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Documents Relevant to a Civil Investigation by the Department of Taxation and Finance Were Not Protected from FOIL Disclosure by a Statute which Specifically Relates to Criminal Investigations

The Third Department affirmed Supreme Court’s determination that documents which were pertinent to a civil, as opposed to a criminal, investigation, were not shielded from disclosure by Public Officers Law 87(2)(e)(iv).  The petitioners were notified they were subject to an “interrogation” by the Department of Taxation and Finance about job-related expense deductions. Under a FOIL request, the petitioners sought documents which included “interrogation” questions.  Because Public Officers Law 87(2)(e)(iv) protects such documents from disclosure only if they are part of a criminal investigation, Supreme Court properly held the documents should be disclosed:

“Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law § 87 (2)” … . In this regard, “[e]xemptions are narrowly construed, with the agency that seeks to prevent disclosure bearing the burden of demonstrating that the requested material falls squarely within an exemption by articulating a particularized and specific justification for denying access” … .

Here, in denying access to the 68 pages of proposed interrogation questions, respondents relied exclusively upon Public Officers Law § 87 (2) (e) (iv), which exempts from disclosure “records or portions thereof that . . . reveal criminal investigative techniques or procedures, except routine techniques and procedures.” The statute — on its face — references criminal investigative techniques or procedures, and prevailing case law suggests that this exemption applies only to a FOIL request that, at the very least, has its genesis in an underlying criminal investigation or prosecution … . Matter of Aurigemma v New York State Dept. of Taxation & Fin., 2015 NY Slip Op 04356, 3rd Dept 5-21-15

 

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