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Rockland County Supreme Court Judge Invokes Importance of First Amendment & New York’s FOIL Law In Eloquent Ruling
By Tina Traster
A Rockland County Supreme Court Justice last week issued a blunt blow to the Rockland County Solid Waste Authority (Rockland Green), ordering the public authority to produce a trove of documents related to the bidding process for construction of the new animal shelter, while at the same time highlighting the importance of the First Amendment and the work journalists do.
Rockland Green will be required to pay attorney’s fees in the case that pitted Rockland County Business Journal (RCBJ), an independent media outlet, against the public authority. Rockland Green has 30 days to hand over unredacted documents to RCBJ, and with limited exception, to the court for further review.
In soaring and poetic language, Justice John P. Collins, Jr, wrote “Before turning to the particulars of this dispute, the Court pauses to observe what is truly at stake. A free press is not an ornament of democratic government; it is one of its load-bearing walls. The Frist Amendment’s guarantee of a free press was written into our Constitution precisely so that an independent Fourth Estate could stand between the citizenry and the government that citizenry funds, watching, questioning, and when necessary, exposing.”
In an unequivocal and scolding 15-page ruling, Collins repeatedly says Rockland Green failed to meet the burden of FOIL (Freedom of Information Law) exemptions, and that its arguments for withholding documents were conclusory and without merit.
Rockland Green is represented by Lee Apotheker and Steven Torres of the White Plains-based West Group Law Firm. RCBJ is represented by Michael Martin Linhorst from the Cornell Law School’s First Amendment Clinic.
The opinion, which sets an important precedent in Rockland County, comes at a time when journalists are under attack, as is the First Amendment. Citizens and journalists are too often frustrated in the the FOIL process with Rockland Green, as well as municipalities including the Rockland County government, towns, villages and school districts.
The New York State Legislature gave these First Amendment rights to both journalists and citizens when it enacted FOIL, which says, “The people’s right to know the process of government decision making and to review the documents and statistics leading to determinations is basic to our society.”
The Freedom of Information Law (“FOIL”) provides the public with the right to access to records maintained by government agencies, including state and local governments and public authorities, with some exceptions.
The public is vested with the inherent right to know how government business is conducted. It is the work of journalists to bring relevant information to bear.
“A local journalist tracking how a public authority spends $18 million taxpayer dollars is engaged in exactly the work the First Amendment was written to protect – unglamorous, granular, and indispensable.”
Collins wrote, “A local journalist tracking how a public authority spends $18 million taxpayer dollars is engaged in exactly the work the First Amendment was written to protect – unglamorous, granular, and indispensable.”
In December 2024, RCBJ sought to investigate whether Rockland Green illegally steered the award of the construction contract for its new animal shelter on Ecology Road in the Village of West Haverstraw to a “preferred” vendor. RCBJ filed FOIL requests for documents showing how Rockland Green selected the contractor for its controversial $18 million animal shelter project. The information sought was part of research designed to help the public understand the authority’s decision-making, as well as to scrutinize Rockland Green’s profligate spending.
In awarding the contract to build the shelter, Rockland Green rejected a lower bid in favor of O’Connor Construction of Pinehurst, North Carolina, a contractor that had never built an animal shelter. In the process, Rockland Green disqualified a number of other bidders. RCBJ wants to know why.
RCBJ sought two sets of records from Rockland Green: (1) the bid documents and submissions from contractors seeking to build the shelter; and (2) notes of the committee assessing the bids supporting its determination made to accept or reject a submitted bid.
Rockland Green engaged in a protracted cat-and-mouse game for more than six months, originally asking $450 for document production, then reducing the amount after an appeal, and ultimately delivering hundreds of redacted pages for $52.42 relating to the bidders’ information. Rockland Green ignored the request for information seeking how the decision was rendered.
The records sought pertaining to the animal shelter have sparked years of public controversy. In 2022, Rockland Green assumed oversight from Rockland County of the County’s animal shelter. The shelter had been run by the non-profit Hi Tor Animal Care Center for decades, and prior to Rockland Green’s takeover, the County had initiated a plan to build new shelter adjacent to the existing shelter site in Pomona.
Collins wrote: “Respondent’s only contemporaneous explanation for its redactions was a brief email asserting, in essentially the language of the statute, that the redacted material implicated ‘personal information,’ ‘financials,’ and ‘references’ of the proposers, exempt under ‘Section 87(2)’ of FOIL because disclosure would constitute an unwarranted invasion of personal privacy and would cause substantial injury to the competitive position of the subject proposers’ enterprises.”
After three rounds of administrative appeals to Rockland Green – and time lost while the shelter plans moved forward — RCBJ filed an Article 78 proceeding last July against Rockland Green alleging the taxpayer-funded public authority illegally withheld documents requested under New York’s Freedom of Information Law.
