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Sanctionsordered after lawsuit filed pursuant to the Freedom of Information Law ruledfrivolous
Matter of Fenstermaker v Edgemont Union FreeSchool Dist., 2006 NY Slip Op 52652(U), Decided on September 26, 2006, SupremeCourt, Westchester County, Loehr, J. [Not selected for inclusion in theOfficial Reports, decision affirmed by the Appellate Division, 48 A.D.3d 564]

In this action, State Supreme Court Justice Gerald Loehr, in an exercise ofjudicial discretion, imposed sanctions on Scott L. Fenstermaker for whatJustice Loehr termed a frivolous lawsuit involving his demands for publicrecords pursuant to the Freedom of Information Law [FOIL].

Fenstermaker had asked Supreme Court to direct the Edgemont Union Free SchoolDistrict to provide copies of all records requested in his FOIL request ofJanuary 31, 2006 “at the lowest fee collected by the School District on FOILrequests during the period between the enactment of FOIL until the present” andto edit the material “to eliminate extraneous, irrelevant and superfluousdocuments” from its response to his FOIL request.

Fenstermaker’s request specified 60 categories of financial records thatspanned the period from January 1, 2001 to December 31, 2003. Susan Shirken, inher capacity as the School District's Records Access Officer, advisedFenstermaker that two items in his FOIL request would not be provided because “theycalled for a narrative response and not for records,” but the other 58 otherrequests were granted subject to some of the records being redacted to deletepersonal information such has home addresses and Social Security numbers.

Shirken also told Fenstermaker that "When the records have been assembledand boxed up, we will, as you have suggested, have them delivered to an outsidecontractor for duplication at your expense. I encourage you to confer with [theSchool District’s counsel] for the purpose of recommending a duplicatingcontractor for this purpose.” In addition, Fenstermaker was advised that theDistrict would “require that [Fenstermaker] make appropriate advancearrangements to ensure payment … as [the District] cannot permit a situation todevelop in which public records might become subject to a contractor'sretaining lien for unpaid services.”

Fenstermaker responded, in pertinent part, that:

“We have every intention of using professionalcopying services equipped to adequately, professionally, and efficiently handlethis 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 paymentarrangements are made we will comply with your requirement that adequatepayment arrangements are made. We are confident that, at the conclusion of thismatter, we will ultimately be reimbursed by School District funds.’"

According to the decision, the parties agreed that they would use an outsidecopying service and anticipated having done by a printer in Manhattan in orderto find a facility large enough to properly handle the job, which consisted ofduplicating the contents of 48 boxes of original records plus several thousandpages of additional material that had to be copied so that the originals couldbe returned to working files or redacted.

Subsequently Fenstermaker charged the School District with “having created asituation ‘rife with bribes and kickbacks;' that he was certain that [theDistrict] had already altered or destroyed certain of the requested records;that the District's attorney was operating under a conflict of interest in thathe was responsible as counsel for [the District’s] malfeasance; and that he[Fenstermaker] was therefore demanding that the records be sent to a copyservice 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 requestedrecords would be copied by a duplicating service of the School District'schoice. It also advised Fenstermaker that he could inspect the records beforethey were sent out for copying but “they would not be sent out at all unlessand until Fenstermaker paid for the copies that had already been made andprovided suitable security for payment for the copies to be made."

Fenstermaker reviewed the records and did not claim that any of the recordswere 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 FOILapplication filled with the School District since the enactment of its FOILrules and regulations. Shirken granted the request on the condition that the$4,666.25 still outstanding for the copies made pursuant to Festermaker's firstFOIL request is paid.

Ultimately Fenstermaker filed an Article 78 petition seeking a court orderdirecting the School District to provide copies of the records requested in hisFOIL request at the lowest fee collected by the School District for FOILrequests during the period between the enactment of FOIL and the present.

In his petition, said the court, Fenstermaker “reiterates that he has offeredto pay for the entire cost of the copying.” However, he contends that inasmuchas the photocopying service he regularly employs would have charged only $0.15per page, the District’s unilateral decision to use a service of its ownchoosing 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 entitysubject 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 requirethat the fee therefor be paid prior to the reproduction of the records andthere is no authority for the proposition that the individual who submitted theFOIL 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 therecords to an independent copying service at statutorily authorized price ismore than reasonable given the alternative: releasing these original SchoolDistrict records to a copying service where [Fenstermaker] would have hadunsupervised access to them” and denied this aspect of Fenstermaker’s petition.

As to Fenstermaker’s seeking an order directing the School District toeliminate extraneous, irrelevant and superfluous documents from its response tohis initial FOIL Request, the court said that “This smacks of bad faith” inthat Fenstermaker cites no authority for this proposition and “it is undisputedthat he was given more than an ample opportunity to review the literallyhundreds of thousands of pages of records which he requested - and whichrequired over 177 hours to collect, copy and redact at an estimated cost inlost staff time to the School District of over $14,500 - in order to cull outthose records which he did not want copied.” As Fenstermaker "declined todo so, and in so doing manufactured and perpetuated an issue that could haveand should have been resolved then," Justice Loehr denied his request.

As to the District’s advising Fenstermaker that his Second FOIL Request wouldbe granted on the condition that he first pay the $4,666.25 outstanding for thecopies made with respect to his First FOIL Request, the court noted that RobertJ. Freeman, Executive Director of the Committee on Open Government has issuedan advisory Opinion in which he stated:

"If an agency has prepared copies ofrecords in good faith and the applicant fails or refuses to pay the fee, I donot believe that the agency would be required to make available those copiesthat have been prepared. In my view, it follows that an agency should not berequired to honor ensuing requests until the applicant has fulfilled his or herresponsibility 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 FOILRequest was neither arbitrary nor capricious but reasonable and in accordancewith the law, Justice Loehr denied this aspect Fenstermaker claim andsubsequently dismissed his Article 78 petition in its entirety.

Turning to the District’s cross-motion asking that sanctions be imposed onFenstermaker based on its claim that “this proceeding is frivolous and wasfiled 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 ofreimbursement for actual expenses reasonably incurred and reasonable attorney'sfees, resulting from frivolous conduct. Frivolous conduct, said Justice Loehr,includes the filing of a proceeding that is completely without merit in law andcannot be supported by a reasonable argument for an extension, modification orreversal of existing law.

In this instance the court found that Fenstermaker’s Article 78 action wasfrivolous as “Each of [the District’s] decisions challenged in this proceedingwas supported by statute and administrative rulings and [Fenstermaker] cited noauthority to the contrary. Accordingly, in addition to statutory costs to betaxed by the Clerk of the Court, Justice Loehr ruled that Fenstermaker was topay for the "District’s actual expenses reasonably incurred and reasonableattorney's fees" it incurred in defending this proceeding. Expenses andattorney's fees totaled $15,960.

Fenstermaker’s appealed Justice Loehr's ruling, only to have the AppellateDivision, repeating Justice Loehr’s finding, hold that “The frivolous conductin this case was [Fenstermaker’s] initiation of a proceeding that wascompletely without merit in law and could not be supported by any reasonableargument for an extension, modification, or reversal of existing law (see 22NYCRR 130-1.1 [c] [1]).” The Appellate Division then dismiss the appeal.

Justice Loehr's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2006/2006_52652.htm

The Appellate Division’s decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_01343.htm