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FOIL REQUESTS TO THE DEPARTMENT OF HEALTH FOR DISCLOSURE OF DECEDENTS’ MEDICAL HISTORY, CAUSE OF DEATH, LOCATION OF INTERMENT, AND WHETHER THEY WERE BURIED, CREMATED, OR MADE AN ANATOMICAL GIFT, CONSTITUTE AN UNWARRANTED INVASION OF PRIVACY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion (three judges), determined certain categories of death-related information kept by the Department of Health (DOH) are exempt from disclosure pursuant to the Freedom of Information Law (FOIL):

The issue on appeal is whether certain information about decedents that is retained and indexed by the New York State Department of Health (DOH) is subject to disclosure under the Freedom of Information Law (FOIL). DOH already publishes an online database that contains a decedent’s first and last name, middle initial, date of death, age at death, gender, state file number, and residence code for deaths from 1957 to 1972. Petitioner requests disclosure of these same categories of information and any additional indexed categories of information, beyond those DOH has chosen to publish, for deaths from all available years through 2017.

Based on the record before us, we conclude DOH has shown that disclosure of a decedent’s medical history, cause of death, location of interment, and whether they were buried, cremated, or made an anatomical gift, would constitute an unwarranted invasion of personal privacy, and this information is therefore exempt from disclosure under FOIL. Matter of Reclaim the Records v New York State Dept. of Health, 2025 NY Slip Op 03102, CtApp 5-22-25

 

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THE SOCIAL SERVICES LAW PROHIBITS THE RELEASE OF THE NAMES AND ADDRESSES OF PERSONS RECEIVING PUBLIC ASSISTANCE; THEREFORE THE FOIL REQUEST FOR THE ADDRESSES OF HOMELESS SHELTERS SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the FOIL request for the addresses of homeless shelters should not have been granted. Social Services Law section 136(1) provides that “[t]he names or addresses of persons applying for or receiving public assistance and care shall not be included in any published report or printed in any newspaper” … :

A shelter constitutes the “address” of its occupants. “Address” means “[t]he place where mail or other communication is sent” … or “a place where a person . . . may be communicated with” … . Shelter residents “have the right to receive and send mail” at their shelters, as well as “the right to receive visitors” there (18 NYCRR 491.12[c][6], [17]). There is nothing in the definition of “address” that would exclude temporary housing. Matter of NYP Holdings, Inc. v New York City Dept. of Social Servs., 2025 NY Slip Op 02013, First Dept 4-3-25

Practice Point: The Social Services Law prohibits the release of the names and addresses of persons receiving public assistance. Therefore the FOIL request for the addresses of homeless shelters should have been denied.

 

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THE TOWN DID NOT ADEQUATELY EXPLAIN ITS FAILURE TO TURN OVER CERTAIN DOCUMENTS WHICH WERE CREDIBLY ALLEGED TO EXIST IN THE FOIL REQUEST; THE FOIL PETITION WAS REINSTATED AND THE MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting the matter, determined the Town did not adequately explain its refusal to turn over documents relating to an Amazon warehouse and distribution center that was to be built in the Town. Therefore the petition, which was dismissed by Supreme Court, was reinstated:

Here, Meyer [the appellant] credibly alleged the existence of records, such as email correspondence between Amazon and the Town and traffic studies which may have been undertaken in connection with the approval of the new warehouse and distribution center, which were not produced. When faced with a request for such records, the Town was required to “either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search” … . Merely representing that “[u]pon information and belief” all documents had been provided, as was averred by the Town’s FOIL appeals officer in connection with the Town’s motion, is insufficient to comply with the requirements of FOIL … . Matter of Meyer v Town of Hempstead, 2025 NY Slip Op 01930, Second Dept 4-2-25

Practice Point: Here the FOIL request credibly alleged that certain documents existed. The Town’s response that “upon information and belief” all documents had been provided was not sufficient. The statute requires the Town to claim a specific exemption or certify it does not possess or could not locate the requested documents. The dismissed petition was reinstated.

 

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FOIL REQUESTS FOR DOCUMENTS POSSESSED BY ANOTHER AGENCY AND FOIL REQUESTS WHICH REQUIRED THE CREATION OF A NEW DOCUMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined FOIL requests for documents in the possession of another agency and FOIL requests which require the creation of a new document should not have been granted:

The court improperly ordered DCAS [Department of Citywide Administrative Services] to produce information possessed by another agency, the Financial Information Systems Agency (FISA). FOIL does not require an agency “to prepare any record not possessed or maintained by” that agency (Public Officers Law § 89[3][a]). DCAS’s witness gave unrebutted testimony that several of the eight categories of requested information are maintained in a separate database by FISA, not DCAS. Accordingly, DCAS is “under no obligation to provide” that information … .

