Dob Foil Appeal

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BRACEWELL&GIUL IAN ITexasNew YorkWashington. DCConnecticutSeattleDubalKazakhstanLondon

Bracewell & Giuliani L1177 Avenue of the ANew York, New York100362714212.508.6176 Office212.508.6101 [email protected]

November 11, 2010

Janine GaylardFOIL Appeals OfficerDepartment of Buildings280 Broadway, 7th FloorNew York, New York 10038

Re: Appeal of Department of Buildings Response to June 18,2010 FOIL RequestRegarding 127 West 25th Street, New York, New York

Dear Ms. Gaylard:We represent Chelsea Business &Property Owners' Association, LLC, d/b/a Chelsea

Flatiron Coalition ("CFCt,), a group of citizens who live and work in the Chelseaneighborhood of New York City and who are concerned with the Bowery Residents'Committee, Inc.'s ("BRCtt) proposal to create a 328-bed, in-patient and out-patient drug,alcohol and mental health care facility and homeless shelter at 127 West 25th Street, NewYork, New York. Pursuant to the New York State Freedom of Information Law ("FOIL"),Public Officers Law ("POL") 84, et seq., and 43 RCNY 1-06, we hereby appeal theDepartment of Buildings ("DOB") decision, signed by Records Access Officer AngelaOrridge, dated October 13,2010, partially denying CFCs above-referenced FOIL request.

By way of background, CFC submitted a FOIL request to DOB on June 18,2010,seeking records regarding BRC's proposed facility. (A copy of CFC's FOIL request isattached hereto as Exhibit A.) By letter dated June 22,2010, DOB acknowledged receipt ofCFCs FOIL request and indicated that DOB would respond to CFC's FOIL request within 30business days. (A copy of DOB's FOIL acknowledgement letter is attached hereto as ExhibitB.) Nearly four months later, by letter dated October 13,2010, DOB Records Access OfficerAngela Orridge stated that DOB had gathered 215 pages of responsive records and that thoserecords were available for collection by CFC. (A copy of DOB's response is attached heretoas Exhibit C.) However, Ms. Orridge's letter further stated that DOB withheld anunidentified number of records, as well as portions of records, pursuant to POL 87(2)(g).

DOB improperly withheld these records by failing to specify, as required by the caselaw interpreting FOIL, the specific reason for the withholding.

NEWYORK\63069.5
mailto:[email protected]:[email protected]


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BRACEWELL&GIULIANIFOIL Appeal - June 18, 2010 FOIL RequestNovember 11,2010Page 2

The New York State legislature has affirmatively concluded that:The people's right to know the process of governmental decision-makingand to review the documents and statistics leading to determinations isbasic to our society. Access to such information should not be thwartedby shrouding it with the cloak of secrecy or confidentiality.

POL 84.Under FOIL, New York State and City agencies are to "make available for public

inspection and copying all records" requested, subject to a few enumerated exemptions. POL 87(2). As such, FOIL "is based upon a presumption of access. n COMM.ONOPENGOV'T,FOIL-AO-15232 (Mar. 29,2005); see also Fappiano v. N. Y. City Police Dep't, 95 N.Y.2d738, 746 (2001) (citing Gould v. NY. City Police Dep't, 89 N.Y.2d 267,274-75 (1996 ("Allgovernment records are presumptively open for public inspection unless specificallyexempted from disclosure as provided in the Public Officers Law."). In furtherance of thispolicy, "FOIL is to be liberally construed and its exemptions narrowly interpreted so that thepublic is granted maximum access to the records of government." Capital Newspapers, Div.of Hearst Corp. v. Whalen, 69 N.Y.2d246, 252 (1987). Accordingly, "the burden rests onthe government agency to show that requested material qualifies for exemption." Fappiano,95 N.Y.2d at 746 (citing Gould, 89 N.Y.2d at 275).

Despite this presumption of access, DOB refuses to disclose materials pursuant toPOL 87(2)(g), commonly referred to as the "deliberative process It privilege. Pursuant toPOL 87(2)(g), agencies can exempt from disclosure "inter-agency or intra-agencymaterials" that do not fall within certain enumerated categories, such as "statistical or factualtabulations or data." Id. It is well recognized that the presumption of access to governmentrecords "specifically extends to intraagency and interagency materials .... " CapitalNewspapers, Div. of Hearst Corp. 'v. Burns, 67 N.Y.2d 562, 566 (1986).

