           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

375
CA 11-02045
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF MARTIN J. SAWMA,
PETITIONER-APPELLANT,

                      V                           MEMORANDUM AND ORDER

CHRIS COLLINS, COUNTY EXECUTIVE, COUNTY OF
ERIE, RESPONDENT-RESPONDENT.


LAW OFFICE OF MICHAEL KUZMA, BUFFALO (MICHAEL KUZMA OF COUNSEL), FOR
PETITIONER-APPELLANT.

LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (VINCENT M. MIRANDA OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment (denominated decision and order) of the
Supreme Court, Erie County (Timothy J. Walker, A.J.), entered December
8, 2010 in a proceeding pursuant to CPLR article 78. The judgment
dismissed the petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner appeals from a judgment dismissing his
CPLR article 78 petition that sought disclosure of certain records of
respondent pursuant to the Freedom of Information Law ([FOIL] Public
Officers Law art 6). We agree with Supreme Court that the documents
sought are exempt from disclosure pursuant to Public Officers Law § 87
(2) (g) inasmuch as they are inter-agency or intra-agency materials
that are not statistical or factual tabulations or data, instructions
to staff that affect the public, or final agency policy or
determinations. Respondent met his burden of establishing that the
documents were part of a government decision-making process that
involved the use of consultation, and such predecisional material that
an agency decision-maker uses to arrive at a decision is exempt from
FOIL disclosure (see Matter of Xerox Corp. v Town of Webster, 65 NY2d
131; Matter of Bass Pro, Inc. v Megna, 69 AD3d 1040). In light of our
determination, we need not address the remaining exemptions under FOIL
upon which respondent relies.




Entered:    March 16, 2012                      Frances E. Cafarell
                                                Clerk of the Court
