Petitioners Stop the Madrassa Community Coalition, et al. ("Petitioners") bring this petition seeking an order compelling respondent New York City Department of Education et al. ("Respondent") to provide access to documents requested pursuant to New York's Freedom of Information Law ("FOIL") and for legal fees and costs associated with this petition. In response, Respondent filed their Cross Motion to Dismiss, arguing Petitioners' Article 78 proceeding is now moot.

On July 23, 2007, Petitioners submitted their FOIL request to Respondent and the New York State Education Department, ("NYSED"), among other recipients. Petitioners' FOIL request demanded fourteen (14) comprehensive categories of documents relating to the creation [*2]and operation of the Khalil Gibran International Academy ("KGIA").^[FN1] On July 25, 2007, Respondent acknowledged receipt of Petitioners' FOIL request. Respondent's acknowledgment letter stated their Central Records Access Officer would conduct a search for responsive documents and that a response to Petitioners' FOIL request would be provided by September 4, 2007.

On July 31, 2007, the NYSED also acknowledged via email their receipt of Petitioners' FOIL request. The NYSED's email stated that they would advise Petitioners by approximately August 27, 2007, as to whether Petitioners' FOIL request would be granted. On August 1, 2007, Petioner submitted appeals to both Respondent and NYSED on the grounds that their FOIL requests were being constructively denied.

On August 27, 2007, the NYSED provided its response to Petitioners' FOIL request via email and subsequently informed Petitioners its response contained all the documents responsive to Petitioners' FOIL request that it possessed.

On August 27, 2007, Respondent provided what it called a "preliminary" response to Petioners' FOIL request. The preliminary response provided information or documents relating to seven (7) of fourteen (14) requested document categories and indicated that Respondent was in the process of searching for additional documents responsive to Petitioners' FOIL request. Respondent stated in its response that an anticipated follow-up response would be provided by September 21, 2007. On September 4, 2007, Respondent provided a further response to the Petitioners' FOIL request, but did not provide the September 21, 2007, response as noted in their August 27, 2007 letter to Petitioners. Petitioners filed their Verified Petition for the instant Article 78 proceeding on October 17, 2007.

On November 30, 2007, Respondent, by a letter from their Central Records Access Officer, Ms. Christine Kicinski ("Ms. Kicinski"), provided to the Petitioners documents and information relating to thirteen (13) of the fourteen (14) categories of requested documents in Petitioners' FOIL request. The outstanding category of documents being correspondence between Ms. Dhabah Almontaser and any New York employee or contractor regarding KGIA, which Ms. Kicinski stated she would provide by December 21, 2007.

On or about December 21, 2007, Ms. Kicinski sent Petitioners a letter enclosing [*3]one thousand nine hundred (1900) pages of emails, responsive to the fourth category of Petitioners' FOIL request, namely the outstanding emails to and from Ms. Dhabah Almontaser regarding KGIA. Ms. Kicinski indicated that due to the large amount of emails to be reviewed and redacted, Respondent was unable to provide all emails relating to Ms. Montaser in the December 21st production, and would provide a final production by January 16, 2008.

On January 15, 2008, a conference was held in this matter. A Stipulation and Order was signed by both parties stating that the conference was adjourned until January 24, 2008, and that if Respondent did not produce the remaining documents by that time, the Court would enter an order requiring such production and that Petitioners could request legal fees.

On January 16, 2008, Ms. Kicinski wrote Petitioners a letter enclosing more emails responsive to the outstanding fourth category of Petitioner's FOIL request. Ms. Kicinski also wrote that due to a computer malfunction, the January 16, 2008 production would be supplemented by January 24, 2008 with a further production containing emails to and from Ms. Almontaser responsive to the outstanding category of requested documents. On January 23, 2008, Ms. Kicinski sent Petitioners via letter a final production containing emails to and from Ms. Montaser regarding KGIA. Ms. Kicinski's letter certified that the enclosed documents were the only remaining documents responsive to the Petitioner's FOIL request, and that such certification was based on assertions by staff members of Respondent and the KGIA that diligent searches for documents were conducted, that responsive documents were provided to Ms. Kicinski, and that no other documents were located.

On January 24, 2008, a conference was held in this matter, and Petitioners notified Respondent that Respondent had failed to produce emails to and from Ms. Montaser for the period May 18, 2007, to July 23, 2007. On February 14, 2008, a conference was held and Respondent was unable to produce the May 18, 2007, to July 23, 2007 Montaser emails due to a computer malfunction. The parties entered into a second Stipulation and Order, requiring production of all documents not yet produced by February 25, 2008.

