Sea Crest Construction Corp. v. Stubing

Citations: 82 A.D.2d 546; 442 N.Y.S.2d 130; 1981 N.Y. App. Div. LEXIS 11388

Court: Appellate Division of the Supreme Court of the State of New York; August 31, 1981; New York; State Appellate Court

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Petitioner Sea Crest Construction Corp. initiated a CPLR article 78 proceeding to obtain records from the Town of North Hempstead's Commissioner of Public Works under the New York Freedom of Information Law, specifically seeking correspondence between the town and its architects and engineers, particularly Leonard S. Wegman Co., Inc., related to the Seven Point Program public improvement project. Wegman, contracted as a consultant in 1973, was responsible for planning, inspection, and oversight of the project. In July 1979, the petitioner requested access to this correspondence, which was denied by the town's records access officer, citing confidentiality and potential litigation concerns. The Town Attorney upheld this denial, leading to the current proceeding initiated in September 1979.

The town and Wegman contended that the requested materials were protected from disclosure due to their preparation for possible litigation and also claimed they were intra-agency materials. However, the court found Wegman did not qualify as an "agency" under the Public Officers Law. While acknowledging some documents may be exempt as litigation materials, the court ordered an in camera inspection to identify which documents were protected. Following this inspection, the court determined that eight documents and one related letter were immune from disclosure, while ordering the release of the remaining materials. Both the town and Wegman appealed the disclosure order, while the petitioner cross-appealed concerning the immunity ruling. The court upheld the Special Term's decision on the litigation exemption, confirming the immunity of the specified documents from discovery.

The correspondence prepared by a consultant is deemed exempt from discovery under the intra-agency materials exemption, provided it does not include (i) statistical or factual data; (ii) public-affecting staff instructions; or (iii) final agency policies or determinations, as outlined in Public Officers Law, §87(2)(g). Although this matter hasn't been adjudicated in New York courts, federal courts, interpreting the Federal Freedom of Information Act (5 U.S.C. §552), have recognized communications between agencies and outside consultants as intra-agency materials. New York's Freedom of Information Law was modeled after the federal law, making federal case law relevant. The court in Ryan v. Department of Justice emphasized that the exemption aims to protect government deliberative processes by allowing open communication among advisors and decision-makers, which is essential for effective governance. The court concluded that records from outside consultants, solicited by the agency as part of deliberative processes, qualify as intra-agency documents. The designation of Wegman as a 'consultant' is not determinative; instead, the function of the party is critical for assessing the applicability of the exemption. The matter is remitted to Special Term for an in-camera inspection to identify any documents that may fall outside the exemption criteria. The judgment from the Supreme Court, Nassau County, is modified to affirm the immunity from discovery for specific documents and remanded for further proceedings.