Sklarski et al v. Niagara Falls Bridge Commission et al

Filing 28

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 18 defendants motion to dismiss (doc. 18), which this Court has converted to a motion for summary judgment; denying Plaintiffs cross-motion; and dismissing the amended complaint (doc. 15) in its entirety with prejudice. (The Clerk of the Court is directed to close this case.) Signed by Hon. Michael A. Telesca on 11/23/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DANNY W. SKLARSKI and JOHN
CERETTO,

No.09-cv-633(MAT)
DECISION AND ORDER

Plaintiffs,
-vsNIAGARA FALLS BRIDGE COMMISSION,
BOARD OF COMMISSIONERS OF THE
NIAGARA FALLS BRIDGE COMMISSION,
AND NORMA I. HIGGS,
Defendants.

I.

Introduction
Represented

(“plaintiffs”)

by

bring

counsel,
this

Danny

action

Sklarski

pursuant

and

to

John

the

Ceretto

Freedom

of

Information Act (“FOIA”), 5 U.S.C. § 552, alleging that FOIA
requires defendant Niagara Falls Bridge Commission, its Board of
Commissioners, and its chairman Norma I. Higgs (“defendants” or
“the Commission”) to produce information related to the June 21,
2008 resignation of Thomas E. Garlock from his position as General
Manager

of

the

Commission.

See

doc.

15

(amended

complaint).

Plaintiffs also claim that the terms of the joint resolution
establishing the Commission, as well as New York State’s Freedom of
Information Law (“FOIL”), require disclosure. Presently before the
Court are defendants’ motion to dismiss the complaint pursuant to
Fed. R. Civ. P. 12(b)(6) and plaintiffs’ cross-motion for summary
judgment pursuant to Rule 56. For the reasons set forth herein,
defendants’ motion is converted to a motion for summary judgment
and granted, and plaintiff’s cross-motion is denied.

II.

Factual Background and Procedural History
On June 16, 1938, Congress created the Niagara Falls Bridge

Commission by a joint resolution (“the resolution”). See doc. 18-4
(H.R. J. Res. 688, 75th Cong., 52 Stat. 767-71 (1938)). The
resolution provides that the Commission is to be made up of four
Commissioners appointed by the governor of New York State and four
Commissioners appointed by the Premier of Ontario, Canada. Under
the terms of the resolution, the Commission is authorized to
acquire property through eminent domain as needed for a bridge
across the Niagara River, in the cities of Niagara Falls, New York
and Niagara Falls, Ontario, Canada. The Commission currently owns
and operates three international bridges: the Rainbow Bridge, the
Whirlpool Bridge, and the Lewiston-Queenston Bridge. The Commission
supports its operations with tolls and other income derived from
bridge operations. In 1991, Congress amended the resolution to
state that “[t]he Commission shall be deemed for the purposes of
all Federal law to be a public agency or public authority of the
State of New York, notwithstanding any other provision of law.”
Intermodal

Surface

Transp.

Efficiency

Act

of

1991

(“ISTEA”),

Pub. L. No. 102-240, § 1070, 105 Stat. 1914, 2012 (1991).
On July 21, 2008, Thomas E. Garlock (“Garlock”) resigned from
his position as General Manager of the Commission. Plaintiff’s
complaint

alleges

that

“[i]t

was

reported

that,

upon

his

resignation, Mr. Garlock received a lucrative severance package.”
Doc. 15 at ¶ 25. Plaintiffs complain that the Commission refused to
2

release details of his severance package, and they therefore
“submitted

an

information

request

to

the

Commission

.

.

.

requesting production of (1) any resolution the Commission may have
adopted in connection with Mr. Garlock’s departure, and rationale
for

such

including

resolution;
his

most

(2)

Mr.

recent

Garlock’s

contract;

(3)

employment
the

contracts

details

of

any

severance package that Mr. Garlock received upon his departure; and
(4) information

as

to

whether

Mr.

Garlock left

his

position

voluntarily or involuntarily.” Id. at ¶ 27.
On March 26, 2010, this Court granted defendants’ motion to
dismiss the complaint, finding that the Commission was not an
agency of New York State and therefore not subject to New York’s
Freedom of Information Law (“FOIL”). See doc. 14. Plaintiffs were
given leave to amend, and on May 24, 2010 filed an amended
complaint alleging (1) the Commission is an “agency” within the
meaning of FOIA and therefore subject to its provisions; (2) the
joint resolution which created the Commission established that it
is

required

to

turn

over

the

requested

information;

and

(3) New York’s FOIL requires disclosure of the requested materials.
For the same reasons as set forth in the Court’s Decision and
Order dated March 26, 2010, plaintiffs’ third cause of action is
dismissed.1

