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Court overturns decision in FOIL dispute over new Whole Foods store

Save Monroe Avenue sought records from state DOT

An organization fighting development of a Whole Foods store on Monroe Avenue in Brighton has lost a split decision from a state appeals court on a document request made to the New York State Department of Transportation under the state’s Freedom of Information Law.

The organization, Save Monroe Avenue, is a not-for-profit corporation involved in litigation challenging the development of the Whole Foods store in Brighton.

On Sept. 18, 2018, Save Monroe Avenue submitted a FOIL request with the DOT asking for all records and communications related to the Whole Foods project.

The DOT acknowledged receiving the request within one day, writing that the request would be researched and that notice would be provided within 20 business days as to the availability of the records.

On Oct. 19, 2018, the DOT extended the response time to Nov. 23, 2018, explaining that the delay was attributable to “a high number of FOIL requests.”

According to court filings, the DOT received more than 1,250 FOIL requests in the last four months of 2018.

In a letter dated Nov. 23, 2018, the DOT further extended the response date to Dec. 21, 2018, citing the same reason.

On Dec. 21, 2018, the DOT extended the response date to Jan. 25, 2019, explaining the delay was due to “the complexity of the request.”

The same day, Save Monroe Avenue sent a letter to DOT’s chief counsel declaring that the repeated extensions constituted a constructive denial of the FOIL request and that it was administratively appealing that denial.

On Jan. 14, 2019, the DOT’s FOIL appeals officer replied, claiming the extensions were reasonable and rejecting Save Monroe Avenue’s assertion of a constructive denial.

Save Monroe Avenue filed an Article 78 petition on Jan. 23, 2019, claiming that DOT’s failure to produce the requested documents constituted a constructive denial of the request. Save Monroe Avenue sought an order directing the DOT to disclose the requested records and pay attorney’s fees and related costs.

On Feb. 8, 2019, before any court ruling, DOT’s records access officer notified Save Monroe Avenue that more than 800 pages of responsive records were located and disclosed more than 600 pages with some redactions. DOT officials claimed the redactions and withholding of some pages was authorized under FOIL.

The DOT also filed a motion to dismiss the Article 78 petition because the records were provided. State Supreme Court Justice Richard M. Koweek, in Albany, denied the motion and ruled that Save Monroe Avenue was entitled to attorneys fees of $7,176.

Koweek also reviewed the withheld records and ordered some of them to be provided to Save Monroe Avenue.

In a decision released Aug. 5, the Appellate Division of state Supreme Court, Third Department, ruled that the claim of constructive denial was moot because the documents have been provided.

The panel also ruled that because Save Monroe Avenue did not administratively appeal the DOT’s decision to withhold some documents as exempt, the justice should not have addressed the validity of the exemptions.

The Third Department also ruled that the DOT’s initial response to the FOIL request was not a constructive denial.

The court ruled that the DOT complied with the timing requirements of the FOIL law.

“The initial response was timely, and each extension was issued before the anticipated response date expired,” the majority wrote.

“Moreover, the responding documents were extensive and involved various areas within respondent pertaining to planning, design, permitting and engineering for the project. In this context, the response, made within four months of the request, was certainly reasonable,” the majority wrote.

“Even though the records were released a few weeks after the proceeding was commenced, petitioner’s claim for counsel fees should be denied, as the record reveals that respondent acted in good faith by specifying a reasonable basis for the delay and promptly releasing the documents upon completing its review and not just in response to the litigation,” the court wrote.

Justice John P. Colangelo dissented.

“I disagree with the majority’s conclusion that respondent did not constructively deny petitioner’s Freedom of Information Law request,” Colangelo wrote.

“In my view, respondent’s failure to grant or deny access to the records on any of the self-imposed extension dates was unreasonable and functioned as a constructive denial of the FOIL request, thereby permitting petitioner to file an administrative appeal,” he wrote.

“It is also my view that petitioner is entitled to counsel fees despite the fact that the proceeding was rendered moot, as the majority holds,” he wrote.

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