On February 22, 2008, Ms. Kicinski issued a letter to Petitioners, enclosing the remaining one thousand four hundred and six (1,406) pages of emails to and from Ms. Montaser from May 18, 2007, to July 23, 2007. Ms. Kicinski's letter stated the February 22, 2008 production was the Respondent's final production.

"Pursuant to FOIL's fee-shifting provision, a court may award reasonable counsel fees and litigation costs to a party that "substantially prevailed" in the proceeding if the court finds that (1) "the record involved was, in fact, of clearly significant interest to the general public," and (2) "the agency lacked a reasonable basis in law for withholding the record" (Public Officers Law §89 [4][c]). Only after a court finds that the statutory prerequisites have been satisfied may it exercise its discretion to award or decline attorneys' fees." (Beechwood Restorative Care Ctr. v. John Signor, 5 NY3d 435, 441. [Crt. of Appeals 2005])

Based on the current record, this Court cannot conclude that Petitioners' initiation of this Article 78 proceeding caused Respondent's release of documents responsive to Petitioners' FOIL request. The record shows that Respondent had already provided two responses, one on August 27, 2007, and another on September 4, 2007, to Petitioners' comprehensive FOIL request even before Petitioners filed the instant Article 78 petition on October 17, 2007. Indeed, Respondent's August 27, 2007 preliminary response contained information or documents relating to seven (7) of the fourteen (14) requested categories of documents.

The facts before this Court are similar to those of Friedland, supra. In Friedland, respondent Department of Correctional Services had begun searching for and collecting documents responsive to the petitioner's FOIL request before petitioner filed their Article 78 petition, and the court there held:

"Respondents' evidence demonstrated that the Department commenced working on petitioner's complex request on the day it was received and was unable to sooner complete the task because of the difficulty in locating and assembling the extensive and complex records. Thus, it cannot be said as a matter of law that the Department released the documents and records because of the commencement of litigation."

Respondent here has demonstrated they began searching for and collecting documents before Petitioners even brought the instant Article 78 proceeding, as demonstrated by Respondent's August 27, 2007 and September 4, 2007 productions to Petitioners. This Court cannot conclude that the initiation of Petitioners' Article 78 proceeding caused Respondent to produce documents in response to Petitioners' FOIL request, and therefore cannot find that Petitioners substantially prevailed.

Petitioners also argue that because two orders were issued by this Court requiring Repondent to produce outstanding documents, this Court should find that Petitioners have substantially prevailed. While the Court acknowledges Petitioners encountered frustrating delays in receiving documents and that two orders were issued requiring production of responsive documents by Respondent, based on the facts on record, the issuance of such orders do not automatically result in Petitioners substantially prevailing here.

On November 30, 2007, Respondent, via a letter from Ms. Kicinski, provided a follow-up response to Petitioners which provided information or documents covering thirteen (13) of fourteen (14) categories of documents requested in Petitioners' FOIL request, the only [*5]outstanding category of documents being email correspondence between Ms. Dhabah Almontaser and any New York employee or contractor regarding KGIA, which Ms. Kicinski indicated would be provided to Petitioners by December 21, 2007. On December 21, 2007, Ms. Kicinski enclosed to Petitioners via letter, one thousand nine hundred (1,900) pages of email correspondence between Ms. Dhabah Almontaser and New York employees or contractors regarding KGIA. In her December 21, 2007 letter Ms. Kicinski indicated she was reviewing more emails relating to Ms. Almontaser and that they would be produced by January 16, 2008. On January 15, 2008, a conference was held and an order was signed by this Court stating that if Respondent did not produce the outstanding Almontaser emails by January 24, 2008, the Court would enter an order requiring such production. The first order issued by this Court on January 15, 2008, related to only one (1) category of documents among the fourteen (14) requested by Petitioners, namely emails to and from Ms. Almontaser and any New York City employee or contractors regarding KGIA, and the order was issued after Petitioners had already received one thousand nine hundred (1,900) pages of such emails. Therefore, this Court cannot reasonably find that its January 15, 2008 Order caused Respondent to release the Almontaser emails because Petitioners had already received more than a thousand pages of such emails when the Order was issued. As such, this Court cannot reasonably find that Petitioners substantially prevailed in this matter based on the issuance of its January 15, 2008 Order.

