MEMORANDUM DECISION ^[FN1]

According to respondents:

For several years, Attorney General Andrew Cuomo has devoted substantial resources to an investigation of the $85 billion student loan industry. The investigation has revealed that the industry is infected with serious conflicts of interest, which have prevented students and parents from making informed [*2]decisions about financing higher education. The investigation, which remains open, has resulted in numerous settlements with schools and lenders, including [Sallie Mae]. In these settlements, schools and lenders have agreed to adopt the Attorney General's Student Loan Code of Conduct, which, inter alia, prohibits lenders from providing improper financial incentives to schools and eliminates a number of other practices presenting conflicts of interest. This investigation can not and could not have been as successfully and efficiently conducted, and the public interest would not have been as well served, if the documents obtained by the Office of the Attorney General...were open to public inspection....

According to petitioners:

In today's era of massive corporate fraud and ensuing government investigations, free access to information is even more critical as a fundamental step in protecting consumers. Attorney General Cuomo has widely touted his commitment to these protective efforts, particularly with respect [to] illegal relationships between schools and predatory student lending institutions. Notably, Mr. Cuomo entered into a $2 million settlement with student lending giant Sallie Mae which brought about a code of conduct prohibiting predatory and illegal behavior by the lender. However, the investigation surrounding this settlement is now being carefully, and needlessly, shrouded by Mr. Cuomo's office.... The consumers are entitled to the information discovered by the Office of the Attorney General to ensure fair dealings with this corporate giant, and the OAG should encourage, not interfere with, those attempts at protective measures.

Therein lies the tension.

Petitioner law firm James, Hoyer, Newcomer, Smiljanich and Yanchunis, P.A. (petitioner) moves (motion sequence 001) for a judgment pursuant to the Freedom of Information Law (FOIL) and CPLR Article 78, directing respondents State of New York, Office of the Attorney General (OAG), and Steven Cohen, in his capacity as Records Appeals Officer (collectively, respondents) to comply with the duties imposed on them by the FOIL, to provide the information requested by petitioner in its April 17, 2009 request and May 29, 2009 appeal, and awarding reasonable attorney's fees and litigation costs pursuant to Public Officers Law (POL) § 89(4)(c).

More specifically, petitioner seeks access to documents associated with the OAG's investigation of the student loan industry, as they relate to the SLM Corporation, formerly known as Sallie Mae, Sallie Mae, Inc., or any related subsidiaries (collectively SLM) with respect to the preferred lender relationships and "kick-back" arrangements between SLM and various colleges and universities.

Respondents and SLM oppose the Petition through their answers, affidavits and affirmations. SLM asserts a counterclaim that although the OAG has sustained some but not all of SLM's claims of exemption from disclosure based on the competitive injury exception to FOIL, to the extent that the OAG has not sustained these claims of exemption the OAG's determinations should be reversed. [*3]

In response to the counterclaim, the OAG admits that respondents sustained some but not all of SLM's claims of exemption from disclosure based on the competitive injury exemption. The OAG asserts that if the documents respondents declined to find exempt under POL §87(2)(d) are ordered to be disclosed, any information that would constitute an unwarranted invasion of personal privacy should be redacted pursuant to POL §87(2)(d), and any attorney-client communication should be protected. Respondents assert that they declined to find certain documents exempt from POL §87(2)(d) because SLM failed to establish a likelihood of substantial competitive injury from the disclosure of these documents.

Background

During 2007 and 2008, the OAG sought a number of documents from SLM, both in demand letters and by subpoenas. SLM produced documents voluntarily in response to the demand letters, as well as in response to subpoenas. SLM, through its attorneys, requested that the documents SLM provided to the OAG be governed by the provisions of POL §89(5), which permits any person who submits information to a State agency to request that the information be excepted from disclosure under the trade secret exemption of POL §87(2)(d).

On April 11, 2007, SLM entered into a settlement, entitled an Assurance of Discontinuance, with the OAG. SLM agreed to adopt the Attorney General's Code of Conduct governing student lending and to contribute $2 million to a fund devoted to educating college-bound students about their loan options. SLM also agreed to discontinue (1) providing staffing for school's call centers or other staffing for college financial aid offices, (2) paying financial aid officers for serving on advisory boards, and (3) paying for any trips or travel for any financial aid officer.

The settlement further requires that SLM cooperate in any ongoing or future investigations of student loans. SLM agreed to produce, voluntarily and without service of subpoenas, any information and all documents related to student loans reasonably requested by the OAG. In fact, the OAG has requested and received documents from SLM after the settlement was executed. Furthermore, the settlement provides that if SLM commits a material breach of the agreement, the OAG may terminate the settlement and is not precluded from conducting or prosecuting any investigation, action or proceeding against SLM.

