Supreme Court, Albany County, March 15, 2022

The Legal Aid Society, Criminal Practice, Prisoners' Rights Project, New York City (Robert M. Quackenbush of counsel), for petitioner.

Letitia James, Attorney General, Albany (Stacey Hamilton of counsel), for respondent.

Petitioner Legal Aid Society commenced this CPLR article 78 proceeding on March 31, [*2]2021, challenging the denial of its January 21, 2021 request for records pursuant to the Freedom of Information Law (see Public Officers Law art 6 [FOIL]).

The petition, as amended, sought an order compelling respondent New York State Department of Corrections and Community Supervision (DOCCS) to disclose "all records reflecting the number of DOCCS employees, by facility, tested for COVID-19, and the number of DOCCS employees who tested positive for COVID-19, by facility, from October 1, 2020 to the date of DOCCS' final determination denying access, March 5, 2021" (NY St Cts Elec Filing [NYSCEF] Doc No. 16, amended petition ¶ 1 [emphasis omitted]; see also id. Wherefore Clause).

In lieu of answering, DOCCS moved to dismiss the proceeding as moot based on its August 4, 2021 production of records. By decision and order dated October 12, 2021, the court partially granted the motion by dismissing the branch of the amended petition seeking access to records reflecting the number of DOCCS employees who tested positive for COVID-19 (see 2021 NY Slip Op 33219[U], *5 [Sup Ct, Albany County 2021]; NYSCEF Doc No. 48, first decision at 5). The motion was denied, however, as to the part of the amended petition that sought records reflecting the number of DOCCS employees{**75 Misc 3d at 342} who had been tested (see 2021 NY Slip Op 33219[U], *6-8; NYSCEF Doc No. 48 at 6-8).

Rather than answer the branch of the amended petition that survived the first round of motion practice, DOCCS disclosed additional records to petitioner and then moved for a second time to dismiss the proceeding as moot. The second motion was denied in a decision and order dated January 26, 2022, on the ground that DOCCS had not produced responsive records from January 21, 2021 (initial FOIL request) through March 5, 2021 (denial of FOIL appeal) (see 2022 NY Slip Op 30793[U], *5 [Sup Ct, Albany County 2022]; NYSCEF Doc No. 57 at 5), and DOCCS again was ordered to answer the amended petition.

By letter dated February 22, 2022, petitioner advised the court that DOCCS had provided it with the remaining records responsive to the FOIL request (see NYSCEF Doc Nos. 59-60). The parties therefore "agree that the underlying FOIL request is now moot" and ask the court to "resolve Petitioner's request for reasonable attorneys' fees" (NYSCEF Doc No. 59). This decision, order and judgment follows.

Discussion

"Where a petitioner receives an adequate response to a FOIL request during the pendency of [its] CPLR article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties" (Matter of DeFreitas v New York State Police Crime Lab, 141 AD3d 1043, 1044 [3d Dept 2016] [citations omitted]).

Based on petitioner's submission of February 22, 2022, the court grants the parties' request to "deem the underlying FOIL request moot" (NYSCEF Doc No. 59). Dismissal of the proceeding for mootness does not, however, "preclude petitioner's request for counsel fees" (Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d 1072, 1074 [3d Dept 2020]; see Matter of Associated Gen. Contrs. of N.Y. State, LLC v New York State Thruway Auth., 173 AD3d 1526, 1527 [3d Dept 2019]).

Under Public Officers Law § 89 (4) (c), the court:

"(i) may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, and when the agency failed to respond to a request or appeal within the statutory time; and (ii) shall assess,{**75 Misc 3d at 343} against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access" (emphasis added).

"A petitioner substantially prevails under Public Officers Law § 89 (4) (c) when it receives all the information that it requested and to which it was entitled in response to the underlying FOIL litigation, even where, as here, [information] is received after the proceeding is commenced" (Matter of Gannett Satellite Info. Network, LLC, 181 AD3d at 1074 [internal quotation marks and citation omitted]; see Matter of Competitive Enter. Inst. v Attorney Gen. of N.Y., 161 AD3d 1283, 1286 [3d Dept 2018]; Matter of Legal Aid Socy. v New York State Dept. of Corr. & Community Supervision, 105 AD3d 1120, 1121-1122 [3d Dept 2013]; see also Matter of New York State Defenders Assn. v New York State Police, 87 AD3d 193, 195 [3d Dept 2011] ["the 'voluntariness' of . . . disclosure is irrelevant to the issue of whether petitioner substantially prevailed"]; Matter of NYS Funeral Directors Assn. v New York State Dept. of Health, 67 Misc 3d 1243[A], 2020 NY Slip Op 50815[U], *7 [Sup Ct, Albany County 2020, Hartman, J.], affd 200 AD3d 1255 [3d Dept 2021]).

