The following is the complete text of the Shelter Reform Action Committee's Memorandum of Law in the lawsuit challenging the CACC's denial of requests made pursuant to the Freedom of Information and Open Meetings laws.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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In the Matter of the Application of
SHELTER REFORM ACTION COMMITTEE,
Petitioner,
For an Order pursuant to Article 78 of the Civil Practice Law and Rules,
- against -
THE CENTER FOR ANIMAL CARE AND CONTROL and THE NEW YORK
CITY DEPARTMENT OF HEALTH,
Respondents.
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Index No. 97/103410
RJI 003777
PETITIONER'S MEMORANDUM OF LAW
[CORRECTED COPY]
Petitioner Shelter Reform Action Committee respectfully submits this memorandum in support of an application for an Order pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR"), the Freedom of Information Law ("FOIL"), Pub. Off. Law §§ 84-90, and the Open Meetings Law, Pub. Off. Law §§ 100-11, declaring respondent The Center For Animal Care and Control ("CACC") to be an "agency" subject to FOIL and a "public body" subject to the Open Meetings Law, and requiring CACC: (1) to make available, for inspection and copying, its records on animal intake, spaying, neutering, adoption and euthanasia -- in unredacted form -- as well as minutes of meetings of its Board of Directors; and (2) to allow petitioner's representatives to attend meetings of CACC's Board of Directors.
STATEMENT OF FACTS
This proceeding concerns the controversial non-profit corporation created by the City of New York in August 1994 to serve as its exclusive "animal control" agent. During its brief existence, CACC has repeatedly been criticized for systematically failing to perform its animal control functions on behalf of DOH and the City in a humane manner, with due regard for the welfare of animals and rights of animal owners, and in accordance with federal, state, and local law.
Pet owners, former shelter workers, and members of the humane community alike have charged CACC with: having too few animal rescue vehicles; using vehicles that lack air conditioning; leaving injured animals unattended for hours in animal shelters; poorly ventilating shelters; placing animals in cages that are unclean and too small; putting lost pets to sleep before owners can claim them; disregarding instructions from pet owners who have left their pets at shelters; and placing friendly puppies in "vicious dog" wards. Many have also complained that CACC: has failed to adequately promote adoptions; has not developed adequate spay-neuter programs; has unnecessarily killed thousands of healthy, adoptable animals; and has underreported the number of animals killed. So many complaints have been lodged against CACC that the City Council convened a special oversight hearing on February 9, 1995 to look into CACC's role as the City's animal control agent. The scores of complaints about CACC have also prompted Newsday and the Village Voice, among others, to call CACC an "Animal Auschwitz" and "The Cruelest Animal Rescue System in the United States."
Even though it was created by the City, performs animal control functions on behalf of DOH and the City, uses offices and animal shelters donated by DOH and the City, relies almost, if not, exclusively on City moneys, is governed by a Board of Directors solely comprised of City officials (including the Health Commissioner), and Mayoral appointees, is subject to close regulatory oversight by DOH, and cannot transact business, in many instances, without DOH's prior approval, CACC maintains that it is merely a "private" entity wholly exempt from FOIL and the Open Meetings Law -- a position in which DOH and the City at least acquiesce, probably endorse, and perhaps conceived.
Petitioner is an unincorporated association of individuals and organizations living or based in the City who, despite some philosophical differences, share a concern for the humane treatment of animals. Many of the individuals and organizations that comprise petitioner have been affiliated with the Coalition for New York City Animals, a group of more than 40 animal welfare organizations which banded together in late 1994 in response to the City's announcement that it had created CACC. Pet. ¶ 6.
CACC's Creation and Operation
For 100 years, from 1895 through 1994, The American Society For The Prevention of Cruelty to Animals ("ASPCA") annually collected and euthanized as many as 40,000 abandoned and stray dogs, cats and other animals in the City pursuant to an exclusive "animal control" contract with the City. Regrettably, most of the animals collected by the ASPCA were euthanized, even though the great majority of them were healthy and adoptable. Because the mass euthanasia of healthy, adoptable pet animals seemingly conflicted with its stated purpose of preventing cruelty to animals, the ASPCA came under increasing criticism from the humane community in recent years. Probably recognizing that this might undermine fundraising for its humane activities, the ASPCA informed the City in 1993 that it would relinquish its "animal control" contract, effective January 1, 1995. Pet. ¶ 11.