The court also improperly required DCAS to undergo a process that would constitute the creation of a new record … . DCAS’s witness provided testimony that compliance with the request would require a multi-step process involving writing requirements for searches and for extracting data from three databases, reviewing the data for accuracy and completeness, developing code to “convert” the raw “transactional” data into “time series” or “status” data, and then aggregating and otherwise cleaning up the information into a report. Her testimony was consistent with her affidavit describing the process and estimating that, while the discrete step of extracting the raw data from DCAS’s database would take only four hours, “the staff time required for the production of the requested reports” as a whole “is not less than 150 to 158 hours.”

This Court has held that a similar “transformation process” necessary to compile an analogous list of City employee information “would entail much more than a ‘simple manipulation of the computer . . . to transfer existing records'” and would therefore constitute the creation of a new record … . “[T]here is no fair interpretation of the [testimony] that can support” the court’s findings that the total process would take only four hours or that this case is distinguishable from our previous holding … . Matter of FDNY Local 2507, DC-37, AFSCME v City of New York, 2025 NY Slip Op 01867, First Dept 3-27-25

Practice Point: A FOIL request for a document which is in the possession of another agency need not be granted.

Practice Point: A FOIL request which requires an agency to create a new document is improper.

 

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THE FOIL PERSONAL PRIVACY EXEMPTION DOES NOT PROVIDE A BLANKET EXEMPTION FOR CIVILIAN COMPLAINTS AGAINST POLICE OFFICERS, INCLUDING UNSUBSTANTIATED COMPLAINTS; WHETHER SUCH A DOCUMENT SHOULD BE REDACTED OR WITHHELD MUST BE DETERMINED DOCUMENT-BY-DOCUMENT (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the personal privacy exemption in FOIL did not provide a blanket exemption for civilian complaints against police officers, including unsubstantiated complaints. Rather, whether the personal privacy exemption applies must be determined on a record-by-record basis:

FOIL’s personal privacy exemption permits an agency to withhold from public access any record that “if disclosed would constitute an unwarranted invasion of personal privacy” (Public Officers Law § 87 [2] [b]). We agree with respondents that FOIL, as amended in conjunction with the repeal of Civil Rights Law § 50-a, does not deny law enforcement officers the benefit of this exemption. However, the Appellate Division correctly concluded—consistent with uniform appellate precedent—that there is no categorical or blanket personal privacy exemption for records relating to complaints against law enforcement officers that are not deemed substantiated … . * * *

Rather than withhold all such records, Public Officers Law § 87 (2) requires an agency to evaluate each record individually and determine whether “a particularized and specific justification” exists for denying access on the ground that disclosing all or part of the record would constitute an unwarranted invasion of privacy … . Where redactions would prevent such an invasion and can be made without unreasonable difficulty, the agency must disclose the record with those necessary redactions … . The Appellate Division properly directed respondents to undertake this process, subject to further judicial review … . Matter of New York Civ. Liberties Union v City of Rochester, 2025 NY Slip Op 01010, CtApp 2-20-25

Practice Point: The personal privacy exemption in FOIL does not provide a blanket exemption for civilian complaints against police officers, even unsubstantiated complaints. Whether a document should be redacted or withheld under the personal privacy exemption must be determined document-by-document.​

 

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THE FORMER EXEMPTION FROM A FOIL REQUEST FOR POLICE DISCIPLINARY RECORDS WAS REPEALED IN 2020; THE REPEAL APPLIES RETROACTIVELY SUCH THAT DISCIPLINARY RECORDS CREATED PRIOR TO THE REPEAL ARE NO LONGER EXEMPT (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Halligan, determined that the repeal of the exemption from a FOIL request for police disciplinary records applies retroactively to documents created before the repeal:

… [W]e conclude that the Legislature intended for the statutory repeal to have retroactive effect. For starters, there is no indication that the repeal was intended to affect the usual manner in which FOIL operates. FOIL requires agencies to “make available for public inspection and copying all records” (Public Officers Law § 87 [2]), and it defines “records” with reference to whether an agency possesses information, but without reference to the date the information was created (id. § 86 [4] [defining “record” as “any information kept” or “held . . . in any physical form whatsoever”]). The amendments impose various redaction requirements and personal privacy protections for law enforcement disciplinary records specifically, yet they do not, for example, single out records created before a certain date for special treatment, or direct that disclosure of any record is tethered to the date it was created. Had the Legislature intended to deviate from FOIL’s presumption that information kept or held by an agency is disclosable by exempting records created prior to the repeal, or to mandate that an agency responding to a FOIL request ascertain and apply the law that governed when each responsive record was created, then surely it would have said as much. Matter of NYP Holdings, Inc. v New York City Police Dept., 2025 NY Slip Op 01009, CtApp 2-20-25

Practice Point: The exemption from a FOIL request for police disciplinary records was repealed in 2020. The repeal applies retroactively to police disciplinary records created prior to the repeal.

