent the audit process, which would ultimately adversely impact the integrity of the audit process and the quality and efficacy of the special education program. (R. 120; see also R. 107, ¶ 25 (disclosure would “undermine[] the intent of these audits”); id. 109, ¶ 27 (disclosure “would help preschool providers evade (sic) and circumvent the municipal auditor’s questions or examinations of data and documents”).) Nowhere in SED’s papers did it assert that the redacted materials were exempt under subpart (iv) of the law enforcement exemption. (See generally R. 40-45 (Verified Answer); id. 101-110 (Affirmation); id. 111-128 (Memorandum of Law in Support of Respondents’ Motion to Dismiss and Answer to the Remaining Article 78 Claims”).) F. Supreme Court’s Judgment By Judgment dated April 1, 2014, the trial court granted in part and denied in part the Petition, and did not expressly rule on Ms. Madeiros’s request for attorney’s fees. (R. 5-13.) The court held that SED’s failure to raise the inter-agency/intra-agency exemption as a ground for denying access at the administrative level precluded 14 judicial review. (R. 8-9.) Accordingly, the court granted the Petition with respect to the two pages redacted on this ground, and ordered SED to provide Ms. Madeiros with the two pages without redactions. (R. 8.) With respect to the remainder of the redactions, Supreme Court agreed with SED’s argument that any redactions were appropriate under POL § 87(2)(e)(i), but in so deciding relied on the certain language set forth in POL § 87(2)(e)(iv) and this Court’s decision in Matter of Fink v. Lefkowitz, 47 N.Y.2d 567 (1979). Specifically, the court concluded that the information consisted of “nonroutine audit techniques and procedures” that “could reveal the path an audit is likely to take, thereby alerting providers to items to which auditors are instructed to pay particular attention or methods utilized in checking the accuracy of the information provided.” (R. 11-12.) The court denied and dismissed the remainder of the Petition. (Id. 12.) Respondents served Notice of Entry of the Judgment on or about April 22, 2014. G. Proceedings in Appellate Division, Third Department Ms. Madeiros timely filed a Notice of Appeal from the Judgment on May 14, 2014. (R. 2.) In a Memorandum and Order dated and entered November 5, 2015, the Appellate Division affirmed the Judgment. (R. 134.) The Appellate Division did not expressly find that the records fell within either POL § 87(2)(e)(i) or § 87(2)(e)(iv). Rather, it conflated those two exemptions and relied exclusively 15 on cherry-picked language from this Court’s decision in Matter of Fink v. Lefkowitz, all for the purpose of shielding the audit records from disclosure based on a concern regarding how they could be used. Inasmuch as the redacted portions would indeed reveal to “unscrupulous [providers] the path that an audit is likely to take and alert [ ] them to items to which investigators are instructed to pay particular attention,” we agree with Supreme Court that they are “compilations of investigative techniques exempt from disclosure” (Matter of Fink v Lefkowitz, 47 NY2d at 572-573). (R. 138.) With respect to Ms. Madeiros’s contention that Respondents were precluded from raising a new exemption for the first time on appeal, the Appellate Division found that there was “no meaningful distinction” between subparts (i) and (iv) of POL § 87(2)(e). (Id. 137.) Finally, with respect to Ms. Madeiros’s request for attorney’s fees, the Appellate Division held that she failed to substantially prevail because “the vast majority of challenged redactions were appropriate[.]” (Id. 138.) Ms. Madeiros timely moved for leave to appeal to this Court. Her motion was granted on April 5, 2016. (R. 132-33.) 