Faced with loss of its "animal control" agent, the City decided, sometime in 1994, to create a new non-profit corporation, CACC, to assume the "animal control" functions and duties which the ASPCA was about to relinquish. Pet. ¶ 12. The City's Department of Law prepared and filed CACC's certificate of incorporation (Pet. Ex. A) with the Secretary of State in August, 1994, listing three City officials -- two from DOH and one from the Mayor's Office of Operations -- as CACC's initial directors. Pet. ¶ 12. On September 1, 1994, these City officials met -- without public notice -- in DOH's offices, where they adopted by-laws (Pet. Ex. B), providing (in ¶ 2.2) that CACC's Board of Directors would have three "Ex Officio Directors" -- the City's Health and Sanitation Commissioners and Deputy Police Commissioner in Charge of Community Affairs -- and two "Appointed Directors" selected by the Mayor or Deputy Mayor for Operations, and designating the City's Health Commissioner as Chair of CACC's Board. Pet. ¶ 13. Soon thereafter, CACC's Board chose Martin B. Kurtz and Douglas Mansfield as CACC's Executive Director and General Counsel, respectively. Mr. Kurtz had been DOH's Director of Public Veterinary Services and remained a City employee, having merely taken a leave of absence from DOH, while he served as CACC's Executive Director. Mr. Mansfield had also been employed by the City, as an assistant corporation counsel who often represented DOH in litigation. Pet. ¶ 14.
Sometime during September 1994, the City, acting by and through the City's Health Commissioner Margaret Hamburg and DOH, entered into a multimillion dollar contract (the "Contract") with CACC, acting by and through the City's Sanitation Commissioner John Doherty, for CACC to perform "animal control functions and duties" for DOH and the City at least through December 31, 1997, "in accordance with all federal, state and local laws and regulations" and "in a humane manner and respecting the rights of the owners of animals as required by law." Contract, Pt. I, §§ I, II(b)(1)-(2). Pet. ¶ 15 & Pet. Ex. C.
To facilitate regulatory oversight, CACC is required to submit "monthly reports in statistical and narrative form" to DOH which "shall contain sufficient information and data to allow evaluation of [CACC's] monthly operations and activities," including the "number, type, origin and disposition of animals, number and type of activities, length of stay, holding cages, cage utilization rates and other specific information related to the types and quantity of services provided during the report period." Contract, Pt. I, §§ II(b)(3), IV(a). Such monthly reports "shall distinguish among dogs, cats and other animals and shall categorize such other animals by genus, species, country or state or other place of origin and source within the City, [and] method by which such animal came into [CACC's] possession." In addition, CACC must retain all records, including those pertaining to animal control, for six years, and make them available at any time for DOH to examine. Contract, Pt. I, § IV(b), Second Pt. II, Art. 4, § 4.7 ("Retention of Records"). Pet. ¶ 16 & Pet. Ex. C.
CACC must also "submit a detailed Monthly Financial Report itemizing the applicable revenue and actual expenditures of the previous month to which the report pertains," with "supporting schedules and documentation," as well as copies of any "consultant agreements, contracts, and leases" to which CACC is a party. Contract Pt. I, § III(d). In addition, all "contracts and consultant and rental agreements for the provision of services or equipment" to CACC are subject to DOH's "prior written approval." Contract Pt. I, § III(f). Pet. ¶ 17 & Pet. Ex. C.
On information and belief, CACC relies almost, if not, exclusively on City moneys provided through the Contract and has no other significant source of funding. On information and belief, CACC's primary, if not sole, business remains "animal control" on behalf of DOH and the City. On information and belief, CACC's office space at 11 Park Place has been donated by DOH in commercial space leased by the City, while all the animal shelters operated by CACC were donated by DOH and are owned by the City, which acquired them from the ASPCA through condemnation proceedings. See Contract Pts. VI ("Use and Occupancy of City-Owned Buildings"), VII ("Operation of Leased Facilities"). Pet. ¶ 18 & Pet. Ex. C.