Defendants

have

moved

1

to

dismiss

pursuant

to

The complaint states that the previously-dismissed cause of
action based on New York’s FOIL was included “in order to preserve
[plaintiffs] appellate rights concerning the dismissal of this
claim.” Doc. 15 at n.2.
3

Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs
have cross-moved for summary judgment pursuant to Rule 56.
IV. Discussion
Because defendants request this Court to consider matters
outside the record, including declarations and exhibits attached to
its motion, the Court hereby converts defendants’ motion to dismiss
to a motion for summary judgment pursuant to Rule 56. See Fed. R.
Civ. P. 12(d). See In re G. & A. Brooks, Inc., 770 F.3d 288, 295
(2d Cir. 1985).
A.

Standard of Review

Pursuant

to

Fed.

R.

Civ.

P.

56,

“[t]he

court

shall

grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Once the
movant has met this burden, the burden shifts to the nonmovant who
must “come forward with evidence to allow a reasonable jury to find
in his favor.” Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir.
2001); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325–27
(1986). The court must draw all factual inferences, and view the
factual assertions in materials such as affidavits, exhibits, and
depositions in the light most favorable to the nonmoving party. See
Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

255

(1986); Celotex, 477 U.S. at 322. However, a nonmovant benefits from
such factual inferences “only if there is a ‘genuine’ dispute as to

4

those facts.” Scott v. Harris , 550 U.S. 372, 380 (2007), quoting
Fed. R. Civ. P. 56(c).
B.

FOIA

Defendants contend that the Commission is not an “agency”
within the meaning of FOIA and therefore the Commission is not
subject

to

FOIA’s

provisions.

FOIA

defines

“agency”

as

“any

executive department, military department, Government corporation,
Government controlled corporation, or other establishment in the
executive branch of the Government . . ., or any independent
regulatory

agency.”

5

U.S.C.

§

552(f)(1).

“Government,”

for

purposes of FOIA, means the federal government. See 5 U.S.C.
§

551(1).

“[I]t

must

be

established

that

an

‘agency’

has

‘improperly withheld agency records’ for an individual to obtain
access to documents through an FOIA action.”

Forsham v. Harris,

445 U.S. 169, 177 (1980); id. at 180 (holding that grants of
federal funds do not convert an entity to an “agency” for purposes
of FOIA “absent extensive, detailed, and virtually day-to-day
supervision.”).
Defendants cite case law holding that before an entity can be
held subject to FOIA, there must be “a threshold showing of
substantial federal control or supervision.” Irwin Mem’l Blood Bank
of San Francisco Med. Soc. v. Am. Nat’l Red Cross, 640 F.2d 1051,
1055 (9th Cir. 1981) (citing, inter alia, Forsham, 445 U.S. at
180-81). In Irwin, the Court held that the American Red Cross was
not subject to FOIA, despite the facts that it had a federal
5

charter; the federal government provided buildings for Red Cross
use;

the

President

appointed

eight

members

of

its

Board

of

Governors, including the principal executive; seven other board
members were designated from other federal agencies; and the Red
Cross was subject to federal audits. 640 F.2d at 1056-58. The Court
found that although “[t]he Red Cross [was] undoubtedly a close ally
of the United States government, . . . its operations [were] not
subject to substantial federal control or supervision.” Id. at 1057
(emphasis added).
Similarly, in Singleton Sheet Metal Works, Inc. v. City of
Pueblo, 727 F. Supp. 579, 581 (D. Colo. 1989), also relying on
Forsham, the district court held that “[t]here must be ‘extensive,
detailed and virtually day-to-day supervision’ by the federal
government

before

‘federal

agency’

status

can

attach

to

a

non-federal entity.” Id. (citing Forsham, 445 U.S. at 180). Here,
defendants have submitted a declaration of Janice A. Thomson, a
Canadian citizen who was appointed as a Commissioner by the Premier
of the Province of Ontario. Thomson avers that the Commission “is
financially self-sufficient, and receives no operating funds from
any government, whether local, state, or federal, or American or
Canadian.” Doc. 18-9 at ¶ 2.
Plaintiffs have submitted no evidence that the Commission is
in

any

way

subject

to

the

substantial

federal

control

or

supervision required by relevant precedent. Rather, their argument
focuses on the legislative history of the Administrative Procedures