16 ARGUMENT I. SECTION 87(2)(e) DOES NOT PERMIT THE WITHHOLDING OF ROUTINE AUDIT MATERIALS A. Agency Records Are Presumptively Open and Exemptions Are Narrowly Construed. The purpose of New York’s Freedom of Information Law is “[t]o promote open government and public accountability” with the law imposing “a broad duty on government to make its records available to the public.” Matter of Gould v. N.Y.C. Police Dep’t, 89 N.Y.2d 267, 274 (1996) (citing N.Y. Pub. Off. Law § 84); accord Brown v. Goord, 45 A.D.3d 930, 931-32 (3d Dep’t 2007). Under FOIL, all government records are presumptively subject to disclosure unless they fall within one of the specific exemptions provided in POL § 87(2). See Hanig v. N.Y.S. Dep’t of Motor Vehicles, 79 N.Y.2d 106, 109 (1992); Scott, Sardano & Pomeranz v. Records Access Officer of Syracuse, 65 N.Y.2d 294, 296- 97 (1985); Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571 (1979). To ensure maximum access to government documents, FOIL is to be liberally construed, and the “exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualified for exemption.” Hanig, 79 N.Y.2d at 109; see also Matter of Newsday, Inc. v. Sise, 71 N.Y.2d 146, 150 (1987) (holding “FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of 17 government”) (internal quotation marks and citations omitted), cert. denied, 486 U.S. 1056 (1988). “Only where the material requested falls squarely within the ambit of one of the[] statutory exemptions may disclosure be withheld.” Fink, 47 N.Y.2d at 571. The party requesting the agency records need not make a showing of need, good faith or legitimate purpose in doing so. See Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 463 (2007); M. Farbman & Sons, Inc. v. N.Y.C. Health & Hosps. Corp., 62 N.Y.2d 75, 80 (1984). “Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.” Farbman, 62 N.Y.2d at 80. The courts below failed to apply these well-settled rules in upholding SED’s assertion of the law enforcement exemption. B. Section 87(2)(e) Is Inapplicable Because the Subject Records Were Not Compiled for Law Enforcement Purposes. To demonstrate the applicability of the law enforcement exemption, SED had the burden of establishing that the records at issue were “compiled for law enforcement purposes.” N.Y. Pub. Off. Law § 87(2)(e). The Record establishes that the materials at issue were not “compiled for law enforcement purposes,” but rather were compiled by SED in connection with its general oversight activities. The trial court did not address, and the Appellate Division did not analyze, this important, threshold issue. 18 New York courts have rarely had occasion to interpret the term “compiled for enforcement purposes.” This is likely because the exemption is most often asserted by agencies that unquestionably have a law enforcement function, such as a law enforcement or prosecuting agency. See, e.g., Lesher v. Hynes, 19 N.Y.3d 57, 60-61 (2012) (FOIL request submitted to Kings County District Attorney); Matter of Fink, 47 N.Y.2d at 569 (FOIL request submitted to “Special Prosecutor for Nursing Homes”). However, federal courts, in analyzing the federal Freedom of Information Act (“FOIA”) analogue of POL § 87(2)(e),2 have generally interpreted the term “as applying to records that pertain to specific investigations conducted by agencies, whether internal or external, and whether created or collected by the agency-in other words, investigatory files.” Nat’l Day Laborer Org. Network v. U.S. Immigration & Customs Enf’t Agency, 811 F. Supp. 2d 713, 744-45 (S.D.N.Y. 2011) (citing cases). Thus, “[t]o qualify as having a law enforcement purpose, records must generally arise during the course of an investigation, and they must involve the detection or punishment of violations of law.” Allnutt v. U.S. Dep’t of Justice, 99 F. Supp. 2d 673, 680 (D. Md. 2000). 2 FOIL’s law enforcement exemption was modeled on 5 U.S.C. § 552(b)(7) of FOIA, and thus New York courts rely on both federal and state case law to construe the exemption. See, e.g., Matter of Lesher v. Hynes, 19 N.Y.3d 57, 67 (2012) (discussing legislative history and interpretation of FOIA Exemption 7 by federal courts). 