In this Article 78 proceeding, the petitioner Empire Chapter of the Associated Builders and Contractors, Inc. ("ABC"), seeks an Order vacating a determination by the respondent New York State Department of Transportation ("DOT") which denied ABC's Freedom of Information ("FOIL") request for "[T]he 'due diligence study' that was prepared internally or by a consultant, [*2]to study the feasibility of using a Project Labor Agreement (PLA) for NYSDOT D264534-Wurts Street Bridge Project." The subject study was prepared by Hill International with a report dated September 3, 2019 ("The Hill Report"). ABC also seeks legal fees and litigation costs associated with this proceeding pursuant to Public Officers Law 89(4) ( c ) and CPLR 8601. The respondent DOT opposes.

In its final determination of ABC's FOIL appeal of July 27, 2021, the DOT found that The Hill Report was not subject to disclosure under Public Officers Law 87(2)(g), 87(2)(a) and CPLR 4503. The DOT determined, because The Hill Report was intra-agency material and not a final report, and was part of the DOT's deliberative process, that ABC was not entitled to the report. The DOT further determined that the report did not fall under any of the exceptions to the intra-agency exclusion — namely that it is not a collection of statistical and factual tabulations or data, instructions to staff that affect the public, or final agency policy or determinations, or external audits. The DOT also determined that the report was protected by attorney-client privilege and was material prepared for litigation.

In its Petition, ABC asserts that it was error for the DOT to deny its FOIL request, including that the DOT is incorrectly using the intra-agency exemption and "deliberative process" to shield The Hill Report from disclosure — when in fact there is no longer a deliberative process as the report has resulted in the DOT's adoption of a PLA. ABC asserts that the report is the final due diligence study by the DOT, and the DOT's Commissioner has already admitted, in her determination of May 5, 2021 (which directed the use of a PLA in the project), that statistical and factual tabulations of data were made by an independent consultant engaged by the DOT, and specifically refers to cost savings ($5,188 per day, total $706,326). ABC further argues, in order to determine whether the PLA is actually appropriate for this project, it needs to see the documentation contained in the report.By withholding The Hill Report, the DOT is making it impossible for ABC to ascertain whether the PLA satisfies the requirements of Labor Law 222(2)(a), thereby making any challenges to the same impossible.

ABC also argues that The Hill Report is not eligible for attorney work product exemption or the attorney-client privilege. ABC asserts that the DOT prepared the report pursuant to Labor Law §222 "for possible Project Labor Agreement with respect to the Project", and albeit the fact that DOT's counsel may have hired the consultant to prepare the report that alone does not shield it from disclosure as attorney work product or because of possible future litigation involving the PLA. ABC also argues that the DOT's determination to withhold its due diligence study is arbitrary, capricious, unreasonable, not supported by the record, and made in derogation of the law.

For the reasons that follow the Court grants the Article Petition in its entirety.

Here, the Court is mindful that "[i]t is settled that FOIL is based on the overriding policy consideration that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government" (Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987], internal quotations and citation omitted). Therefore, and to ensure maximum access to government documents, the exemptions to FOIL must be "narrowly construed, with the agency that seeks to prevent disclosure bearing the burden of demonstrating that the requested material falls squarely within an exemption by articulating a particularized justification for denying access" (Matter of Mackenzie v Seiden, 106 AD3d 1140, 1141 [3d Dept [*3]2013], quotation and citations omitted).

Where, as here, an agency asserts an intra agency exemption to disclosure, the Court is mindful that this exemption "applies to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" (Matter of Goold v New York City Police Dept., 89 NY2d 267, 277 [1996]) — such as documents that reflect an agency's preliminary thinking about an issue, as opposed to its final decision and reasoning (United States Fish and Wildlfife Service v Sierra Club, 141 S.Ct 777, 785-786 [2021]).^[FN1]

Upon its in-camera review of The Hill Report, the Court notes it begins with the acknowledgment that: "Hill International was retained by the New York State Department of Transportation (NYSDOT)to conduct a labor and cost analysis and study and to prepare a report (DDIS) addressing the feasibility, economic benefits and appropriateness of utilizing a Project Labor Agreement (PLA) in connection with the Wurts Street Bridge over the Roundout Creek Rehabilitation Project in Ulster County (the Project)." There are three pages of statistical data attached to the report entitled "Analysis of Current Collective Bargaining Agreements," "Composite Crew Make-Up Labor Cost Summary," and "PLA Cost Benefit Analysis." In her adoption of the PLA, the DOT's Commissioner refers to Hill International as an "independent consultant". Notably, no where in the report is there any mention of DOT's counsel office specifically requesting the study, nor does the report make any mention that it was prepared for any other purpose other than the DOT's assessment of the feasibility of it utilizing a PLA for this particular construction project. All said, and however viewed, The Hill Report is not an opinion piece. It merely reflects the job the DOT engaged it to do, which was to provide an analysis of the savings if a PLA was included in the subject project, and which is now reflected in the DOT's final decision and reasons for including a PLA in the project.