There are now seven members on CACC's Board of Directors, three of whom are City officials serving in an "ex officio" capacity, while the other four are appointed by the Mayor or Deputy Mayor for Operations. The City's Sanitation Commissioner John Doherty has replaced the City's Health Commissioner Margaret Hamburg as Chair of CACC's Board of Directors. Pet. ¶ 19. Over the past two years, CACC's Board has met on a monthly basis to address, among other matters, improvements to animal shelters, purchase of new animal transport vehicles, animal medical assistance, animal adoption programs, and animal rescue services. A quorum consisting of a majority of the entire Board of Directors is generally required for transaction of business at Board meetings. CACC By-Laws § 3.5 (Pet. Ex. B).
Petitioner's FOIL Request
In a letter dated October 21, 1996 to Mr. Kurtz, CACC's executive director, Sara Lee, on petitioner's behalf, asked to inspect and/or copy CACC's records on animal intake, spaying, neutering, adoption and euthanasia ("animal control records") since January 1, 1995, and minutes of the meetings of CACC's Board of Directors held since January 1, 1995. Pet. ¶ 20 & Pet. Ex. D. Ms. Lee's FOIL request was denied in a letter dated October 30, 1996 from Jeannie Addoloria, CACC's office manager, who stated that CACC was a private non-profit corporation not subject to FOIL. Ms. Addoloria called the request "otherwise objectionable," but added that it would be considered under "CACC's own corporate policy to allow access to public information to the maximum extent possible." She, however, asserted that the animal control records sought by Ms. Lee contained "private information about third parties," requiring "substantial redaction," and copying of "over 200,000 pages" at an estimated cost of "at least $50,000," which Ms. Lee would have to pay. She also stated that Ms. Lee would be charged $6.75, or $.25 cents a page, for approximately 27 pages of "minutes" of meetings of CACC's Board of Directors held since January 1995. Pet. ¶ 24 & Pet. Ex. G.
In a letter dated November 14, 1997 to Mr. Kurtz, Liz Grayson, on petitioner's behalf, appealed the denial of Ms. Lee's FOIL request. Ms. Grayson disputed the need to redact any information from CACC's animal control records, noting that such records on animals cannot possibly contain human employment, medical or credit histories, and that people who bring pets to, or adopt pets from, animal shelters rarely insist on confidentiality. She also disputed Ms. Addoloria's claim of $50,000 in redaction and copying costs as "grossly overstated and merely designed to be financially repressive." Finally, Ms. Grayson agreed to pay the photocopying charges for minutes of meetings of CACC's Board of Directors, though she questioned why there were only 27 pages of minutes for at least 23 Board meetings. Pet. ¶ 23 & Pet. Ex. G.
In a letter to Ms. Grayson dated November 22, 1996, Mr. Mansfield, CACC's General Counsel, reiterated that CACC's animal records could not be inspected until an estimated 200,000 pages were substantially redacted to remove, inter alia, names and addresses of people who left animals with, or adopted them from, CACC, or were charged in cruelty cases. Moreover, Mr. Mansfield insisted that petitioner would have to pay at least $50,000 in redaction and copying costs. Finally, he clarified Ms. Addoloria's letter, stating that CACC would not make available the actual minutes of CACC's Board meetings but only "abstracts" of the minutes since CACC was only obligated to provide DOH with such "abstracts" under the Contract. Pet. ¶ 24 & Pet. Ex. H.
Petitioner's Open Meetings Law Request
In a letter dated November 4, 1996 to Mr. Doherty, Chair of CACC's Board of Directors, Ms. Lee, on petitioner's behalf, requested that four of petitioner's members be allowed to attend the next meeting of CACC's Board. Pet. ¶ 25 & Pet. Ex. I. By letter dated November 14, 1996, Mr. Mansfield denied that request, stating that CACC was a private non-profit corporation not subject to the Open Meetings Law. Pet. ¶ 26 & Pet. Ex. J.
ARGUMENT
At issue here is not only CACC's obligations under FOIL and the Open Meetings Law but also the continuing effectiveness of these statutes as safeguards against secrecy in government. Even though it was created by the City, serves as the City's exclusive animal control agent, relies almost, if not, exclusively on City moneys, conducts all of its business on City-owned and City-leased property, is governed by a Board of Directors solely comprised of City officials and Mayoral appointees, and can transact business, in many instances, only with prior City approval, CACC maintains that it is merely a "private" entity wholly exempt from FOIL and the Open Meetings Law. If that were so, every agency could circumvent these statutes -- and thus avoid public scrutiny -- simply by creating a similar "private" entity to which public functions are then contracted out.
