Preview
FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
In the Matter of the Petition of Index No. /2024
NYP HOLDINGS, INC., and NOLAN HICKS,
Petitioners,
-against-
METROPOLITAN TRANSPORTATION AUTHORITY,
Respondent,
For a Judgment Under Article 78 of the
Civil Practice Law and Rules.
MEMORANDUM OF LAW IN SUPPORT OF
VERIFIED PETITION
MINTZ & GOLD LLP
Steven G. Mintz
Terence W. McCormick
600 Third Avenue
25th Floor
New York, NY 10016
Tel: (212) 696-4848
mintz@mintzandgold.com
mccormick@mintzandgold.com
Attorneys for Petitioners
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
PRELIMINARY STATEMENT .....................................................................................................1
FACTS .............................................................................................................................................3
The Post’s FOIL Request to the MTA .................................................................................3
The MTA FOIL Team’s Denial of the FOIL Request .........................................................4
The FOIL Appeal .................................................................................................................5
ARGUMENT ...................................................................................................................................9
I. LEGAL STANDARD ..............................................................................................9
II. THE MTA IMPROPERLY WITHHELD RECORDS FROM DISCLOSURE ....10
A. The MTA Has Failed to Provide any Justification for Redacting
the Phase 1 Station Schematics ..................................................................10
B. The MTA Has Not Made a Specific and Particularized Justification
For Withholding the Phase 2 Schematics Under the Exemption for
Present or Imminent Contract Awards and the Record Shows it
Does Not Apply .........................................................................................10
C. The MTA Has Not Made a Specific and Particularized Justification
For Withholding the Phase 2 Schematics Under the Exemption for
Inter-Agency or Intra-Agency Materials and the Record Shows it
Does Not Apply .........................................................................................12
1. The Phase 2 Schematics Are Factual Data, Not
Agency Opinions ...........................................................................12
2. The Station Designs Are Not Deliberative in Nature and
Constitute Final Determinations ....................................................13
III. THE POST IS ENTITLED TO ATTORNEY’S FEES AND COSTS ..................14
CONCLUSION ..............................................................................................................................16
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TABLE OF AUTHORITIES
Cases
Cap. Newspapers Div. of Hearst Corp. v. Burns,
67 N.Y.2d 562 (1986) ................................................................................................................. 9
Cap. Newspapers, Div. of Hearst Corp. v. Whalen,
69 N.Y.2d 246 (1987) ................................................................................................................. 9
Dioso Faustino Freedom of Info. L. Request v. New York City,
191 A.D.3d 504 (1st Dep’t 2021) ............................................................................................. 15
Empire Ctr. For Pub. Policy v. Metro. Tr. Auth.,
Index No. 155355/2020, 2021 WL 1592654 (Sup Ct, New York County Apr. 23, 2021) ......... 9
Fink v. Lefkowitz,
47 N.Y.2d 567 (1979) ................................................................................................................. 9
Gould v. New York City Police Dep’t,
89 N.Y.2d 267 (1996) ............................................................................................................... 12
Humane Soc. of U.S. v. Brennan,
53 A.D.3d 909 (3d Dep’t 200), leave denied, 11 N.Y.2d 711 (2008) ...................................... 12
Madeiros v. New York State Educ. Dept.,
30 N.Y.3d 67 (2017) ................................................................................................................. 11
Madera v. Elmont Pub. Libr.,
101 A.D.3d 726 (2d Dep’t 2012) .............................................................................................. 10
Matter of Jewish Press, Inc. v New York City Police Dept.,
190 A.D.3d 490 (1st Dep’t 2021) ............................................................................................... 9
Matter Verizon N.Y., Inc. v. Bradbury,
40 A.D.3d 1113 (2d Dept 2007) ........................................................................................... 6, 11
New York C.L. Union v. City of Saratoga Springs,
87 A.D.3d 336 (3d Dep’t 2011) ................................................................................................ 14
New York Comm. for Occupational Safety & Health v. Bloomberg,
72 A.D.3d 153 (1st Dep’t 2010) ................................................................................................. 9
The New York Times Co. v. City of New York Fire Dep’t,
4 N.Y.3d 477 (2005) ................................................................................................................. 12
Town of Waterford v. New York State Dep’t of Env’t Conservation,
18 N.Y.3d 652 (2012) ............................................................................................................... 13
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Rules
CPLR Article 78 ..............................................................................................................................1
Statutes
New York Public Officers Law §§ 84-90 ....................................................................................... 1
New York Public Officers Law § 87(2)(c) ................................................................................. 2, 6
New York Public Officers Law § 87(2)(f) ............................................................................. passim
New York Public Officers Law § 87(2)(g) ........................................................................... 2, 6, 14
New York Public Officers Law § 87(2)(g)(i) ......................................................................... 12, 13
New York Public Officers Law § 87(2)(g)(ii) .............................................................................. 12
New York Public Officers Law § 87(2)(g)(iii) ............................................................................. 13
New York Public Officers Law § 89 ............................................................................................ 16
New York Public Officers Law § 89(4)(c)(ii) .............................................................................. 14
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INTRODUCTION
Petitioners NYP Holdings, Inc. (“NYP Holdings”), owner of the New York Post (“the
“Post”), and Nolan Hicks (“Hicks”) respectfully submit this memorandum of law in support of
their Verified Petition for an order and judgment pursuant to CPLR Article 78 and the New York
Public Officers Law §§ 84-90 (“FOIL”) requiring Respondent herein, the Metropolitan
Transportation Authority (“MTA”), to disclose (1) unredacted versions of station schematics of
stations built in Phase 1 of the construction of the Second Avenue Subway and (2) track alignment
plans and station schematics for Phase 2 of the Second Avenue Subway and to pay costs and
attorney’s fees.
PRELIMINARY STATEMENT
After the Post published a series of stories criticizing wasteful, oversized subway stations
in the construction of the Second Avenue Subway, a Post reporter, Petitioner Nolan Hicks,
requested track alignment plans and profile schematics/drawings for Phase 1 and Phase 2 of the
Second Avenue Subway, including stations schematics and drawings, pursuant to the Freedom of
Information Law (the “FOIL Request”). Rather than supply public records revealing that
contractors had conceived—and then been paid for—the design of vast, cavernous stations that
cost the taxpayers far more than necessary, the MTA refused to produce the track and station
drawings on the grounds that disclosure of records “could endanger the life and safety of any
person,” parroting the language of Public Officers Law § 87(2)(f), claiming that the release of the
track and station designs “could potentially be exploited by terrorists.”
When Petitioners appealed the MTA FOIL Team’s “terrorism” rationale, the appeal officer
agreed that the “life and safety” exemption did not apply to the Phase 1 documents. The MTA
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FOIL Team was then required to and did (in part) produce the Phase 1 documents.1 As to this part
of the FOIL Request, Petitioners have prevailed. However, the agency adhered to its decision to
refuse access to the Phase 2 records altogether.
Although on appeal the agency abandoned (for now) the “life and safety” exemption (the
only ground upon which the MTA FOIL Team had relied), it shifted ground and invoked two
different exemptions as grounds upon which to withhold the Phase 2 documents: the “present or
imminent contract awards” exemption under Public Officers Law § 87(2)(c) and the “inter-agency
or intra-agency” exemption under Public Officers Law § 87(2)(g). But the MTA has not made a
sufficiently specific and particularized justification for either exemption and in any event the
record shows that neither is applicable. Release of the Phase 2 drawings will neither result in an
inequality of information among bidders, nor impair the MTA’s bargaining position. Furthermore,
the decision on appeal at the agency failed persuasively to articulate how the schematics amounted
to an exchange of opinions on the part of decision makers, as opposed to a purely factual
presentation of information—track and station drawings. In any event, the schematics are already
completed and represent final decisions, precluding the exemption for inter-agency and intra-
agency documents. In other words, there is no “deliberation” remaining to be completed. Because
Petitioners are entitled to prevail in this proceeding, this Court should award Petitioners their costs
and attorney’s fee incurred in seeking the unredacted Phase 1 station schematics and the Phase 2
documents.