Nor, on this Record, is the Court impressed by the DOT's efforts to cloak The Hill Report with attorney-client privilege. Simply stated, it has utterly failed to show that the report is subject to attorney-client privilege. In the Court's view, attorney work product privilege "should be narrowly applied to materials which are prepared by an attorney, acting as attorney, and contain his or her analysis and...strategy...both in the context of (the matter) for which it was prepared and in the context ... of any subsequent legal proceeding" (Kings v State, 302 AD2d 667, 670 [3d Dept 2003], quotations and citations omitted). Here, the DOT counsel's affidavit contains only conclusory characterizations as to why The Hill Report is protected by the attorney client and attorney work product exceptions — which the Court is not required to accept (Rikard v New York Cent. Mut. Fire Ins. Co., 164 AD3d 1590, 1592 [4th Dept 2018]). The Court's in-camera review reveals no language which would make it a work product of an attorney. At most, it appears that counsel merely reviewed it for "legal sufficiency" as to its compliance with Labor Law 222. Apart from the consultant's general understanding of what a PLA is and its legal history, the Hill Report does not reflect or incorporate any protected communication between counsel and Hill or that the report was made in order for counsel to "render legal advice or services" to the DOT's Commissioner (Matter of Gilbert v Office of the Governor of the State of [*4]NY, 160 AD3d 1404, 1405-1406 [3d Dept 2019], citations omitted). It was clearly prepared primarily for the DOT for use in determining the feasibility of a PLA, and certainly not prepared solely for litigation purposes or in conjunction with a pending lawsuit (NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 155 AD3d 1208, 1211-1212 [3d Dept 2017]).^[FN2]

Nor is the Court in any way bound, as argued by the DOT, by the determination made in Empire Center for Public Policy v New York State Department of Transportation (Sup Ct, Albany County, Index 904634-20, dated October 14, 2020). The decision in Empire Center does not reveal whether the due diligence report was actually reviewed in-camera by the Court, nor is the report reflected in the papers considered by the Court. Further, in Empire Center the Court noted that the subject report "was not a final report and was used by counsel when considering the use of PLA's in its recommendations to the Commissioner...".

Again, the Court has reviewed The Hill Report, and it is a final report.

The Court is keenly aware of the very narrow restraints which limit its review of an administrative determination, and that it should defer to the expertise of agency with reference to the statutes and regulations it administers (Matter of 427 W. 51st St. Owners Corp. v Division of Hous. and Community Renewal , 3 NY3d 337 [2004]). This said, the Court is not so constrained when it comes to judicial review of an agency's use of FOIL exceptions under Public Officers Law 87(2)(g), 87(2)(a), nor is it constrained to rely on the agency's interpretation of common rules of evidence (here CPLR 4503). With that focus, the Court does conclude that the DOT's determination as to what represents exceptions to Public Officers Law and what is attorney-client and attorney work product is in fact arbitrary and capricious, and wholly without substantiation in the record or the law. Because the Court finds that the DOT lacked a reasonable basis for denying access to the due diligence study, ABC is entitled to reasonable counsel fees and litigation costs (Matter of Vertucci v New York State Dept. of Transp., 195 AD3d 1209, [3d Dept 2021]). ABC shall submit an affidavit detailing such fees and costs, on notice to the DOT, within 15 days from entry of this Decision and Order.

Accordingly, it is

ORDERED, that the Article 78 petition is granted in all respects, and it is further

ORDERED, that the respondent shall provide to the petitioner the due diligence report provided to it by Hill International on March 8, 2021 within 15 days of entry of this decision and order, and it is further

ORDERED, that the petitioner shall submit to the Court an affidavit detailing such fees and costs, on notice to the respondent, within 15 days from entry of this Decision and Order.

This constitutes the Decision and Order of the Court. This original Decision and Order is filed by the Court in NYSCEF. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.