Similarly, the circumstances under which this Court issued its second order dated February 14, 2008, does not require this Court to find that Petitioner substantially prevailed here. On January 23, 2008 Ms. Kicinski sent Petitioners a final production of additional Almontaser emails and certified the January 23 production contained the only remaining outstanding documents responsive to Petitioners' FOIL request. In a conference on January 24, 2008, Petitioners informed Respondent that emails to and from Ms. Almontaser for the period between May 18, 2007, and July 23, 2007, had been omitted and Ms. Kicinski promised that such emails would be produced by February 14, 2008. Due to a computer malfunction, Respondent was unable to produce the outstanding Almontaser emails by February 14, 2008, and during a conference on the same date, an order was issued by this Court requiring production of the outstanding Almontaser emails by February 25, 2008. On February 22, 2008, Ms. Kicinski enclosed to Petitioners via letter, one thousand four hundred and six (1,406) pages of emails constituting the outstanding emails to and from Ms. Almontaser for the period May 18, 2007 to July 23, 2007. In light of the fact that Respondent quickly acknowledged their omission of the May 18 to July 23, 2007 Almontaser emails, that Respondent produced one thousand four hundred and six (1,406) pages of emails representing the omitted emails only eight (8) days after their anticipated production date, and that Respondent did not attempt to withhold production of the omitted emails on a legal exemption which had to be overruled by Court order or otherwise, this Court does not find that the issuance of its February 14, 2008 Order caused the production of the outstanding Almontaser emails and therefore cannot find that such order caused Petitioners to substantially prevail here.

This Court is not persuaded that the January 15, 2008, or February 15, 2008, orders caused Respondent to release documents in even one category of the fourteen requested by Petitioners' FOIL request. As a result, this Court cannot reasonably conclude that the issuance of the orders caused Respondents to produce documents. [*6]

Since the Court finds Petitioners' arguments that they substantially prevailed in the instant Article 78 proceeding unavailing, the Court need not consider Petitioners' arguments as to whether the records were clearly of significant interest to the public, or whether Respondent lacked a reasonable basis in law for withholding responsive documents. As Petitioners were unable to show they substantially prevailed here, Petitioners' request for legal fees and costs is denied.

As the Court of Appeals held in Hearst Corp. v. Clyne, 50 NY2d 707, 714 [Crt. of Appeals 1980], courts are precluded from "considering questions which, although once live, have become moot by passage of time or change in circumstances." In the context of FOIL requests, the Appellate Division, First Department has held that petitions for documents pursuant to FOIL are properly dismissed as moot to the extent that the respondent provided the petitioner with records responsive to the request during the pendency of the litigation. (Tellier v. New York City Police Dept., 267 AD2d 9, 10 [NY App. Div, First Dept. 1999])

Respondent here filed their Cross Motion to Dismiss on November 30, 2007. At that time Respondent stated that the only outstanding documents were emails to and from Ms. Almontaser responsive to Petitioners' fourth category of requested documents and would be produced by December 21, 2007. See Notice of Cross-Motion to Dismiss, Exhibit A. Respondent argued in its motion that the Petitioners' Article 78 proceeding should be dismissed since all documents responsive to the Petitioners' FOIL request had been produced, apart from documents responsive to the fourth category of requested documents, which would be produced by December 21, 2007.

On December 21, 2007, January 16, 2008, January 23, 2008, and February 22, 2008, Respondent produced the outstanding Almontaser emails to Petitioners, thus providing Petitioners with the only remaining outstanding documents under Petitioners' FOIL request. In their letter of January 23, 2008, Respondent certified that the attached documents were the only remaining responsive documents based on assertions provided by staff in various offices of Respondent that diligent searches for documents had been conducted and that no other documents were located. See Kicinski Affirmation in Opposition to Application for Attorneys' Fees, Exhibits B, C, and D.

The Court of Appeals has held that agencies do not have to provide a detailed description of the search conducted for responsive documents nor a personal statement from the person who actually conducted such search to satisfy the certification requirement of the Public Officers Law. (Rattley v. New York City Police Dept., 96 NY2d 873, 875 [Crt. of Appeals 2001]) Though Respondent may have inadvertently omitted emails (the Almontaser emails from May 18, 2007 to July 23, 2007) from their ostensible final production on January 23, 2008, Respondent has provided the omitted emails and met the Public Officers Law certification requirements as prescribed by the Court of Appeals in Rattley. Since Respondent has certified that no further responsive documents were located after diligently conducted searches, Petitioners' Article 78 proceeding is moot as Respondent has provided all responsive documents to Petitioners.

ORDERED, that Petitioners' application for legal fees and costs is denied; and it is further

ORDERED, that Respondent's Cross Motion to Dismiss is granted.

This reflects the decision and order of this Court.

Dated:

J.S.C.