FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO.

160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
-------------------------------------------------------------------x
THE DIOCESE OF BUFFALO,

Petitioner,

For a Judgment Pursuant to Article 78 of Index No. 160558/2023

The Civil Practice Law and Rules

-against-

OFFICE OF THE NEW YORK STATE ATTORNEY

GENERAL, and ABISOLA FATADE, in her official
Capacity as Records Access Officer for the Office of
the New York State Attorney General,

Respondents.
--------------------------------------------------------------------x

BRIEF OF AMICI CURIAE THE BUFFALO NEWS, INC.

AND SCRIPPS MEDIA, INC.

FINNERTY OSTERREICHER & ABDULLA

70 Niagara Street, Suite 411
Buffalo, New York 14202
Tel: (716) 340-2200
Fax: (716) 340-2300
[email protected]
Attorneys for The Buffalo News, Inc. and Scripps
Media, Inc.

1 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

STATEMENT OF INTEREST OF AMICI CURIAE ........................................................................... 1

PRELIMINARY STATEMENT .....................................................................................................2

STATEMENT OF FACTS AND PROCEDURAL POSTURE ......................................................2

ARGUMENT ...................................................................................................................................9

A. FOIL is a Critically Important Tool for Preserving Information and Keeping the Public
Informed ...............................................................................................................................9

B. The Diocese’s Documents are now Public Records, and Applicable Legal Presumptions
Favor Release of the Records ............................................................................................11

C. The Records are Outside the Scope of Confidential Records and Should be Disclosed in
the Public Interest ..............................................................................................................15

CONCLUSION ..............................................................................................................................17

WORD COUNT CERTIFICATION .............................................................................................18

2 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

TABLE OF AUTHORITIES

Cases

Cox Broad Corp. v. Cohn, 420 U.S. 469 (1975)..............................................................................9

Encore Coll. Bookstores v. Auxiliary Serv. Corp., 87 N.Y.2d 410, 417 (1995) ............................11

Matter of Arrow Elecs., Inc. v Long Is. Power Auth.,

2002 NY Slip Op 30176[U] (Sup Ct., Suffolk Co. 2002).........................................................13

Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562 (1986) ...................7

Matter of Fink v. Lefkowitz, 47 N.Y.2d 567 (1979) .......................................................................12

Matter Verizon NY, Inc. v. Bradbury, 40 A.D.3d 1113 (2d Dept 2007) ........................................14

Other Authorities

Comm. On Op. Gov’t FOIL-AO-16552 (May 4, 2007) ................................................................16

Comm. On Op. Gov’t FOIL-AO-16721 (August 7, 2007) ............................................................15

Comm. On Op. Gov’t FOIL-AO-19286 (July 28, 2015) ...............................................................13

Public Officers Law, Article 6, §§ 84-90 (“FOIL”)............................................................... passim

Public Officers Law, Article 6, § 84 ............................................................................................1, 9

Public Officers Law, Article 6, § 86(4) .........................................................................................11

Public Officers Law, Article 6, § 87(2) .........................................................................................12

Public Officers Law, Article 6, § 87(2)(d) ............................................................................. passim

Public Officers Law, Article 6, § 87(2)(e) ............................................................................. passim

Public Officers Law, Article 6, § 89(5)(a)(1) ..................................................................................6

Public Officers Law, Article 6, § 89(5)(b)(2) ..................................................................................7

Public Officers Law, Article 6, § 89(5) .....................................................................................8, 11

Public Officers Law, Article 6, § 89(5)(e) .......................................................................................7

ii

3 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae are two of Western New York’s premier news outlets, relied on daily by the

citizens of the region for timely, accurate information on matters of public interest and concern.

The Buffalo News, Inc., owns and publishes The Buffalo News, the region’s largest newspaper,

which for decades has been a trusted and vital source of information for readers both within and

beyond the borders of Western New York. Scripps Media, Inc., owns and operates Buffalo’s ABC-

affiliated television station, WKBW-TV Channel 7, which proudly includes in its broadcast

schedule a significant amount of local news programming. Both media outlets have been reporting

on the Catholic Diocese sex-abuse scandal since the story broke, focusing specifically on those

aspects of the matter involving the Diocese of Buffalo. See generally the accompanying November

14, 2023, affidavit of Buffalo News reporter Jay Tokasz (“Tokasz Aff.”) and the November 14,

2023, affidavit of WKBW-TV reporter Sean Mickey (“Mickey Aff.”).