1
As detailed below, after the appeal determination the MTA produced the Phase 1 track
alignment plan documents in full but failed to produce the station schematics as directed. It later
did so, but with unexplained redactions. Petitioners have since appealed those Phase 1 redactions
which were not authorized by the original appeal decision, and reserve the right to bring a second
proceeding under Article 78, if necessary, to compel the production of unredacted Phase 1
documents. (Verified Petition, Exhibit 9.) For the avoidance of doubt, however, the record
establishes that this issue is ripe now.
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FACTS
Petitioner NYP Holdings, Inc., is a corporation organized and existing under the laws of
Delaware with its principal place of business at 1211 Avenue of the Americas, New York, New
York, 10036. (Verified Petition ¶ 5.) NYP Holdings, Inc., is the publisher of the New York Post
(the “Post”), the oldest continuously published daily newspaper in the United States, having first
been published by Alexander Hamilton in 1801. Today, the Post is sold in many states in the United
States, both at newsstands, by subscription, and digitally via the Internet. An online version of the
Post is also available for free on the Internet. Id.
Petitioner Nolan Hicks is a reporter in the City Hall bureau who writes about politics and
city agencies with a particular focus on social services, transportation, public health, housing,
NYCHA and the City’s $100 billion budget. Mr. Hicks has written several stories about the MTA,
including topics related to the FOIL Request at issue in this action. Id. at ¶ 6.
The Post’s FOIL Request to the MTA
On or about October 17, 2023, Hicks submitted the FOIL Request on behalf of the Post
through the MTA’s online portal, seeking track alignment plan and profile schematics for the
Second Avenue subway, including station and track schematics for Phase 1 and Phase 2 of the
project. (Verified Petition ¶ 9.) As set forth and quoted below, the FOIL Request sought access to
the following documents:
- Track alignment plan and profile schematics/drawings for the Second
Avenue Subway Phase 1
- Track alignment plan and profile schematics/drawings for the Second
Avenue Subway Phase 2
For reference, the Los Angeles County Metropolitan Transportation
Authority has posted comparable documents here:
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https://www.dropbox.com/sh/np6nata8c98h6a4/AABitGBIGEtnDBdtjo3w
WO20a/Reports%20and%20Info/Draft%20Supplemental%20EIS%20Rep
ort%20June%202017/Draft%20Supplemental%20EIS%20Report%20June
%202017?dl=0&preview=Appendix_G_Plan_and_Profile.pdf&subfolder
_nav_tracking=1
I request expedited handling and the waiving of fees as request is made on
behalf of a news organization (The New York Post) for the purposes of
informing the public about a matter of importance, namely the construction
of the planned multi-billion East Harlem extension of the Second Avenue
Subway and the MTA’s recently announced plans for a possible future
western expansion along 125th Street.
(Verified Petition ¶ 10.) Mr. Hicks requested the Phase 1 and Phase 2 schematics as source
material for articles showing how the MTA’s large station designs added millions of dollars to the
price tag of subway expansion projects. Id. at ¶ 11.
The MTA FOIL Team’s Denial of the FOIL Request
On Tuesday, November 7, 2023, the MTA denied the FOIL Request pursuant to Public
Officers Law § 87(2)(f) on the sole purported grounds that, if disclosed, release of the track and
station schematics “could endanger the life and safety of any person.” (Verified Petition ¶ 12 &
Exhibit 1.)
In denying access to the records, the MTA FOIL Team relied upon the statutory exemption
in Public Officers Law § 87(2)(f) for documents whose disclosure “could endanger the life or
safety of any person,” stating:
Pursuant to the above referenced FOIL request, responsive documents are exempt
from FOIL disclosure according to Public Officers Law §87(2)(f), which states
that an agency may deny access to records that, if disclosed, could endanger the
life or safety of any person, and on the ground that public dissemination of the
subject records could potentially be exploited by terrorists, which could create “a
possibility of endangerment.” (Matter of Asian Am. Legal Defense & Educ.
Fund v. New York City Police Dept., 125 A.D.3d 531, 532, 5 N.Y.S.3d 13, 15, 2015
N.Y. App. Div. LEXIS 1550, *3, 2015 NY Slip Op 01559, 2).
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(Verified Petition ¶ 13 & Exhibit 1.) The MTA FOIL Team did not cite any other FOIL exemption.
The FOIL Appeal
Counsel for the Post thereupon submitted an appeal of the MTA’s denial on November
30, 2023, and stated, in part:
The agency’s denial of the Post’s FOIL Request supplies no tangible information
regarding the possibility of such danger to MTA customers or personnel, making it
impossible for the Post to discern or evaluate the applicability of the claimed
exemption. We also doubt that it plausibly could: as Mr. Hicks explained to the
agency, such information is a matter of public record with other transit agencies.
In any case, the MTA’s notification that it is denying the FOIL Request does not
elaborate what information in these records could conceivably imperil MTA
customers or personnel. The denial notification sheds no light on this question,
much less the particularized and specific justification required by FOIL.
(Verified Petition ¶ 15 & Exhibit 2.)
By a letter from the MTA’s Deputy General Counsel, Harris Berenson, Esq., the MTA
responded to the appeal on December 15, 2023. (Verified Petition, Exhibit 3.) Mr. Berenson
granted that part of the Post’s appeal that concerned the Phase 1 schematics and remanded the
matter to the MTA FOIL Team with instructions to provide the Phase 1 schematics within fifteen
(15) business days. However, Mr. Berenson denied the appeal with regard to the FOIL Request
for the Phase 2 schematics. (Verified Petition ¶¶ 17-18 & Exhibit 3.)
Although the MTA FOIL Team had relied solely upon the statutory exemption in Public
Officers Law § 87(2)(f) relating to documents the disclosure of which “could endanger the life or
safety of any person,” Mr. Berenson’s denial of the appeal regarding the Phase 2 schematics
abandoned the “terrorist risk” rationale and shifted ground, relying instead upon two (2) other
FOIL exemptions that the MTA FOIL Team had not mentioned, specifically that (i) the
documents “if disclosed would impair present or imminent contract awards or collective
bargaining negotiations” under Public Officers Law § 87(2)(c) and (ii) the documents purportedly
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constituted “intra-agency or inter-agency materials” exempted from disclosure under Public
Officers Law § 87(2)(g). (Verified Petition ¶ 19 & Exhibit 3.)
Regarding the “contract negotiation exemption,” Mr. Berenson wrote “[t]he procurement
process for this contract is not yet completed, and as such, release of said records could impair a
pending procurement. Due to the status of this procurement and the relevance of the requested
records to the procurement process, the release of these records would inhibit ‘the interests of [the
agency] in achieving the optimum result in awarding a contract to a supplier of goods or services
or in reaching a collective bargaining agreement.’” (citing Matter Verizon N.Y., Inc. v. Bradbury,
40 A.D.3d 1113, 1115 (2d Dept 2007)). The denial letter further suggested that the MTA would
be “placed at a disadvantage at the bargaining table” and would thereby be deprived of a “level
playing field.” (Verified Petition ¶ 20 & Exhibit 3.)