I.
CACC WRONGFULLY DENIED PETITIONER'S FOIL REQUEST.
It is beyond question that "[o]pen and accessible government is a hall-mark of a free society, engendering public understanding and participat-ion." Russo v. Nassau County Community College, 81 N.Y.2d 690, 697, 603 N.Y.S.2d 294, 296-97 (1993) ("Russo"). Recognizing that " 'the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government,' " Capital Newspapers v. Whalen, 69 N.Y.2d 246, 252, 513 N.Y.S.2d 367, 370 (1987) ("Capital Newspapers"), quoting Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 470 (1979), the Legislature enacted FOIL to: "achieve[ ] a more informed electorate and a more respon-sible and responsive [government]." Westchester Rockland Newspapers, Inc. v. Kimball, 50 N.Y.2d 575, 579, 430 N.Y.S.2d 574, 576 (1980) ("Kimball"); accord Buffalo News, Inc. v. Buffalo Enterprise Dev. Corp., 84 N.Y.2d 488, 492, 619 N.Y.S.2d 695, 697 (1994) ("Buffalo News") ("to assure accountability and to thwart secrecy"). Time and again, the Court of Appeals has observed that the statute "can be a remarkably effective device in exposing waste, negligence and abuses on the part of government; in short 'to hold the governors accountable to the governed.' " Fink v. Lefkowitz, 47 N.Y.2d at 571, 419 N.Y.S.2d at 470, quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327 (1978).
FOIL "declares all agency records open to the public unless they fall within one of eight categories of exemptions." Kimball, 50 N.Y.2d at 580, 430 N.Y.S.2d at 577, citing Pub. Off. Law § 87(2). Given the statute's broad objectives, the Court of Appeals has consistently held that " 'FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.' " Russo, 81 N.Y.2d at 697, 603 N.Y.S.2d at 297, quoting Capital Newspapers, 69 N.Y.2d at 252, 513 N.Y.S.2d at 371. "By their very nature such objectives cannot hope to be attained unless [access to government records] becomes the rule rather than the exception." Kimball, 50 N.Y.2d at 579, 430 N.Y.S.2d at 576.
For the reasons set forth below, CACC is plainly subject to FOIL not only because it is an "agency" under FOIL but also because it maintains "records" subject to FOIL. And also for the reasons set forth below, CACC cannot invoke FOIL's "personal privacy" exemption to deny petitioner an opportunity to inspect CACC's animal control records in unredacted form.
A. CACC Is an "Agency" Subject to FOIL.
The term "agency" is defined, for purposes of FOIL, in "all-encom-passing" fashion, Kimball, 50 N.Y.2d at 579, 430 N.Y.S.2d at 576, to include "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the State or any one or more municipalities thereof, except the judiciary or the state legislature." Pub. Off. Law § 86(3) (emphasis added). The Court of Appeals has repeatedly declared that this statutory definition "must be given 'its natural and most obvious' meaning and . . . 'liberally construed' to further the general purpose of FOIL." Buffalo News, 84 N.Y.2d at 492, 619 N.Y.S.2d at 697, quoting Russo, 81 N.Y.2d at 698, 603 N.Y.S.2d at 297.
Thus, in Buffalo News, the Court of Appeals held that the Buffalo Enterprise Development Corporation ("BEDC") was an "agency" for FOIL purposes. Although BEDC was a non-profit corporation, its purpose was "undeniably governmental" since "[i]t was created exclusively by and for the City of Buffalo to attract investment and stimulate growth in Buffalo's down town and neighborhoods." 84 N.Y.2d at 493, 619 N.Y.S.2d at 697. Moreover, BEDC was managed by a board of directors largely comprised of City officials, including the Mayor, while its offices were, up until the litigation, located in a public building. Id. at 490-91, 619 N.Y.S.2d at 696. Further, BEDC's "entire source of funding" was through federal and state govern-ment, id. at 490, 619 N.Y.S.2d at 696, and its financial affairs were subject to review by City officials. Id. at 493, 619 N.Y.S.2d at 697. Finally, BEDC conceded that it was an agent of the City in its own brochures and financial statements. Id., 619 N.Y.S.2d at 697. These facts -- singly and collectively -- led the Court of Appeals to hold that a "constricted construction" of the term "agency" excluding BEDC "would contradict the expansive policy dictates underpinning FOIL." Id., 619 N.Y.S.2d at 697.