Paragraph 34 ("Scope of the Assurance") in the Assurance of Discontinuance states, in part:

Except as provided below, the Assurance concludes the investigation and precludes any action that the OAG could commence against Sallie Mae and its respective current and former officers, trustees and employees for the acts, practices, and omissions listed in section 1(B) of the Assurance; provided however, that nothing contained in the Assurance shall be construed to cover claims of any type by any other state agency or any claims that may be brought by the OAG to enforce Sallie Mae's obligations arising from or relating to the provisions contained in the Assurance...."

On or about April 17, 2009, the OAG received a request for records related to the OAG's investigation of the student loan industry under FOIL, from Jim Ross, an investigator with petitioner law firm. Petitioner requested "documents related to SLM Corporation and its [*4]affiliates obtained by the OAS during its investigation of the student loan industry." The letter continued stating "This request includes, but is not limited to [an enumerated list]." The enumerated list contains 11 requests:

all requests for production made by the Office of the Attorney General to SLM Corporation or its affiliates;

agreements made by the Office of the Attorney General to designate documents provided by SLM Corporation or its affiliates confidential under FOIL;

underwriting criteria utilized by SLM Corporation or its affiliates when making or rejecting students loans;

documents describing the role of SLM Corporation or its affiliates in creating the underwriting criteria used by SLM Corporation or its affiliates or by lenders, which sometimes are referred to as preferred lenders;

agreements between SLM Corporation or its affiliates and lenders, sometimes referred to as preferred lenders;

forward purchase loan agreements between SLM Corporation and its affiliates and schools or colleges;

recourse loan agreements between SLM Corporation or its affiliates and schools or colleges;

agreements from SLM Corporation or its affiliates to provide schools, colleges or lenders with credit, revolving lines of credit or other financing to be used for originating student loans;

organizational charts;

listings of former employees of SLM or its affiliates; and [*5]

statements or sworn testimony of employees or former employees of SLM Corporation or its affiliates.

By letter dated May 22, 2009, the OAG's FOIL Officer denied petitioner's FOIL request on the ground that the documents requested were "compiled for law enforcement purposes which, if disclosed, would (i) interfere with law enforcement investigations or judicial proceedings ..."

Petitioner administratively appealed, and by letter dated June 23, 2009, the determination was upheld on the ground that the law enforcement exemption had been correctly invoked.

On November 9, 2009, the OAG notified SLM it intended to determine whether SLM's request for an exception pursuant to 89(5) should be granted, continued or denied, pursuant to POL § 89(5)(b). SLM submitted an additional written statement of the necessity for the granting or continuation of an exception to disclosure. By letter dated November 20, 2009, SLM withdrew its claim of exemption as to some documents, and maintained that the remainder of the documents were exempt from disclosure under POL § 87(2)(d) because disclosure would cause substantial injury to the competitive position of SLM. SLM also asserted that all of the documents were also exempt under the law enforcement exemption, and that certain documents contained information entitled to protection because disclosure would constitute an unwarranted invasion of personal privacy under POL § 87(2)(b).

By letter dated December 4, 2009, the OAG granted SLM's request for an exception to certain documents, except for those portions that do not contain essential business terms, granted the request for an exception in its entirely as to certain documents, and denied the request for the remainder of the documents.

On December 30, 2009, the OAG issued an appeal determination that expanded the number of documents deemed protected under the competitive injury exemption. The appeal determination did not address other grounds for exemption.

In support of the petition, petitioner contends that the OAG letter of denial dated May 22, 2009 did not contain any explanation of any of the documents that were being withheld or particularized reason for the withholding. Also, the June 23, 2009 letter did not contain any explanation of any of the documents that were being withheld or particularized reasons for the withholding. Petitioner's appeal specifically requested an explanation of the reasons for the denial fully in writing as required by law. In response, the OAG appeal upheld the denial with only the simple explanation that, "I find that Ms. Karp correctly invoked that exemption here." Petitioner was advised that there were no further avenues for administrative review of petitioner's FOIL request.

Petitioner claims that in the instant case, respondents fail to meet, or even address, the requisite burden in establishing a basis for withholding the requested documentation. The initial OAG denial provided no analysis of the determination to deny accessibility. And, the subsequent confirmation provided no additional insight into the decision to deny accessibility, in violation of established case law and POL § 89(4)(a).

Respondents' contend that the denial of petitioner's FOIL request was valid when issued and remains valid today. The OAG properly denied disclosure of the requested documents because disclosure would interfere with law enforcement investigations. The investigation of the [*6]student loan industry was, and continues to be, a major investigation of a large, very competitive business. The documents requested could provide information to current and potential targets of the OAG ongoing investigation, and would interfere with the OAG's ability to successfully conduct its investigations.

Much of the information the OAG requested and received during the investigation is considered highly confidential and sensitive by the entities that provided the information.

