                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 5, 2015                   520536
________________________________

In the Matter of PAMELA A.
   MADEIROS,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE EDUCATION
   DEPARTMENT et al.,
                    Respondents.
________________________________


Calendar Date:   September 18, 2015

Before:   Garry, J.P., Rose, Lynch and Devine, JJ.

                             __________


      Greenberg Traurig, LLP, Albany (Cynthia E. Neidl of
counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.
Lang of counsel), for respondents.

                             __________


Devine, J.

      Appeal from a judgment of the Supreme Court (Collins, J.),
entered April 16, 2014 in Albany County, which partially
dismissed petitioner's application, in a proceeding pursuant to
CPLR article 78, to review a determination of respondent State
Education Department denying petitioner's Freedom of Information
Law request.

      Municipalities, defined as "count[ies] outside the city of
New York or the city of New York in the case of . . . count[ies]
contained within the city of New York," are charged with the
approved costs of sending resident children to special education
preschool programs (Education Law § 4410 [1] [g]; see Education
                              -2-                520536

Law § 4410 [11] [a]). A municipality or the Board of Education
of the City of New York is empowered to "perform a fiscal audit
of such services or programs for which it bears fiscal
responsibility in accordance with audit standards established by"
respondent Commissioner of Education (Education Law § 4410 [11]
[c] [i]). Respondent New York State Education Department
(hereinafter Department) is accordingly directed to "provide
guidelines on standards and procedures . . . for fiscal audits of
[those] services or programs" (Education Law § 4410 [11] [c] [i],
as amended by L 2013, ch 57, part A, § 24) and, "for any audit
commenced on or after May 28, 2013, municipalities shall submit
to the [D]epartment for approval a detailed audit plan and audit
program which shall be consistent with guidelines on audit
standards and procedures issued by the [D]epartment on or after
such date" (8 NYCRR 200.18 [b] [2]).

      Petitioner submitted a Freedom of Information Law
(see Public Officers Law art 6 [hereinafter FOIL]) request in
September 2013, seeking the audit guidelines issued by the
Department and any communications that it had with municipalities
or school districts "relating to the standards and procedures
for, or relating to past, current or future fiscal audits of
services or programs." The Department denied the request in its
entirety, stating that the documents were exempt from FOIL as
records compiled for law enforcement purposes (see Public
Officers Law § 87 [2] [e]). Petitioner appealed from that denial
and, when the Commissioner failed to rule on her appeal in a
timely manner (see Public Officers Law § 89 [4]), she commenced
the present CPLR article 78 proceeding.

      Respondents answered and provided 55 pages of redacted
documents as a response to petitioner's FOIL request, maintaining
that the redacted portions were exempt from disclosure pursuant
to Public Officers Law § 87 (2) (e) and (g). Supreme Court
rejected respondents' efforts to invoke Public Officers Law § 87
(2) (g) with regard to two of the pages, but held that the
undisclosed portions of the remaining documents were compiled for
law enforcement purposes and were exempt from disclosure under
Public Officers Law § 87 (2) (e) (i). Petitioner now appeals.

     We affirm.   "FOIL is based on a presumption of access to
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the records, and an agency . . . carries the burden of
demonstrating that the exemption applies to the FOIL request"
(Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 462 [2007]
[citations omitted]; see Public Officers Law § 89 [4] [b]). The
Department here relied upon Public Officers Law § 87 (2) (e) in
providing redacted records and, specifically, a provision that
exempts records from disclosure that "are compiled for law
enforcement purposes and which, if disclosed, would . . .
interfere with law enforcement investigations or judicial
proceedings" (Public Officers Law § 87 [2] [e] [i]). Respondents
asserted that the redactions were necessary because disclosure of
the unredacted documents would reveal auditing techniques that
would enable the providers of preschool special education
programs to conceal their financial misdeeds more effectively.1

      The Department was directed to prepare the audit guidelines
in the wake of audits conducted by the Comptroller that "found a
pattern of mismanagement, waste and even fraud by numerous
private providers of preschool special education" (New York State
Office of the State Comptroller, 2014 Annual Report, Preschool
Special Education Audit Initiative, at 3; see L 2013, ch 57, part
A, § 24). Those audits resulted in criminal investigations and
the referral of "numerous" certified public accountants to the
Department for disciplinary proceedings, and there is no reason
to doubt that audits conducted under the guidance of the
Department are also aimed at uncovering financial malfeasance.
As such, while the guidelines and related documents did not arise
from a specific law enforcement investigation, they were
nevertheless compiled with law enforcement purposes in mind, and


    1
        Petitioner claims that respondents are now improperly
attempting to rely upon Public Officers Law § 87 (2) (e) (iv),
which exempts from disclosure documents "compiled for law
enforcement purposes . . . [that would] reveal criminal
investigative techniques or procedures, except routine techniques
and procedures." Inasmuch as respondents argue that the
interference in future investigations will stem from the auditing
techniques detailed in the unredacted documents, however, no
meaningful distinction can be drawn between Public Officers Law
§ 87 (2) (e) (i) and (iv) under the circumstances of this case.
                              -4-                520536

are exempt from disclosure if their release would enable
individuals to "frustrate pending or prospective investigations
or to use that information to impede a prosecution" (Matter of
Council of Regulated Adult Liq. Licensees v City of N.Y. Police
Dept., 300 AD2d 17, 18 [2002]; see Matter of Fink v Lefkowitz, 47
NY2d 567, 572 [1979]; see also Tax Analysts v Internal Revenue
Serv., 294 F3d 71, 79 [DC Cir 2002] [interpreting analogous
provision of federal Freedom of Information Act]).

      Turning to the documents themselves, petitioner does not
dispute that she has obtained unredacted copies of almost 20 of
the produced pages from another source, rendering academic a good
portion of the relief she seeks (see Matter of Fappiano v New
York City Police Dept., 95 NY2d 738, 749 [2001]; Matter of Moore
v Santucci, 151 AD2d 677, 678 [1989]). The audit guidelines
themselves were disclosed. The remaining documents include an
internal control questionnaire and an audit plan prepared by the
Onondaga County Comptroller, and a review of the unredacted
documents in camera reveal that they outline specific methods
used by an auditor to examine the financial behavior of preschool
special education program providers. Inasmuch as the redacted
portions would indeed reveal to "unscrupulous [providers] the
path that an audit is likely to take and alert[] them to items to
which investigators are instructed to pay particular attention,"
we agree with Supreme Court that they are "compilations of
investigative techniques exempt from disclosure" (Matter of Fink
v Lefkowitz, 47 NY2d at 572-573).

      Petitioner lastly argues that, because the Department
failed to respond to her administrative appeal in a timely
fashion, she is entitled to counsel fees. Reasonable counsel
fees may indeed be awarded in a FOIL proceeding where "the agency
failed to respond to a request or appeal within the statutory
time," but only if the petitioner has "substantially prevailed"
in the CPLR article 78 proceeding that followed (Public Officers
Law § 89 [4] [c]). Supreme Court correctly determined that the
vast majority of the challenged redactions were appropriate and,
because she has not substantially prevailed, petitioner is not
entitled to an award of counsel fees (see Matter of Saxton v New
York State Dept. of Taxation & Fin., 107 AD3d 1104, 1105 [2013];
Matter of Mack v Howard, 91 AD3d 1315, 1317 [2012]).
                        -5-                  520536

Garry, J.P., Rose and Lynch, JJ., concur.



ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