The denial letter did not explain how a public release of the design documents to the entire
world in a Post article would undermine equality among bidders or disadvantage the agency in its
negotiations. Regarding the exemption for inter-agency deliberations, the denial letter represented
that the requested documents constituted “internal agency material,” and “were still in draft
format, not considered to be final, and are deliberative in nature.” (Verified Petition ¶¶ 21-22 &
Exhibit 3.)
The denial letter invited Petitioners to resubmit a FOIL Request for the Phase 2 schematics
after “finalization of these records and finalization of the procurement process,” and purported to
hold in reserve the MTA’s right to assert the “life and safety” exemption under Public Officers
Law § 87(2)(f) in response to some hypothetical future FOIL request, but it did not invoke that
exemption in sustaining the MTA FOIL Team’s denial of access to the Phase 2 documents. The
denial letter concluded by stating “[t]his completes the MTA’s response to your FOIL appeal, and
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this FOIL appeal will now be closed.” (See Verified Petition, Exhibit 3.) The MTA’s decision
was thus final as of December 15, 2023.
Even so, the MTA didn’t produce the Phase 1 documents within the required time. Counsel
for Petitioners wrote to the appeal officer by email dated January 16, 2024 (one week after the
due date by which the MTA was supposed to release the Phase 1 documents), noted that they were
late, and requested that the Phase 1 documents be provided within 48 hours. (Verified Petition ¶¶
25-26 & Exhibit 4.) Shortly thereafter, the MTA did make certain Phase 1 documents available
(the track schematics) to Mr. Hicks, but it did not provide the station schematics.
There was no reason for the agency to believe that station schematics were not
encompassed within the FOIL Request. The FOIL Request provided an illustration of what
Petitioners were seeking (which included station drawings published by the Los Angeles
Metropolitan Transit Authority). Moreover, Petitioners’ appeal letter also specified that the basic
station design, and not merely the track alignment plan, was within the scope of the FOIL Request.
(See Verified Petition, Exhibit 2.)
In an effort to avoid litigation over this issue, counsel for Petitioners wrote again to Mr.
Berenson on January 25, 2024, bringing to the agency’s attention that it had not produced all the
Phase 1 documents and asking whether there had been a misunderstanding. (Verified Petition ¶
29 & Exhibit 5). By email dated February 1, 2024, Mr. Berenson advised that the MTA was
following up to investigate why the station designs had not been included in the Phase 1 document
production. (Verified Petition ¶ 30 & Exhibit 6.)
Mr. Berenson subsequently followed up by email dated February 22, 2024, taking the
position that the station drawings were not encompassed within the original FOIL Request
because the language of the FOIL Request was phrased as a request for the “Track alignment plan
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and profile schematics/drawings for the Second Avenue Subway Phase 1”, and purportedly “did
not include/specify ‘station schematics.’” (Verified Petition ¶ 31 & Exhibit 7.)
The agency’s explanation that the station schematics were not part of the original FOIL
Request was without merit. As stated above, a sample of the station schematics and drawings
dated June 2017 from the Westside Purple Line Extension of the Los Angeles Metropolitan
Transit Authority was hyperlinked in Petitioners’ original FOIL Request as an exemplar to
educate the MTA FOIL Team as to what documents Petitioners were requesting. (See Verified
Petition, Exhibit 8.)
In his February 22nd email, Mr. Berenson wrote, in relevant part:
That being said, for the sake of efficiency and transparency, rather than have your client
submit a new FOIL request for the SAS Phase 1 “station schematics,” I discussed these
records internally and a determination was made to instead provide them to your client
without asking for a new FOIL request. I have directed the MTA FOIL Team to
supplement the initial production of the SAS Phase 1 Track alignment plan to also include
the SAS Phase 1 station schematics, with any necessary redactions under the FOIL statute.
I have directed the MTA FOIL Team to provide these records to your client within 15
business days from the date of this email.
This will complete the MTA’s response to your client’s FOIL request and your FOIL
appeal, and this FOIL appeal is now closed.
(Verified Petition ¶ 33 & Exhibit 7.) On or about February 29, 2024, the MTA made the Phase 1
station schematics available to Mr. Hicks, but with the descriptions of the station rooms redacted
as signaled by Mr. Berenson. Neither Mr. Berenson’s February 22nd email nor the redacted Phase
1 documents ultimately produced by the MTA contained a rationale for the redactions. Petitioners
filed a successive appeal of the redactions on March 29, 2024. (Verified Petition, Exhibit 9.) The
agency’s response is pending. This proceeding followed.
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ARGUMENT
I. LEGAL STANDARD.
In order to promote transparent government and public accountability, New York’s
Freedom of Information Law requires that an agency “make available for public inspection and
copying all records” except those that fall withing a limited number of statutory exemptions. Public
Officers Law § 87(2)(f). FOIL is rooted in the presumption that the “public is vested with an
inherent right to know and that official secrecy is anathematic to our form of government.” Fink
v. Lefkowitz, 47 N.Y.2d 567, 571 (1979). As such “‘all government records are presumptively
open for public inspection unless specifically exempted from disclosure provided in the Public
Officers Law’.” Empire Ctr. For Pub. Policy v. Metro. Tr. Auth., Index No. 155355/2020, 2021
WL 1592654, at *2 (Sup Ct, New York County Apr. 23, 2021) (quoting Matter of Jewish Press,
Inc. v New York City Police Dept., 190 A.D.3d 490, 490 (1st Dep’t 2021)). New York courts have
liberally construed FOIL and applied its exemptions sparingly so that the public can easily attain
agency records. See Cap. Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252 (1987).
An agency or government office thus bears the burden of justifying its decision to deny
production of requested records. See Cap. Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d
562, 570 (1986). To satisfy this burden the agency must demonstrate that “material requested falls
squarely within the ambit of one of [the] statutory exemptions.” Fink, 47 N.Y.2d at 571. Thus,
agencies may refuse to disclose records so long as they can supply a “particularized and specific
justification.” Id. Although ordinarily agency action is reviewed under an “arbitrary and
capricious” standard, when reviewing the denial of a FOIL request, courts must apply an even
more rigorous standard. See New York Comm. for Occupational Safety & Health v. Bloomberg,
72 A.D.3d 153, 158 (1st Dep’t 2010). A reviewing court must presume that all agency records are
open to the public and therefore the agency bears the burden of proving that sought-after records
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fall squarely within a statutory exemption. Id. Purely conclusory assertions that requested records
fall within an exception without any evidentiary support are not sufficient to satisfy this heavy
burden. See Madera v. Elmont Pub. Libr., 101 A.D.3d 726, 727 (2d Dep’t 2012).
II. THE MTA IMPROPERLY WITHHELD RECORDS FROM DISCLOSURE.
A. The MTA Has Failed to Provide any Justification for Redacting the Phase 1
Station Schematics.
Although the MTA originally asserted that it would provide the Phase 1 schematics, it later
claimed that it did not understand the FOIL Request to include the station schematics. Although
the MTA later reversed its own decision and reiterated that the appeal was closed, subject to the
production of redacted drawings, neither in its February 22, 2024 notification from the appeal
officer nor in the redacted documents produced on February 29, 2024, did the agency identify the
exemption or otherwise articulate any rationale for the redactions. (Verified Petition ¶¶ 31-33.)
Inasmuch as Petitioners have exhausted administrative remedies, the Court should direct that the
Phase 1 stations schematics be disclosed in unredacted form.
B. The MTA Has Not Made a Specific and Particularized Justification For
Withholding the Phase 2 Schematics Under the Exemption for Present or
Imminent Contract Awards and the Record Shows it Does Not Apply.