Similarly, in Kimball, the Court of Appeals held that a volunteer fire department serving the Village of Ossining fell within the "all-encompas-sing definition of what constitutes a governmental arm within the context of [FOIL.]," 50 N.Y.2d at 579, 430 N.Y.S.2d at 576, rejecting any distinction "between a volunteer organization on which a local government relies for the performance of an essential public service . . . and . . . an organic arm of government, when that is the channel through which such services are delivered." Id. at 580, 430 N.Y.S.2d at 576. Likewise, in Russo, the Court ruled that a county-sponsored community college chartered under state law was an "agency" for purposes of FOIL, even though it was only partially funded by county appropriations and governed by its own board of trustees. 81 N.Y.2d at 695-96, 603 N.Y.S.2d at 296. In so ruling, the Court declined "to delineate distinctions between the parameters of educational, proprietary, and governmental functions." Id. at 698, 603 N.Y.S.2d at 297.
These precedents make unmistakably clear that CACC is an "agency" subject to FOIL. Although created as a private non-profit corporation, CACC's purpose is "undeniably governmental" like the non-profit corporation BEDC in Buffalo News, 84 N.Y.2d at 493, 619 N.Y.S.2d at 697, since CACC was created to be the City's animal control agent, and that remains its primary, if not sole, function. Moreover, like BEDC in Buffalo News, CACC's Board of Directors is controlled by the City, while its office space and facilities are provided by the City. Id. at 490-91, 619 N.Y.S.2d at 696. Also like BEDC, CACC is almost, if not, exclusively dependent on City moneys, while its operations and financial affairs are subject to extensive regulation and review by the City. Id. at 493, 619 N.Y.S.2d at 697. Finally, just as BEDC described itself as the City of Buffalo's agent in its brochures and financial statements, id., 619 N.Y.S.2d at 697, so too CACC is described as the City's "animal control" agent in the Contract. These factors -- singly and collectively -- compel the conclusion that CACC is an "agency" subject to FOIL.
Indeed, CACC's nexus to government is even stronger than that of BEDC in Buffalo News. Whereas BEDC's financial affairs were merely subject to annual review by the City of Buffalo, id. at 493, 619 N.Y.S.2d at 697, CACC's financial affairs are subject to monthly review by DOH. Whereas BEDC received no moneys "from the general funds of the City of Buffalo," Buffalo News, Inc. v. Buffalo Enterprise Dev. Corp., 173 A.D.2d 43, 47, 578 N.Y.S.2d 945, 948 (4th Dept. 1991) (Callahan, J., dissenting), aff'd, 84 N.Y.2d 488, 619 N.Y.S.2d 695 (1994), CACC receives virtually its entire funding from the Contract with the City. And whereas the City of Buffalo "ha[d] no regulatory authority over the BEDC," id. at 47, 578 N.Y.S.2d at 948, DOH extensively regulates CACC's operations. Finally, whereas the City of Buffalo lacked "any control over the decision-making process of [BEDC's] board," id. at 47, 578 N.Y.S.2d at 948, all major CACC contracts are subject to DOH's prior written approval. In short, since BEDC was an "agency" under FOIL, so too must CACC be an "agency" under FOIL.
Similarly, CACC is as much an "agency" under FOIL as the volunteer fire department in Kimball even though it is not "an organic arm of government," since CACC, like the volunteer fire department, performs an "essential public service." Kimball, 50 N.Y.2d at 579, 430 N.Y.S.2d at 576. Likewise, CACC is as much an "agency" under FOIL as the community college in Russo, regardless of whether its "animal control" functions are characterized as "governmental," or "proprietary," since the statutory definition of "agency" -- expressly including " 'any . . . governmental entity performing a governmental or proprietary function,' " -- renders any such distinctions meaningless under FOIL. Russo, 81 N.Y.2d at 698, 603 N.Y.S.2d at 297.
Nor is it relevant that CACC replaced the ASPCA as the City's "animal control" agent, since the ASPCA, unlike CACC, was never governed by a City-controlled board of directors, nor primarily or exclusively funded by the City, nor beholden to the City for office space or animal shelters, nor primarily engaged in "animal control" for the City. In any event, given that the ASPCA performed an "essential public service," Kimball, 50 N.Y.2d at 579, 430 N.Y.S.2d at 576, and was "partially funded" by the City, Russo, 81 N.Y.2d at 695-96, 603 N.Y.S.2d at 296, it almost certainly would have qualified as an "agency" under FOIL while serving as the City's "animal control" agent.