19 On the other hand, records compiled as a result of routine monitoring or oversight activities are not compiled for law enforcement purposes. John Doe Agency v. John Doe Corp., 493 U.S. 146, 153-55 (1989) (holding that documents compiled during “routine audits” by a federal agency were compiled for non-law- enforcement purposes, although such documents might later become exempt if recompiled for investigative purposes); Church of Scientology of Ca. v. U.S. Dep’t of Army, 611 F.2d 738, 748 (9th Cir. 1979) (holding that “files such as ‘internal audits’ compiled simply to determine whether an agency’s internal operations comport with statute or regulation do not qualify” as documents compiled for law enforcement purposes); Gluckman v. U.S. Dep’t of Labor, No. 3:13-CV-169, 2013 WL 6184957, at *6 (E.D. Va. Nov. 26, 2013) (holding that audit-related materials were not compiled for law enforcement purposes). At least one court has expressly rejected the notion that audit related materials are “compiled for law enforcement purposes” even where such audits could theoretically lead to criminal investigations by other agencies: [T]he Court finds that the withheld documents at issue were not “compiled for law enforcement purposes.” While it is true that [U.S. Department of Labor’s Office of Foreign Labor Certification (“OFLC”)] may refer specific cases to law enforcement agencies, OFLC does not assert that any of the 272 withheld documents pertain to any specific violations being investigated by an agency with an enforcement mandate. The 272 relevant withheld documents are better characterized as compiled for audit purposes-the documents list audit criteria, itemize the procedures OFLC staff should take when processing applications with specific audit criteria present, and 20 contain templates of audit notification letters. To construe these documents as “compiled for law enforcement purposes” would improperly broaden the meaning of the term. Gluckman, 2013 WL 6184957, at *6. See also Gould Inc. v. Gen. Servs. Admin., 688 F. Supp. 689, 696-67 (D. D.C. 1988) (distinguishing between routine and non- routine audits). Here, the record establishes that SED received the Audit Plans as a function of its general administrative oversight, and was not engaged in any investigative or enforcement activities. Specifically, SED requires municipalities to submit their audit plans and programs so that SED may “ensure that the audits conducted by the municipalities included sufficient information for which to base an ‘audit rate’ (a tuition rate calculated based on the final audit of actual program expenses, revenues, enrollment data and other relevant program information; it is the mechanism to recoup overpayments).” (R. 104, ¶ 12.) SED reviews the materials “to ensure the conformity with the guidelines on standards and procedures for municipalities and audits of preschool providers.” (Id. 105, ¶ 15 (internal citations omitted).) The Appellate Division held that it was sufficient that the requested materials were “compiled with law enforcement purposes in mind[.]” (R. 137.) Such an interpretation is clearly inconsistent with the terms of the statute, and certainly not a “narrow” one, as required by this Court. See, e.g., Hanig, 79 21 N.Y.2d at 109 (FOIL “exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualified for exemption”). Were it sufficient for an agency simply to allege that it had law enforcement purposes “in mind” when compiling agency records, then the threshold requirement for application of the law enforcement exemption would be rendered meaningless. Similarly, the Appellate Division’s statement “there is no reason to doubt that audits conducted under the guidance of the Department are also aimed at uncovering financial malfeasance” (R. 137) reflects unbridled speculation and unjustifiably relieves SED of its burden of demonstrating that the withheld information “falls squarely within the ambit” of the asserted exemption. Matter of Fink, 47 N.Y.2d 567, 571 (1979). There is nothing in the Record to suggest that the audits at issue were intended to or capable of uncovering fraud or other financial malfeasance or that the municipal and board auditors are trained at uncovering such malfeasance. Moreover, even if such malfeasance were theoretically uncovered, the best the municipality or board can do is refer the matter to a law enforcement agency for investigation. Because SED did not establish, and the courts below did not find, that the subject materials were “compiled for law enforcement purposes,” the Judgment should be reversed and full disclosure ordered. 