In its decision denying Petitioner’s administrative appeal from the MTA FOIL Team’s
decision to deny access to the Phase 2 documents, the MTA abandoned the MTA FOIL Team’s
initial “life and safety” rationale under Public Officers Law § 87(2)(f), and switched gears,
invoking an exemption for documents the disclosure of which could impair “present or imminent
contract awards.” (Verified Petition ¶ 19, & Exhibit 3). 2 According to the MTA, the release of the
2
Althought the MTA did not rely upon the “life and safety” exception in its decision
denying the administrative appeal, it purported to reserve the right to do so in response to a later
FOIL request after the conclusion of contracts for Phase 2. As set forth herein, Petitioners do not
need to make a later FOIL request and are entitled to access to the documents now. But if the
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Phase 2 schematics would inhibit “‘the interests of [the agency] in achieving the optimum result
in awarding a contract to a supplier of goods or services or in reaching a collective bargaining
agreement.’” (Verified Petition, Exhibit 3 at 1-2) (quoting Matter of Verizon N.Y., Inc. v.
Bradbury, 40 A.D.3d 1113, 1115 (2d Dept 2007)). According to the MTA, release of the records
“could result in an inequality of knowledge amongst the bidders, depriving the agency of the
benefits of the competitive bidding process, and depriving the bidder with the resulting lesser
knowledge of a fair opportunity to be awarded the contract.
However, the agency did not explain how the Post’s publication of news coverage about
the documents it sought to obtain could conceivably favor one bidder over another. Logically, that
would be an impossibility as the news would become available to the whole world at the same
time; this is not a case where one bidder would get the information to the exclusion of other
bidders. Nor did the agency explain how its own bargaining position could be impaired. (See
Verified Petition Exhibit 3, citing (FOIL Advisory Opinion No 18737, Committee on Open
Government).
In reality, the track and station schematics are automatically in the bidders’ hands as a
matter of course because the bidders have to know what they are bidding on and how to put a price
on the proposed contract. Consequently, there is no risk of an inequality of information among
bidders where the schematics are concerned. Moreover, the MTA provided the federal government
with the agency’s estimate of the cost of each contract. The MTA estimate included the projected
MTA in opposition to the Petition should attempt to fall back on the FOIL Team’s initial
invocation of the “life and safety” exception (which the agency retreated from on appeal), the
Court should reject it outright. See Madeiros v. New York State Educ. Dept., 30 N.Y.3d 67, 74-
75 (2017) (“[b]ecause the Department did not rely on subparagraph (iv) in its administrative
denial, to allow it to do so now would be contrary to our precedent, as well as to the spirit and
purpose of FOIL.”).
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cost of each contract for the Second Avenue Subway extension and each Statement of Work. That
information was available through a Freedom of Information Act (FOIA) request to the federal
government and was, in fact, obtained by the Post. (Verified Petition ¶¶ 37-38.)
It follows that there was no plausible risk of inequality among bidders or of the agency
being placed at a disadvantage in its negotiations with those bidders through disclosure of the
Phase 2 track or station schematics.
C. The MTA Has Not Made a Specific and Particularized Justification For
Withholding the Phase 2 Schematics Under the Exemption for Inter-Agency or
Intra-Agency Materials and the Record Shows it Does Not Apply.
“The point of the intra-agency exception is to permit people within an agency to exchange
opinions, advice and criticism freely and frankly, without the chilling prospect of public
disclosure.” The New York Times Co. v. City of New York Fire Dep’t, 4 N.Y.3d 477, 488 (2005).
But “under a plain reading of section 87(2)(g), the exemption for intra-agency material does not
apply as long as the material falls with any one of the provision’s four enumerated exceptions.”
Gould v. New York City Police Dep’t, 89 N.Y.2d 267, 276 (1996). In the instant case, the Post’s
FOIL Request implicates exceptions for (1) statistical or factual tabulation or data under Public
Officers Law § 87(2)(g)(i), and/or (2) final agency policy or determinations pursuant to Public
Officers Law § 87(2)(g)(iii).
1. The Phase 2 Schematics Are Factual Data, Not Agency Opinions.
Drawings of a subway station are factual data, not opinions. “Factual data, therefore,
simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of
the consultative or deliberative process of government decision making.” Gould v. New York City
Police Dep’t, 89 N.Y.2d 267, 277 (1996). Track alignment plans and stations drawings describing
the dimensions and layout of the Second Avenue Subway are quintessentially factual in nature,
not deliberative. See Humane Soc. of U.S. v. Brennan, 53 A.D.3d 909, 911 (3d Dep’t), leave
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denied, 11 N.Y.2d 711 (2008) (veterinarian’s description of the layout and structure of a farm, its
buildings and the activities conducted in each constituted factual data not exempt from disclosure
under FOIL). Track alignment plans and station drawings do no more than detail the size and
layout of the station and on their face convey no opinions or advice. Accordingly, the Phase 2
documents are factual in nature for purposes of Public Officers Law § 87(2)(g)(i) and should be
disclosed on this basis.
2. The Station Designs Are Not Deliberative in Nature and Constitute Final
Determinations.
The Phase 2 documents also do not qualify for withholding as inter-agency or intra-agency
deliberations because they are final documents within the meaning of Public Officers Law §
87(2)(g)(iii).3 Here, despite the position taken by the MTA’s appeal determination that the Phase
2 schematics “were still in draft format, not considered to be final, and are deliberative in nature,”
a document obtained by the Post titled Project Management Oversight Contractor (PMOC) Risk
Assessment Refresh – Second Avenue Subway (SAS) Phase II (the “PMOC Report”), prepared
for and obtained under FOIA from the Federal Transit Administration, reveals that the relevant
design work is, in reality, completed. (Verified Petition, Exhibit 10.)
Specifically, the Second Avenue Subway project encompasses four (4) contracts for the
proposed design and building of three (3) new subway stations at 106th Street and Second Avenue,
116th Street and Second Avenue, and 125th Street and Lexington Avenue, defined as follows:
3
In denying the appeal, the MTA did not identify which agency or agencies were involved
in the deliberative process that purportedly supported the exemption. To the extent that the
MTA’s inter-agency communications concerning the design of the Second Avenue Subway were
with a federal agency as opposed to a New York State agency, the Court of Appeals has made
clear that the FOIL exemption does not apply. Town of Waterford v. New York State Dep’t of
Env’t Conservation, 18 N.Y.3d 652, 657 (2012).
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• Contract 1 – Early Utility Relocation (building protection and early utility
relocations at the proposed 106th Street Station);
• Contract 2 – 116th and 125th Street Stations and Tunneling;
• Contract 3 – 106th Street Station and Existing Tunnel Rehabilitation (which differs
from Contract 2 to the extent that pre-existing tunnel for the proposed 106th Street
Station already exists from earlier construction efforts); and
• Contract 4 – Station Finishes, Ancillary Buildings, Systems and Trackwork.
(Verified Petition ¶ 42 & Exhibit 10, PMOC Report at 7-8.) According to the PMOC Report, the
contract bid documents have been completed for Contract 1 and all technical specifications and
design drawings have been developed for Contract 2 and Contract 3. (Verified Petition ¶ 43 &
PMOC Report, Exhibit 10 at 13.) In other words, with regard to the Phase 2 track and station
schematics that were requested by Petitioners’ FOIL Request, there is no “deliberation”
requiring—or justifying—protection from disclosure under Public Officers Law § § 87(2)(g). The
documents should be disclosed.