SLM contends that the documents at issue, produced to the OAG by SLM during the OAG's investigation into the student loan industry, are exempt from disclosure under multiple exceptions to FOIL. First and foremost, the OAG would not have SLM's documents but for the investigation. Thus, all of SLM's documents were "compiled for law enforcement purposes." A substantial number of the documents also are protected from disclosure because they contain confidential information about SLM's business and disclosure would cause competitive injury to SLM, or contain private information about individuals. And, certain of the documents also contain attorney-client communications and are exempt from disclosure on that basis. Finally, at the administrative level, the OAG has sustained many but not all of SLM's claims of exemption based on competitive injury, privacy and privilege. And to the extent that the OAG has not sustained these claims of exemption, the OAG's determinations should be reversed.

SLM requested at the time the documents were produced to the OAG, that all the documents be maintained as confidential and exempt from disclosure under FOIL. SLM's expectation of confidentiality was specifically discussed with the OAG at the time. This expectation of confidentiality for these documents was very important in SLM's decision to cooperate with the OAG's investigation. It would violate that expectation, and probably deter future cooperation by SLM and other affected entities, if any of SLM's documents were now released.

Discussion

Standard of Review

As recently articulated by the First Department in New York Committee for Occupational Safety and Health v Michael Bloomberg, as Mayor of the City of New York, et al. (72 AD3d 153 [1st Dept 2010]):

While typically an agency action is reviewed under an "arbitrary and capricious" standard, Supreme Court's application of that standard to the City's refusal to disclose the subject records was incorrect. When reviewing the denial of a FOIL request, a court must apply a far different rule.... (internal citations omitted).

And, as explained in New York State Rifle & Pistol Assn, Inc. v Kelly (55 AD3d 222 [1st Dept 2008]),"the burden at all times rests with the agency to justify any denial of access to requested records" (see Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 462, 849 NYS2d 489, 494, 880 NE2d 10, 15 [2007]). If a FOIL request is denied, the agency "must show that the requested information falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access'" (Id. at 462-463, 849 NYS2d at 494, 880 NE2d 10, quoting Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566, 505 NYS2d 576, 578, 496 NE2d 665, 667 [1986]). FOIL

The Court of Appeals aptly explained the purpose of FOILin Matter of Buffalo News v [*7]Buffalo Enter. Dev. Corp. (84 NY2d 488, 491-492 [1994]):

The Legislature declared "that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government." . . . FOIL was enacted to provide the People with the means to access governmental records, to assure accountability and to thwart secrecy (see Matter of Weston v Sloan, 84 NY2d 462, 466 [ . . . ]). All records of a public agency are presumptively open to public inspection, without regard to need or purpose of the applicant. Consistent with these laudable goals, this Court has firmly held that " FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government'" (internal citations omitted).

However, the Court of Appeals has also recognized that although agency records are presumptively open to public inspection without regard to need or purpose of the applicant, the public's right to obtain information and access the inner workings of the State government is not unfettered (Matter of Fink v Lefkowitz, 47 NY2d 567 [1979]). As stated in Matter of Fink,

. . . while the Legislature established a general policy of disclosure by enacting the Freedom of Information Law, it nevertheless recognized a legitimate need on the part of government to keep some matters confidential. To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered. . . . Thus, the agency does not have carte blanche to withhold any information it pleases. Rather it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the court for in camera inspection, to exempt its records from disclosure . . . . Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld.

Id. at 571; see also Matter of Encore College Bookstores v Auxiliary Serv., 87 NY2d 410, 417, 639 NYS2d 990, 663 NE2d 302 [1995]; Matter of Hanig v State of New York Dept. of Motor Vehicles, 79 NY2d 106, 109, 580 NYS2d 715, 588 NE2d 750 [1992]; Matter of Legal Aid Society of Northeastern NY v New York State Dept. of Social Servs., 195 AD2d 150, 152, 605 NYS2d 785 [3d Dept 1993]). Blanket exemptions for particular types of documents are inimical to FOIL's policy of open government (see Matter of Capital Newspapers Div. of Hearst Corp, 67 NY2d at 569; Gould v NYC Police Dept. 89 NY2d 267, 653 NYS2d 54, 675 NE2d 808 [1996]). Thus, the exemptions available are to be narrowly construed (Matter of Legal Aid Society of Northeastern NY v New York State Dept. of Social Servs., supra , at 153, 605 NYS2d 785; see, POL § 89(4)(b); see Matter of Hanig v State of New York Dept. of Motor Vehicles, supra , at 109, 580 NYS2d 715, 588 NE2d 750; see also, Daily Gazette v Schenectady, 93 NY2d 145, 158-159, 688 NYS2d 472, 710 NE2d 1072 [1999]). And, the agency at issue must "articulat[e] a particularized and specific justification for denying access" to the requested documents (Matter of Capital Newspapers Div. of Hearst Corp., supra , at 566; Matter of Fink v Lefkowitz, 47 NY2d 567, 571, 419 NYS2d 467, 393 NE2d 463; Gould, supra , at 275).

