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PETITIONER-REPORTER PREVAILED IN THE FOIL ACTION DESPITE THE AVAILABILITY OF SOME OF THE REQUESTED INFORMATION ON A PUBLIC WEBSITE; THEREFORE PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined petitioner-reporter’s request for an unredacted telephone directory for employees of the county police department should have been granted because the county did not demonstrate the information was exempt from disclosure. In addition, petitioner should have been awarded attorney’s fees and litigation costs because petitioner had prevailed in the FOIL action. The fact that some of the requested information (names and salaries of police officers, for example) was available on a public website, to which petitioner was referred, did not warrant a finding petitioner had not prevailed:

… Supreme Court improperly, in effect, denied that branch of the petition which was to compel the production of a NCPD [Nassau County Police Department] telephone directory, without redactions, insofar as asserted against the County and the NCPD, as those respondents failed to demonstrate the applicability of an exemption to disclosure warranting redaction of the telephone directory …, which did not contain any personal telephone or cell phone numbers (see Public Officers Law § 89[2-b][b]). * * *

… [T]he petitioner substantially prevailed in this proceeding by obtaining a significant portion of the records and information responsive to the FOIL request after the commencement of the proceeding … . Contrary to the respondents’ contention, the purported public availability of the requested records and information does not preclude a determination that the petitioner substantially prevailed … . Moreover, the record reflects that the respondents did not have a reasonable basis for the initial denial of the petitioner’s FOIL request in its entirety … . Matter of Lane v County of Nassau, 2023 NY Slip Op 06139, Second Dept 11-29-23

Practice Point: Unless the municipality can show the information sought by a FOIL request is exempt from disclosure the information must be disclosed.

Practice Point: The fact that information sought in a FOIL request is available on a public website, to which the petitioner is referred, does not preclude a finding that petitioner prevailed in the FOIL proceeding.

 

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UNSUBSTANTIATED COMPLAINTS AGAINST POLICE OFFICERS ARE NOT CATEGORICALLY EXEMPT FROM FOIL REQUESTS (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined “unsubstantiated complaints” against police officers are not categorically exempt from a FOIL request:

The petitioner publishes a daily newspaper in Long Island. Following the Legislature’s repeal of Civil Rights Law § 50-a, the petitioner made requests to the Nassau County Police Department (hereinafter the NCPD) pursuant to the Freedom of Information Law … to obtain certain law enforcement disciplinary records. … [T]he NCPD … withheld all documents relating to complaints that were not determined to be substantiated on the ground that such documents were categorically exempt from disclosure as an “unwarranted invasion of personal privacy” pursuant to Public Officers Law § 87(2)(b). We hold that records concerning unsubstantiated complaints or allegations of misconduct are not categorically exempt from disclosure as an unwarranted invasion of personal privacy, and the NCPD is required to disclose the requested records, subject to redactions with particularized and specific justification under Public Officers Law § 87(2) … . …

Former Civil Rights Law § 50-a provided a blanket shield from public disclosure for police officer personnel records, including records relating to disciplinary proceedings arising out of allegations of misconduct … . Effective June 12, 2020, the Legislature repealed Civil Rights Law § 50-a and amended the Public Officers Law to make specific provisions relating to the disclosure of law enforcement disciplinary records and the types of redactions to be made thereto prior to disclosure. Matter of Newsday, LLC v Nassau County Police Dept., 2023 NY Slip Op 06050, Second Dept 11-22-23

Practice Point: Pursuant to the repeal in 2020 of Civil Rights Law 50-a, unsubstantiated complaints against police officers are not categorically exempt from FOIL requests.