III. THE POST IS ENTITLED TO ATTORNEY’S FEES AND COSTS.
In a FOIL proceeding, the court “shall 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 the court finds that
the agency had no reasonable basis for denying access.” Public Officers Law § 89(4)(c)(ii). The
legislature enacted Section 89(4)(c) 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.” New York C.L. Union v. City of Saratoga Springs, 87 A.D.3d
336, 338 (3d Dep’t 2011) (quoting New York Bill Jacket, 2006 S.B. 7011, Ch. 492). Therefore,
awarding fees and costs is appropriate when, as here, the petitioner substantially prevails in the
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FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Petition of Index No. /2024 NYP HOLDINGS, INC., and NOLAN HICKS, Petitioners, -against- METROPOLITAN TRANSPORTATION AUTHORITY, Respondent, For a Judgment Under Article 78 of the Civil Practice Law and Rules. MEMORANDUM OF LAW IN SUPPORT OF VERIFIED PETITION MINTZ & GOLD LLP Steven G. Mintz Terence W. McCormick 600 Third Avenue 25th Floor New York, NY 10016 Tel: (212) 696-4848 mintz@mintzandgold.com mccormick@mintzandgold.com Attorneys for Petitioners 1 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 PRELIMINARY STATEMENT .....................................................................................................1 FACTS .............................................................................................................................................3 The Post’s FOIL Request to the MTA .................................................................................3 The MTA FOIL Team’s Denial of the FOIL Request .........................................................4 The FOIL Appeal .................................................................................................................5 ARGUMENT ...................................................................................................................................9 I. LEGAL STANDARD ..............................................................................................9 II. THE MTA IMPROPERLY WITHHELD RECORDS FROM DISCLOSURE ....10 A. The MTA Has Failed to Provide any Justification for Redacting the Phase 1 Station Schematics ..................................................................10 B. The MTA Has Not Made a Specific and Particularized Justification For Withholding the Phase 2 Schematics Under the Exemption for Present or Imminent Contract Awards and the Record Shows it Does Not Apply .........................................................................................10 C. The MTA Has Not Made a Specific and Particularized Justification For Withholding the Phase 2 Schematics Under the Exemption for Inter-Agency or Intra-Agency Materials and the Record Shows it Does Not Apply .........................................................................................12 1. The Phase 2 Schematics Are Factual Data, Not Agency Opinions ...........................................................................12 2. The Station Designs Are Not Deliberative in Nature and Constitute Final Determinations ....................................................13 III. THE POST IS ENTITLED TO ATTORNEY’S FEES AND COSTS ..................14 CONCLUSION ..............................................................................................................................16 i 2 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 TABLE OF AUTHORITIES Cases Cap. Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562 (1986) ................................................................................................................. 9 Cap. Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246 (1987) ................................................................................................................. 9 Dioso Faustino Freedom of Info. L. Request v. New York City, 191 A.D.3d 504 (1st Dep’t 2021) ............................................................................................. 15 Empire Ctr. For Pub. Policy v. Metro. Tr. Auth., Index No. 155355/2020, 2021 WL 1592654 (Sup Ct, New York County Apr. 23, 2021) ......... 9 Fink v. Lefkowitz, 47 N.Y.2d 567 (1979) ................................................................................................................. 9 Gould v. New York City Police Dep’t, 89 N.Y.2d 267 (1996) ............................................................................................................... 12 Humane Soc. of U.S. v. Brennan, 53 A.D.3d 909 (3d Dep’t 200), leave denied, 11 N.Y.2d 711 (2008) ...................................... 12 Madeiros v. New York State Educ. Dept., 30 N.Y.3d 67 (2017) ................................................................................................................. 11 Madera v. Elmont Pub. Libr., 101 A.D.3d 726 (2d Dep’t 2012) .............................................................................................. 10 Matter of Jewish Press, Inc. v New York City Police Dept., 190 A.D.3d 490 (1st Dep’t 2021) ............................................................................................... 9 Matter Verizon N.Y., Inc. v. Bradbury, 40 A.D.3d 1113 (2d Dept 2007) ........................................................................................... 6, 11 New York C.L. Union v. City of Saratoga Springs, 87 A.D.3d 336 (3d Dep’t 2011) ................................................................................................ 14 New York Comm. for Occupational Safety & Health v. Bloomberg, 72 A.D.3d 153 (1st Dep’t 2010) ................................................................................................. 9 The New York Times Co. v. City of New York Fire Dep’t, 4 N.Y.3d 477 (2005) ................................................................................................................. 12 Town of Waterford v. New York State Dep’t of Env’t Conservation, 18 N.Y.3d 652 (2012) ............................................................................................................... 13 ii 3 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 Rules CPLR Article 78 ..............................................................................................................................1 Statutes New York Public Officers Law §§ 84-90 ....................................................................................... 1 New York Public Officers Law § 87(2)(c) ................................................................................. 2, 6 New York Public Officers Law § 87(2)(f) ............................................................................. passim New York Public Officers Law § 87(2)(g) ........................................................................... 2, 6, 14 New York Public Officers Law § 87(2)(g)(i) ......................................................................... 12, 13 New York Public Officers Law § 87(2)(g)(ii) .............................................................................. 12 New York Public Officers Law § 87(2)(g)(iii) ............................................................................. 13 New York Public Officers Law § 89 ............................................................................................ 16 New York Public Officers Law § 89(4)(c)(ii) .............................................................................. 14 iii 4 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 INTRODUCTION Petitioners NYP Holdings, Inc. (“NYP Holdings”), owner of the New York Post (“the “Post”), and Nolan Hicks (“Hicks”) respectfully submit this memorandum of law in support of their Verified Petition for an order and judgment pursuant to CPLR Article 78 and the New York Public Officers Law §§ 84-90 (“FOIL”) requiring Respondent herein, the Metropolitan Transportation Authority (“MTA”), to disclose (1) unredacted versions of station schematics of stations built in Phase 1 of the construction of the Second Avenue Subway and (2) track alignment plans and station schematics for Phase 2 of the Second Avenue Subway and to pay costs and attorney’s fees. PRELIMINARY STATEMENT After the Post published a series of stories criticizing wasteful, oversized subway stations in the construction of the Second Avenue Subway, a Post reporter, Petitioner Nolan Hicks, requested track alignment plans and profile schematics/drawings for Phase 1 and Phase 2 of the Second Avenue Subway, including stations schematics and drawings, pursuant to the Freedom of Information Law (the “FOIL Request”). Rather than supply public records revealing that contractors had conceived—and then been paid for—the design of vast, cavernous stations that cost the taxpayers far more than necessary, the MTA refused to produce the track and station drawings on the grounds that disclosure of records “could endanger the life and safety of any person,” parroting the language of Public Officers Law § 87(2)(f), claiming that the release of the track and station designs “could potentially be exploited by