22 C. Section 87(2)(e)(i) Is Inapplicable Because There Are No Existing Law Enforcement Investigations or Judicial Proceedings. Even if the requested materials had been compiled for law enforcement purposes, to establish the applicability of POL § 87(2)(e)(i), SED was required to demonstrate that disclosure would “interfere with law enforcement investigations or judicial proceedings.” The Record establishes that there are no pending or threatened investigations or judicial proceedings with which the disclosure of the Audit Plans would interfere. At best, the Record establishes the possibility of abstract future fiscal audits of unspecified programs. While under circumstances not present here an audit might be considered part of a “law enforcement investigation,” the fiscal audits performed by municipalities pursuant to Education Law § 4410(c) are not “law enforcement investigations” in any sense of that term. That certain audits may result in a “disallowance,” and in some cases could theoretically lead to a referral “to a local district attorney’s offices for potential criminal investigation and prosecution” or “to SED’s Office of the Professions for disciplinary investigation” (R. 102-03, ¶ 9 (referencing results of audits conducted by Comptroller); see also id. 103, ¶ 10 (citing audits performed by Comptroller)), is not sufficient to demonstrate interference with “law enforcement investigations or judicial proceedings” as required by § 87(2)(e)(i). The Record confirms that SED’s reason for nondisclosure was its concern that disclosure of the Audit Plans could theoretically “undermine the intent” of the audits, and allow unspecified 23 providers to “avoid disclosure of inappropriate costs” and “conceal” certain fraudulent activities in some unspecified, future audits. (R. 107-110.) However, the fiscal audits at issue are not law enforcement investigations. Notably, the Legislature knows the difference between audits and investigations, and does not use those terms interchangeably. Compare N.Y. Pub. Off. Law § 87(2)(e)(i) (using the term “investigations”) with id. § 87(2)(g) (providing an exception to inter- agency/intra-agency exemption for “external audits”). This Court has established that, in the absence of any ongoing law enforcement investigations or judicial proceedings, POL § 87(2)(e)(i) simply does not apply. See, e.g., Lesher, 19 N.Y.3d at 68 (noting that exemption “ceases to apply after enforcement investigations and any ensuing judicial proceedings have run their course”); see also Church of Scientology of N.Y. v. New York, 61 A.D.2d 942, 943 (1st Dep’t 1978) (holding that agency failed to meet burden where investigation had concluded and all that was alleged was “wholly speculative proposition that something may yet turn up . . . that will require some unspecified law enforcement action”); Castle House Dev., Inc. v. N.Y.C. Police Dep’t, 24 Misc. 3d 1222(A), 2009 WL 2163603, at *4 (Sup. Ct. N.Y. Cty. July 10, 2009) (holding exemption is not applicable where potential interference is with a civil action); Ragusa v. N.Y.S. Dep’t of Law, 152 Misc. 2d 602, 607 (Sup. Ct. N.Y. Cty. 1991) (holding exemption not established where investigations and judicial proceedings 24 had concluded); see also Feerick v. Safir, 297 A.D.2d 212, 213 (1st Dep’t 2002) (holding that the purpose of this exemption is “to avoid compromise of a continuing investigative or judicial process”). This is true under federal law as well. FOIA exemption 7(A) protects from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production . . . could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). To invoke this exemption, the agency must demonstrate that disclosure would interfere with proceedings that are pending or reasonably anticipated. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 658 F. Supp. 2d 217, 225-26 (D.D.C. 2009). To be reasonably anticipated, the withheld material must relate to a “concrete prospective law enforcement proceeding.” Bevis v. U.S. Dep’t of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986) (quoting Carson v. U.S. Dep’t of Justice, 631 F.2d 1008, 1018 (D.C. Cir. 1980)). Federal courts have rejected attempts to broaden 7(A) to future, unspecified investigations. See, e.g., Badran v. U.S. Dep’t of Justice, 652 F. Supp. 1437, 1440 (N.D. Ill. 1987) (rejecting as “bewildering and indefensible” the government’s reliance on exemption 7(A) because production might interfere with enforcement proceedings “against a person who might some day violate