6

Act (“APA”), from which FOIA took its definition of “agency,” and
on the legislative history of FOIA itself. Plaintiffs also contend
that the Commission is not a Canadian agency, and therefore it is
an “agency” of the United States government. Finally, plaintiffs
argue that the operation of international bridges is “a clear
function of the Government.” Doc. 19-16 at 17.
Plaintiffs do not dispute defendants’ contentions that the
Commission’s employees are not federal employees, the Commission
receives no federal funds, and the federal government does not
recommend or appoint Commissioners. They also fail to distinguish
the relevant case law. As discussed above, persuasive precedent
holds that an entity must be subject to “substantial federal
control or supervision” in order to be subject to FOIA. See Irwin,
640 F.2d at 1055; Singleton, 727 F. Supp. at 581; see also Gilmore
v. U.S. Dep’t of Energy, 4 F. Supp. 2d 912, 919 (N.D. Cal. 1998)
(finding that entity was not an “agency” for purposes of FOIA
where, although it received federal funding, its employees were not
federal employees, and it was not under the “day-to-day supervision
and control required for [it] to be deemed a government-controlled
corporation”); Ciba-Geigy Corp. v. Mathews, 428 F. Supp. 523, 528
(S.D.N.Y. 1977) (finding that entity was not subject to FOIA where
it was “subject to federal audit but not to federal supervision of
its daily operations”).
Here, not only is federal control and/or supervision absent,
but Congress actually amended the joint resolution in 1991 to

7

“deem” the Commission “a public agency or public authority of the
State of New York” for purposes of federal law. ISTEA, Pub. L.
No. 102-240, § 1070, 105 Stat. 1914, 2012 (1991). It is this clear
both from the case law and from the expressed Congressional intent
that the Commission is not an “agency” of the federal government
within the meaning of FOIA. Summary judgment is therefore granted
to defendants on this ground.
C.

The Joint Resolution

Plaintiffs next contend that the terms of the joint resolution
itself create an obligation on the part of the Commission to comply
with FOIA. The resolution provides that, in association with the
operation of the Commission and its collection of tolls, “[a]n
accurate record of the cost of the bridge and its approaches, the
expenditures for maintaining, repairing, and operating the same,
and of the daily tolls collected shall be kept and shall be
available for the information of all persons interested.” H.R. J.
Res. 688, § 5, 75th Cong., 52 Stat. 767-71 (1938). Section 5 of the
resolution also requires a sinking fund to pay principal and
interest due on Commission bonds.
Basic canons of statutory construction dictate that this
language was not intended to expand the Commission’s duties of
disclosure to the scope contemplated by FOIA, which was enacted
some thirty years later. The statute is plain in its language and
delineates a list of items subject to disclosure. Congress’s
expression

of

this

list

is

dispositive.
8

“A

general

rule

of

statutory construction is that “[w]hen the legislature expresses
things through a list, the court assumes that what is not listed is
excluded.” In re Ben Franklin Retail Store, Inc., 227 B.R. 268, 270
(Bankr.

N.D.

Ill.

1998)

(quoting

2A

Sutherland

Statutory

Construction § 47.23, at 216–17 (5th ed. 1992)). Plaintiffs’
requests for information at issue in this case are not included in
the list of items required to be disclosed by the plain language of
the resolution.
Although

Garlock

was

an

employee

of

the

Commission,

plaintiffs have not convincingly argued that any severance package
received by him was an “expenditure for maintaining, repairing and
operating” the Commission’s bridges within the meaning of the
resolution. Furthermore, as defendants argue, the resolution states
that the expenditure information is required to be provided only to
“persons interested.” There is no indication found in the terms of
the resolution, which was enacted approximately three decades prior
to FOIA, that the term “persons interested” was meant to include
members of the general public. As defendants point out, the Seventh
Circuit addressed identical language in a case involving the White
County Bridge Commission. See Borah v. White Cty. Bridge Comm’n,
199 F.2d 213 (7th Cir. 1952). The Borah Court held that, pursuant
to the terms of the resolution establishing the White County Bridge
Commission, the “persons interested” were the attorneys general for
the states of Illinois and Indiana and the United States Attorneys
for those districts in which the bridge was located. Id. at 216.

9

The Borah Court’s reasoning applies equally to the resolution at
issue in this case, which by analogy confers standing on the New
York Attorney General, the United States Attorney for the Western
District of New York, and the appropriate Canadian authorities.
For the above-stated reasons, summary judgment is granted to
defendants on this ground. Plaintiff’s complaint is dismissed in
its entirety with prejudice.
V. Conclusion
For the foregoing reasons, defendants’ motion to dismiss
(doc.

18), which this Court has converted to a motion for summary

judgment, is granted. Plaintiff’s cross-motion is denied. The
amended complaint (doc. 15) is dismissed in its entirety with
prejudice. The Clerk of the Court is directed to close this case.

ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

November 23, 2016
Rochester, New York.

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