Empire Ctr. for Pub. Policy v. N.Y.S. Energy & Research Dev. Auth.

188 A.D.3d 1556

137 N.Y.S.3d 540

In the Matter of EMPIRE CENTER FOR PUBLIC POLICY, Respondent,

v.NEW YORK STATE ENERGY AND RESEARCH DEVELOPMENT AUTHORITY et al., Appellants.

531100

Supreme Court, Appellate Division, Third Department, New York.

Decided and Entered: November 25, 2020

MEMORANDUM AND ORDER

Clark, J. Appeal from a judgment of the Supreme Court (Lynch, J.), entered February 21, 2020 in Albany County, which, among other things, granted petitioner's application, in a proceeding pursuant to CPLR article 78, to review determinations of respondents denying petitioner's Freedom of Information Law request.

In April 2019, petitioner made a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL] ) request to respondent New York State Energy and Research Development Authority (hereinafter NYSERDA) and a separate FOIL request to respondent Department of Environmental Conservation (hereinafter DEC). In those requests, petitioner sought "an electronic copy of the ‘comprehensive study’ ordered by Gov. Andrew Cuomo ‘to determine the most rapid, cost-effective, and responsible pathway to reach 100[%] renewable energy statewide’ as detailed in [the] January 10, 2017 press release and as completed prior to revisions mentioned publicly by NYSERDA in February 2019."¹ DEC denied the request, stating that it had no responsive records, as the requested study had not yet been completed. NYSERDA also denied the request, stating that, although it had records responsive to the request, said records were exempt from disclosure under Public Officers Law § 87(2)(g). Petitioner administratively appealed the respective denials. DEC denied the administrative appeal on the ground that it did not possess the completed study. NYSERDA also denied the administrative appeal, stating that, upon further review, the records it had previously identified as responsive were not actually responsive to the request. Petitioner then commenced this CPLR article 78 proceeding to challenge respondents' determinations. Supreme Court granted the petition and directed respondents to produce the requested records and to pay petitioner's counsel fees and costs. Respondents appeal.

Initially, despite any assertions to the contrary, it was entirely reasonable for respondents to interpret petitioner's FOIL request as seeking a completed study. Although there may be some ambiguity in petitioner's request, leaving room for different interpretations, a fair reading of the request can certainly lead to the plausible interpretation that petitioner was solely asking for a completed study.²

Where, as here, an agency maintains that it does not possess a requested record, the agency is required to certify as much (see Public Officers Law § 89[3] ). Here, respondents submitted affidavits from Alicia Barton, the president and chief executive officer of NYSERDA, and Carl Mas, the Director of the Energy and Environmental Analysis Department of NYSERDA, as well as an affirmation from Daniella Keller, an attorney who served as DEC's records access officer at the relevant time. In their sworn affidavits, Barton and Mas attested that the study referenced in Governor Cuomo's January 2017 press release had yet to be completed at the time of petitioner's FOIL request. Keller stated, in her affirmation, that DEC records custodians had conducted a search of relevant files and advised her that the requested record did not exist because the study "had not been drafted." Such sworn attestations amply satisfy respondents' obligations under Public Officers Law § 89(3) (see Matter of Wright v. Woodard, 158 A.D.3d 958, 958–959, 68 N.Y.S.3d 778 [2018] ; see generally Matter of Rattley v. New York City Police Dept., 96 N.Y.2d 873, 875, 730 N.Y.S.2d 768, 756 N.E.2d 56 [2001] ).

Where an agency properly certifies that it does not possess a requested record, a petitioner may be entitled to a hearing on the issue if it can "articulate a demonstrable factual basis to support [the] contention that the requested document[ ] existed and [was] within the [agency's] control" ( Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 279, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996] ; see Matter of Jackson v. Albany County Dist. Attorney's Off., 176 A.D.3d 1420, 1421–1422, 113 N.Y.S.3d 313 [2019] ). To that end, petitioner relied on public statements made by Barton and others at certain legislative hearings. These statements, however, did not indicate – or come close to indicating – that a completed report existed. Rather, petitioner asks this Court to rely on inferences that may or may not be reasonably gleaned from the public statements to conclude that a completed report did in fact exist at the time of the FOIL request. Indeed, petitioner alleged in the verified petition that the work by NYSERDA that Barton referred to in her public hearing testimony was "[p]resumably" the report sought in the FOIL request. Such speculation and conjecture does not warrant a hearing or a rejection of the sworn statements of Barton and Mas – individuals with personal knowledge of the study and its status – and Keller (see Matter of Gould v. New York City Police Dept., 89 N.Y.2d at 279, 653 N.Y.S.2d 54, 675 N.E.2d 808 ; Matter of DeFreitas v. New York State Police Crime Lab, 141 A.D.3d 1043, 1045, 35 N.Y.S.3d 598 [2016] ; Matter of Di Rose v. City of Binghamton Police Dept., 225 A.D.2d 959, 960, 639 N.Y.S.2d 580 [1996] ). Thus, inasmuch as petitioner did not establish its entitlement to the relief requested in its petition, it should have been dismissed (see Matter of Jackson v. Albany County Dist. Attorney's Off., 176 A.D.3d at 1421–1422, 113 N.Y.S.3d 313 ).

Aarons and Devine, JJ., concur.

Reynolds Fitzgerald, J. (dissenting).

We respectfully dissent.

Contrary to the majority's view, we do not believe it was reasonable for respondents to interpret petitioner's Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL] ) request as seeking a completed study. Petitioner's FOIL request sought the "comprehensive study ... as completed prior to revisions mentioned publicly by [respondent New York State Energy and Research Development Agency (hereinafter NYSERDA) ] in February 2019." By focusing on the word completed, respondents wholly ignored the remainder of the sentence, acknowledging that NYSERDA intended to...