As members of the news media and surrogates for the public, amici frequently rely on state

and federal freedom of information laws – including New York’s Freedom of Information Law,

Public Officers Law, Article 6, §§ 84-90 (“FOIL”) – to gather information from public agencies

to report on matters of vital public concern. Amici thus have a strong interest in ensuring that laws

regarding access to public records are properly interpreted by both the agency holding the records

and the courts tasked with reviewing such determinations so as to facilitate maximum access to

public records.

4 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

PRELIMINARY STATEMENT

In this FOIL matter, the Office of the New York State Attorney General (“OAG”), acting

through Records Access Officer Abisole Fatade and FOIL Appeals Officer Kathryn Sheingold,

determined that the records at issue – over 25,000 pages of now-public records concerning the

Catholic Church’s sex abuse scandal – were not exempt from disclosure under either Public

Officers Law § 87(2)(d) (the “commercial records” exemption ) or § 87(2)(e) of FOIL (the “law

enforcement” exemption). Respondents’ decisions are not only correct, but they are also consistent

with the express language and purpose of FOIL:

The legislature hereby finds that a free society is maintained when

government is responsive and responsible to the public, and when
the public is aware of governmental actions. […] The legislature
therefore declares 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 in
accordance with the provisions of this article.

Public Officers Law, Article 6, § 84.

STATEMENT OF FACTS AND PROCEDURAL POSTURE

This case involves a sex abuse scandal of massive proportions that occurred over decades

and impacted an untold number of lives. Since the scandal broke, reporters from both The Buffalo

News and WKBW-TV have had numerous interactions with members of the public – victims and

non-victims alike – who have advised that the media outlets’ ongoing news reports are eagerly

awaited; just as significantly, victims have advised that transparency and the production of

information like the documentation at issue in this case are important and desirable to them for

coping and closure. See Mickey Aff. at ¶¶ 2, 10; Tokasz Aff. at ¶ 2.

5 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

The Church’s ongoing failure, however, to be forthcoming with its own members and with

the rest of the population has been a source of frustration to Western New York residents and

victims alike. See Tokasz Aff. at ¶ 7; Mickey Aff. at ¶ 9. This frustration is felt even more acutely

by journalists who, functioning as the eyes and ears of the public, endeavor to excavate and present

to the community facts and information that members of the public are often unable to develop on

their own. See Tokasz Aff. at ¶ 9; Mickey Aff. at ¶ 11.

The Catholic Church has an enormous impact on the lives of New Yorkers from not only

a spiritual perspective, but also economically and emotionally. See Mickey Aff. at ¶ 9; Tokasz

Aff. ¶ 14. As such, the sex-abuse scandal involving the Diocese of Buffalo (“the Diocese”) is a

matter of significant public interest and concern in Western New York. See Tokasz Aff. at ¶¶ 2,

15; Mickey Aff. at ¶¶ 9-11. Indeed, both the newspaper and the television station have, over the

years, published several high-profile stories involving the Church and its sex-abuse scandal, and

both media outlets count these stories as among the most-read, most-watched, and most-

commented on. See Tokasz Aff. Exhibits A-F; Mickey Aff. at ¶ 11.

The significance and impact of amici’s reporting cannot be overstated. In March of 2018,

then-Bishop Richard Malone publicly identified 42 priests accused of sexual misconduct involving

minors. See Tokasz Aff. Exhibit D; see also https://buffalonews.com/news/local/names-of-

buffalo-diocese-priests-accused-of-abusing-minors/article_a253df45-08d9-50a9-b480-

6803eb548d27.html. In this context, the Diocese went out of its way to emphasize the importance

6 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

of “transparency” and the healing it hoped such transparency would bring. As Bishop Malone

stated:

We’ve been working on this for months. Reviewing old cases and
all of that. I have just become more and more convinced it was time
to put those names out. The main reasons are really transparency.
You’ve heard of the Dallas Charter for the Protection of Children
and Young People. It calls us to transparency. I wanted that
transparency to happen. We know if a sexual abuse victim sees the
name in print of the abuser, sometimes that person might have been
ashamed and hidden away. Seeing the name in print, acknowledged
by the church, can liberate and empower that person to come
forward. And we want them to come forward for help.

