You are here: / Freedom of Information Law (FOIL)
, ,

IN RESPONSE TO PETITIONER’S FOIL REQUESTS, THE TOWN DID NOT CITE ANY EXEMPTION FOR THE IDENTIFIED RECORDS WHICH WERE NOT PRODUCED AND DID NOT CERTIFY THOSE RECORDS DID NOT EXIST; IN ADDITION THE TOWN DID NOT EXPLAIN THE REASONS FOR THE REDACTIONS IN THE PRODUCED RECORDS; ALL IN VIOLATION OF THE PUBLIC OFFICERS LAW; MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court and remitting the matter, determined that the respondent town did not explain its failure to produce the determinations made in 51 of the 54 appeals identified in response to the petitioner’s FOIL request and did not explain the reasons for redactions made in the records which were provided:

… Supreme Court erred in dismissing so much of the petition/complaint as sought, in effect, to compel the production of all responsive records or, in the alternative, to certify that the respondent does not possess the requested records and that they could not be located after a diligent search. The respondent does not dispute that it failed to produce the determinations made in 51 of the 54 appeals that were identified in response to the petitioner’s request. The respondent did not claim a specific exemption to disclosure in denying the petitioner’s request for those determinations. Accordingly, the respondent was required to either produce those records or certify that it does not possess the requested records and that they could not be located after a diligent search (see Public Officers Law § 89[3][a] …).

Supreme Court also erred by determining that the respondent’s redactions were permissible to prevent unwarranted invasions of personal privacy pursuant to Public Officers Law § 87(2)(b). In an administrative appeal of an agency’s denial of access to records, the agency is required to “fully explain in writing . . . the reasons for further denial” (Public Officers Law § 89[4][a]). “[J]udicial review of an administrative determination is limited to the grounds invoked by the agency and the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Here, the respondent failed to respond to the petitioner’s administrative appeal, and failed to otherwise reference Public Officers Law § 87(2)(b) as a justification for the redactions. To provide the respondent the benefit of justifications it did not advance in the first instance “contravenes Court of Appeals precedent ‘as well as the spirit and purpose of FOIL'” … . Matter of Aron Law, PLLC v Town of Hempstead, 2025 NY Slip Op 05519, Second Dept 10-8-25

Practice Point: Under FOIL (Public Officers Law) identified records must be produced unless an exemption is demonstrated to apply or the respondent certifies that the records could not be found after a diligent search. In addition, the reasons for any redactions in produced records must be explained. Here Supreme Court should not have dismissed aspects of the FOIL petition in the absence of these required responses by the town.

 

,

PETITIONER PREVAILED IN THE FOIL PROCEEDING AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES; HOWEVER, PETITIONER WAS NOT ENTITLED TO LEGAL COSTS INCURRED IN PROSECUTING THE PETITIONER’S CLAIM FOR ATTORNEY’S FEES, SO-CALLED “FEES ON FEES” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the petitioner in this FOIL action prevailed and was entitled to attorney’s fees, the petitioner was not entitled to the fees incurred in seeking to recover the attorney’s fees, so-called “fees on fees:”

… [W]e find that the award of attorneys’ fees included amounts for legal fees and costs incurred by the petitioner in prosecuting its claim for an award of attorneys’ fees, or so called “fees on fees.” In New York, an attorney’s fee is “‘merely an incident of litigation and is not recoverable absent a specific contractual provision or statutory authority'” … . An award of fees on fees—fees for services performed to recover a fee award—also must be based upon a specific contractual provision or statute … . Here, “[g]iven the absence of unmistakably clear intent regarding the recovery of fees on fees [in Public Officers Law § 89(4)(c)], a right to recover those fees should not be implied” … .

As the petitioner is entitled to an award of attorneys’ fees, we remit the matter to the Supreme Court, Kings County, for a new hearing on the issue of the amount of reasonable attorneys’ fees arising solely from the prosecution of this proceeding, without the inclusion of legal fees and costs incurred in prosecuting the petitioner’s claim for an award of attorneys’ fees … . Matter of Aron Law, PLLC v New York City Fire Dept., 2025 NY Slip Op 03806, Second Dept 6-25-25

Practice Point: The prevailing party in a FOIL proceeding is entitled to attorney’s fees. However the petitioner is not entitled to “fees on fees,” i.e., legal costs incurred in prosecuting the claim for attorney’s fees.

 

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

 

,

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.

 

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.

 

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.

 

,

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.​

 

,

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.

 

,

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.​

 

, , ,

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.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy