Opinion
5554 Index 100697/15
01-30-2018
In re CORRECTION OFFICERS' BENEVOLENT ASSOCIATION, et al., Petitioners–Appellants, v. NEW YORK CITY DEPARTMENT OF CORRECTION, et al., Respondents–Respondents.
Koehler & Isaacs LLP, New York (Howard Wien of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for respondents.
Koehler & Isaacs LLP, New York (Howard Wien of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for respondents.
Friedman, J.P., Gische, Mazzarelli, Kern, Singh, JJ.
Judgment (denominated an order), Supreme Court, New York County (Margaret A. Chan, J.), entered April 29, 2016, denying the petition to compel respondents, pursuant to the Freedom of Information Law (FOIL), to produce all information pertaining to respondent New York City Department of Correction's (DOC) decision not to promote the individual petitioners from Correction Officer to Correction Captain, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioners have abandoned any challenge to Supreme Court's determination that the claims of three of the individual petitioners have been mooted by their intervening promotion to Correction Captain, as petitioners failed to discuss the issue in their appellate briefs (see Hardwick v. Auriemma, 116 A.D.3d 465, 468, 983 N.Y.S.2d 509 [1st Dept. 2014], lv denied 23 N.Y.3d 908, 2014 WL 2936031 [2014] ; McHale v. Anthony, 41 A.D.3d 265, 266–267, 839 N.Y.S.2d 33 [1st Dept. 2007] ).Respondents met their burden of "articulating a particularized and specific justification for denying access" to the requested documents (Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462–463, 849 N.Y.S.2d 489, 880 N.E.2d 10 [2007] [internal quotation marks omitted] ) on the grounds that they are exempt from disclosure as nonfinal intra-agency materials that "are entirely advisory in nature and rendered only to aid the actual decision-maker[s]" ( Rothenberg v. City Univ. of N.Y., 191 A.D.2d 195, 196, 594 N.Y.S.2d 219 [1st Dept. 1993], lv denied 81 N.Y.2d 710, 600 N.Y.S.2d 197, 616 N.E.2d 854 [1993] ; see Public Officers Law § 87[2][g][iii] ; Matter of Thomas v. New York City Dept. of Educ., 137 A.D.3d 698, 698, 27 N.Y.S.3d 376 [1st Dept. 2016] ).
Petitioners' argument that the requested documents are effectively the final documents because there are no later documents providing reasons for the failures to promote, other than the conclusory notification letters that the candidates were passed over, is unavailing. Respondents explain that, while the decision makers, including the Chief of Department who was the primary orchestrator, considered the requested documents in determining whom to promote, no documents exist encapsulating the final decision, other than the notice to petitioners. There is no statutory basis to look beyond respondents' representation. Nor does FOIL require agencies "to formulate a final determination where none exists" ( Kheel v. Ravitch, 93 A.D.2d 422, 430, 462 N.Y.S.2d 182 [1st Dept. 1983], affd 62 N.Y.2d 1, 475 N.Y.S.2d 814, 464 N.E.2d 118 [1984] ).
We have considered petitioners' remaining contentions and find them unavailing.