See Tokasz Aff. Exhibit D.

The Church’s statements regarding transparency were, however, a lie. We know this

because just two months later, Buffalo News reporter Jay Tokasz in early May 2018 broke the story

that a priest who, in 1995, had been accused of sexually abusing a teenage parishioner for several

years (beginning in the 1980s when the parishioner was just 15 years old) was not only NOT

included on the list of 42 priests accused of sexual misconduct, but in fact was still offering masses.

See Tokasz Aff. ¶ 11 and Exhibit E referenced therein. So much for healing and transparency.

Indeed, in September 2018, WKBW-TV’s team of investigative reporters (the “I-Team”)

published a report which further revealed the scale of the Diocese’s misconduct in both managing

predator priests and perpetrating misinformation to the public: with the assistance of a conscience-

driven Church whistleblower, a WKBW I-Team reporter obtained documents from the Diocese’s

“secret archives” which revealed that the true scope of abuse was far greater than Bishop Malone

had publicly revealed: there were in fact well over 100 accused priests, and not 42. See Mickey

7 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

Aff. ¶ 12 and https://www.wkbw.com/longform/7-i-team-church-record-show-more-than-100-accused-

priests-not-42-as-stated-by-bishop-malone.

This type of fact-finding and investigative reporting is essential to the public and, amici

believe, may have even served to inform the OAG’s investigation of the Diocese which, according

to the Diocese’s General Counsel Melissa Potzler, began in 2018. See Affirmation of Melissa

Potzler, NYSCEF Docket Document No. 4 (“Potzler Aff.”) at ¶ 4 (“In 2018, the OAG commenced

an investigation of all Catholic dioceses throughout New York State, including the Diocese of

Buffalo.”). Indeed, OAG as part of its investigation subpoenaed from the Diocese “files related to

past allegations of clergy sexual abuse by individual victims, including complaints against clergy

and other Diocesan employees; the Diocese’s clergy personnel records; the Diocese’s internal

discipline records; records of the Independent Review Board that investigates and addresses

allegations of abuse within the Diocese; and a series of other files maintained by the Diocese

concerning clergy accused of abuse.” Potzler Aff. at ¶ 4. In response, the Diocese later1 produced

to the OAG “over 25,000” pages of responsive records. Potzler Aff. at ¶ 5. Aware of the public

1
It is unclear when, exactly, the records were produced to the OAG. Regardless, what is clear
is the fact that the Diocese wishes to hide its dirty laundry from the public: see, e.g., July 2020
Confidentiality Agreement from the bankruptcy matter, NYSCEF Docket Document No. 5 at p. 1
(“the Diocese does not wish for the information that it asserts to be Confidential Information (as
that term is defined below) to be subject to any form of public disclosure”). However, just because
the Diocese – in the context of trying to limit its financial exposure (i.e., its bankruptcy proceeding)
– was able to get its creditors to voluntarily agree to keep the Diocese’s records and information
confidential (see July 2020 and November 2020 Confidentiality Agreements, NYSCEF Docket
Document Nos. 5 and 6) doesn’t mean that this Court should agree to give effect to those
agreements. Public records are public records, regardless of how hard the Diocese may fight to
prevent them from seeing the light of day.

8 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

interest in the matter and undoubtedly cognizant that it had already been caught lying to the public,

the Diocese pursuant to Public Officers Law § 89(5)(a)(1) requested that, in the event of a FOIL

request, OAG apply the exemption set forth in Public Officers Law § 87(2)(d).2

This on December 5, 2022, when Mr. Tokasz made a FOIL request for:

Any Catholic Diocese of Buffalo files related to clergy sexual abuse

that were subpoenaed in 2018 and/or 2019 by the New York
Attorney General's Office. The files would include, but not be
limited to: complaints against priests and other diocese employees;
diocese clergy personnel records; diocese clergy discipline records;
records of the proceedings of the diocese independent review board;
diocese “secret archive” files; and internal diocese documents
and/or databases on accused priests.

