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ALBANY----The state's highest court helped public officials hide from accountability to the public this week and allowed public entities even more leverage to wrongly deny citizens records to which they are entitled and make their right to know even more cost prohibitive.
In a 7-0 vote in Matter of Beechwood Restorative Care Center v. Signor, the court held that documents that are sought under the state's Freedom of Information Law must be of "significant interest to the general public" in order to force the state to reimburse the requestor's attorney's fees if the public entity refuses to provide public documents and forces a requestor to take the issue to court.
Beechwood had sought to recoup more than $50,000 expended in attorneys' fees trying to obtain public documents from the state Department of Health. The Court specifically noted that it was DOH's failure to comply with FOIL requirements that led to the litigation.
The Court also held that the Equal Access to Justice Act isn't applicable in FOIL requests. http://www.nycourts.gov/ctapps/decisions/oct05/136opn05.pdf
The case involved the Beechwood Restorative Care Center in Rochester, a general partnership that operated a skilled nursing facility. In June 1999, the New York State Department of Health commenced a license revocation proceeding against Beechwood based on allegations of substandard care of its residents.
A hearing was held before an administrative law judge who sustained DOH's allegations involving a number of residents and determined that Beechwood had committed serious violations of multiple regulations, resulting in a pattern of inadequate care. Upon the commissioner's adoption of the law judge's recommendation, in December 1999, DOH revoked Beechwood's operating certificate, closed the facility and imposed a $54,000 civil penalty.
Between August 1999 and January 2001, Beechwood submitted 17 separate FOIL requests to DOH seeking documents pertaining to DOH procedures in general and Beechwood's license revocation in particular. Each of the requests contained numerous itemized demands. In response, DOH produced hundreds of pages of documents, largely relating to five of the requests. Beechwood and petitioner Brook Chambery, a general partner of Beechwood commenced a legal proceeding in April 2001 alleging that DOH had failed to respond to 12 of their FOIL requests and seeking attorneys' fees under both FOIL and the NYS Equal Access to Justice Act.
Before the Appellate Division of state Supreme Court issued its ruling, DOH delivered over 350 pages of additional records to Beechwood and thereafter claimed that the proceeding was moot.
In its first of a succession of orders, the Appellate Division held that the proceeding was not moot and directed DOH to provide affidavits by responsible individuals articulating the diligent search efforts undertaken by the department to locate documents responsive to the FOIL requests and certifying whether the remaining requested records existed. For documents found to exist, the court ordered DOH to either produce them or indicate the reasons they should be exempt from disclosure.
As a result of this directive, DOH produced the affidavits of three employees explaining their efforts and asserted various exemptions for 90 pages of documents which were submitted to the court for in camera review.
The Appellate Division upheld all of the exemptions claimed by DOH but ordered the department to further look for records responsive to 48 demands, concluding that Beechwood had "rebutted DOH's certification that a diligent search had been conducted and claim that all responsive documents had been located.
Subsequently, DOH filed three additional affidavits that identified close to 400 pages of documents pertaining to 17 of the 48 items sought by Beechwood. The affidavits explained that DOH employees could not locate records in connection with the outstanding 31 requests. Beechwood then moved to compel DOH to provide further affidavits relating to the procedures it had instigated to locate the requested documents. DOH replied with affidavits from 20 employees from various bureaus, divisions and offices of DOH who had searched their files and discovered 74 pages of additional documents. Supreme Court directed DOH to search for records pertaining to one final item which was eventually discovered.
After the completion of production of records, Beechwood moved for attorneys' fees premised on both FOIL and EAJA statutes.
However, the court held that Beechwood did not establish that the records obtained were of significant interest to the general public, observing that Beechwood sought to use the documentation in its federal litigation against DOH employees. The court also determined that Beechwood had failed to show that DOH lacked a reasonable basis for withholding the records.
The high court upheld the Appellate Division's decision not to award Beechwood legal fees under either FOIL or EAJA.
'The Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy", Justice Victoria Graffeo wrote for the court. "An agency's records 'are presumptively open to public inspection, without regard to need or purpose of the applicant. When faced with a FOIL request, an agency must either disclosure the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search.
"Although DOH acknowledged receipt of the 12 FOIL requests and indicated that it would take approximately 30 to 60 days to process each request and determine the availability of responsive documents, DOH initially supplied documents in connection with only three of them. DOH's failure to follow FOIL's requirements necessitated this lawsuit, a result that could have been avoid had DOH discharged its statutorily mandated disclosure obligations in a more thorough and timely fashion. DOH"s delay in conducting a comprehensive search for the requested records triggered the question whether Beechwood could recover attorney's fees expended in this litigation. Pursuant to FOIL's fee-shifting provision, a court may award reasonable counsel fees and litigation costs to a party that 'substantially prevailed' in the proceeding if the court finds that 'the record involved was, in fact, of clearly significant interest to the general public and the agency lacked a reasonable basis in law for withholding the record.
Despite Beechwood's claim that the closure of the facility was significant to the public and as such, documents relating that closure met the statutory test, the Court of Appeals disagreed, saying that Beechwood had failed to meet its burden of establishing that the particular records disclosed were of significant interest to the general public. The court also indicated that it would have denied the request in the exercise of its discretion even if Beechwood had satisfied all of the FOIL counsel fee requirements.
The New York Newspaper Publishers Association had filed an amicus curiae brief in support of Beechwood. Diane Kennedy, association president, said that more newspapers could be aggressive in their pursuit of public records if they didn't have to spend thousands or tens of thousands of dollars suing public agencies to turn over the documents. The association had asked the Court of Appeals to adopt a legal test that would force judges to order state agencies to pay legal bills when they ignore a FOIL request or wrongly deny public records with a "sue me" attitude.
10-27-05
© 2005 North
Country Gazette
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