 

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THE PETITIONER MAKING THE FOIL REQUEST IS A LAW FIRM; THE FACT THAT THE FIRM’S CLIENT ALSO HAD STANDING TO MAKE THE FOIL REQUEST DID NOT DEPRIVE THE LAW FIRM OF STANDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 proceeding contesting the denial of petitioner’s FOIL request should not have been dismissed for lack of standing. Petitioner is a law firm seeking information on behalf of a client. The fact that the client could also make the FOIL request did not deprive the law firm of standing:

Supreme Court erred in concluding that the petitioner lacked standing to pursue this proceeding. The petitioner submitted the FOIL request to the Agency and its request was denied, both initially and on administrative appeal. Since the petitioner’s FOIL request was denied, it had standing to seek judicial review of the Agency’s determination … , regardless of whether it submitted the FOIL request, in whole or in part, on behalf of a client … . The petitioner’s standing was not extinguished by the fact that its client also would have had standing to commence a proceeding challenging the denial of the FOIL request … . Matter of Law Offs. of Cory H. Morris v Suffolk County, 2023 NY Slip Op 06046, Second Dept 11-22-23

Practice Point: Here a law firm made FOIL requests that were denied. The law firm then brought an Article 78 proceeding which was erroneously dismissed for lack of standing. The fact that the firm’s client had standing to bring the FOIL proceedings did not deprive the law firm of standing.

 

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THE FOIL REQUEST FOR THE NUMBER AND LOCATION OF LICENSE PLATE READERS (LPR’S) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined the FOIL request for the location of license plate readers (LPR’s) should have been granted. The majority decision and the dissent include comprehensive discussions of the relevant caselaw which are far too extensive to fairly summarize here:

In light of the presumption of accessability and the narrow interpretation we are required to apply to a claimed exemption, under the circumstances of this case, we find that the respondents failed to sustain their burden of proving that the law enforcement records exemption pursuant to Public Officers Law § 87(2)(e)(iv) applied to the records pertaining to the number and location of the LPRs sought by the petitioner’s request … . Matter of Lane v Port Wash. Police Dist., 2023 NY Slip Op 05605, Second Dept 11-8-23

Practice Point: Here the majority’s and dissent’s discussion of FOIL request for the number and location of license plate readers (LPR’s), which the majority held should have been granted, includes a comprehensive discussion of the relevant caselaw.

 

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THE AVAILABILTY OF GOVERNMENT RECORDS ON A PUBLIC WEBSITE DOES NOT SATISFY A FOIL REQUEST; HERE THERE WERE QUESTIONS OF FACT WHETHER THE VILLAGE SHOULD HAVE WORKED WITH THE PETITIONER TO IDENTIFY THE REQUESTED DOCUMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, in a comprehensive full-fledged opinion by Justice Iannacci, determined the article 78 petition seeking to compel the village to release documents about recusals and conflict-of-interests disclosures by village officials should not have been dismissed. The availability of government records on a public website was deemed insufficient to satisfy a FOIL request. There were questions of fact about whether the requested documents were sufficiently described:

The principal questions presented on appeal are whether the requested records were “reasonably described” (… [Public Officers Law] § 89[3][a]) so as to allow the Village to locate and identify them, and whether the Village satisfied its obligations under FOIL by maintaining a public website, on which much of the information sought by the petitioner could be found. We hold that the mere availability of government records on a public website is insufficient to satisfy a request under FOIL for reproduction of such materials. However, we further conclude that questions of fact exist as to the Village’s ability to locate, identify, and produce the records requested by the petitioner, thereby precluding summary determination of the petition. * * *

… [T]here is no evidence that, before denying the petitioner’s request in its entirety, the Village made any effort to work with her to more precisely define the information desired … , if possible, or to “attempt to reasonably reduce the volume of the records requested” … . * * *

Holding that an agency satisfies a FOIL request for reproduction of records merely by referring the requestor to a public website does not adequately safeguard the public right of all of this State’s citizens. Matter of Goldstein v Incorporated Vil. of Mamaroneck, 2023 NY Slip Op 05500, Second Dept 11-1-23

Practice Point: The availability of government records on a government website does not satisfy a FOIL request for documents.

Practice Point: The municipality may have an obligation to work with the party making a FOIL request to identify the requested documents.

 

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THE QUESTIONNAIRES FILLED OUT BY APPLICANTS FOR CITY JUDICIAL POSITIONS WERE PROTECTED FROM THE FOIL REQUEST BY THE PERSONAL PRIVACY EXEMPTION; AN APPELLATE COURT DOES NOT HAVE THE AUTHORITY TO CONSIDER AN UNPRESERVED ISSUE IN AN ARTICLE 78 PROCEEDING (FIRST DEPT).