Tokasz Aff. at fn. 4 and Exhibit G referenced therein. Mr. Tozasz’s request was assigned FOIL

Request No. G000643-2022. Id. WKBW-TV investigative reporter Sean Mickey independently

sought access to the same set of public records on June 9, 2023, when he requested:

All documents subpoenaed or obtained by the New York Attorney

General’s Office from the Diocese of Buffalo. This includes
documents produced by the diocese that were obtained by the AG’s
office but not used in the lawsuit.

Mickey Aff. at ¶¶ 5-6 and Exhibit B as referenced therein. Mr. Mickey’s request was assigned

FOIL Request No. G000383-060923. Id.

2
Public Officers Law § 87(2)(d) permits – but does not mandate – an agency to deny access to
records (or any portions thereof) that “are trade secrets or are submitted to an agency by a
commercial enterprise or derived from information obtained from a commercial enterprise and
which if disclosed would cause substantial injury to the competitive position of the subject
enterprise.” In this case, it does not appear that any party is taking the position that the records at
issue are “trade secrets.” Thus, the issue is whether: (a) is the Diocese a “commercial enterprise”;
and (b) if, so, would disclosure of the records cause “substantial injury” to the competitive position
of the Diocese in its capacity as a commercial enterprise.
6

9 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

On December 28, 2022, OAG – consistent with its duties under Public Officers Law §

89(5) and the Diocese’s request – advised Mr. Tokasz that the records “may” be exempt under §

87(2)(d) and that access to the records would be restricted until the issue of the applicability of the

exemption was resolved in accordance with statutory procedures. Tokasz Aff. Exhibit G; see also

Public Officers Law § 89(5)(a)(3). A similar response was sent to Mr. Mickey on July 18, 2023.

Mickey Aff. Exhibit B.

Noting that “[t]he entity in question is not a commercial enterprise. It is a non-profit

religious corporation, and the disclosure of files used as the basis for the Attorney General’s

investigation and lawsuit would in no way cause injury to ‘the competitive position of the subject

enterprise’ because it does not have trade secrets and does not exist for commercial gain,” Mr.

Tokasz continued to push for the release of the records as they were of significant public interest

and vital to his reporting. Tokasz Aff. Exhibit G. Mr. Mickey continued to seek access and, in

response, was provided with the agency’s determinations as they pertained to the Diocese’s

position vis-à-vis The Buffalo News’ FOIL request (since the television station was seeking the

same records previously requested by the newspaper, it appears that the agency was streamlining

the process by not duplicating every step). Mickey Aff. Exhibit B.

On July 14, 2023, OAG advised the Diocese that the records had been requested under

FOIL. Pursuant to Public Officers Law § 89(5)(b)(2), the Diocese was offered the opportunity to

submit a written statement explaining why some or all the records produced to OAG should

10 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

continue to be excepted from disclosure under § 87(2)(d).3 See NYSCEF Docket Document No.

7. The Diocese responded on August 25, 2023. See NYSCEF Docket Document No. 8. Not

content to limit the scope of its response to the issue at hand (i.e., whether the documents were

properly exempt under § 87(d)(2)), the Diocese argued that access should also be denied under

several other provisions of FOIL. 4 See generally NYSCEF Docket Document No. 8.

OAG responded on September 8, 2023, advising the Diocese that it found Petitioner’s

arguments to be “unpersuasive” and that the records would be released under FOIL. See NYSCEF

Docket Document No. 9. The Diocese filed its administrative appeal on September 26, 2023,

again arguing that the records were exempt under numerous exemptions including § 87(2)(d) and

§ 87(2)(e). See NYSCEF Docket Document No. 10. OAG responded on October 12, 2023,

determining: (a) the records were not properly subject to the commercial records exemption

afforded by § 87(2)(d); and (b) the Diocese’s arguments regarding the applicability of other FOIL

exemptions (including § 87(2)(e)) was outside the scope of the procedure permitted under § 89(5).