 

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NYPD PROPERLY REQUIRED TO RELEASE DOCUMENTS RELATING TO ITS USE OF SURVEILLANCE TECHNOLOGIES INCLUDING FACIAL RECOGNITION, IRIS RECOGNITION AND MOBILE X-RAY TECHNOLOGIES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, rejected the New York City Police Department’s (NYPD’s) argument that the FOIL request for documents relating to the NYPD’s use of surveillance technologies (such as facial recognition, iris recognition and mobile x-ray technology) was unduly burdensome:

An overarching problem with the NYPD’s evidence of burdensomeness, which consisted entirely of [NYPD attorney] Murtagh’s testimony, is that it is nonspecific. To begin, Murtagh did not set forth the number of SPEX [special expense purchase] Contracts that are encompassed by the request. He also did not set out an approximate number of pages that contain potentially exempt information. * * *

The NYPD’s assertion of the burdensomeness exemption also rests on the necessity of reviewing approximately 165,000 pages of hard-copy documents. While this is a considerable task, it is eased by Supreme Court’s determination that the production could go forward quarterly, on a rolling basis. Additionally, the review is facilitated by the fact that the relevant documents are all in one place, and there is no need to search the NYPD’s precincts and departments. While Murtagh stated that only he and one colleague were qualified to review this universe of documents, he failed to explain why other NYPD employees could not be trained to do so. Finally, Public Officers Law § 89(3)(a) provides that an agency may use an “outside professional service to provide copying, programming or other services required to provide the copy.” Murtagh stated that the documents are too sensitive to be shown to an outside contractor. Again, he did not grapple with the POST Act’s [Public Oversight of Surveillance Technology (POST) Act’s] effect on the documents’ sensitivity. Assuming that some portions of the contract documents fall within FOIL’s exemptions, Murtagh did not explain why a nondisclosure agreement would be insufficient to protect the exempt portions of the documents. Matter of Legal Aid Socy. v Records Access Officer, 2025 NY Slip Op 00723, First Dept 2-6-25

Practice Point: Here the NYPD’s argument that the FOIL request for documents relating to the use of surveillance technologies was unduly burdensome was rejected.​

 

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A FOIL REQUEST FOR A ZONING BOARD OF APPEALS (ZBA) MEMO SHOULD NOT HAVE BEEN DENIED BECAUSE PETITIONER HAD UNSUCCESSFULLY SOUGHT TO ANNUL A ZBA RULING; MATTER REMITTED FOR REVIEW OF THE MEMO TO DETERMINE WHETHER IT IS EXEMPT FROM DISCLOSURE AS INTER-AGENCY OR INTRA-AGENCY MATERIAL (SECOND DEPT).

The Second Department, reversing the denial of the petition, determined the FOIL request for a memo prepared by the Chair of the Zoning Board of Appeals (ZBA) should not have been dismissed on the ground the petitioner had unsuccessfully sought to annul a determination by the ZBA. The matter was remitted for a review of the memo by the judge to determine whether it was exempt from disclosure as inter-agency or intra-agency material:

Supreme Court erred in dismissing this proceeding on the basis that it was rendered academic by the dismissal of a separate CPLR article 78 proceeding in which the petitioner was one of the parties seeking to annul a determination by the ZBA. “FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose. The underlying premise [is] that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government” … . “[T]he standing of one who seeks access to records under [FOIL] is as a member of the public, and is neither enhanced nor restricted because he [or she] is also a litigant or potential litigant” … .

… [E]xemptions are construed “narrowly, and an agency has the burden of demonstrating that an exemption applies ‘by articulating a particularized and specific justification for denying access'” … . When relying upon an exemption, “it is the agency’s burden to demonstrate that the requested material falls squarely within a FOIL exemption” … . “To meet its burden, the party seeking exemption must present specific, persuasive evidence that the material falls within the exemption. Conclusory assertions that are not supported by any facts are insufficient” … . Here, the exemption at issue provides that each agency shall make its records available for inspection, “except that such agency may deny access to records or portions thereof that . . . are . . . intra-agency materials which are not . . . statistical or factual tabulations or data” … . … Factual data “simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making” … . Matter of Supinsky v Town of Huntington, 2025 NY Slip Op 00324, Second Dept 1-22-25

Practice Point: A FOIL request should not be denied on the ground the person making the request is, was or could be a litigant in a matter related to the request.