immigration laws.”). An agency may not assert the “enforcement proceedings” exception to the FOIA when there is no enforcement proceeding then pending or 25 contemplated. . . . No court has ever held to the contrary. If an agency could withhold information whenever it could imagine circumstances where the information might have some bearing on some hypothetical enforcement proceeding, the FOIA would be meaningless; all information could fall into that category. Id. (internal quotation marks and citations omitted). SED has failed to establish that disclosure of the Audit Plans will interfere with any “law enforcement investigations,” and therefore POL § 87(2)(e)(i) is inapplicable to the records at issue. D. Routine Fiscal Audit Procedures Do Not Constitute “Criminal Investigative Techniques and Procedures” Within The Scope of POL § 87(2)(e)(iv). The Appellate Division’s affirmance rests largely on its conclusion that the audit records at issue are exempt under POL § 87(2)(e)(iv). (R. 137 (holding that the records at issue “are ‘compilations of investigative techniques exempt from disclosure’”) (quoting Matter of Fink, 47 N.Y.2d at 572-73).) However, this exemption protects only “criminal investigative techniques and procedures.” N.Y. Pub. Off. Law § 87(2)(e)(iv) (emphasis added). Neither Supreme Court nor the Appellate Division made a finding, nor could they, that the Audit Plans contained criminal investigative techniques. The Record establishes that the fiscal audits are not conducted as part of a criminal investigation. (R. 91-92, 102 ¶ 8, 105 ¶ 16.) By disregarding the term “criminal” in subpart (iv), the Appellate Division violated the fundamental principle of statutory construction that a law should not 26 be construed to render legislative language superfluous. See, e.g., In re Yolanda D., 88 N.Y.2d 790, 794-95 (1996) (statutes may not be interpreted to render any part “superfluous”); Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 515 (1991) (holding that “a statutory construction which renders one part meaningless should be avoided”) (citations omitted). The Appellate Division’s determination is also contrary to its own, previous interpretation of POL § 87(2)(e)(iv): The statute-on its face-references criminal investigative techniques or procedures, and prevailing case law suggests that this exemption applies only to a FOIL request that, at the very least, has its genesis in an underlying criminal investigation or prosecution. Aurigemma v. N.Y.S. Dep’t of Taxation & Fin., 128 A.D.3d 1235, 1237 (3d Dep’t 2015) (emphasis in original; citing cases, including Matter of Fink, 47 N.Y. 2d at 572). Other courts, too, have rejected agency attempts to seek an expansion of subpart (iv) to cover non-criminal techniques and procedures. It is clear that respondents have not met their burden of demonstrating the applicability of the exemption. They did not establish that there was any criminal investigation here or that criminal non-routine investigative techniques and procedures were employed. Nor have they shown that disclosure of the materials would “provide a step-by- step guide” to evade criminal detection . . . as required. Respondents’ argument that IAB-investigation materials are exempt based on the Patrol Guide and the non-routine nature of the investigation of police misconduct is not based on statutory authority and the court will not create or recognize a new FOIL exception. 27 Gallogly v. City of New York, 51 Misc. 3d 296, 300 (Sup. Ct. N.Y. Cnty. 2016) (emphasis in original). Notably, the federal analogue of POL § 87(2)(e) also includes an exemption similar to subpart (iv), but it is not limited to “criminal” investigatory materials. The FOIA exempts records that are “compiled for law enforcement purposes” and would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law. 5 U.S.C. § 552(7)(E). The FOIA exemption is thus significantly broader than New York’s exemption, and the State Legislature clearly intended such a dissimilarity. The term “criminal” in the statute must not be disregarded. Because subpart (iv) of the law enforcement exemption has no application here, the courts below clearly erred in their reliance on this Court’s decision in Matter of Fink. (R. 11 (finding Matter of Fink passage