See NYSCEF Docket Document No. 11; see also fn. 4, supra. The instant proceeding ensued.

3
Pursuant to § 89(5)(e), “The person requesting an exception from disclosure pursuant to this
subdivision shall in all proceedings have the burden of proving entitlement to the exception.” See
also, e.g., Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562 (1986) (the
entity resisting disclosure, whether an agency of government or the provider of the information,
must articulate a particularized and specific justification for denying access).
4
The statute is clear in this regard: the procedures set forth in Public Officers Law § 89(5)
pertain only to whether the records are exempt under the commercial records exemption of §
87(d)(2). Public Officers Law § 89(5) does NOT contemplate that the person or entity that
submitted the records to an agency also be able to request or demand that such records be excepted
under any other provision of FOIL (such as the law enforcement exemption).
8

11 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

ARGUMENT

A. FOIL is a Critically Important Tool for Preserving Information and

Keeping the Public Informed.

Journalists across New York frequently use FOIL to help them gather news and keep the

public informed about the activities of government. The importance of this Constitutionally

significant role of the press is recognized in established jurisprudence:

In a society in which each individual has but limited time and resources with which
to observe at first hand the operations of his government, he relies necessarily upon
the press to bring to him in convenient form the facts of those operations. Great
responsibility is accordingly placed upon the news media to report fully and
accurately the proceedings of government, and official records and documents
open to the public are the basic data of governmental operations. Without the
information provided by the press most of us and many of our representatives
would be unable to vote intelligently or to register opinions on the administration
of government generally.

Cox Broad Corp. v. Cohn, 420 U.S. 469, 491-92 (1975). See also FOIL § 84 (acknowledging that

“government is the public’s business” and “the public, individually and collectively and

represented by a free press, should have access to the records of government in accordance with

the provisions of this article”) (emphasis added).

The importance of FOIL is particularly important here because the Catholic Church has

already admitted to destroying files in its attempt to cover up the sex-abuse scandal. A. Sakuma,

“Top cardinal admits the Catholic Church destroyed files to hide sex abuse,” Vox (February 23,

2019), https://www.vox.com/2019/2/23/18237702/catholic-church-sex-abuse-summit-destroyed-

documents.

12 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

Moreover, access to public records was key in The Boston Globe’s award-winning expose

on the Catholic church’s sex abuse scandal in Boston. J. Henley, “How the Boston Globe exposed

the abuse scandal that rocked the Catholic church,” The Guardian (April 21, 2010),

https://www.theguardian.com/world/2010/apr/21/boston-globe-abuse-scandal-catholic. In that

case, the newspaper sought access to more than 10,000 pages of church documents that were

protected by a court confidentiality order. Id. The archdiocese – like the Diocese here –

vociferously argued that the records were and should be kept confidential. The court disagreed,

lifting the order and directing that any documents missing from the public file be resubmitted and

made available to the public. Id.5

Here in New York, FOIL has proven itself time and time again to be an invaluable tool for

ensuring that the citizens of this State are informed. For example, in 2014 a reporter used FOIL

requests to gain access to information about a disciplinary trial of a NYPD officer that shed light

on the use of chokeholds, and the role of the Civilian Complaint Review Board. J. Campbell, “I

was choked by the NYPD: New York's Chokehold Problem Isn’t Going Away,” The Village Voice

(Sep. 23, 2014), http://perma.cc/JZ53-7FYH. FOIL was also used to obtain records showing that

New York City paid more than $428,000,000 to settle more than 10,000 civil rights lawsuits

brought against the NYPD since 2009. C. Bankoff, “The City Has Paid Almost Half a Billion

5
The church then took the bold step of going so far as to ask the court to stay its order on the
ground that public access to the files should be barred until the judge ruled on the church’s motion
to dismiss all clergy sexual abuse lawsuits on First Amendment grounds. M. Rezendes and W.
Robinson, “Church tries to block public access to files,” Boston Globe (November 23, 2022)
https://www.bostonglobe.com/news/special-reports/2002/11/23/church-tries-block-public-
access-files/WG9WXHzF2WQuN6tCT4fy7L/story.html.
10

