# Tuck-It-Away Associates, L.P. v. Empire State Development Corp.

> Appellate Division of the Supreme Court of the State of New York · July 15, 2008 · 54 A.D.3d 154

URL: https://www.frixlaw.com/law-library/cases/5758359

## Case

- **Full name:** In the Matter of Tuck-It-Away Associates, L.P. v. Empire State Development Corporation, Appellant In the Matter of West Harlem Business Group v. Empire State Development Corporation
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** July 15, 2008
- **Citations:** 54 A.D.3d 154; 861 N.Y.S.2d 51
- **Precedential status:** Published
- **Opinion:** Dissent by Buckley
- **Judges:** Andrias, Buckley, Catterson, Nardelli
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Buckley, J. (dissenting in part).
Inter-agency and intraagency materials that are deliberative in nature (communications exchanged for discussion purposes and not constituting final policy decisions) are exempt from disclosure under the Freedom of Information Law (FOIL), while materials that are factual in nature are subject to disclosure (see Public Officers Law § 87 [2] [g]; Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 699 [1993]). The deliberative materials exception is designed “to permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure,” whether the “comments [are] made in official policy meetings and well-considered memorandums” or “offered with little chance for reflection in moments of crisis” (Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 488 [2005]).
The federal courts have identified three reasons for the rule, which also applies to the Federal Freedom of Information Act (FOIA), upon which FOIL was patterned:
“[I]t serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency’s action. . . .
“The exemption thus covers recommendations, draft documents, proposals, suggestions, and other subjec *168 tive documents which reflect the personal opinions of the writer rather than the policy of the agency. Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position.” (Coastal States Gas Corp. v Department of Energy, 617 F2d 854, 866 [DC Cir 1980]; see Providence Journal Co. v United States Dept. of Army, 981 F2d 552, 557 [1st Cir 1992]; Grand Cent. Partnership, Inc. v Cuomo, 166 F3d 473, 481 [2d Cir 1999]; Schell v United States Dept. of Health & Human Servs., 843 F2d 933, 939 [6th Cir 1988]; King v Internal Revenue Serv., 684 F2d 517, 519 [7th Cir 1982]; Federal Trade Commn. v Warner Communications Inc., 742 F2d 1156, 1161 [9th Cir 1984]; Trentadue v Integrity Comm., 501 F3d 1215, 1226 [10th Cir 2007]; Moye, O’Brien, O’Rourke, Hogan, & Pickert v National R.R. Passenger Corp., 376 F3d 1270, 1277 [11th Cir 2004].)
Thus, the courts must consider not only “any potential impact public disclosure might have on the employee-advisor,” but also “the agency decisionmaker, and the public” (Providence Journal Co., 981 F2d at 557).
The three prongs of the rule (encouragement of uninhibited advice by the employee-advisor, permitting the agency to guard against premature disclosure, and avoidance of confusing and misleading the public) are designed to contribute to an unfettered solicitation and discussion of ideas. Just because an idea is proposed does not mean that the agency will adopt it; in fact, the rationale is that there should be no limitations on the number or content of ideas, since the more options presented to the agency, and the more extensive the discussion, the better the final determination will be. Indeed, the privilege is grounded in “the policy of protecting the decision making processes of government agencies,” and has as its “ultimate purpose ... to prevent injury to the quality of agency decisions” (NLRB v Sears, Roebuck & Co., 421 US 132, 150, 151 [1975] [internal quotations marks and citation omitted]; see Kheel v Ravitch, 93 AD2d 422, 427-428 [1983], affd 62 NY2d 1 [1984]).
The inter-agency/intra-agency deliberative materials rule has been extended to outside consultants hired by governmental agencies, since “[i]t would make little sense to protect the deliberative process when such reports are prepared by agency *169 employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies” (Matter of Xerox Corp. v Town of Webster, 65 NY2d 131 , 133 [1985]).
The majority would enable a FOIL applicant to evade the deliberative materials rule merely by alleging the appearance of a bias, in this instance a conflict of interest, on the part of consultants retained by an agency. Under such an approach, it would be of no consequence whether the consultants were the most qualified, lacked an actual conflict or bias, or gave the best possible advice. The result would be to deter agencies from eliciting recommendations from consultants and to inhibit good faith consultants from rendering frank advice; that, in turn, would negatively impact on the quality of agency decisions.
The majority’s position, at most, would pertain to the first of the three rationales outlined in Coastal States Gas Corp. v Department of Energy (617 F2d 854 [1980], supra)-, encouraging advice givers to be candid in their recommendations. However, that focus ignores the other two interests at stake, the impact premature disclosure might have on agencies and the public.
Furthermore, the majority approvingly cites the Supreme Court’s acknowledgment that outside consultants can, and often do, possess a “definite point of view,” and its statement that such viewpoints do not, alone, abrogate the inter-agency deliberative materials disclosure protection (see Department of Interior v Klamath Water Users Protective Assn., 532 US 1, 10-11 [2001]). Drawing a distinction between those who advance a position out of fervent belief and those who are driven by mercenary considerations may have a moral appeal, but does little to advance the goal of affording agencies as many options as possible. Moreover, the Klamath court reached its conclusion based, in part, on a faulty premise: that employees always give disinterested advice. While employees are certainly expected to do so, and would face disciplinary, if not criminal, consequences if they took payment from another party, they, like consultants, may hold a “definite point of view,” which could color their advice. Therefore, other than an easily recognizable bright line, there is no reason to distinguish between consultants and employees who give counsel with a view to a particular outcome. Indeed, the majority’s decision ultimately rests upon the thesis that only objective advice should be entitled to the FOIL deliberative materials exemption. If the arbitrary bright lines between consultants with apparent conflicts of interest and consultants *170 with honestly held agendas, or between consultants and employees, are erased, that thesis can be fulfilled, but at the cost of embroiling the courts in an examination of the bona fides of every advice giver when presented with a FOIL request. That, in turn, could cause agencies to limit the field of advisers they choose to consult, and thereby deprive them of potentially valuable counsel.
It bears noting that the denial of a FOIL request before an agency reaches a determination does not preclude anyone from lobbying the agency while it is considering action or from challenging a decision after it is reached, nor does it absolve the agency from any regulatory obligations to hold predecisional hearings or to provide postdecisional explanations.
Because I believe that the majority’s ruling will ultimately harm the quality of agency decisions, I dissent from that part of the order directing disclosure of deliberative materials prepared by the consultant Allee King Rosen & Fleming on behalf of the respondent agency.
Andrias, J.P., and Nardelli, J., concur with Catterson, J.; Buckley, J., dissents in part in a separate opinion.
Orders, Supreme Court, New York County, entered July 3, 2007 and on or about August 23, 2007, modified, on the law, to deny the applications for documents in sections III and V and to vacate the portions of orders requiring disclosure of those documents, and otherwise affirmed, without costs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5758359. Public record. Not legal advice.