Petitioner is a consumer advocacy law firm in Tampa, Florida, that specializes in complex class-action law suits on behalf of consumers. Petitioner is currently litigating a class action lawsuit against SLM, alleging racial discrimination and disclosure violations. The firm [*8]continuously investigates SLM's "unlawful and unscrupulous practices in an effort to ensure corporate accountability and to provide students with all of the information necessary to make informed borrowing decisions." However, petitioner's suit against SLM does not affect its ability to obtain information concerning SLM from the OAG via a FOIL request. The Court of Appeals has clearly stated that access to records of a government agency under the Freedom of Information Law is not affected by the fact that there is pending or potential litigation (Matter of M. Farbman & Sons, Inc. v New York City Health and Hospitals Corp., et al., 62 NY2d 75 [1984]["Access to records of a government agency under the Freedom of Information Law ... is not affected by the fact that there is pending a potential litigation between the person making the request and the agency"]).

Public Officers Law § 87(2)(e)(i)^[FN2]

Tested by the applicable statutory scheme and relevant case law, and having considered the submissions by the parties, as well as the explanatory affidavits and affirmations submitted in camera and conducted an in camera inspection of the documents and the exemption log of material withheld by respondents pursuant to POL § 87(2)(e)(i), this court finds that the OAG has substantially met its burden of establishing that the withholding of documents because production would interfere with law enforcement investigations is valid, and that this particular exemption applies to said documents. The material withheld falls squarely within the ambit of this exemption.

The documents, exemption log, affidavit and affirmation reviewed by this court in camera unequivocally establish that the OAG investigation of the student loan industry is ongoing and that the documents obtained from SLM are an integral part of the ongoing investigation.

And, this court finds that the OAG has articulated particularized and specific justification to exempt the documents withheld in this category from disclosure. [*9]

With respect to the documents withheld on the basis that disclosure would interfere with law enforcement investigations, this court finds that disclosure of the requested documents withheld on this ground would interfere with an ongoing investigation of the $85 billion dollar student loan industry. Because these documents reveal the specific documents and subjects that the OAG was, and remains, particularly interested in and the OAG's methodology and approach in the investigation, they should not be disclosed. Other current or potential future targets of the student loan investigation could utilize information gleaned from the OAG's letter requests and subpoenas to tailor their future activities so as to avoid having to reveal improper conduct in this investigation or to otherwise avoid detection or prosecution for illegal conduct.

It bears repeating that the OAG student loan investigation is one of the largest investigations conducted by the OAG recently. The investigation delves into the federal and private student loan industry and includes informal requests for information from numerous lending institutions. And, although the OAG has settled with some entities, the investigation remains ongoing.

That the OAG has settled certain claims related to the student loan investigation does not negate the need to protect the records, especially where the industry-wide investigation remains viable and open (see Matter of Pittari v Pirro, 258 AD2d 202, 203-204 [2d Dept 1999] ["We find that the petitioner's FOIL requests, made while the criminal proceeding was still pending..., were properly denied pursuant to Public Officers Law § 87 (2) (e) (i). That statute exempts from disclosure those records compiled for law enforcement purposes and which, if disclosed, would ... interfere with law enforcement investigations or judicial proceedings.'"]).

The finding with respect to law enforcement investigations herein is distinguishable from the case of Ragusa v New York State Dept of Law (152 Misc 2d 602, 578 NYS2d 959 [Supreme Court, New York County 1991]). In Ragusa, the court found that "[T]here is no demonstration that there is any judicial proceeding or law enforcement investigation in progress involving Matsushita. The Attorney General's action against Matsushita has resulted in a judgment. The judicial proceeding and the investigation are over. That the injunction contained in the judgment has several years to run and might at some time be violated is hardly an assertion, much less evidence, that a law enforcement investigation is going on which would be interfered with by disclosure of evidence of Matsushita's past anti-trust activity in this State. That something might occur in the future is a wholly speculative proposition' . . . . No allegation is made that by revealing the demanded information investigative techniques would be disclosed."

Under the Assurance settlement, SLM was required to cooperate in the continuing student loan investigation. SLM agreed to produce, voluntarily and without service of subpoenas, any information and all documents related to student loans reasonably requested by the OAG. In fact, the OAG has requested and received document from SLM on several occasions subsequent to entering into the Assurance with SLM. And, although the OAG has settled with SLM, SLM and the SLM documents are integral to the continuing investigation and, in some instances, settlements, with educational institutions throughout the country.

To reiterate, the investigation remains ongoing.

Thus, the OAG's exemption from production of documents based on interference with law enforcement investigations trade and multiple other grounds: that is to say, (1) trade secrets, (2) competitive injury, (3) personal privacy, (4) attorney/client privilege or attorney work [*10]product, or (5) not reasonably described, was proper.