13 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

Dollars in NYPD-Related Settlements Over the Past 5 years,” N.Y. Magazine (Oct. 12, 2014),

http://perma.cc/B65G-G2NM. And records released under FOIL showed that seven of the top ten

most-sued officers were assigned to a Staten Island narcotics unit that covers the same area where

Eric Garner died. B. Baddock, R. Parascandola, S. Ryley, & D. Gregorian, “Staten Island, borough

where Eric Gamer died, has highest number of most-sued NYPD officers,” N.Y. Daily News (Jul.

28, 2014), http://perma.cc/223K-PURV. These stories represent only a handful of examples from

the countless pieces of important journalism FOIL has made possible.

B. The Diocese’s Documents are now Public Records, and Applicable

Legal Presumptions Favor Release of the Records.

Neither party to this proceeding has taken the position that the records held by OAG are

outside the scope of FOIL. To be sure, they aren’t. This is inherent from both the language of

Public Officers Law § 89(5) which concerns public access under FOIL to records provided to a

public agency from a commercial enterprise as well as case law interpreting same. As the Court of

Appeals held in Encore Coll. Bookstores v. Auxiliary Serv. Corp., 87 N.Y.2d 410, 417 (1995)

(citing Public Officers Law § 86(4)), “records” include “any information kept, held, filed,

produced or reproduced by, with or for an agency.” Thus, and as the Court of Appeals concluded

in Encore, material received and kept by a state agency from a private corporation constituted a

“record” that was presumptively discoverable under FOIL. 87 N.Y.2d at 417.

New York’s policy is that all government records are presumptively open for public

inspection and copying unless they specifically fall within one of nine enumerated exemptions.

11

14 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

See Public Officers Law § 87(2). As the Court of Appeals has stated, “[o]nly where the material

requested falls squarely within the ambit of one of these statutory exemptions may disclosure be

withheld.” Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571 (1979).

To be sure, however, even when an exemption does apply, the agency holding the records

may still provide them to the public. This is clear from the express language of Public Officers

Law § 87(2) which states that “[e]ach agency shall […] make available for public inspection and

copying all records, except that such agency may deny access to records or portions thereof that

[fall into one or more of the FOIL exemptions].” (Emphasis added.) In other words, even if a

showing could be made that the claimed exemptions did apply (they do not), OAG would in any

event not be required to deny access.

Thus, the commercial records exemption permits but does not require an agency to deny

public access to documents submitted by a “commercial enterprise and which if disclosed would

cause substantial injury to the competitive position of the subject enterprise.” Public Officers Law

§ 87(2)(d). Similarly, the law enforcement exemption permits but does not require an agency to

deny access to records that are compiled for law enforcement purposes but “only to the extent that

disclosure would interfere with law enforcement investigations or judicial proceedings.” Public

Officers Law § 87(2)(e)(i). Here, OAG determined that the exemptions did not apply, thus the

records would be released. However, even if OAG (or this Court) determined that the exemptions

did apply, the agency under the express terms of § 87(2) could still decide to provide access. On

12

15 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

this basis alone the Court can and should affirm the agency’s decision to grant the media requestors

access to the records under FOIL.

Regardless, the Diocese’s arguments regarding the applicability of §§ 87(2)(d) and 87(2)(e)

are unsustainable. For purposes of the former, the Diocese first must show they are a bona fide

“commercial enterprise.” If it clears that hurdle, it then must demonstrate: (a) the existence of

actual competition; and (b) the likelihood of substantial competitive injury. Matter of Arrow

Elecs., Inc. v Long Is. Power Auth., 2002 NY Slip Op 30176[U], *8 (Sup Ct., Suffolk Co. 2002).

It is submitted that the Diocese is not a bona fide commercial entity and there is no actual

competition; moreover, there is no “substantial competitive injury.” As New York’s Committee

on Open Government has opined, a submitting business can suffer competitive harm only if the

desired material has commercial value to its competitors. See FOIL-AO-19286 (July 28, 2015),

https://docsopengovernment.dos.ny.gov/coog/ftext/F19286.html.