B. CACC's Animal Control Records Are "Records" Under FOIL.
Even if CACC were not an "agency" subject to FOIL -- which it plainly is -- its animal control records would remain subject to public disclosure under FOIL because they are "kept" and "held" by CACC "for an agency" which is subject to FOIL, namely DOH.
The term "record" is defined, for purposes of FOIL, as:
any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, state-ments, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilm, computer tapes or discs, rules, regulations or codes.
Pub. Off. Law § 86(4) (emphasis added). The Court of Appeals has observed that this "very broad definition" signals the Legislature's intent "to make the vast majority of documents presumptively discoverable as 'records' " subject to FOIL. Washington Post Co. v. New York State Insurance Dept., 61 N.Y.2d 557, 564, 475 N.Y.S.2d 263, 265 (1984) ("Washington Post").
Thus, in Washington Post, the Court held that minutes of private insurance company meetings clearly fell within the "precise and unambiguous . . . plain language" of the statutory definition of "records" because they were " 'information kept, held, filed, produced . . . by, with or for an agency,' " namely, the New York State Insurance Department. Id. at 565, 475 N.Y.S.2d at 265, quoting Pub. Off. Law § 86(4). Not only did a literal reading of the statutory definition encompass the minutes but inclusion of the minutes within that definition "further[ed] the policy behind FOIL," since they were reviewed by the New York State Insurance Department "as part of its statutory duty to supervise and regulate the insurance industry for the protection of the interests of the People of the State" and thus "were relevant to a governmental decisionmaking process." Id., 475 N.Y.S.2d at 265. The reasons for which the minutes may have been created was utterly irrelevant, given that " '[t]he statutory definition of 'record' makes nothing turn on the purpose for which a document was produced or the function to which it relates.' " Id., 475 N.Y.S.2d at 265, quoting Kimball, 50 N.Y.2d at 581, 430 N.Y.S.2d at 577.
Similarly here, CACC's animal control records qualify as "records" under FOIL because there are, at the very least, "kept" and "held" by CACC "for an agency," namely DOH. Not only do these animal records literally fall within FOIL's definition of "records," but inclusion of the records within the statutory definition furthers the purposes of FOIL since DOH reviews such records as part of its statutory duty to ensure that CACC performs its animal control functions "in accordance with all federal, state and local laws and regulations thereto" and "in a humane manner and respecting the rights of animals as required by law." Contract at p. 3.
Nor does the fact that CACC holds possession of these animal control records remove them from FOIL's definition of "records," as the Court of Appeals made clear in Encore College Bookstores, Inc. v. Auxiliary Serv. Corp. of State Univ. of New York, 87 N.Y.2d 410, 639 N.Y.S.2d 990 (1995) ("Encore"). At issue in Encore was a booklist for college courses compiled by Barnes & Noble, which operated a bookstore for the State University of New York ("SUNY") under a subcontract with Auxiliary Service Corporation ("ASC"), a non-profit corporation created to provide educationally-related services for the SUNY campus at Farmingdale. Id. at 414-15, 639 N.Y.S.2d at 992. Given FOIL's "broad standard of open disclosure" and "very broad definition" of "records", id. at 416-17, 639 N.Y.S.2d at 993 (citation omitted), the Court declared Barnes & Noble's booklist to be an agency record subject to FOIL even after Barnes & Noble, a private corporation, had stopped its practice of sending a copy to SUNY, because "the booklist information [was still] 'kept' or 'held' by ASC 'for an agency' [(SUNY)]." Id. at 417, 639 N.Y.S.2d at 994, quoting Pub. Off. Law § 86(4). Similarly here, it is utterly irrelevant that some of CACC's animal control records may not be within DOH's possession, since they clearly remain records "kept" or "held" by CACC "for an agency," namely, DOH.
C. Disclosure of CACC's Unredacted Animal Control Records Would Not Constitute an Unwarranted Invasion of Personal Privacy.