concerning compilations of investigative techniques “particularly instructive in resolving the instant proceeding”); R. 137-38 (using passages from Matter of Fink to uphold redactions).) The records at issue in Matter of Fink consisted of criminal investigative techniques used by a Special Prosecutor in connection with criminal law enforcement investigations and prosecutions. See id. 47 N.Y.2d at 572-73. In significant contrast, here the records concern routine fiscal audits that are performed at the option by municipalities and boards to “verify that costs are 28 properly reported and that improper costs are not reimbursed.” (R. 105 ¶ 16.) The reasoning set forth in Matter of Fink has no application here, and the courts below erred in relying on that decision to uphold SED’s redactions. II. THE APPELLATE DIVISION ERRED IN PERMITTING SED TO RAISE A FOIL EXEMPTION FOR THE FIRST TIME ON APPEAL In denying Ms. Madeiros’s FOIL request and in the trial court, Respondents relied on POL § 87(2)(e)(i), and did not invoke POL § 87(2)(e)(iv). (R. 28; id. 107 ¶ 24.) Indeed, the Judgment makes no reference whatsoever to subpart (iv) of the law enforcement exemption. (R. 5-13.) On appeal to the Appellate Division, however, Respondents essentially abandoned their reliance on subpart (i), and instead relied on subpart (iv) and this Court’s holding in Matter of Fink. The Appellate Division did not disagree that SED had failed to raise subpart (iv) prior to appeal. (R. 137.) Nonetheless, the court held that it made no difference because it perceived “no meaningful distinction” between POL § 87(2)(e)(i) and § 87(2)(e)(iv). (Id.) The Appellate Division’s decision cannot be squared with the well-settled rules that (1) “judicial review of an administrative determination is limited to the grounds invoked by the agency,” Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758 (1991); and (2) arguments made for the first time on appeal will not be considered. See, e.g., Belgrave v. Ward, 72 A.D.2d 898, 898 (3d Dep’t 1979) (“It would be a perversion of the legal process to entertain at the appellate level issues not raised 29 below.”). See also Loudon House LLC v. Town of Colonie, 123 A.D.3d 1409, 1411 (3d Dep’t 2014) (holding that court could not consider whether alternative FOIL exemption applied where it was not raised in determination); Miller v. N.Y.S. Div. of Human Rights, 122 A.D.3d 431, 432 (1st Dep’t 2014) (holding respondent could not rely on alternative ground for denying FOIL access where the ground was not invoked in denying petitioner’s request). It is notable that the trial court and Appellate Division did not agree on this issue. The trial court held that Respondents’ “failure to invoke the intra- agency/inter-agency exemption as a basis for denying petitioner’s disclosure of pages 27 and 28 of its Exhibit A precludes judicial review.” (R. 5.) Yet, the Appellate Division concluded that Respondents’ failure to invoke POL § 87(2)(e)(iv) did not preclude review, and in fact upheld nondisclosure based at least in part on this newly asserted exemption. III. THE APPELLATE DIVISION ERRED IN FINDING THAT MS. MADEIROS DID NOT SUBSTANTIALLY PREVAIL WHERE SED UNJUSTIFIABLY WITHHELD PUBLIC RECORDS UNTIL AFTER SUIT WAS BROUGHT POL § 89(4)(c) authorizes courts to award reasonable attorneys’ fees and costs to a FOIL petitioner in certain circumstances. As the Appellate Division recently noted, “[t]he counsel fee provision was first added to FOIL in 1982, based upon the Legislature’s recognition that persons denied access to documents must engage in costly litigation to obtain them and that certain agencies have adopted a 30 ‘sue us’ attitude in relation to providing access to public records, thereby violating the Legislature’s intent in enacting FOIL to foster open government.” N.Y. Civ. Liberties Union v. City of Saratoga Springs, 87 A.D.3d 336, 338 (3d Dep’t 2011) (internal quotation marks and citation omitted). In 2006, the Legislature amended the counsel fee provision to allow for the award of attorneys’ fees in FOIL actions in order to “strengthen compliance with the Freedom of Information Law.” Sen. John A. DeFrancisco’s Mem. in Support, 2006 N.Y. Laws, Ch. 492 (S. 7011-A). According to Senator DeFrancisco’s Memorandum in Support