By Verified Petition on June 17, 2019, Petitioner commenced this proceeding against Respondent seeking (1) a declaration that Respondent had been unreasonable and in violation of [*2]Public Officers Law § 89 [3] [a], (2) directing Respondent to fill FOIL ^[FN1] Request No. F18-0506 by a date certain, and (3) awarding counsel fees pursuant to Public Officers Law § 89 [4] [c]. In July 2019, Respondent filed a Motion to Dismiss arguing that Petitioner had failed to exhaust its administrative remedies and that the case had become moot.

In August and September 2018, Respondent publicly bid two Toll Plaza construction projects. The projects' specifications indicated that the supplier for the required concrete medial barriers was already designated as The Fort Miller Co. Inc. [Petitioner's Exhibit A]. Petitioner, a competitor of Fort Miller, contacted Respondent's Office of Capital Program and Contracts Management, challenging the designation of Fort Miller as a sole source provider as Respondent could perform the work [Petitioner's Exhibit B]. Petitioner's counsel subsequently spoke to three of Respondent's employees seeking clarifications regarding the designation of Fort Miller in the bid documents. Petitioner's counsel swears, as part of the Verified Petition, that Respondent's staff asserted that the barriers were "previously acquired."

After the projects were awarded, Petitioner contacted the New York State Office of the State Comptroller (hereinafter OSC) protesting the award of the bids [Petitioner's Exhibit C]. By letter dated October 22, 2018, OSC stated that Petitioner was not "an interested party" because it was not "a bidder, or potential bidder, on the procurements" being challenged, and, therefore, did not have standing under the OSC Protest Procedure [Petitioner's Exhibit D]. The accuracy of OSC's interpretation of interested party is not before the Court and, more significantly, OSC still required Respondent to address the concerns raised. By letter dated November 30, 2018, OSC informed Petitioner that the barriers were procured through "other competitively bid backdrop contracts" [Petitioner's Exhibit E].

On December 18, 2018, Petitioner requested all documents submitted to the Comptroller in connection with its protest of the award [Petitioner's Exhibit F]. Separately, on the same date by email, Petitioner requested (1) all communication from January 1, 2016, to present between Fort Miller and Respondent, (2) all "backdrop contracts" awarded to Fort Miller since January 1, 2016, and (3) all documentation relating to the selection of Fort Miller as a sole source provider in connection with the two bids at issue [Petitioner's Exhibit G]. On December 24, 2018, Respondent acknowledged the first FOIL request and stated a diligent search was underway and an update of progress would be made by January 24, 2019 [Petitioner's Exhibit H]. On December 26, 2018, Respondent acknowledged the second FOIL request and stated a diligent search was underway and an update of progress would be made by January 26, 2019 [Petitioner's Exhibit I].

In January 2019, Petitioner contacted the Office of the State Inspector General regarding its concern with the procurement of the precast barriers [Petitioner's Exhibit J].

Beginning in January 2019, Respondent sent a series of form letters to Petitioner advising it that more time was required to complete their response to the FOIL request [Petitioner's Exhibits K-P]. After such correspondence in March 2019, Petitioner wrote to the Acting Executive Director of Respondent objecting to the "inexcusable" delay in responding to the FOIL request [Petitioner's Exhibit Q]. Petitioner further noted another procurement that had taken place, which appeared to evidence favorable treatment of Fort Miller by allowing the substitution of a different, alleged cheaper product in a bid [Petitioner's Exhibit Q]. Additionally, [*3]as part of this correspondence, Petitioner noted that documents relating to its "pavement system" were subject to a FOIL request that appeared to be responded to in a more expedient fashion than the FOIL requests it had submitted [Petitioner's Exhibit Q]. Petitioner expressly requested that Respondent's Acting Executive Director intervene to provide the requested information [Petitioner's Exhibit Q].

Subsequently, four months after the initial FOIL request, Respondent provided a redacted one-page document in response the first FOIL request [Petitioner's Exhibits R & S]. The document dated November 15, 2018, referred to an "on-demand repair contract" [Petitioner's Exhibit S]. Further, Respondent wrote that the "use of On-Demand contracts for the procurement of the concrete median" was not grounds for non-approval of the bids being questioned [Petitioner's Exhibit S].