The First Department, reversing Supreme Court, determined judicial questionnaires filled out by applicants for city judicial positions were protected from the FOIL request by the personal privacy exemption. The First Department noted that it did not have the authority in an article 78 proceeding to consider an unpreserved issue in the interest of justice:

… [T]he City properly applied the personal privacy exemption (Public Officer’s Law § 89[2][a]) to deny petitioner’s FOIL request in its entirety, as the City sustained its burden of establishing that disclosure of the records sought in this case — “all Uniform Judicial Questionnaires for applicants . . . under review by the Mayor’s Advisory Committee on the Judiciary” as of October 21, 2020 — would “constitute an unwarranted invasion of personal privacy” (Public Officers Law § 87[2][b] …). Disclosure of the questionnaire, which states the word “CONFIDENTIAL” in upper-case letters and boldface near the top of its first page, would undermine the assurances of confidentiality provided to candidates for judicial office … .

Moreover, disclosure would create a chilling effect, thus potentially diminishing the candor of applicants and causing others to decide against applying for judicial positions. The questionnaire contains extensive questions touching on highly personal and sensitive matters, such as personal relationships, reasons for leaving jobs, reasons for periods of unemployment, substance abuse, arrests, criminal convictions, testifying as a witness in criminal cases, and reasons for anticipated difficulty in handling the stresses involved in being a judge, as well as a catch-all question at the end of the questionnaire asking for any other information, specifically including unfavorable information, that could bear on the evaluation of the judicial candidate. In addition to the particular contents of the questionnaires, disclosure of the very fact that certain candidates submitted the questionnaires could harm those persons’ reputations by revealing that they sought to leave their jobs, or were unsuccessful in their applications for judicial positions … . Matter of Fisher v City of N.Y. Off. of the Mayor, 2023 NY Slip Op 05468, First Dept 10-31-23

Practice Point: Here the questionnaires filled out by applicants for city judicial positions were protected from the FOIL request by the personal privacy exemption.

Practice Point: In an article 78 proceeding an appellate court cannot consider an unpreserved issue in the interest of justice.

 

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THE REPEAL OF CIVIL RIGHTS LAW 50-A, WHICH PROHIBITED ACCESS TO POLICE PERSONNEL RECORDS, APPLIES RETROACTIVELY; PETITIONER PREVAILED RE: THE FOIL REQUEST AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, modifying Supreme Court, determined the repeal of Civil Rights Law 50-a, which prohibited access to police personnel records, applies retroactively. The court further held petitioner had prevailed re: the FOIL request and was therefore entitled to attorney’s fees:

… [F]ormer Civil Rights Law § 50-a provided, with limited exceptions, that “[a]ll personnel records [of law enforcement officers] used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review” … . The legislature repealed Civil Rights Law § 50-a on June 12, 2020 … , and made several related amendments to FOIL on the same date … , stating that all of this legislation including the repeal of section 50-a “shall take effect immediately” … . The “repeal of Civil Rights Law § 50-a . . . reflected a strong legislative policy promoting transparency of police disciplinary records and eliminated any claim of confidentiality in them … .  * * *

… [W]e hold that the repeal of Civil Rights Law § 50-a applies retroactively to records created prior to June 12, 2020 … . Matter of NYP Holdings, Inc. v New York City Police Dept., 2023 NY Slip Op 05193, First Dept 10-12-23

Practice Point: The repeal of Civil Rights Law 50-a, which prohibited access to police personnel records, applies retroactively.

Practice Point: Where, as here, a petitioner prevails on a FOIL request, petitioner is entitled to the award of attorney’s fees.

 

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BECAUSE PETITIONER HAD SUBSTANTIALLY PREVAILED ON THE FOIL CAUSE OF ACTION, PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS, DESPITE THE FACT THAT MUCH OF THE LEGAL REPRESENTATION WAS BY PRO BONO COUNSEL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the petitioner was entitled to attorney’s fees and litigation costs because petitioner had substantially prevailed on its FOIL causes of action. The fact that much of the legal representation was pro bono was not a bar to recovery:

… [T]he petitioner substantially prevailed on its FOIL cause of action, and the Town had no reasonable basis for denying access to the responsive documents. Accordingly, the petitioner was entitled to an award of reasonable attorneys’ fees and litigation costs incurred on the FOIL cause of action … . The fact that much of the petitioner’s representation was undertaken by pro bono counsel did not affect the petitioner’s entitlement to reasonable attorneys’ fees and litigation costs under the statute … . Matter of Ateres Bais Yaakov Academy of Rockland v Town of Clarkstown, 2023 NY Slip Op 03692, Second Dept 7-5-23

Practice Point: A party who “substantially prevails” on a FOIL cause action is entitled to attorney’s fees and litigation costs, even when much of the legal work was done by pro bono counsel.