of the amendment: Government agencies should not be allowed to ignore requests made pursuant to FOIL or delay responding for so long a time that the accountability the law seeks to ensure is lost. This proposal would create a clear deterrent to unreasonable delays and denials of access . . . and would encourage every unit of government to make a good faith effort to comply with the requirements of FOIL. Id. Accord, Acme Bus Corp. v. County of Suffolk, 136 A.D.3d 896, 897-88 (2d Dep’t 2016) (awarding attorneys’ fees in case where agency produced responsive documents only after Article 78 proceeding was brought). A court in its discretion may award reasonable counsel fees and litigation costs to a party that “substantially prevailed” in the proceeding, provided that the court finds that (i) “the agency lacked a reasonable basis in law for withholding the record” or (ii) “the agency failed to respond to a request or appeal within the statutory time frame.” N.Y. Pub. Off. Law § 89(4)(c). 31 Here, there is no question that SED “failed to respond to a request or appeal within the statutory time frame.” SED also lacked a “reasonable basis in law” for its blanket denial of Ms. Madeiros’s FOIL request, as evidenced by its production of all documents responsive to the request after this proceeding was commenced. Accordingly, the only issue is whether Ms. Madeiros substantially prevailed. The trial court did not address Ms. Maderios’s request for attorney’s fees, and therefore did not determine whether she substantially prevailed. (See generally R. 5-9.) The Appellate Division addressed the request, but held that Ms. Madeiros did not substantially prevail because “the vast majority of the challenged redactions were appropriate[.]” (R. 138.) However, in reaching this conclusion, the court ignored the undisputed fact that, until this proceeding was commenced, Respondents had produced no documents whatsoever, notwithstanding the existence of several concededly non-exempt documents. Ms. Madeiros brought this litigation - not to challenge Respondents’ redactions - but rather to obtain disclosure in the first instance. Where, as here, the agency discloses documents only after the Article 78 proceeding is instituted, courts routinely find that the FOIL petitioner “substantially prevailed” for purposes of an attorney fee award. See, e.g., Acme Bus Corp., 136 A.D.3d at 897-88 (awarding attorney’s fees in case where agency produced responsive documents only after Article 78 proceeding was brought); 32 Kohler-Hausmann v. N.Y.C. Police Dep’t, 133 A.D.3d 437, 437-38 (1st Dep’t 2015) (same); Bottom v. Fischer, 129 A.D.3d 1604, 1605-1606 (4th Dep’t 2015) (upholding redaction of documents, but holding trial court abused discretion in denying request for attorney’s fees where agency disclosed majority of records requested after suit was brought); N.Y.S. Defenders Ass’n v. N.Y.S. Police, 87 A.D.3d 193, 197 (3d Dep’t 2011) (holding argument that agency had a reasonable basis to believe that the records were exempt was “belied by the virtually immediate release of the requested information upon commencement of th[e] proceeding”); N.Y. Civil Liberties Union, 87 A.D.3d at 339 (“On this record-and particularly in view of the fact that it was only through the use of the judicial process that petitioner was able to obtain the required disclosure and respondents evinced a clear disregard of the public’s right to open government-we find that the denial of petitioner’s request for an award of counsel fees was an abuse of discretion.”); see also Jaronczyk v. Mangano, No. 28192012, 2012 WL 11980342, at *4 (Sup. Ct. N.Y. Cty. June 27, 2012) (“[W]e cannot say that it was reasonable for respondents to initially withhold the entirety of the records sought by petitioners and then release the overtime slips with the redaction of social security numbers only after petitioners retained and paid for counsel and filed an Article 78 proceeding.”), aff’d 121 A.D.3d 995 (2d Dep’t 2014). 