Section 87(2)(b) of FOIL exempts from disclosure "records or portions thereof that . . . if disclosed would constitute an unwarranted invasion of personal privacy under [Section 89(2)(b)]." Pub. Off. Law § 87(2)(b). In turn, Section 89(2)(b) lists five circumstances in which disclosure of agency records or portions thereof would constitute an unwarranted invasion of personal privacy. Pub. Off. Law § 89(2)(b). Given FOIL's "broad duty of disclosure on government agencies," the "personal privacy" exemption, like all FOIL exemptions, must be "narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption." Hanig v. State Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 717 (1992) ("Hanig"). So construed, the "personal privacy" exemption provides no justification for CACC's refusal to disclose its animal control records until petitioner has agreed to pay an estimated $50,000 in redaction and copying costs.
As Ms. Grayson observed (see p. 8 supra), such records on animals clearly contain no human employment, medical or credit histories or personal references of applicants for employment, Pub. Off. Law § 89(2)(b)(i). Nor do they contain items involving medical or personal records of human clients or patients in medical facilities. Pub. Off. Law 89(2)(b)(ii). Nor is petitioner seeking to inspect CACC's animal control records "for commercial or fund-raising purposes." Pub. Off. Law § 89(2)(b)(iii). Cf. Fed'n of New York State Rifle and Pistol Clubs, Inc. v. New York City Police Dept., 73 N.Y.2d 92, 538 N.Y.S.2d 226 (1989) (non-profit fundraising within exemption); Scott, Sardano & Pomeranz v. Records Access Officer of City of Syracuse, 65 N.Y.2d 294, 298, 491 N.Y.S.2d 289, 292 (1985) (names and addresses of accident victims on motor vehicle accident reports may be withheld from personal injury law firm whose stated intention was a direct mail solicitation).
Similarly, CACC has not shown why the disclosure of names and addresses of persons who have left animals with, or adopted animals from, animal shelters operated by CACC would result in personal or economic hardship to any of the named individuals. Pub. Off. Law § 89(2)(b)(iv); Buffalo News v. Buffalo Mun. Hous. Auth., 163 A.D.2d 830, 831, 558 N.Y.S.2d 364, 365 (4th Dept. 1990) (no showing that disclosure of payroll records would result in personal or economic hardship to agency employees). And, assuming arguendo that disclosure of the names and addresses of persons charged with animal cruelty would result in such hardship, those records are still not exempt from disclosure, since they are plainly relevant to CACC's "animal control" work. Pub. Off. Law § 89(2)(b)(iv); Buffalo News v. Buffalo Mun. Hous. Auth., 163 A.D.2d at 832, 558 N.Y.S.2d at 366 (employee disciplinary records "clearly relevant" to agency's work); Gannett Co. v. County of Monroe, 45 N.Y.2d 954, 956, 411 N.Y.S.2d 557, 558 (1978) (names, job titles, and salary levels of former county employees terminated as result of budget reductions relevant to ordinary work of agency or municipality).
Finally, even if some persons who left animals with, or adopted animals from, shelters operated by CACC had requested or been promised confidentiality -- an unlikely event, given the absence of any plausible need for confidentiality -- that alone would not justify redaction of CACC's animal control records plainly relevant to its animal control work. Pub. Off. Law § 89(2)(b)(v). See Washington Post Co., 61 N.Y.2d at 567, 475 N.Y.S.2d at 267 (agency promises of confidentiality do not affect the applicability of any FOIL exemption); New York 1 News v. Office of President of Borough of Staten Island, 166 Misc. 2d 270, 276, 631 N.Y.S.2d 479, 484 (Sup. Ct. N.Y. Co. 1995) (promises of confidentiality are not one of examples of unwarranted invasion of personal privacy listed in Section 89(2)(b)).
In sum, CACC has not shown, nor can it show, that any information in its animal control records is exempt from disclosure under the "personal privacy" exemption of FOIL. Its conclusory assertion that every single page of these records -- an estimated 200,000 documents in all, according to Mr. Mansfield (see Pet. Ex. H) -- contains personal and intimate details of people's lives is simply not the "particularized and specific justification" required to exempt records from disclosure under FOIL. Fink v. Lefkowitz, 47 N.Y.2d at 571, 419 N.Y.S.2d at 471; Washington Post, 61 N.Y.2d at 568, 475 N.Y.S.2d at 267 (conclusory pleadings and affidavits to the effect that every page of minutes contained sensitive information insufficient to justify non-disclosure under FOIL).