terrorists.” When Petitioners appealed the MTA FOIL Team’s “terrorism” rationale, the appeal officer agreed that the “life and safety” exemption did not apply to the Phase 1 documents. The MTA 1 5 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 FOIL Team was then required to and did (in part) produce the Phase 1 documents.1 As to this part of the FOIL Request, Petitioners have prevailed. However, the agency adhered to its decision to refuse access to the Phase 2 records altogether. Although on appeal the agency abandoned (for now) the “life and safety” exemption (the only ground upon which the MTA FOIL Team had relied), it shifted ground and invoked two different exemptions as grounds upon which to withhold the Phase 2 documents: the “present or imminent contract awards” exemption under Public Officers Law § 87(2)(c) and the “inter-agency or intra-agency” exemption under Public Officers Law § 87(2)(g). But the MTA has not made a sufficiently specific and particularized justification for either exemption and in any event the record shows that neither is applicable. Release of the Phase 2 drawings will neither result in an inequality of information among bidders, nor impair the MTA’s bargaining position. Furthermore, the decision on appeal at the agency failed persuasively to articulate how the schematics amounted to an exchange of opinions on the part of decision makers, as opposed to a purely factual presentation of information—track and station drawings. In any event, the schematics are already completed and represent final decisions, precluding the exemption for inter-agency and intra- agency documents. In other words, there is no “deliberation” remaining to be completed. Because Petitioners are entitled to prevail in this proceeding, this Court should award Petitioners their costs and attorney’s fee incurred in seeking the unredacted Phase 1 station schematics and the Phase 2 documents. 1 As detailed below, after the appeal determination the MTA produced the Phase 1 track alignment plan documents in full but failed to produce the station schematics as directed. It later did so, but with unexplained redactions. Petitioners have since appealed those Phase 1 redactions which were not authorized by the original appeal decision, and reserve the right to bring a second proceeding under Article 78, if necessary, to compel the production of unredacted Phase 1 documents. (Verified Petition, Exhibit 9.) For the avoidance of doubt, however, the record establishes that this issue is ripe now. 2 6 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 FACTS Petitioner NYP Holdings, Inc., is a corporation organized and existing under the laws of Delaware with its principal place of business at 1211 Avenue of the Americas, New York, New York, 10036. (Verified Petition ¶ 5.) NYP Holdings, Inc., is the publisher of the New York Post (the “Post”), the oldest continuously published daily newspaper in the United States, having first been published by Alexander Hamilton in 1801. Today, the Post is sold in many states in the United States, both at newsstands, by subscription, and digitally via the Internet. An online version of the Post is also available for free on the Internet. Id. Petitioner Nolan Hicks is a reporter in the City Hall bureau who writes about politics and city agencies with a particular focus on social services, transportation, public health, housing, NYCHA and the City’s $100 billion budget. Mr. Hicks has written several stories about the MTA, including topics related to the FOIL Request at issue in this action. Id. at ¶ 6. The Post’s FOIL Request to the MTA On or about October 17, 2023, Hicks submitted the FOIL Request on behalf of the Post through the MTA’s online portal, seeking track alignment plan and profile schematics for the Second Avenue subway, including station and track schematics for Phase 1 and Phase 2 of the project. (Verified Petition ¶ 9.) As set forth and quoted below, the FOIL Request sought access to the following documents: - Track alignment plan and profile schematics/drawings for the Second Avenue Subway Phase 1 - Track alignment plan and profile schematics/drawings for the Second Avenue Subway Phase 2 For reference, the Los Angeles County Metropolitan Transportation Authority has posted comparable documents here: 3 7 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 https://www.dropbox.com/sh/np6nata8c98h6a4/AABitGBIGEtnDBdtjo3w WO20a/Reports%20and%20Info/Draft%20Supplemental%20EIS%20Rep ort%20June%202017/Draft%20Supplemental%20EIS%20Report%20June %202017?dl=0&preview=Appendix_G_Plan_and_Profile.pdf&subfolder _nav_tracking=1 I request expedited handling and the waiving of fees as request is made on behalf of a news organization (The New York Post) for the purposes of informing the public about a matter of importance, namely the construction of the planned multi-billion East Harlem extension of the Second Avenue Subway and the MTA’s recently announced plans for a possible future western expansion along 125th Street. (Verified Petition ¶ 10.) Mr. Hicks requested the Phase 1 and Phase 2 schematics as source material for articles showing how the MTA’s large station designs added millions of dollars to the price tag of subway expansion projects. Id. at ¶ 11. The MTA FOIL Team’s Denial of the FOIL Request On Tuesday, November 7, 2023, the MTA denied the FOIL Request pursuant to Public Officers Law § 87(2)(f) on the sole purported grounds that, if disclosed, release of the track and station schematics “could endanger the life and safety of any person.” (Verified Petition ¶ 12 & Exhibit 1.) In denying access to the records, the MTA FOIL Team relied upon the statutory exemption in Public Officers Law § 87(2)(f) for documents whose disclosure “could endanger the life or safety of any person,” stating: Pursuant to the above referenced FOIL request, responsive documents are exempt from FOIL disclosure according to Public Officers Law §87(2)(f), which states that an agency may deny access to records that, if disclosed, could endanger the life or safety of any person, and on the ground that public dissemination of the subject records could potentially be exploited by terrorists, which could create “a possibility of endangerment.” (Matter of Asian Am. Legal Defense & Educ. Fund v. New York City Police Dept., 125 A.D.3d 531, 532, 5 N.Y.S.3d 13, 15, 2015 N.Y. App. Div. LEXIS 1550, *3, 2015 NY Slip Op 01559, 2). 4 8 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 (Verified Petition ¶ 13 & Exhibit 1.) The MTA FOIL Team did not cite any other FOIL exemption. The FOIL Appeal Counsel for the Post thereupon submitted an appeal of the MTA’s denial on November 30, 2023, and stated, in part: The agency’s denial of the Post’s FOIL Request supplies no tangible information regarding the possibility of such danger to MTA customers or personnel, making it impossible for the Post to discern or evaluate the applicability of the claimed exemption. We also doubt that it plausibly could: as Mr. Hicks explained to the agency, such information is a matter of public record with other transit agencies. In any case, the MTA’s notification that it is denying the FOIL Request does not elaborate what information in these records could conceivably imperil MTA customers or personnel. The denial notification sheds no light on this question, much less the particularized and specific justification required by FOIL. (Verified Petition ¶ 15 & Exhibit 2.) By a letter from the MTA’s Deputy General Counsel, Harris Berenson, Esq., the MTA responded to the appeal on December 15, 2023. (Verified Petition, Exhibit 3.) Mr. Berenson granted that part of the Post’s appeal that concerned the Phase 1 schematics and remanded the matter to the MTA FOIL Team with instructions to provide the Phase 1 schematics within fifteen (15) business days. However, Mr. Berenson denied the appeal with regard to the FOIL Request for the Phase 2 schematics. (Verified Petition ¶¶ 17-18 & Exhibit 3.) Although the MTA FOIL Team had relied solely upon the statutory exemption in Public Officers Law § 87(2)(f) relating to documents the disclosure of which “could endanger the life or safety of any person,” Mr. Berenson’s denial of the appeal regarding the Phase 2 schematics abandoned the “terrorist risk” rationale and shifted ground, relying instead upon two (2) other FOIL exemptions that the MTA FOIL Team had not mentioned, specifically that (i) the documents “if disclosed would impair present or imminent contract awards or collective bargaining negotiations” under Public Officers Law § 87(2)(c) and (ii) the documents purportedly 5 9 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 constituted “intra-agency or inter-agency materials” exempted from disclosure under Public Officers Law § 87(2)(g). (Verified Petition ¶ 19 & Exhibit 3.) Regarding the “contract negotiation exemption,” Mr. Berenson wrote “[t]he procurement process for this contract is not yet completed, and as such, release of said records could impair a pending procurement. Due to the status of this procurement and the relevance of the requested records to