SLM Trade Secrets, Competitive Injury and Personal Privacy Exemptions

Trade Secrets/Competitive Injury

It bears emphasizing that SLM produced these documents voluntarily in response to OAG demand letters and subpoenas. SLM, through its attorneys, requested that the documents SLM provided to the OAG be governed by the provisions of POL § 89(5), which permits any person who submits information to a State agency to request that the information be excepted from disclosure under the trade secret exemption of POL § 87(2)(d).

SLM and to a large degree respondents argue that the information in this category is shielded by the exemption set forth in section 87(2)(d), which provides that an agency may deny access to records that "are ... derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise" (POL § 87 (2)(d)). As pointed out in Encore College Bookstores, Inc. v Auxiliary Serv. Corp. of State (87 NY2d 410, 420 [1995]), the Court of Appeals held that FOIL fails to define substantial competitive injury. The federal Freedom of Information Act (FOIA), however, contains a similar exemption for "commercial or financial information obtained from a person and privileged or confidential" (see 5 USC § 552 (b)(4)). Commercial information is "confidential" if it would impair the government's ability to obtain necessary information in the future or cause "substantial harm to the competitive position" of the person from whom the information was obtained (National Parks & Conservation Assn. v Morton, 498 F2d 765, 770 [DC Cir 1974]; see also, CNA Fin. Corp. v Donovan, 830 F2d 1132, 1152, n 146 [DC Cir 1987], cert denied 485 US 977 [DC Cir 1988] [noting congressional acquiescence to the National Parks standard]).

The Court of Appeals added, in Encore that by utilizing and continuing language virtually identical to the analogous Federal exemption for commercial information, the Legislature has signaled its intent that the substantial competitive injury prong of the FOIL exemption be similar in scope to the substantial competitive harm prong of its Federal counterpart.

As the Court did in Encore, this court looks to the case of Worthington Compressors v Costle (662 F2d 45, 51 [DC Cir 1981]), wherein it was established that whether "substantial competitive harm" exists for purposes of FOIA's exemption for commercial information turns on the commercial value of the requested information to competitors and the cost of acquiring it through other means. Because the submitting business can suffer competitive harm only if the desired material has commercial value to its competitors, courts must consider how valuable the information will be to the competing business, as well as the resultant damage to the submitting enterprise. Where FOIA disclosure is the sole means by which competitors can obtain the requested information, the inquiry ends here.

Where, however, the material is available from other sources at little or no cost, its disclosure is unlikely to cause competitive damage to the submitting commercial enterprise. On the other hand, as explained in Worthington:

Because competition in business turns on the relative costs and opportunities [*11]faced by members of the same industry, there is a potential windfall for competitors to whom valuable information is released under FOIA. If those competitors are charged only minimal FOIA retrieval costs for the information, rather than the considerable costs of private reproduction, they may be getting quite a bargain. Such bargains could easily have competitive consequences not contemplated as part of FOIA's principal aim of promoting openness in government (id.).

Applying the above standard of review, this court finds that the OAG has met its burden of establishing that disclosure of documents exempted as trade secrets would cause substantial competitive injury to SLM, and that said documents are properly exempt from disclosure. Further, to the degree that the OAG did not sustain this exemption, OAG's determinations are reversed and the remaining SLM documents are exempt as trade secrets.

The principal argument for exempting documents solely on the basis of this description is that certain loan documents are exempt for disclosure because they contain detailed information about the terms and conditions of servicing and purchasing loans, and the terms of products and services, including lines of credit, benefits and marketing which a competitor could use to copy the structure of the agreement or offer more favorable terms. And, as pointed out by the court in Matter of Belth v Ins. Dept of the State of New York (95 Misc 2d 18, 20 [Supreme Court, New York County 1977]), documents should be exempt from disclosure where disclosure would give an unfair advantage to competitors because they would be in a position to learn customized information about the terms of SLM's produce and service offerings to the client, including rate, benefits, counterparties and eligibility criteria. And, if competitors acquired this information, they could then comfortably provide more favorable terms and conditions.

Further, documents whose disclosure would seriously damage the confidential nature of the relationship between SLM and its clients warrant preclusion to preserve that confidential relationship.^[FN3] And, the documents exempted in this category would provide valuable information to SLM competitors as well as result in damage to SLM's business enterprise.

As to certain documents, such as the SLM Custom Deal Form, the document is not only proprietary, confidential and not publicly available, it is apparent that considerable effort and expense went into creating such a document and competitors could use such information to capture the goodwill associated with adopting SLM's best practices to their competitive advantage.

SLM has sufficiently met its burden and established that it is a commercial enterprise in actual competition with other entities, and that release of the information would likely cause it substantial competitive injury (Matter of City of Schenectady v O'Keeffe, 50 AD3d 1384, 1386, 856 NYS2d 281 [3d Dept 2008]).

