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RESPONDENT CITY DID NOT DEMONSTRATE THE FOIL REQUEST WOULD INTERFERE WITH LAW ENFORCEMENT OR JUDICIAL PROCEEDINGS OR WOULD REVEAL A CONFIDENTIAL SOURCE; MATTER REMITTED FOR IN CAMERA REVIEW TO DETERMINE WHETHER THE FOIL REQUEST WAS PROTECTED BY THE INTER- OR INTRA- AGENCY MATERIALS EXEMPTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that two of the grounds for denying the FOIL request were invalid and the third, the inter-agency or intra-agency materials exemption, could not be assessed absent an in camera review of the documents. The matter was remitted:

Respondent failed to meet its burden of establishing that disclosure of any records responsive to petitioner’s FOIL request would “interfere with law enforcement investigations or judicial proceedings” … . This exemption “ceases to apply after enforcement investigations and any ensuing judicial proceedings have run their course” … . …

Respondent also failed to establish that disclosure would “identify a confidential source or disclose confidential information relating to a criminal investigation” … , “in the absence of any evidence that [any] person received an express or implied promise of confidentiality'” … . Respondent’s assertion that disclosure would reveal nonroutine “criminal investigative techniques or procedures” … is conclusory.

The email messages submitted by petitioner in support of the article 78 petition are covered by the inter-agency or intra-agency materials exemption … because they amount to “opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making”… . However, the applicability of this exemption to any other responsive records cannot be determined on this record in the absence of in camera review … . Matter of Jewish Press, Inc. v New York City Dept. of Investigation, 2021 NY Slip Op 02108, First Dept 4-6-21

 

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