the procurement process, the release of these records would inhibit ‘the interests of [the agency] in achieving the optimum result in awarding a contract to a supplier of goods or services or in reaching a collective bargaining agreement.’” (citing Matter Verizon N.Y., Inc. v. Bradbury, 40 A.D.3d 1113, 1115 (2d Dept 2007)). The denial letter further suggested that the MTA would be “placed at a disadvantage at the bargaining table” and would thereby be deprived of a “level playing field.” (Verified Petition ¶ 20 & Exhibit 3.) The denial letter did not explain how a public release of the design documents to the entire world in a Post article would undermine equality among bidders or disadvantage the agency in its negotiations. Regarding the exemption for inter-agency deliberations, the denial letter represented that the requested documents constituted “internal agency material,” and “were still in draft format, not considered to be final, and are deliberative in nature.” (Verified Petition ¶¶ 21-22 & Exhibit 3.) The denial letter invited Petitioners to resubmit a FOIL Request for the Phase 2 schematics after “finalization of these records and finalization of the procurement process,” and purported to hold in reserve the MTA’s right to assert the “life and safety” exemption under Public Officers Law § 87(2)(f) in response to some hypothetical future FOIL request, but it did not invoke that exemption in sustaining the MTA FOIL Team’s denial of access to the Phase 2 documents. The denial letter concluded by stating “[t]his completes the MTA’s response to your FOIL appeal, and 6 10 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 this FOIL appeal will now be closed.” (See Verified Petition, Exhibit 3.) The MTA’s decision was thus final as of December 15, 2023. Even so, the MTA didn’t produce the Phase 1 documents within the required time. Counsel for Petitioners wrote to the appeal officer by email dated January 16, 2024 (one week after the due date by which the MTA was supposed to release the Phase 1 documents), noted that they were late, and requested that the Phase 1 documents be provided within 48 hours. (Verified Petition ¶¶ 25-26 & Exhibit 4.) Shortly thereafter, the MTA did make certain Phase 1 documents available (the track schematics) to Mr. Hicks, but it did not provide the station schematics. There was no reason for the agency to believe that station schematics were not encompassed within the FOIL Request. The FOIL Request provided an illustration of what Petitioners were seeking (which included station drawings published by the Los Angeles Metropolitan Transit Authority). Moreover, Petitioners’ appeal letter also specified that the basic station design, and not merely the track alignment plan, was within the scope of the FOIL Request. (See Verified Petition, Exhibit 2.) In an effort to avoid litigation over this issue, counsel for Petitioners wrote again to Mr. Berenson on January 25, 2024, bringing to the agency’s attention that it had not produced all the Phase 1 documents and asking whether there had been a misunderstanding. (Verified Petition ¶ 29 & Exhibit 5). By email dated February 1, 2024, Mr. Berenson advised that the MTA was following up to investigate why the station designs had not been included in the Phase 1 document production. (Verified Petition ¶ 30 & Exhibit 6.) Mr. Berenson subsequently followed up by email dated February 22, 2024, taking the position that the station drawings were not encompassed within the original FOIL Request because the language of the FOIL Request was phrased as a request for the “Track alignment plan 7 11 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 and profile schematics/drawings for the Second Avenue Subway Phase 1”, and purportedly “did not include/specify ‘station schematics.’” (Verified Petition ¶ 31 & Exhibit 7.) The agency’s explanation that the station schematics were not part of the original FOIL Request was without merit. As stated above, a sample of the station schematics and drawings dated June 2017 from the Westside Purple Line Extension of the Los Angeles Metropolitan Transit Authority was hyperlinked in Petitioners’ original FOIL Request as an exemplar to educate the MTA FOIL Team as to what documents Petitioners were requesting. (See Verified Petition, Exhibit 8.) In his February 22nd email, Mr. Berenson wrote, in relevant part: That being said, for the sake of efficiency and transparency, rather than have your client submit a new FOIL request for the SAS Phase 1 “station schematics,” I discussed these records internally and a determination was made to instead provide them to your client without asking for a new FOIL request. I have directed the MTA FOIL Team to supplement the initial production of the SAS Phase 1 Track alignment plan to also include the SAS Phase 1 station schematics, with any necessary redactions under the FOIL statute. I have directed the MTA FOIL Team to provide these records to your client within 15 business days from the date of this email. This will complete the MTA’s response to your client’s FOIL request and your FOIL appeal, and this FOIL appeal is now closed. (Verified Petition ¶ 33 & Exhibit 7.) On or about February 29, 2024, the MTA made the Phase 1 station schematics available to Mr. Hicks, but with the descriptions of the station rooms redacted as signaled by Mr. Berenson. Neither Mr. Berenson’s February 22nd email nor the redacted Phase 1 documents ultimately produced by the MTA contained a rationale for the redactions. Petitioners filed a successive appeal of the redactions on March 29, 2024. (Verified Petition, Exhibit 9.) The agency’s response is pending. This proceeding followed. 8 12 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 ARGUMENT I. LEGAL STANDARD. In order to promote transparent government and public accountability, New York’s Freedom of Information Law requires that an agency “make available for public inspection and copying all records” except those that fall withing a limited number of statutory exemptions. Public Officers Law § 87(2)(f). FOIL is rooted in the presumption that the “public is vested with an inherent right to know and that official secrecy is anathematic to our form of government.” Fink v. Lefkowitz, 47 N.Y.2d 567, 571 (1979). As such “‘all government records are presumptively open for public inspection unless specifically exempted from disclosure provided in the Public Officers Law’.” Empire Ctr. For Pub. Policy v. Metro. Tr. Auth., Index No. 155355/2020, 2021 WL 1592654, at *2 (Sup Ct, New York County Apr. 23, 2021) (quoting Matter of Jewish Press, Inc. v New York City Police Dept., 190 A.D.3d 490, 490 (1st Dep’t 2021)). New York courts have liberally construed FOIL and applied its exemptions sparingly so that the public can easily attain agency records. See Cap. Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252 (1987). An agency or government office thus bears the burden of justifying its decision to deny production of requested records. See Cap. Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 570 (1986). To satisfy this burden the agency must demonstrate that “material requested falls squarely within the ambit of one of [the] statutory exemptions.” Fink, 47 N.Y.2d at 571. Thus, agencies may refuse to disclose records so long as they can supply a “particularized and specific justification.” Id. Although ordinarily agency action is reviewed under an “arbitrary and capricious” standard, when reviewing the denial of a FOIL request, courts must apply an even more rigorous standard. See New York Comm. for Occupational Safety & Health v. Bloomberg, 72 A.D.3d 153, 158 (1st Dep’t 2010). A reviewing court must presume that all agency records are open to the public and therefore the agency bears the burden of proving that sought-after records 9 13 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 fall squarely within a statutory exemption. Id. Purely conclusory assertions that requested records fall within an exception without any evidentiary support are not sufficient to satisfy this heavy burden. See Madera v. Elmont Pub. Libr., 101 A.D.3d 726, 727 (2d Dep’t 2012). II. THE MTA IMPROPERLY WITHHELD RECORDS FROM DISCLOSURE. A. The MTA Has Failed to Provide any Justification for Redacting the Phase 1 Station Schematics. Although the MTA originally asserted that it would provide the Phase 1 schematics, it later claimed that it did not understand the FOIL Request to include the station schematics. Although the MTA later reversed its own decision and reiterated that the appeal was closed, subject to the production of redacted drawings, neither in its February 22, 2024 notification from the appeal officer nor in the redacted documents produced on February 29, 2024, did the agency identify the exemption or otherwise articulate any rationale for the redactions. (Verified Petition ¶¶ 31-33.) Inasmuch as Petitioners have exhausted administrative remedies, the Court should direct that the Phase 1 stations schematics be disclosed in unredacted form. B. The MTA Has Not Made a Specific and Particularized Justification For Withholding the Phase 2 Schematics Under the Exemption for Present or Imminent Contract Awards and the Record Shows it Does Not Apply. In its decision denying Petitioner’s administrative appeal from the MTA FOIL Team’s decision to deny access to the Phase 2 documents, the MTA abandoned the MTA FOIL Team’s initial “life and safety” rationale under Public Officers Law § 87(2)(f), and switched gears, invoking an exemption for documents the disclosure of which could impair “present or imminent contract awards.” (Verified Petition ¶ 19, & Exhibit 3). 