Practice Point: Intra-agency and inter-agency material, meaning opinions, ideas or advice exchanged as part of a deliberative process, is exempt from FOIL disclosure.

 

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PETITIONER ADEQUATELY DESCRIBED THE RECORDS SOUGHT FROM THE POLICE DEPARTMENT AND THE DEPARTMENT DID NOT MAKE ANY EFFORT TO ASSIST PETITIONER IN IDENTIFYING THE RECORDS AS REQUIRED BY THE REGULATIONS; DENIAL OF THE PETITION REVERSED AND MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing the denial of the petition to compel the disclosure of Nassau County Police Department records and remitting the matter, noted that the applicable regulations require the Department to assist the petitioner in identifying the records sought:

… [P]etitioner made a request pursuant to the Freedom of Information Law … for certain records pertaining to the creation or maintenance of the Department’s current databases. Specifically, the petitioner requested: (1) “Any Requests for Proposals (RFPs), Requests for Qualifications (RFQs), and contracts pertaining to the creation or maintenance of the Department’s current database(s)”; (2) “The data dictionary, glossary of terms, record layout, entity relationship diagram, user guide, and any other records that describe the Department’s database(s)”; and (3) “The instruction manual or any other type of guide, distributed to law enforcement personnel dictating how they should use the database(s).”

… [T]he Department’s Legal Bureau denied the request on the ground that the petitioner did not reasonably describe the database to which he was referring. …

… [T]he petitioner’s requests were not vague or unlimited. They were circumscribed as to subject matter—the records pertaining to the creation or maintenance of the Department’s current databases—and the time period … . …

… [R]egulations enacted under FOIL by the Committee on Open Government provide that, upon receipt of a FOIL request, agency personnel are required to “assist persons seeking records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records” (21 NYCRR 1401.2[b][2]). Here, there is no evidence that, before denying the petitioner’s request, the Department made any effort to work with the petitioner to more precisely define the information desired, if possible … . Matter of Lane v County of Nassau, 2025 NY Slip Op 00220, Second Dept 1-15-24

Practice Point: Here the petitioner adequately identified the police department records at issue and the police department made no effort to assist petitioner in identifying the records as required by the applicable regulations. The FOIL petition should not have been denied.

 

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THE FOIL REQUEST FOR THE EMAIL ADDRESSES OF ALL NEW YORK CITY EMPLOYEES PROPERLY DENIED UNDER THE CYBERSECURITY EXEMPTION (FIRST DEPT).

The First Department, affirming Supreme Court’s denial of petitioner’s FOIL request for the email addresses of all New York City employees, determined the information was covered by the cybersecurity exemption from disclosure under FOIL. The petitioner is a foundation which seeks to inform those city employees who are public-employee-union members of their right to opt out of union membership:

… DCAS’s [NYC Department of Citywide Administrative Services’] General Counsel “articulat[ed] a particularized and specific justification for denying access” … under the cybersecurity exemption by explaining that “disclosure would create a substantial risk to the information technology infrastructure of the City of New York, including computer hardware, software, and data.”

The City Cyber Command’s Deputy Chief Information Security Officer further explained that disclosing “all New York City employees’ email addresses would relinquish control of the City’s information technology assets and jeopardize the security of those assets and of City infrastructure” by “mak[ing] it substantially easier for threat actors to successfully attack City . . . employees” in “[p]hishing and other email-based attacks.” Phishing and other confidence-based attempts at fraud prey on a target’s trust. The other information sought herein concerning employee’s names, titles, and other employment-related information could be used in conjunction with an email address to dupe unsuspecting targets. Of course, we do not find that the Foundation has any intention of phishing or committing any other type of fraud; it seeks to advance its mission. We note these facts only to point out the risks that can ensue from mass release of public employee contact information should the information fall into the wrong hands.

For these reasons, DCAS “articulate[d] a legitimate concern covered by the exemption”— that disclosure of email addresses could “breach or compromise [the agency’s] information technology infrastructure” or enable attackers to “gain access to or manipulate information maintained by” DCAS … . Matter of Freedom Found. v New York City Dept. of Citywide Admin. Servs., 2024 NY Slip Op 04483, First Dept 9-19-24

Practice Point: Here the FOIL request for the email addresses of all NYC employees was properly denied under the cybersecurity exemption because of the possibility of “phishing and other email-based attacks.”​

 

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