As argued by SLM, the student loan industry is highly competitive. SLM's key competitors include a number of the nation's largest banks, such as Citigroup and Wells Fargo. SLM also competes with other companies that, like SLM, are dedicated exclusively or primarily to education financing. Nelnet and PHEAA are among the largest of these competitors. SLM [*12]has sufficiently established that given the highly competitive nature of the student loan industry, SLM warrants the protection of its proprietary and confidential information.

In Hearst Corp. v State, Office of State Comptroller (24 Misc 3d 611, 631 [Supreme Court, Albany County 2009]), the court found data to be proprietary because:

(a) the information sought by petitioners is treated as confidential and proprietary. . . . ; (b) access to such information is not available to the public and is limited to licensees and other persons in a contractual relationship. . . .(who,. . . , have a duty to protect. . . confidences); and (c) the requested information would function as a "blueprint" of the architecture of [SLM's] system. . . . Given these undisputed facts, it is reasonable to infer that the information sought by petitioners would be valuable "to potential competitors" and, therefore, its disclosure would cause competitive harm . . . .

Applying the standard outlined in Hearst Corp. v State, Office of State Comptroller, the organizational structure of SLM, as set forth in organizational charts, is proprietary. They reflect SLM's business plan and the relationship between SLM entities, and are, not publicly available.

Finally, while petitioner is not a competitor of SLM, public disclosure under FOIL of the documents exempted in this category would presumably make them available to the public as a whole, including SLM competitors.

In sum, this court finds that respondents and SLM have met their burden in that they provided a rational basis to support the determination of the OAG and the arguments of SLM that pursuant to POL § 87(2)(d), the release of the SLM documents exempted on the basis of trade secrets and competitive injury would cause substantial injury to the competitive position of SLM, and that protective measures outweigh public disclosure.

The OAG's exemption from production of documents based on trade secrets and multiple other grounds: that is to say, (1) interference with law enforcement investigations, (2) competitive injury, (3) personal privacy, (4) attorney/client privilege or attorney work product, or (5) not reasonably described, was proper.

Documents such as subpoenas of SLM documents that could be categorized as trade secrets would reveal the nature of the investigation and the specific subjects in which the OAG was particularly interested.

The cooperation of colleges or universities and lenders and loan marketers was, and remains, critical to obtaining the information necessary to conduct the investigation and to reach a satisfactory settlement with colleges and universities and lenders and loan marketers. As such, documents that may be trade secrets or cause competitive injury but that are also related to the ongoing investigation, were properly exempted from disclosure.

As to the category of trade secret/competitive injury documents that were not specifically requested by petitioner, that respondents have determined are not exempt as trade secrets and which SLM either did not assert a trade secret/competitive injury exemption or withdrew such exemption, such documents shall be produced.

Personal Privacy Exemption [*13]

FOIL broadly protects the dissemination of records that "if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article" (POL § 87(2)(b); see New York Committee for Occupational Safety and Health v Michael Bloomberg, as Mayor of the City of New York, et al., 72 AD3d 153 [1st Dept 2010]).

As explained by the First Department in Matter of Bellamy v New York Police Dept. (59 AD3d 353, 354-55 [1st Dept 2009]), "[t]he propriety of an exemption claimed under Public Officers Law § 87(2)(b) (unwarranted invasion of personal privacy) requires a court to first determine whether privacy interests are implicated by the type of information sought to be redacted (see Matter of New York Times Co. v City of NY Fire Dept, 4 NY3d 477, 484-485, 796 NYS2d 302, 829 NE2d 266 [2005]); if so, to determine whether release of the information sought to be redacted falls within one of the six examples of an unwarranted' invasion of personal privacy set forth in Public Officers Law § 89 (2) (b). . . ." That statute provides:

(b) An unwarranted invasion of personal privacy includes, but shall not be limited to:

i. disclosure of employment, medical or credit histories or personal references of applicants for employment;

ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility;

iii. sale or release of lists of names and addresses if such lists would be used for solicitation or fund-raising purposes;

iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or

v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency; or

vi. information of a personal nature contained in a workers' compensation record, except as provided by section one hundred ten-a of the workers' compensation law.

The foregoing constitutes a "nonexclusive list of examples" (Matter of Data Tree, LLC v Romaine, 9 NY3d at 462). If the information sought to be withheld does not fall within any of the statutory examples, the Court must "balanc[e] the privacy interests at stake against the public interest in disclosure of the information" (Matter of New York Times Co. v City of NY Fire Dept, 4 NY3d 477, 485, 796 NYS2d 302, 829 NE2d 266 [2005]). Ultimately, "[w]hat constitutes an unwarranted invasion of personal privacy is measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities" (Matter of Humane Socy. of U.S. v Fanslau, 54 AD3d 537, 863 NYS2d 519 [3d Dept 2008] [internal quotations omitted]).

