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Request for Mugshots and Identifying Information Re: Arrestees for Posting on Petitioner’s Website Denied—Posting of Such Information Would Constitute an Unwarranted Invasion of Privacy

Petitioner sought mugshots and other identifying information re: arrestees from the NYC Department of Corrections (DOC) for posting on his website.  Petitioner charged a fee for removing a photo from the site.  DOC denied the request. Supreme Court denied the Article 78 petition seeking reversal of the DOC’s denial.  The Second Department determined DOC did not meet its burden of demonstrating the applicability of any of the statutory exemptions from disclosure in the Public Officers Law (DOC’s assertions were “conclusory”), but went on to determine release of the photos and information would constitute an unwarranted invasion of privacy and may endanger the life or safety of the arrestees:

The agency’s burden of demonstrating that the material requested falls within a statutory exemption “requires the [agency] to articulate a “particularized and specific justification for denying access”‘” … . ” Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed'” … .

Pursuant to Public Officers Law § 87(2)(b), an agency “may deny access to records” where disclosure “would constitute an unwarranted invasion of personal privacy under the provisions of [Public Officers Law § 89(2)(b)].” “[W]here none of the [exemptions under Public Officers Law § 89(2)(b) are] applicable, a court must decide whether any invasion of privacy . . . is “unwarranted” by balancing the privacy interests at stake against the public interest in disclosure of the information'” … .

Here, the DOC proffered only conclusory assertions that denial of the requested records “would result in economic or personal hardship to the subject party,” which was insufficient to demonstrate the applicability of Public Officers Law § 89(2)(b)(iv) … . The DOC also failed to establish that any individuals received an express or implied promise of confidentiality from it, as required to demonstrate the applicability of Public Officers Law § 89(2)(b)(v) … .

In view of the DOC’s failure to demonstrate the applicability of any exemptions under Public Officers Law § 89(2)(b), this Court must determine whether disclosure would constitute an “unwarranted invasion of personal privacy” by ” balancing the privacy interests at stake against the public interest in disclosure of the information'” … . Here, the petitioner has not set forth any direct public interest in disclosure of the records at issue, which were sought for the sole purpose of posting personal information and photographs of individuals currently or formerly in the custody of the DOC on a website that collects payment in exchange for removing the photographs. On the other hand, the record reflects that the privacy interests of numerous individuals are implicated, including those individuals who were ultimately acquitted of any criminal charges and adolescents between the ages of 16 and 18 who are presently or were in the custody of the DOC. Consequently, under the particular circumstances of this case, a balancing of the privacy interests at stake against any public interest in disclosure necessitates a determination that disclosure of the records at issue would constitute an “unwarranted invasion of personal privacy” (Public Officers Law § 87[2][b]…). Matter of Prall v New York City Dept. of Corrections, 2015 NY Slip Op 04653, 2nd Dept 6-3-15

 

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