2 According to the MTA, the release of the 2 Althought the MTA did not rely upon the “life and safety” exception in its decision denying the administrative appeal, it purported to reserve the right to do so in response to a later FOIL request after the conclusion of contracts for Phase 2. As set forth herein, Petitioners do not need to make a later FOIL request and are entitled to access to the documents now. But if the 10 14 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 Phase 2 schematics would inhibit “‘the interests of [the agency] in achieving the optimum result in awarding a contract to a supplier of goods or services or in reaching a collective bargaining agreement.’” (Verified Petition, Exhibit 3 at 1-2) (quoting Matter of Verizon N.Y., Inc. v. Bradbury, 40 A.D.3d 1113, 1115 (2d Dept 2007)). According to the MTA, release of the records “could result in an inequality of knowledge amongst the bidders, depriving the agency of the benefits of the competitive bidding process, and depriving the bidder with the resulting lesser knowledge of a fair opportunity to be awarded the contract. However, the agency did not explain how the Post’s publication of news coverage about the documents it sought to obtain could conceivably favor one bidder over another. Logically, that would be an impossibility as the news would become available to the whole world at the same time; this is not a case where one bidder would get the information to the exclusion of other bidders. Nor did the agency explain how its own bargaining position could be impaired. (See Verified Petition Exhibit 3, citing (FOIL Advisory Opinion No 18737, Committee on Open Government). In reality, the track and station schematics are automatically in the bidders’ hands as a matter of course because the bidders have to know what they are bidding on and how to put a price on the proposed contract. Consequently, there is no risk of an inequality of information among bidders where the schematics are concerned. Moreover, the MTA provided the federal government with the agency’s estimate of the cost of each contract. The MTA estimate included the projected MTA in opposition to the Petition should attempt to fall back on the FOIL Team’s initial invocation of the “life and safety” exception (which the agency retreated from on appeal), the Court should reject it outright. See Madeiros v. New York State Educ. Dept., 30 N.Y.3d 67, 74- 75 (2017) (“[b]ecause the Department did not rely on subparagraph (iv) in its administrative denial, to allow it to do so now would be contrary to our precedent, as well as to the spirit and purpose of FOIL.”). 11 15 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 cost of each contract for the Second Avenue Subway extension and each Statement of Work. That information was available through a Freedom of Information Act (FOIA) request to the federal government and was, in fact, obtained by the Post. (Verified Petition ¶¶ 37-38.) It follows that there was no plausible risk of inequality among bidders or of the agency being placed at a disadvantage in its negotiations with those bidders through disclosure of the Phase 2 track or station schematics. C. The MTA Has Not Made a Specific and Particularized Justification For Withholding the Phase 2 Schematics Under the Exemption for Inter-Agency or Intra-Agency Materials and the Record Shows it Does Not Apply. “The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure.” The New York Times Co. v. City of New York Fire Dep’t, 4 N.Y.3d 477, 488 (2005). But “under a plain reading of section 87(2)(g), the exemption for intra-agency material does not apply as long as the material falls with any one of the provision’s four enumerated exceptions.” Gould v. New York City Police Dep’t, 89 N.Y.2d 267, 276 (1996). In the instant case, the Post’s FOIL Request implicates exceptions for (1) statistical or factual tabulation or data under Public Officers Law § 87(2)(g)(i), and/or (2) final agency policy or determinations pursuant to Public Officers Law § 87(2)(g)(iii). 1. The Phase 2 Schematics Are Factual Data, Not Agency Opinions. Drawings of a subway station are factual data, not opinions. “Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making.” Gould v. New York City Police Dep’t, 89 N.Y.2d 267, 277 (1996). Track alignment plans and stations drawings describing the dimensions and layout of the Second Avenue Subway are quintessentially factual in nature, not deliberative. See Humane Soc. of U.S. v. Brennan, 53 A.D.3d 909, 911 (3d Dep’t), leave 12 16 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 denied, 11 N.Y.2d 711 (2008) (veterinarian’s description of the layout and structure of a farm, its buildings and the activities conducted in each constituted factual data not exempt from disclosure under FOIL). Track alignment plans and station drawings do no more than detail the size and layout of the station and on their face convey no opinions or advice. Accordingly, the Phase 2 documents are factual in nature for purposes of Public Officers Law § 87(2)(g)(i) and should be disclosed on this basis. 2. The Station Designs Are Not Deliberative in Nature and Constitute Final Determinations. The Phase 2 documents also do not qualify for withholding as inter-agency or intra-agency deliberations because they are final documents within the meaning of Public Officers Law § 87(2)(g)(iii).3 Here, despite the position taken by the MTA’s appeal determination that the Phase 2 schematics “were still in draft format, not considered to be final, and are deliberative in nature,” a document obtained by the Post titled Project Management Oversight Contractor (PMOC) Risk Assessment Refresh – Second Avenue Subway (SAS) Phase II (the “PMOC Report”), prepared for and obtained under FOIA from the Federal Transit Administration, reveals that the relevant design work is, in reality, completed. (Verified Petition, Exhibit 10.) Specifically, the Second Avenue Subway project encompasses four (4) contracts for the proposed design and building of three (3) new subway stations at 106th Street and Second Avenue, 116th Street and Second Avenue, and 125th Street and Lexington Avenue, defined as follows: 3 In denying the appeal, the MTA did not identify which agency or agencies were involved in the deliberative process that purportedly supported the exemption. To the extent that the MTA’s inter-agency communications concerning the design of the Second Avenue Subway were with a federal agency as opposed to a New York State agency, the Court of Appeals has made clear that the FOIL exemption does not apply. Town of Waterford v. New York State Dep’t of Env’t Conservation, 18 N.Y.3d 652, 657 (2012). 13 17 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM INDEX NO. 153986/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 04/08/2024 • Contract 1 – Early Utility Relocation (building protection and early utility relocations at the proposed 106th Street Station); • Contract 2 – 116th and 125th Street Stations and Tunneling; • Contract 3 – 106th Street Station and Existing Tunnel Rehabilitation (which differs from Contract 2 to the extent that pre-existing tunnel for the proposed 106th Street Station already exists from earlier construction efforts); and • Contract 4 – Station Finishes, Ancillary Buildings, Systems and Trackwork. (Verified Petition ¶ 42 & Exhibit 10, PMOC Report at 7-8.) According to the PMOC Report, the contract bid documents have been completed for Contract 1 and all technical specifications and design drawings have been developed for Contract 2 and Contract 3. (Verified Petition ¶ 43 & PMOC Report, Exhibit 10 at 13.) In other words, with regard to the Phase 2 track and station schematics that were requested by Petitioners’ FOIL Request, there is no “deliberation” requiring—or justifying—protection from disclosure under Public Officers Law § § 87(2)(g). The documents should be disclosed. III. THE POST IS ENTITLED TO ATTORNEY’S FEES AND COSTS. In a FOIL proceeding, the court “shall 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 the court finds that the agency had no reasonable basis for denying access.” Public Officers Law § 89(4)(c)(ii). The legislature enacted Section 89(4)(c) 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.” New York C.L. Union v. City of Saratoga Springs, 87 A.D.3d 336, 338 (3d Dep’t 2011) (quoting New York Bill Jacket, 2006 S.B. 7011, Ch. 492). Therefore, awarding fees and costs is appropriate when, as here, the petitioner substantially prevails in the 14 18 of 21 FILED: NEW YORK COUNTY CLERK 04/08/2024 02:26 PM