II.
CACC WRONGFULLY DENIED PETITIONER'S
OPEN MEETING LAW REQUEST.
The Open Meetings Law is premised on the assumption that:
It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.
Pub. Off. Law § 100. The Court of Appeals has held that provisions of the Open Meetings Law, like those of FOIL, are to liberally construed to accomplish those statutory purposes. Gordon v. Village of Monticello, 87 N.Y.2d 124, 127, 637 N.Y.S.2d 961, 963 (1995), citing Matter of Orange County Publs. v. City of Newburgh, 45 N.Y.2d 947, 950, 411 N.Y.S.2d 564, 565 (1979) (Cook, J., concurring).
The Open Meetings Law provides, in relevant part, that "[e]very meeting of a public body shall be open to the general public." Pub. Off. Law § 103(a). A "meeting" is defined under the statute as "the official convening of a public body for the purpose of conducting public business," Pub. Off. Law § 102(a), while a "public body" is defined, in relevant part, as "any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function . . . for an agency." Pub. Off. Law § 102(b). Liberally construed, these definitions plainly encompass meetings of CACC's Board of Directors.
CACC's Board is clearly a "public body" conducting "public business" when it meets, given that the primary, if not exclusive, focus of those meetings is CACC's performance of "animal control" functions for DOH and the City. When CACC's Board, for example, hears monthly status reports on animal shelter operations or awards contracts for shelter renovation, it is obviously conducting "public business" in the performance of a "governmental function" for DOH and the City. To be sure, CACC's Board cannot award such contracts without DOH's prior approval. But an entity lacking "binding authority" is still deemed a "public body" under the Open Meetings Law so long as "its determinations affect the public and eventually obtain substance in official form." Sciolino v. Ryan, 81 A.D.2d 475, 477, 440 N.Y.S.2d 795, 797 (4th Dept. 1981), aff'd, 83 A.D.2d 755, 444 N.Y.S.2d 878. Nor does the presence of private citizens on CACC's Board preclude its status as a "public body" under the Open Meetings Law, since they are appointed by the Mayor. Syracuse United Neighbors v. City of Syracuse, 80 A.D.2d at 986, 437 N.Y.S.2d at 468 (Mayor's Task Force on Abandoned Housing which included some private citizens appointed by Mayor was "public body").
In sum, CACC's insistence that its Board meetings are not subject to the Open Meetings Law plainly "exalts form over substance," in blatant violation of the "letter and spirit" of the Open Meetings Law. Syracuse United Neighbors, 80 A.D.2d at 986, 437 N.Y.S.2d at 468; Sciolino, 81 A.D.2d at 476, 440 N.Y.S.2d at 798. CACC thus wrongfully denied petitioner's request to allow of its four members to attend the next meeting of its Board of Directors.
By the same token, CACC also wrongfully denied petitioner's request under FOIL to inspect and copy minutes of meetings of CACC's Board of Directors. Section 106 of the Open Meetings Law mandates that:
[m]inutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon
Pub. Off. Law § 106(1), and also mandates that such minutes shall be discoverable under FOIL. Pub. Off. Law § 106(3). To be sure, as Mr. Mansfield observed (see pp. 8-9 supra), CACC is only contractually obligated to provide DOH with "abstracts" of the minutes of its Board meetings. Contract Pt. I, § IV(c). Pet. Ex. C. But DOH surely cannot bargain away the public's right of access to the full minutes of CACC's Board meetings. Washington Post, 61 N.Y.2d at 567, 475 N.Y.S.2d at 267 (agency had no authority to use label of confidentiality to prevent disclosure of insurance company minutes), citing Washington Post Co. v. United States Dept. of Health & Human Servs., 690 F.2d 252, 263 (D.C. Cir. 1982) ("[T]o allow the government to make documents exempt by the simple means of promising confidentiality would subvert FOIA's disclosure mandate").
CONCLUSION
For the foregoing reasons, the petition should be granted and CACC should be directed to make available to petitioner for inspection and copying its animal control records, as well as the full minutes of meetings of its Board of Directors, and to allow four of petitioner's members to attend Board meetings.
Respectfully submitted,
ROBERT T. PERRY
509 12th Street, #2C
Brooklyn, New York 11215
Attorney for Petitioner
March 14, 1997
[March 18, 1997]