[*14]The individuals, either in the context of borrowing money for a student loan, or working in a private company, were presumably not conducting their personal or professional business with the expectation that it would be made public.

Further, documents from non-SLM individuals and entities was provided to respondents by SLM, and were not readily public. There was no expectation by those borrowers that this information would be publicly disclosed.

And, parties engaged in business dealings with SLM had a reasonable expectation of privacy in their business dealings with SLM.

Respondents and SLM have met their burden establishing that privacy interests are implicated by the type of information exempted in this category. And, unredacted disclosure of certain information in this category would constitute an unwarranted invasion of personal privacy.

After a thorough review of the documents that fall within this category, this court directs that all documents withheld on the basis of personal privacy exemption only shall be produced in redacted form, redacting all personal information, including names, addresses and e-mail addresses, other personal identifying information, such as telephone numbers, medical and employment histories ^[FN4] and social security numbers, and personal and private account information of all individuals including student loan recipients, college or university employees, and SLM employees.

And, documents withheld on the basis of personal privacy and because said document was not reasonably described in the FOIL request shall, likewise, be disclosed, in redacted form.

Attorney-Client Privilege and Work Product

SLM specifically preserved rights as to attorney-client and work product privileges when it submitted documents to the OAG. Documents withheld on the basis of work product/attorney client privilege warrant exemption.

CPLR 3101 [b] exempts from disclosure, upon objection, all "privileged matter."

Under the attorney-client privilege (CPLR 4503[a]) the attorney-client privilege applies to confidential communications between clients and their attorneys made "in the course of professional employment" (CPLR 3101[b]; New York Times Newspaper Div. of New York Times Co. v Lehrer McGovern Bovis, Inc., 300 AD2d 169 [1st Dept 2001] citing Spectrum Systems International Corp. v Chemical Bank, 78 NY2d 371, 377, 575 NYS2d 809 [1991] [such privileged confidential communications between clients and their attorneys are absolutely immune from discovery]).

CPLR 3101(c) confers an unqualified, absolute privilege of immunity on an "[a]ttorney's [*15]work product." Under CPLR 3101(c), the work product of an attorney must be construed very narrowly, including only materials prepared by an attorney, acting as an attorney, which contain the attorney's analysis and trial strategy (Graf v Aldrich, 94 AD2d 823 [3d Dept 1983]; Kenford Co. v County of Erie, 55 AD2d 466 [4th Dept 1977]; Matter of City of New York [Bleecker St.], 43 Misc 2d 173 [Supreme Court, New York County 1964]). Attorney work product consists of "[l]awyers interviews, mental impressions and personal beliefs procured in the course of litigation . . . ." (Corcoran v Peat, Marwick, Mitchell and Co., 151 AD2d 443, 445 [1st Dept 1989]). The privilege applies to communications from the client to the attorney when the communication is "made for the purpose of obtaining legal advice and directed to an attorney who has been consulted for that purpose" (Rossi v Blue Cross and Blue Shield of Greater New York, 73 NY2d 588, 593, 542 NYS2d 508 [1998]). "Draft Pleadings, communications, and advice of counsel in connection with pleadings have been deemed attorney work product" (Lopez v New York City Housing Auth., 7 Misc 3d 1006 [Supreme Court, New York County 2005] citing John Blair Communications, Inc., v Reliance Capital Group, L.P., 182 AD2d 578 [1st Dept 1992]). Also, statements taken from witnesses if taken to prepare for litigation have been deemed attorney work product (Lopez v New York City Housing Auth., 7 Misc 3d 1006 citing Warren v New York City Transit Auth., 34 AD2d 749 [1st Dept 1970]). However, merely labeling a document "work product" doesn't mean said document is entitled to a privilege (Spectrum Systems Intl. Corp. v Chemical Bank, 157 AD2d 444 [1st Dept 1990]). If the material prepared by an attorney is something that a lay person could have done, the material is not immune (Connors, McKinneys Practice Commentaries 3101:28). Thus, it must be shown that the material, even when prepared by the attorney, is peculiar to the attorney's trade and talent. (Id.) That the attorney "may have undertaken a factual investigation and drawn up a report of it" does not render the report immune from disclosure if a lay person could have done the same thing. (Id.)

In the instant case, for example, documents identified as work product were prepared by counsel on behalf of SLM related to document requests from OAG. Although not documents "prepared in anticipation of litigation" per se, said documents were prepared in response to an ongoing governmental investigation. A review of these documents leads this court to conclude that they warrant exemption from production as attorney work product.

In all cases, save one instance, the document was exempted on multiple grounds, privilege being one basis for exemption. Since these documents also fall into a category of exemption discussed above, they are exempt from disclosure.

The one document that is exempted only on the basis of privilege alone [SLM-NY AG 0002980], upon review by this court, clearly evinces the opinion of counsel to petitioner, and thus, is exempt.