It is clear that petitioner substantially prevailed in this proceeding, and the only question is whether DOCCS had a reasonable basis for denying access to the requested records.

Public Officers Law § 87 (2) (f) "exempts from disclosure materials that, if disclosed, could endanger the life or safety of any person," and DOCCS "need only demonstrate a possibility of endangerment in order to invoke this exemption" (Matter of Hutchinson v Annucci, 189 AD3d 1850, 1854 [3d Dept 2020] [internal quotation marks, brackets and citations omitted]). "A pertinent consideration . . . is whether the agency reasonably claimed the records were exempt from disclosure under Public Officers Law § 87 (2), although the denial may still have been reasonable even if the records are ultimately deemed not to be exempt" (Matter of Vertucci v New York State Dept. of Transp., 195 AD3d 1209, 1210 [3d Dept 2021] [internal quotation marks and citation omitted], lv denied 37 NY3d 917 [2022]).

DOCCS maintains that it had a reasonable basis for denying the FOIL request in February 2021 because the facility-level{**75 Misc 3d at 344} positivity data requested by petitioner, which identifies the number of COVID-positive staff at each facility, "could conceivably [have been] used by incarcerated individuals in attempts to circumvent security protocols" and "target perceived vulnerabilities" (NYSCEF Doc No. 39, mem of law at 4; see NYSCEF Doc No. 37, Ranieri aff ¶ 11). However, DOCCS later determined that "with the passage of time, the disclosure of facility-level data would not pose a present threat as the information is historical. The facility-level information that was requested in January 2021 is now disclosable as historical information which does not affect current staffing levels" (NYSCEF Doc No. 39, mem of law at 4; see NYSCEF Doc No. 37, Ranieri aff ¶ 12).

The court does not find this argument entirely convincing. Petitioner's FOIL request of January 21, 2021, sought COVID-19 testing and positivity data from October 1, 2020 (see NYSCEF Doc No. 17). Thus, at the time of the March 5, 2021 denial of petitioner's appeal, the agency was invoking the endangerment exception of Public Officers Law § 87 (2) (f) as to "historical [positivity] information" spanning back more than five months. DOCCS has not provided the court with any reason to believe that the disclosure of positivity data from months earlier could endanger anyone or reveal the current vulnerabilities of any facility.

And even if DOCCS acted reasonably in denying access to stale positivity data, there was no safety rationale associated with disclosure of the number of DOCCS employees who merely had been tested for COVID-19. In denying this prong of the administrative appeal, the FOIL appeals officer represented that the agency "does not maintain comprehensive COVID-19 testing data for employees" (NYSCEF Doc No. 22). However, this response elided over the fact that "DOCCS itself arranged and facilitated COVID-19 testing of facility staff on the premises of its [*4]correctional facilities" (2021 NY Slip Op 33219[U], *7 [internal quotation marks and citation omitted]; NYSCEF Doc No. 48, first decision at 7; see also NYSCEF Doc No. 53).

Accordingly, the court finds that petitioner has "substantially prevailed" in this case and DOCCS lacked a "reasonable basis for denying access [to the requested records],"^[FN1] thereby obliging {**75 Misc 3d at 345}the court to assess "reasonable attorney's fees" in favor of petitioner (Public Officers Law § 89 [4] [c] [ii]).

Conclusion

Based on the foregoing, it is ordered and adjudged that the branch of the amended petition challenging denial of petitioner's FOIL request is dismissed as moot; and it is further ordered and adjudged that the branch of the amended petition seeking an award of counsel fees is granted; and it is further ordered that, within 20 days, petitioner's counsel shall submit, on notice to respondent, an affirmation setting forth his qualifications, billing rate, billing records and the attorney's fees and litigation costs sought, along with a proposed order; and finally it is ordered that respondent may submit opposition papers concerning the reasonableness of the fees and costs being sought by petitioner within 10 days of service of petitioner's submission.^[FN2]