On April 19, 2019, Respondent stated that it would require additional time to fill the second FOIL request and that it would update Petitioner by June 17, 2019, on its progress [Petitioner's Exhibit T]. Respondent further requested to speak with Petitioner regarding the request [Petitioner's Exhibit T]. According to Petitioner's May 7, 2019, letter, Respondent requested Petitioner limit its first inquiry [Petitioner's Exhibit U]. Petitioner agreed to limit its request to January 1, 2018, to present [Petitioner's Exhibit U]. Petitioner further set a date of May 31, 2019, for answering the FOIL request and noted that "failure [to meet this deadline] will constitute a denial of [Petitioner's] request and will be a catalyst for corrective measures through administrative review and a possible Article 78 proceeding" [Petitioner's Exhibit U]. On June 17, 2019, Respondent again emailed stating Petitioner that more time was required to fill the request and stated that it would update progress by July 16, 2019 [Petitioner's Attorney Affirmation Exhibit A].

On July 10, 2019, after the commencement of this proceeding, Respondent finally responded to the FOIL request stating that communication between Respondent and Fort Miller were exempt from production pursuant to Public Officers Law § 87 (2) (e) (documents complied for a law enforcement purpose need not be disclosed if doing so would interfere with law enforcement investigations or judicial proceedings) and there were no records responsive to Petitioner's second and third requests [Respondent's Exhibit H]. On July 17, 2019, Petitioner filed an administrative appeal of the denial of item one of the request and questioning the response regarding the final two items [Petitioner's Attorney Affirmation in Opposition Exhibit B]. Petitioner noted that OSC had previously stated the concrete barriers were procured through backdrop contracts, so Respondent's denial of any such contracts appeared inconsistent with this previous statement [Petitioner's Attorney Affirmation in Opposition Exhibit B].^[FN2]

"The continuing growth of our cities and the expansion of governmental services on all levels has necessitated, over the years, the letting of greater numbers of public contracts. While the amount of money involved in these contracts was relatively small a few decades ago, today the amount is astronomical. It is, therefore, a matter of grave public concern that there be absolute honesty in the procuring of a public contract" (Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 193 [1968]). Here, although the allegations regarding misbehavior by a [*4]state agency in procurement and potential retribution are troubling, these allegations are beyond the scope of this action as Petitioner did not challenge any of those determinations in this action. Therefore, the Court must look solely to the matter before it, the lack of responsiveness to an initial FOIL request, which was not administratively appealed.

"The Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness . . . and to discourage official secrecy" (Matter of Newsday, Inc. v Sise, 71 NY2d 146, 150 [1987], cert denied 486 US 1056 [1988]); see also Public Officers Law § 84 ["(G)overnment is the public's business and . . . the public . . . should have access to the records of government in accordance with the provisions of (FOIL)"]). "The premise of FOIL is 'that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government'" (Matter of Newsday, Inc. v State Dept. of Transp., 5 NY3d 84, 88 [2005], cert dismissed 546 US 930 [2005], quoting Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]). To those ends, FOIL imposes a broad duty on government to make its records available to the public (see Matter of Gould v New York City Police Dept., 89 NY2d 267, 274-275 [1996]).

"Meeting the public's legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds" (Matter of Doolan v Board of Coop. Educ. Servs., 2d Supervisory Dist. of Suffolk County, 48 NY2d 341, 347 [1979]). Upon receipt of the FOIL request, an agency is "duty-bound to conduct a 'diligent search' of the records in its possession responsive to the request and to state, in writing the reason for the denial of access" (Matter of West Harlem Bus. Group v. Empire State Dev. Corp., 13 NY3d 882, 884 [2009] [internal quotations and citations omitted]). "[I]f circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period" (Public Officers Law § 89 [3] [a]).