While we recognize that these types of inter- or intra-agency materials are sometimesproperly withheld under the deliberative process privilege because it is "in the public interestto encourage candid discussion and representation of views among government employeesinvolved in the development of policy," One Beekman Place, Inc. v. City of New York, 169A.D.2d 492,493 (1st Dep't 1991), the status of the law regarding the deliberative processprivilege and the presumption of openness necessitates that records be withheld pursuant tothis privilege sparingly.

Further, it is well understood that this FOIL exemption, "due to its structure ... oftenrequires disclosure of certain aspects of records," rather than a wholesale withholding ofrecords. COMM.ONOPENGOV'T,FOIL-AO-8268 (May 26, 1994); see, e.g., Ingram v.

NEWYORK\63069.5


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BAACE \X !ELL&GIULIANI.FOIL Appeal- June 18,2010 FOIL RequestNovember 11,2010Page 3

Axelrod, 90 A.D.2d 568,569 (Ist Dep't 1982) (despite agency's argument that factual datawas so intertwined with analysis and opinion, court orders excerpts of document producedcontaining mere facts); Orange County Publ'ns, Inc., a Div. of Ottaway Newspapers v.County of Orange, 168 Misc. 2d 346,359 (Sup. CL Orange County 1995) (in camerainspection of materials required where County "failed to identify with anyparticularity thoseportions which are not subject to disclosure"). Accordingly, "[a]n agency may not throw aprotective blanket over all information by casting it in intra-agency terms. II Am. Soc. forPrevention of Cruelty to Animals v. Bd. of Trs. of State Univ. of NY., State Univ. of NY. atStony Brook, 147 Misc. 2d 847,854 (Sup. Ct. Suffolk County 1990).

Here, DOB has withheld from production an undisclosed number of records withoutidentifying those portions that are not privileged. In fact, DOB has failed to characterize therecords being withheld in any way. Thus, DOB issued an impermissible blanket denial.

Accordingly, CFC appeals DOB's partial denialofCFC's above-referenced FOILrequest, and requests that DOB reevaluate the basis of its decision to withhold certain recordsunder POL 87(2)(g), andlor provide adequate information regarding the number of andbasis for any records it continues to withhold under any claimed exemption.

We look forward to your response and thank you for your consideration.Very truly yours,

Attachmentscc: Robert J. Freeman, Executive Director

The C~ommitteeon Open Government

NEWYORK\63069.5


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EXHIBIT A


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BRACEWELL&GIUL IAN ITexasNswYorkW a shington, D CconnecticutCuba lKazakhstanLondon

Bracewen & GluRant u1 2 51 Avenue of the A49 ' " FloorNew YO lk , N ew Y or k100201104212.508.6100 OffIce212.508.6101 FSlCbgllp.com

June 18,2010B y FedEx

Records Access OfficerDepartment of Buildings280 Broadway, 7th FloorNew York, New York 10007

Re: FOIL Request Related to 127 West 25th StreetTo Whom It May Concern:

Pursuant to the New York State Freedom of Information Law, Public Officers Law 84e t s eq ., we hereby request that the New York City Department of Buildings C'DOBn) produce ormake available for copying and inspection the following documents believed to be in thepossession, custody or control ofDOB.

1. All applications, proposals, plans,appea1s or other documents, includingelectronic documents or emails, submitted by (i) the Bowery Residents' Committee, Inc., a not-for-profit organization (nBRC"), (ii) any of BRC's subsidiaries or affiliates, including. but notlimited to, Continuing Day Treatment, Food Service Program', Fred Cooper Substance AbuseServices Center, Home-Based Case Managementor Reception Center (collectively, "BRCAffiliates"), (iii) Dan Shavolian, the owner of 127 West 25th Street, BIN# 1015006, Block 801~Lot 21 (the "Property"), (iv) any of Mr. Shavolian's companies, including. but not limited to, 127West 25th Street LLC or Foremost Real Estate LLC, or (v) any engineer, architect, contractor,expeditor or agent on behalf of any. of the persons or entities listed in (i) through (iv) related tothe Property.

2. All documents or communications, whether internal and external, includingelectronic documents or emails, reflecting the reason for the DOB's rejection of applicationsassociated with Job Numbers 120286145, 120288054, 120240505 or any other application,proposal, plan, appeal or other document filed or submitted by BRC or any persons or entitiesmentioned in Request No. 1 from January 1, 2008 to the present related to the Property.

3. All documents or communications, whether internal or external,. includingelectronic documents or emails, related to Complaint # 1283498, a complaint received by theDOB on June 14,2010, regarding non-permitted construction work at the Property.