 

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THE NYC BOARD OF HEALTH PROPERLY REFUSED TO ADD GENEALOGISTS TO THE LIST OF PERSONS WHO CAN ACCESS DEATH CERTIFICATES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Board of Health did not exceed the scope of its powers when it amended the NYC Health Code to add family members to the list of persons who can access death certificates but refused to add genealogists:

… New York City Board of Health did not “exceed[] the scope of its delegated powers” in amending 24 RCNY 207.11 … , by adding to the existing list of family members for whom requests for death certificates would automatically be deemed “necessary or required for a proper purpose” while declining to add genealogists … . Instead, it “balance[ed] costs and benefits according to preexisting guidelines” and did not create “its own comprehensive set of rules without benefit of legislative guidance” … .  …

The stated goal of the proposal was to allow more family members access to death certificates, and the Board of Health reasonably expressed concern with family privacy issues, due to social security numbers and causes of death being listed on death certificates, when declining to add genealogists to the expanded list … .  Matter of Reclaim the Records v New York City Dept. of Health & Mental Hygiene, 2023 NY Slip Op 02395, First Dept 5-4-23

Practice Point: The NYC Board of Health did not exceed its administrative powers when it refused to add genealogists to the list of persons who can access death certificates.

 

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THE COUNTY’S FAILURE TO RESPOND TO PETITIONER’S FOIL REQUEST WITHIN FIVE DAYS IS A DENIAL; THE COUNTY’S FAILURE TO NOTIFY PETITIONER OF THE AVAILABILITY OF AN ADMINISTRATIVE REVIEW OF THE DENIAL EXCUSED PETITIONER’S FAILURE TO SEEK ADMINSTRATIVE REVIEW; PETITIONER’S ARTICLE 78 ACTION SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 petition seeking court review of the denial of a FOIL request should not have been dismissed for failure to exhaust administrative remedies. Here the county did not respond to the FOIL request within five days, which, under the controlling regulations, is a denial. Petitioner, after an additional 30 days, filed the Article 78 petition without pursuing an administrative appeal. The Second Department held that the county’s failure to notify petitioner of the availability of administrative review justified petitioner’s failure to seek it before going to court, even though petitioner was aware of the availability of the administrative review process:

“The statutory time to respond to a FOIL request for records is ‘within five business days of the receipt of a written request,’ and the agency should respond by ‘mak[ing] such record available to the person requesting it, deny[ing] such request in writing or furnish[ing] a written acknowledgment of the receipt of such request and a statement of the approximate date . . . when such request will be granted or denied'” … . 21 NYCRR 1401.7(b) states, in relevant part, that “[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address[,] and business telephone number” … . “21 NYCRR 1401.7(c) provides that a FOIL request is deemed denied if there is no response to the request within five business days” … . “[A]ny administrative appeal of a denial [must] be undertaken within 30 days of the denial” … . A petitioner who does not “appeal[ ] the denial in writing” will generally be deemed to have “failed to exhaust its administrative remedies and, thus, [may] not resort to a judicial forum to gain relief” … .

Here, the Supreme Court improperly determined that dismissal was warranted based on the petitioner’s failure to exhaust its administrative remedies. Where, as here, an agency fails to “inform the person [or entity] making the FOIL request that further administrative review of the determination is available, the requirement of exhaustion is excused” … . Matter of Law Offs. of Cory H. Morris v Suffolk County, 2023 NY Slip Op 02312, Second Dept 5-3-23

Practice Point: If the agency which receives a FOIL request does not respond within five days, the request can be deemed denied. If the agency does not notify the party making the request of the availability of administrative review of the denial, failure to seek administrative review is excused, even where, as here, the petitioner was aware of the administrative review process.

 

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