Petitioner requests (1) a declaration that Respondent had been unreasonable and in violation of Public Officers Law § 89 [3] [a], (2) directing Respondent to fill FOIL Request No. F18-0506 by a date certain, and (3) awarding counsel fees pursuant to Public Officers Law § 89 [4] [c]. "It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713 [1980]; accord Matter of Kagan v New York State Dept. of Corr. & Community Supervision, 117 AD3d 1215, 1216 [3d Dept 2014]). Where "petitioners cannot receive the relief requested in the petition, . . . the matter [is] moot" (Matter of Police Benevolent Assn. of NY, Inc. v State of New York, 161 AD3d 1430, 1431 [3d Dept 2018]; see Matter of Jeanty v Commissioner of Correctional Servs., 92 AD3d 1160, 1161 [3d Dept 2012]). Likewise, "[a] declaratory judgment should not be rendered unless it will serve some useful purpose to the parties" (Walsh v Andorn, 33 NY2d 503, 507 [1974]; see 43 NY Jur 2d Declaratory Judgments § 5). Thus, "[t]he court may refuse to entertain an action where events subsequent to the inception of the action afforded the plaintiffs substantially all the relief that they could reasonably expect by a declaration of rights in their favor" [24C Carmody-Wait 2d § 147:4, citing Bruno v Codd, 47 NY2d 582, 589 [1979]).

Both parties agree that Respondent has now answered Petitioner's FOIL request. Petitioner does not argue any of the exceptions to mootness (Matter of Hearst Corp. v Clyne, 50 NY2d at 714-715) and, therefore, this Court finds that the relief requested, a date certain for an answer to the FOIL request, has been provided so the second relief requested in now moot. Likewise, since Petitioner now has a FOIL response, a declaration regarding Respondent's actions would serve no useful purpose.

However, the "finding that this proceeding is moot does not preclude petitioner's request for associated 'costs and fees'" (Matter of Cobado v Benziger, 163 AD3d 1103, 1105 [3d Dept 2018]; see Matter of Global Tel*Link v State of NY Dept. of Correctional Servs., 68 AD3d 1599, 1601 [3d Dept 2009]).

As relevant here, Public Officers Law § 89 (4) (c) provides that "[t]he court in such a proceeding: (i) may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, and when the agency failed to respond to a request or appeal within the statutory time."

"[A] petitioner must exhaust all administrative remedies before seeking judicial review unless he or she is challenging an agency's action as unconstitutional or beyond its grant of power, or if resort to the available administrative remedies would be futile or would cause the petitioner irreparable harm"(Matter of McFadden v Fonda, 148 AD3d 1430, 1431 [3d Dept 2017] [internal quotation marks and citation omitted]; see generally Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]). Further, "[i]t is well established that before a person seeking information under FOIL may resort to a judicial forum to gain relief, he [or she] must have exhausted his [or her] administrative remedies" (Matter of Tinker St. Cinema v State of NY Dept. of Transp., 254 AD2d 293, 294 [2d Dept 1998] [internal quotation marks, brackets, and citations omitted]).

Public Officers Law § 89 (3) (a) states, in relevant part, that: "If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part" [emphasis added]. The Committee on Open Government has opined that "[a]lthough we recognize that there are occasions when an agency will require an extension of time beyond that which it initially predicted, there is no provision in the statute for repeated extensions" (Comm on Open Govt FOIL-AO-19372 [2016]). Public Officers Law § 89 (4) (a) states that "[f]ailure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial."

Here, Respondent sent form replies extending its time for response, merely stating that "we require additional time to complete our response to your FOIL request" and stating that an update on Respondent's progress would be provided in a month. Even more concerning, these form replies were sent repeatedly for several months with no explanation of the delay, as required by Public Officers Law § 89 (3) (a). In the midst of these repeated form replies, Petitioner sought intervention and assistance from the Acting Executive Director of Respondent and the Chief of State of the New York State Department of Transportation, to no avail. [*5]Although, "Public Officers Law § 89 (3) mandates no time period for denying or granting a FOIL request, and rules and regulations purporting to establish an absolute time period have been held invalid on the ground that they were inconsistent with the statute" (Matter of New York Times Co. v City of NY Police Dept., 103 AD3d 405, 407 [1st Dept 2013], lv dismissed 21 NY3d 930, lv denied 22 NY3d 854 [2013]), this does not relieve an agency of the explicit obligation to state the reason for the inability to grant the request within twenty business days. Such a failure to conform to the provisions of Public Officers Law § 89 (3) (a) constitutes a constructive denial of the request.