33 Notably, the Appellate Division’s decision in this case is inconsistent with its own precedent. For example, in 1989, the Appellate Division rejected the notion that a FOIL petitioner cannot be deemed to have substantially prevailed if the requested documents are submitted after litigation is commenced and prior to an answer being filed. Considering the elements necessary to an award of counsel fees, we first reject respondents’ contention that petitioner cannot be deemed to have substantially prevailed since the documents were released before any defense was asserted. Such a contention is irrational. It would allow a respondent to moot any proceeding and prevent an award of counsel fees by releasing the documents before asserting a defense. Supreme Court was correct in determining that it was the initiation of this proceeding which brought about the release of the documents. Powhida v. City of Albany, 147 A.D.2d 236, 239 (1989) (emphasis added). More recently, the Appellate Division held that a petitioner substantially prevails if, only as a result of litigation, the petitioner receives the response to which he or she was entitled under FOIL. The fact that full compliance with the statute was finally achieved in the form of a certification that the requested record could not be found after a diligent search, as opposed to the production of responsive documents, does not preclude a petitioner from being found to have substantially prevailed, for the petitioner received the full and only response available pursuant to the statute under the circumstances. As we have emphasized, the counsel fee provision was added in recognition that persons seeking to force an agency to respond to a proper FOIL request must engage in costly litigation, and the statute was recently amended in order to create a clear deterrent to unreasonable delays and denials of access and thereby encourage every unit of government to make a good faith effort to comply with the requirements of FOIL. 34 Legal Aid Soc’y v. N.Y.S. Dep’t of Corr. & Cmty. Supervision, 105 A.D.3d 1120, 1122 (3d Dep’t 2013) (internal quotation marks, alteration, and citations omitted). See also N.Y. Civil Liberties Union, 87 A.D.3d at 338 (holding denial of attorney’s fees was abuse of discretion where “it was only through the use of the judicial process that petitioner was able to obtain the required disclosure and respondents evinced a clear disregard of the public’s right to open government”); Hearst Corp. v. City of Albany, 88 A.D.3d 1130, 1133 (3d Dep’t 2011) (“[R]espondent’s prolonged delay in releasing the documents and-in ultimately doing so- transparent attempt to avoid judicial review of its unsupported assertion that the documents were exempt from disclosure, evinced a clear disregard of the public’s right to open government[.]”) (internal quotation marks and citations omitted). Here, SED’s blanket denial of the FOIL request was a clear violation of FOIL. See Gould, 89 N.Y.2d at 275 (holding that “blanket exemptions for particular types of documents are inimical to FOIL’s policy of open government”). This Court recently stated in no uncertain terms that an agency - and specifically SED - “cannot refuse to produce the whole record simply because some of it may be exempt from disclosure.” Schenectady Cnty. Soc’y for Prevention of Cruelty to Animals, Inc. v. Mills, 18 N.Y.3d 42, 46 (2011). SED’s conduct constitutes the unreasonable delay and denial of access the Legislature intended to combat by its amendments to FOIL. The Appellate 35 Division’s denial of fees under the circumstances rewards SED for its misconduct, and will serve only to encourage State agencies to withhold public records from FOIL disclosure until such time as the requester brings suit, assuming the requester has the resources to do so. That is precisely the type of behavior the fee award provisions were intended to prevent. CONCLUSION For the foregoing reasons, Petitioner-Appellant Pamela A. Madeiros respectfully requests that this Court reverse the Appellate Division’s Memorandum and Order, modify the Judgment insofar as it denied the Petition, remand for a determination and award of reasonable attorney’s fees and costs, and grant such further and other relief as the Court deems appropriate. Dated: Albany, New York June 24, 2016 Respectfully Submitted, GREENBERG TRAURIG, LLP By: _____________________________ Cynthia E. Neidl 54 State Street, 6th Floor Albany, New York 12207 (518) 689-1400 Attorneys for Petitioner-Appellant Pamela A. Madeiros ALB 1931520v2