NEWYORK\S7490 . 2


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BRACEWEL L&GIUL IAN IFO IL R e que stJune 18~2010Page 2

~4. A U documents , including, but not lim ited to , draft or final contracts, proposals,letters of intent, m em oranda of understanding, applications, plans, form s, approvals, denials,m o difica tio ns, c er tific atio ns, au th or iz atio ns , lice nse s, o pe ra tin g ce rtific ate s, c or re sp on de nce ,m emor an da , le tte rs, e-mails, fa cs im i le s o r e le ctr on ic documents, re lated to the Property fromJanuary 1,2008 to the pre se nt5. A U communications related to the Property, including all attaclunents ordocum ents related thereto , betw een or am ong D OB and B R e or any persons or entities listed inR equest N o.1 from January 1,2008 to th e p re se nt.6. A ll communications related to the Property, including all attachm ents ordocum ents related thereto, betw een or am ong D OB and any N ew York C ity or N ew York Statede partm en t, age ncy, office , community board, e le cte d or app oin te d .representative or offic ialfr om J an ua ry 1,2008 to th e p re se nt.7. All docum ents related to any com plaints m ade or violations received by or issuedto B R C or any B R C A ffiliate by D OB or any N ew . York C ity or N ew York State departm ent,a ge nc y o r o ffic e.Thank you for your prom pt attention to this FO IL request. Please contact m e with any .

questions.Sincerely,B racewel l & G iuliani L L P

NEWYORK\S749Q.2


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EXHIBITB


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II'ICBuildingsRobert D. LlMandriCommissionerAngela OrridgeRecords Access [email protected] Broadway7th FloorNew York, NY 10007www.nyc.govlbuildings+12125662899 tel+1 212 566 3843 fax

June 22,2010

David J. BallBracewell & Giullian! LlP1251 Avenue of the Americas, 49th FloorNew York, NY 10020Re:127 West 25th Street, New York, NYDear Mr. Ball:The Department is in receipt of your Freedom of Information request letter dated June18,2010 and is currently working to determine if it has any of the requested documents.If the Department has any records responsive to your request and those documents canbe located within 30 business days and are disclosable, you will be sent a letter within30 buslness days of this letter stating the cost of the documents and how to obtainthem. If the Department does not have any responsive documents or the documentsare not disclosable, you will be sent a letter to that effect. If the Department is unable toproduce the records within the preceding time period, you will be informed of the reasonfor the inability to do so, and we will indicate the date when the records' will be available.Please feel free to contact me at the telephone number above if I can be of any furtherassistance. For more information about a specific property or to obtain the status of apermit, complaint, or inspection, you may visit our online Buildings Information Systemt www.nyc.gov/buildings.

C c:

safety service integrity
http://www.nyc.govlbuildings/http://www.nyc.gov/buildings.http://www.nyc.gov/buildings.http://www.nyc.govlbuildings/


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EXHIBITC


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IICBuildings

R o ba rt D . L IMan dr iCommissIonerAngela OrridgeRec or ds A c ce ss O ff ic eraorr [email protected] 80 B r oa dWay1'" FloorNew York. NY 10007www.nyc.govlbulldings+12125682899tel+1 212 666 3843 fax

October 13, 2010"

David J. Bal lB racewe l l & G iu lia ni lL P1251 A ve nu e o f the A m er ic as _49th FloorNewVo f ' k , N Y 10038Re: 121West 261 1 1 Street, New York, NYD eaf M r. B ar l:Y ou r re qu es t has b een g ra nte d in p ar t a nd d enied In p ar t.There are 215 pages o f responsive doc um ents. The Departm ent c harges $.25 perpage. The am ount due is $56.25. The d oc uments will be m ade ava ilab le to y ou u ponrec eipt o f paym ent P lease c ontac t m e at (212) 566-289 9 to make a rr an gements too bta in y o ur d oc umen ts .Y ou have been denied ac cess to r ec ord s o r p or tio ns o f re co rds e xe mp t fr om disc lo su rep ur su an t to 87(2)(g) o f the P ublic O ffIc er s L aw b ec au se the r ec or de ar e inte r~ age nc yo r .I ntr a- ag en c y ma te ria ls th at d o n ot f all u nd er c e rta in e nume ra te d c a te go rie s.You have the r igh t to a pp eal this d ete rm in atio n by w r ff ing to Janine G ay la rd , F OILppeaJs O f f ice r , 280 B roadway , 1h F loo r , N eW York, N Y 10007, within 30 days o f thea te o f th is le tte r.

safety service integrity
mailto:[email protected]://www.nyc.govlbulldings/http://www.nyc.govlbulldings/mailto:[email protected]

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