It is well settled that a constructive denial may be administratively appealed (see e.g. Matter of Cobado v Benziger, 163 AD3d 1103, 1104 [3d Dept 2018]). Failure to administratively appeal a constructive denial before commencing a proceeding pursuant to CPLR article 78 is grounds for dismissal (see Matter of Sanders v Bratton, 258 AD2d 422, 423 [1st Dept 1999]). While in the case of a constructive denial, a petitioner may be relieved of its duty to administratively seek relief prior to seeking court intervention should the requestor be uninformed of the ability to administratively appeal (see Matter of Barrett v Morgenthau, 74 NY2d 907, 909 [1989]; Matter of Cullum v Goord, 45 AD3d 1212, 1212 [3d Dept 2007]; Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648, 649 [3d Dept 2000]), such relief is neither argued for by Petitioner, nor appropriate as Petitioner's opposition to the Motion acknowledges its awareness of Respondent's website outlining its FOIL procedure, including the appeal process, and Petitioner has subsequently filed an administrative appeal. Most significantly, Petitioner's own correspondence prior to the commencement of this proceeding stated that Respondent's "failure [to provide the requested information] will constitute a denial of [Respondent's] request and will be a catalyst for corrective measures through administrative review and a possible Article 78 proceeding" [emphasis added]. This clear demonstration of the knowledge of an administrative remedy weighs against any potential relief from the requirement of first exhausting administrative remedies before commencing an action.

Petitioner argues that exhaustion of administrative remedies is not required when such appeal would be futile. Here, Petitioner contends that Respondent's repeated perfunctory replies and failure of the Acting Executive Director to intervene constitute a "history of . . . [Respondent's] strategy . . . to stymie and stonewall and any hope that [Respondent] would have voluntarily provided a straightforward answer to a straightforward question would have been a forlorn hope." Petitioner further asserts that it would be "naïve" to think that Respondent's FOIL appeal officer "would have overrule his subordinates."

This argument is conclusory and unsupported by the record. While Respondent's failure to comply with Public Officers Law § 89 (3) (a) constitutes a constructive denial of the request, there is no evidence contained in the record that Respondent ever made a definitive statement that would lead Petitioner to believe an appeal was futile (compare Matter of Friedman v Rice, 30 NY3d 461, 473 [2017] ["the District Attorney's letter denying petitioner's FOIL request clearly established that respondent's office would not release any documents to petitioner from the Friedman case file absent a court order" (emphasis added)]; Matter of New York Times Co. v City of NY Police Dept., 103 AD3d 405, 408 [1st Dept 2013] ["Here, respondent made clear that it would not grant petitioners' request for the Floyd database and any further attempt at internal administrative review would be futile"]). Further, the mere fact that the initial constructive denial was overseen by a subordinate does not demonstrate futility justifying relief from the requirement that Petitioner must exhaust its administrative remedies. If this were the case, the [*6]structure of FOIL, as well as most administrative remedies, would be rendered presumptively futile and defeat the purpose of the requirement since it is the "governing body of a public corporation or the head, chief executive or governing body of other agencies" or their designee that generally hears FOIL appeal (see generally 21 NYCCR 1401.7; Comm on Open Govt FOIL-AO-18937 [2012]).

As Petitioner failed to exhaust its administrative remedies, the Petition would be subject to dismissal even if it were not moot. Therefore, although the Court is concerned with Respondent's failure to adequately respond in a timely manner, Petitioner is not a prevailing party and the Court will not exercise its discretion to award attorney fees.

Accordingly, Respondent's Motion to Dismiss the Petition is hereby granted and the petition is dismissed.

This shall constitute the Decision, Order and Judgment of the Court. All papers, including this Decision, Order and Judgment are being returned to the attorney for the Respondent. All original supporting documentation is being filed with the Albany County Clerk's Office. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel are not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.

SO ORDERED AND ADJUDGED