Petitioner's "General" Document Request

Records requested pursuant to FOIL must be "reasonably described" in order to allow the agency to perform a proper search (POL § 89(3)(a)).

In Matter of Farbman & Sons v New York City Health & Hosps. Corp. (62 NY2d 75 [1984]), the Court of Appeals held that demands under FOIL need not meet the stringent [*16]requirement under CPLR 3120 that documents be "specifically designated" (id., at 82-83). The Court recognized that the requirement of POL § 89 (3) that documents be "reasonably described" was to enable the agency to locate the records in question (id., at 83). Thus, the Court stated that the agency had to establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" (id.; see, Matter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825, 826 [3d Dept 1983], mod on other grounds 61 NY2d 958 [1984]) before denying a FOIL request for reasons of overbreadth.

The case of Bader v Bove (273 AD2d 466, 710 NYS2d 379 [2d Dept 2000]), likewise is instructive on this issue. The petitioners, residential property owners in the respondent Village of Belle Terre, made two requests under the Freedom of Information Law for "[a]ll notes, records, correspondence, meeting minutes and other documents related to the adoption and/or revision of the Village Zoning Code's prohibition of commercial activity (presently Code § 170-5)." After the Village denied the request as overbroad, the petitioners commenced an Article 78 challenging that determination. The court held that POL § 89(3) places the burden on the petitioners to "reasonably describe" the documents requested so that a search can be made by the agency (see, Matter of Konigsberg v Coughlin, 68 NY2d 245 [1986]). The Village demonstrated that, in order to fully comply with the petitioners' requests, the one full-time employee of the Village Clerk's office would have to manually search through every document filed with the Village going back over 45 years (see Matter of Gannett Co. v James, 86 AD2d 744 [4th Dept 1982]; cf., Matter of Konigsberg v Coughlin, supra ).

In the instant case, other than the enumerated list of 11 categories of documents requested, petitioner also made a "blanket" document request ["documents related to SLM Corporation and its affiliates obtained by the OAS during its investigation of the student loan industry."] and an introductory "general" request ["This request includes, but is not limited to:"]. These two global document requests do not reasonably describe the records requested. However, guided by Farbman, this court finds that the petitioner's global request, read in conjunction with the enumerated categories of documents requested was sufficient for purposes of locating and identifying the documents sought. It was possible for the court to review of the SLM documents withheld on the basis that the document was not reasonably described in the FOIL request to determine if they should be produced.

This court finds that documents withheld solely on the basis that the materials were not reasonably described in petitioner's FOIL request shall be produced, subject to the redaction conditions detailed above.

Attorney's Fees and Costs Finally, petitioner seeks an award of attorney's fees and litigation costs pursuant to POL § 89 (4)(c). Under the cited statute, a prevailing FOIL requester may recover counsel fees and costs where the agency lacked a reasonable basis for denying access to the requested records. The court denies this branch of petitioner's application. The court is not persuaded that respondents lacked a reasonable basis for its actions. And, petitioner has not substantially prevailed in this matter, notwithstanding this court's directing that a limited category of documents be produced.

Conclusion [*17]

ORDERED and ADJUDGED that the application of petitioner law firm James, Hoyer, Newcomer, Smiljanich and Yanchunis, P.A. for a judgment pursuant to the Freedom of Information Law (FOIL) and CPLR Article 78, directing respondents State of New York, Office of the Attorney General (OAG), and Steven Cohen, in his capacity as Records Appeals Officer (collectively respondents) to comply with the duties imposed on them by the FOIL, to provide the information requested by petitioner in its April 17, 2009 request and May 29, 2009 appeal, and awarding reasonable attorney's fees and litigation costs pursuant to Pub. Off. Law § 89(4)(c). is granted as to documents withheld based on the personal privacy exemption except that said documents shall be produced in redacted form as detailed herein. Said documents shall be produced within twenty (20) days. And it is further

ORDERED and ADJUDGED that the application of petitioner law firm James, Hoyer, Newcomer, Smiljanich and Yanchunis, P.A. for a judgment pursuant to the Freedom of Information Law (FOIL) and CPLR Article 78, is granted as to documents withheld based solely on the argument that the material were not reasonably described in the inst FOIL request. Said documents shall be produced within twenty (20) days. And it is further

ORDERED and ADJUDGED that the application of petitioner law firm James, Hoyer, Newcomer, Smiljanich and Yanchunis, P.A. for a judgment pursuant to the Freedom of Information Law (FOIL) and CPLR Article 78, is denied in all other respects. And it is further

ORDERED that counsel for respondent State of New York, Office of the Attorney General, shall serve a copy of this order with notice of entry within twenty (20) days of entry on counsel for respondents and intervenor.

This constitutes the decision and order of this court.

Dated:March 31, 2010

______________________________

Carol Robinson Edmead, J.S.C.