Here the Diocese ignores this, arguing that it is, in essence, a private commercial entity

whose records would not otherwise be available to the public, thus effectively ending the inquiry.

See generally Petitioner’s Memorandum (Docket Document No. 3) at Point II. This argument,

however, renders the express language of the statute superfluous: private commercial entities are

by definition not subject to FOIL and their records are not otherwise generally available to the

public (except, perhaps, for certain records of publicly traded corporations); thus, if ‘not otherwise

available except for FOIL’ was the test under the exemption, virtually all documents submitted to

an agency by a commercial enterprise would be protected. But this is not the test. Rather, the

13

16 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

statute provides that the agency may (but is not required to) restrict access only to those records

which if disclosed, “would cause substantial injury to the competitive position of the subject

enterprise.” See, e.g., Matter Verizon NY, Inc. v. Bradbury, 40 A.D.3d 1113, 1115 (2d Dept 2007)

(where commercial entity failed to establish the specific harm it would suffer if the documents

were disclosed, trial court correctly determined that § 87(2)(d) exemption did not apply). Here

there has been no such showing.

With regard to Public Officers Law § 87(2)(e), the Diocese’s arguments are unavailing

because there has been no showing that disclosure would interfere with a judicial proceeding.

OAG has determined that it will appropriately redact the records to protect the privacy of victims,

thus allaying any concerns in that regard. Moreover, Petitioner admits that the decision-makers in

the Bankruptcy proceeding are already aware of the documents and their contents (see Petitioner’s

Memorandum of Law at p. 6); thus, it can hardly be said not applying the exemption would

interfere with settlement or mediation in the Bankruptcy case.

The Diocese’s arguments imply that disclosure of the records under FOIL would violate

one or more orders of the Bankruptcy Court, thus directly implicating – the Diocese argues – the

law enforcement/judicial proceeding exemption of § 87(2)(e). However, the Diocese did not

provide to OAG a copy of an order of the Bankruptcy Court that would support a conclusion that

permitting access to the records under FOIL would violate the terms of the Bankruptcy Court’s

orders. See NYSCEF Docket Document No. 11 at p. 3. That remains the case as the Diocese in

the context of this proceeding still has NOT produced an order of the Bankruptcy Court that would

14

17 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

serve to restrict access to the records at issue. To the contrary, all that has been provided are copies

of Confidentiality Agreements between: (a) the Diocese and the Committee of Unsecured

Creditors and their counsel (see July 23, 2020 Confidentiality Agreement, NYSCEF Docket

Document No. 5); and (b) the Diocese and its insurance carriers (see November 18, 2020

Confidentiality Agreement, NYSCEF Docket Document No. 6). As attached to the Petition and

provided to this Court, neither Agreement carries the weight of an order of the Bankruptcy Court.

In the final analysis, the crux of the Diocese’s position is this: they want to keep their

skeletons in the closet, and their creditors have agreed not to open the door. That, however, is of

no moment because it is well-settled that a confidentiality agreement is meaningless under FOIL.

See FOIL-AO-16721 (August 7, 2007) (noting that while agency resisted disclosure by arguing

that “[f]ederally-approved pre-trial mediation program in the shadow of litigation can include a

provision holding all parties to a condition of confidentiality,” no statute was cited that either

conferred or required confidentiality; moreover, the Committee on Open Government noted, in the

case before it there was no evidence of a federal court order requiring confidentiality. Thus, the

Committee held, there was no proper basis to resist access.)

C. The Records are Outside the Scope of Confidential Records and Should
be Disclosed in the Public Interest.

The Diocese in its July 2020 Confidentiality Agreement expressly excludes from the

definition of Confidential Records “information which (i) was generally available to the public

prior to its being disclosed under this Agreement, (ii) becomes generally available to the public

15

18 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

19 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

20 of 21
FILED: NEW YORK COUNTY CLERK 11/14/2023 04:52 PM INDEX NO. 160558/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/14/2023

21 of 21