Petitioner was the chairperson of a local land preservation organization, the Putnam County Coalition to Preserve Open Space, Inc., in Putnam County, New York. In that capacity, Petitioner had monitored a proposal to develop a large shopping center in Putnam County, and commenced the instant proceeding to compel production of the plan’s architectural renderings under the Freedom of Information Law (“FOIL”). The plans being sought were located in the office of the Town Planner of the Town of Patterson, having been left by the developer in the Town Planner’s possession so that the Town Planner could give informal advice to regarding the developer's plan. In an order dated April 4, 2013, the Supreme Court granted the motion of the Town respondents to dismiss the proceeding and the separate motion of the developer to impose costs and sanctions on Petitioner. Petitioner appealed.
On appeal, the Second Department found that it was undisputed that Camarda, the developer's owner, left the subject architectural renderings in the possession of the Town Planner. It was also undisputed that the Town Planner displayed the renderings at the meeting of the Planning Board that took place on May 31, 2012. Accordingly, the renderings were “kept” and “held” by an agency, as those terms are used FOIL, and were thus “records” within the scope of FOIL that Petitioner could lawfully seek.
Notwithstanding that the plans were “records,” the Court found that it was unclear whether the renderings were still in the possession of the Town Planner when Petitioner made her request. If the records were still in the Town Planner’s possession, Petitioner would have had a meritorious FOIL claim. Thus, the imposition of sanctions against Petitioner by the lower court for having brought a frivolous claim was inappropriate. Accordingly, the Court reversed the decision of the Supreme Court, holding that the Supreme Court should have denied both the motions of the Town respondents and the developer to dismiss the petition/complaint.
The case was Fanizzi v. Planning Bd. of Patterson, 146 A.D.3d 98 (2d Dep’t 2016).