Since the award of the contract to O’Conner last December, there have been a series of change orders totaling nearly $1 million, boosting the award to O’Connor above and well beyond its original bid.
In his ruling, Collins repeatedly points to Rockland Green’s shallow defenses for not producing the FOIL.
“The agency’s justification for withholding consists largely of boilerplate recitations of statutory language applied categorically across hundreds of pages, rather than particularized, record-specific exemptions, the agency has not carried its burden, and the material must be produced.”
In its defense papers, Rockland Green repeatedly invoked “trade secrets” as a reason for withholding documents, but Collins’ ruling plainly pierces this veiled effort to skirt FOIL laws. “To invoke the trade secret prong of the exemption, an agency must show that the material is truly secret,” considering clearly defined factors, none of which were shown by Rockland Green.
He went on to say, “Respondent has not made this showing for any category of redacted material, let alone the entirety of its redactions.” The judge points to Rockland Green’s defense that the information sought includes “financial information regarding contracting values, bonding capacity, and bank references; litigation and settlement information; prior experience and reference-project information; and supply-chain and trade-reference information.”
Collins said, “The court accordingly finds that Respondent’s trade secret exemption claim fails not merely for lack of proof as to isolated redactions, but systemically, across the redaction log as a whole.”
Similarly, Rockland Green tried to use the “personal privacy” exemption for redactions, but the judge said the effort did not support their defenses beyond true personal contact information, none of which was sought by RCBJ. Collins rejected these claims, saying Rockland Green failed to meet its burden of showing how or what privacy interests would be implicated and how someone would be harmed.
He added that Rockland Green “has not shown that its redactions were in fact limited to that category of intimate personal identifiers (home addresses, dates of birth, for example), as opposed to business and professional information that happens to be associated with a named individual.”
Most scathingly, the judge addressed Rockland Green’s withholding of documents that show how the decision for the shelter contract was made, including committee notes and internal communications. Rockland Green withheld this part of the request in a wholesale fashion, asserting only, the judge wrote, “in a conclusory manner they are ‘pre-decisional deliberations’ exempt from FOIL.”
“This blanket approach is wholly rejected,” the court wrote. “Blanket exemptions are inimical to FOIL’s policy of open government.”
Collins went on to say, “Respondent’s papers do not address, let alone overcome, the statutory carve-outs for factual tabulations and final determinations at all. To the extent the committee’s notes recite the bids received, the proposers’ qualifications, pricing, or similar objective information, that content is factual data that must be disclosed whether or not embodied in a final agency policy or determination.”
Finally, the court rejected Rockland Green’s endeavor to invoke the attorney-client privilege in the discussions and communications leading to award the contract. The judge pointed out that in order for the defendant to have prevailed with the attorney-client privilege, the communication “must have been made for the purpose of facilitating the rendition of legal advice or services.”
He ended that thought with “Conclusory assertions of privilege in an affidavit or by counsel during the hearing are not evidence of either element.”
“A public authority that spends the public’s money is answerable to the public for how it spends it, and a free press that asks how it stands in the shoes of its citizenry it serves.”
In concluding his ruling, the judge declined Rockland Green’s request to remand the matter back to the agency for further administrative processing. “Remand is not the ordinary remedy for an agency’s failure to meet its FOIL burden in a judicial proceeding.”
Rockland Green has been ordered to produce all records responsive to the first request without redaction, except personal information such as personal cell phones, email addresses, and home addresses, within 30 days of the decision. The public authority has been ordered to produce all “responsive committee notes, evaluations, summaries, and determinations” that led to awarding the bid within 30 days of the ruling, with a limited carve-out should Rockland Green want to request an in camera review by the Court of a particular document.
Collins said the mandated award of attorney’s fees and litigation costs will be determined after the defendant has responded to the FOIL request.
In his conclusion, the judge wrote “A public authority that spends the public’s money is answerable to the public for how it spends it, and a free press that asks how it stands in the shoes of its citizenry it serves.”
Many agree Judge Collin’s ruling will set precedent in Rockland County and give public entities pause before frustrating those who make FOIL requests. Collins wrote: “FOIL does not ask public agencies to trust that their good intentions will substitute for disclosure, nor does it ask citizens or journalists to take an agency’s word that a redaction is warranted. It asks for proof. Where, as here, that proof is wanting, the presumption of openness that animates both our constitutional traditions and our statutory law must prevail.”
“This ruling is a gift to the people of Rockland and to those living in New York, where FOIL laws are designed to hold government accountable,” according to a prepared statement by Rockland County Business Journal. “We were so lucky to have been represented by the scholarly Michael Linhorst, an attorney with the Cornell First Amendment Law Clinic. Michael has a firm grasp of First Amendment law and a deep understanding of the role of the press. Too often those seeking information give up because they are frustrated by a Goliath. Today was a win for every David that stays engaged in civic life and understands why it’s so important to have an open and transparent government.”
