Fenstermaker had asked Supreme Court to direct the Edgemont Union Free School District to provide copies of all records requested in his FOIL request of January 31, 2006 “at the lowest fee collected by the School District on FOIL requests during the period between the enactment of FOIL until the present” and to edit the material “to eliminate extraneous, irrelevant and superfluous documents” from its response to his FOIL request.
Fenstermaker’s request specified 60 categories of financial records that spanned the period from January 1, 2001 to December 31, 2003. Susan Shirken, in her capacity as the School District's Records Access Officer, advised Fenstermaker that two items in his FOIL request would not be provided because “they called for a narrative response and not for records,” but the other 58 other requests were granted subject to some of the records being redacted to delete personal information such has home addresses and Social Security numbers.
Shirken also told Fenstermaker that "When the records have been assembled and boxed up, we will, as you have suggested, have them delivered to an outside contractor for duplication at your expense. I encourage you to confer with [the School District’s counsel] for the purpose of recommending a duplicating contractor for this purpose.” In addition, Fenstermaker was advised that the District would “require that [Fenstermaker] make appropriate advance arrangements to ensure payment … as [the District] cannot permit a situation to develop in which public records might become subject to a contractor's retaining lien for unpaid services.”
Fenstermaker responded, in pertinent part, that:
“We have every intention of using professional copying services equipped to adequately, professionally, and efficiently handle this responsibility. I suggested, in the Request, that [the District’s counsel] and I agree on such a service. I again reiterate that suggestion, notwithstanding your 'requirements.' … ‘As far as ensuring that proper payment arrangements are made we will comply with your requirement that adequate payment arrangements are made. We are confident that, at the conclusion of this matter, we will ultimately be reimbursed by School District funds.’"
According to the decision, the parties agreed that they would use an outside copying service and anticipated having done by a printer in Manhattan in order to find a facility large enough to properly handle the job, which consisted of duplicating the contents of 48 boxes of original records plus several thousand pages of additional material that had to be copied so that the originals could be returned to working files or redacted.
Subsequently Fenstermaker charged the School District with “having created a situation ‘rife with bribes and kickbacks;' that he was certain that [the District] had already altered or destroyed certain of the requested records; that the District's attorney was operating under a conflict of interest in that he was responsible as counsel for [the District’s] malfeasance; and that he [Fenstermaker] was therefore demanding that the records be sent to a copy service designated by him.”
The District responded that the cost of the records it had copied was $4,666.25, at the rate of $0.25 per page, and that the balance of the requested records would be copied by a duplicating service of the School District's choice. It also advised Fenstermaker that he could inspect the records before they were sent out for copying but “they would not be sent out at all unless and until Fenstermaker paid for the copies that had already been made and provided suitable security for payment for the copies to be made."
Fenstermaker reviewed the records and did not claim that any of the records were non-responsive. He did not, however, pay for the copies already made.
He then made a second FOIL request, this time seeking a copy of each FOIL application filled with the School District since the enactment of its FOIL rules and regulations. Shirken granted the request on the condition that the $4,666.25 still outstanding for the copies made pursuant to Festermaker's first FOIL request is paid.
Ultimately Fenstermaker filed an Article 78 petition seeking a court order directing the School District to provide copies of the records requested in his FOIL request at the lowest fee collected by the School District for FOIL requests during the period between the enactment of FOIL and the present.
In his petition, said the court, Fenstermaker “reiterates that he has offered to pay for the entire cost of the copying.” However, he contends that inasmuch as the photocopying service he regularly employs would have charged only $0.15 per page, the District’s unilateral decision to use a service of its own choosing at a cost of $0.25 per page is arbitrary and capricious.
Justice Loehr said that Public Officers Law §87(l)(b)(iii) authorizes an entity subject to FOIL to charge up to $0.25 per page for copies of records. Moreover, once an agency has determined the number of copies requested, it may require that the fee therefor be paid prior to the reproduction of the records and there is no authority for the proposition that the individual who submitted the FOIL request has any right or say in how or by whom the copies shall be made.
Accordingly, the court decided that “[the District’s] decision to send the records to an independent copying service at statutorily authorized price is more than reasonable given the alternative: releasing these original School District records to a copying service where [Fenstermaker] would have had unsupervised access to them” and denied this aspect of Fenstermaker’s petition.
As to Fenstermaker’s seeking an order directing the School District to eliminate extraneous, irrelevant and superfluous documents from its response to his initial FOIL Request, the court said that “This smacks of bad faith” in that Fenstermaker cites no authority for this proposition and “it is undisputed that he was given more than an ample opportunity to review the literally hundreds of thousands of pages of records which he requested - and which required over 177 hours to collect, copy and redact at an estimated cost in lost staff time to the School District of over $14,500 - in order to cull out those records which he did not want copied.” As Fenstermaker "declined to do so, and in so doing manufactured and perpetuated an issue that could have and should have been resolved then," Justice Loehr denied his request.
As to the District’s advising Fenstermaker that his Second FOIL Request would be granted on the condition that he first pay the $4,666.25 outstanding for the copies made with respect to his First FOIL Request, the court noted that Robert J. Freeman, Executive Director of the Committee on Open Government has issued an advisory Opinion in which he stated:
"If an agency has prepared copies of records in good faith and the applicant fails or refuses to pay the fee, I do not believe that the agency would be required to make available those copies that have been prepared. In my view, it follows that an agency should not be required to honor ensuing requests until the applicant has fulfilled his or her responsibility by tendering the fee for copies previously made." This advisory opinion is posted on the Internet at http://www.dos.state.ny.us/coog/ftext/f9659.htm .
Finding that the District’s decision with respect to Fenstermaker’s Second FOIL Request was neither arbitrary nor capricious but reasonable and in accordance with the law, Justice Loehr denied this aspect Fenstermaker claim and subsequently dismissed his Article 78 petition in its entirety.
Turning to the District’s cross-motion asking that sanctions be imposed on Fenstermaker based on its claim that “this proceeding is frivolous and was filed in bad faith,” the court said that it may, as a matter of discretion, award to any party in any civil action or proceeding costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct. Frivolous conduct, said Justice Loehr, includes the filing of a proceeding that is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.
In this instance the court found that Fenstermaker’s Article 78 action was frivolous as “Each of [the District’s] decisions challenged in this proceeding was supported by statute and administrative rulings and [Fenstermaker] cited no authority to the contrary. Accordingly, in addition to statutory costs to be taxed by the Clerk of the Court, Justice Loehr ruled that Fenstermaker was to pay for the "District’s actual expenses reasonably incurred and reasonable attorney's fees" it incurred in defending this proceeding. Expenses and attorney's fees totaled $15,960.
Fenstermaker’s appealed Justice Loehr's ruling, only to have the Appellate Division, repeating Justice Loehr’s finding, hold that “The frivolous conduct in this case was [Fenstermaker’s] initiation of a proceeding that was completely without merit in law and could not be supported by any reasonable argument for an extension, modification, or reversal of existing law (see 22 NYCRR 130-1.1 [c] ).” The Appellate Division dismissed the appeal.
Justice Loehr's decision is posted on the Internet at:
The Appellate Division’s decision is posted on the Internet at: