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ALTHOUGH PETITIONER ULTIMATELY PREVAILED AND WAS PROVIDED WITH THE NASSAU COUNTY TRAFFIC AND PARKING VIOLATIONS AGENCY (TPVA) RECORDS PURSUANT TO ITS FREEDOM OF INFORMATION LAW (FOIL) REQUEST, BECAUSE THE TPVA PERFORMS EXEMPT ADJUDICATORY FUNCTIONS AS WELL AS NON-EXEMPT PROSECUTORIAL FUNCTIONS THE COUNTY HAD A REASONABLE BASIS FOR INITIALLY WITHHOLDING THE RECORDS; $30,000 ATTORNEY’S-FEES AWARD REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the petitioner ultimately prevailed in its Freedom of Information Law (FOIL) action, it was not entitled to attorney’s fees. The petitioner sought records re: Nassau County’s photo speed monitoring system. The records were held by the Nassau County Traffic and Parking Violations Agency (TPVA). Initially the request was denied on the ground that the TPVA is part of the judiciary and therefore was not an “agency” within the meaning of the Public Officers Law. However, the Court of Appeals has clarified that there are aspects of the TPVA which are adjudicatory and aspects which are prosecutorial. Ultimately it was determined the sought records related to the prosecutorial function and were made available to the petitioner. The Supreme Court awarded petitioner over $30,000 in attorney’s fees. But the Second Department reversed:

We disagree with the Supreme Court’s determination to grant the petitioner’s motion for an award of attorney’s fees. Here, the petitioner “substantially prevailed” in the proceeding, inasmuch as the petitioner eventually received the documents sought from the TPVA (see Public Officers Law § 89[4][c] … ). However, the TPVA had a reasonable basis for denying the petitioner’s request for its records based on its reliance upon the Court of Appeals’ statement that “the TPVA was intended to be an arm of the District Court” … , and FOIL’s express exclusion of “judiciary” from its definition of “agency” (Public Officers Law § 86[1], [3]). Although it was ultimately determined that TPVA records concerning its nonadjudicatory responsibilities are not exempt from disclosure pursuant to the Public Officers Law, it remains that TPVA had a reasonable basis in law for withholding the requested materials … . Accordingly, the petitioner’s motion should have been denied. Matter of Law Offs. of Cory H. Morris v County of Nassau, 2020 NY Slip Op 03513, Second Dept 6-24-20

 

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WHETHER THE REQUESTED DOCUMENTS HAVE BEEN REASONABLY DESCRIBED IS DISTINCT FROM WHETHER A SEARCH FOR THE DOCUMENTS WOULD BE UNDULY BURDENSOME; THE DOCUMENTS WERE SUFFICIENTLY DESCRIBED AND THE PETITION SHOULD NOT HAVE BEEN DENIED ON THAT GROUND; MATTER REMITTED FOR A DETERMINATION WHETHER A SEARCH WOULD BE UNDULY BURDENSOME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the FOIL request for NYC Department of Education (DOC) forms used by employees to request absences for religious observances should not have been denied on the ground the documents were not reasonably described. The DOC conceded that it can locate the records, which are kept at the 1700 individual schools. The matter was remitted to address whether it would be unduly burdensome to search for the documents, a distinct ground Supreme Court did not address:

We disagree with the Supreme Court’s determination that it was proper for the respondent to deny the petitioner’s request on the ground that the requested records were not reasonably described. The requirement that a FOIL request reasonably describe the records sought is to enable the agency to locate the records in question … . In order for an agency to deny a FOIL request for overbreadth, the agency must demonstrate that the description is ” insufficient for the purposes of locating and identifying the documents sought'” … . Where the request is sufficiently detailed to enable the agency to locate the records in question, the agency cannot complain about the nomenclature of the request as described … . …

The respondent has conflated the requirement of reasonable description with the related, but separate, consideration as to whether it would be unduly burdensome for the respondent to comply with the petitioner’s request. While the respondent’s submissions demonstrate that it knows where the requested records are located, the respondent also maintains that it would be burdensome for it to conduct a search of the personnel files at each of its 1,700 schools to produce the requested records. However … Public Officers Law § 89(3)(a) provides that the “agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article.” The issue of burden and/or whether the respondent is able to engage an outside professional service to cull the records sought was not addressed by the Supreme Court and we cannot resolve it on this record.  Matter of Jewish Press, Inc. v New York City Dept. of Educ., 2020 NY Slip Op 02785, Second Dept 5-13-20

 

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A GENEALOGICAL ADVOCACY ORGANIZATION’S FREEDOM OF INFORMATION LAW REQUEST FOR MARRIAGE RECORDS FROM 1967 THROUGH 2017 PROPERLY DENIED ON ‘INVASION OF PRIVACY’ GROUNDS (THIRD DEPT).

The  Third Department, in a full-fledged opinion by Justice Colangelo, after a comprehensive analysis, determined the respondent NYS Department of Health properly refused petitioners’ request for records of marriages between 1967 and 2017 based upon “invasion of privacy” concerns. The petitioners are a “genealogical advocacy organization” and its officers seeking to add the marriage records to a searchable database:

In our view, respondent has satisfied its burden of showing that the requested information falls within this privacy exemption “by articulating a particularized and specific justification for denying access” … . Although individual marriage records are public, there is a material difference between providing access to individual records on a demonstration of need (see Domestic Relations Law § 19 [1]) and providing 50 years’ worth of recent marital indices to publish on the Internet. According this personal privacy exemption its “natural and [most] obvious meaning” … , we conclude that it applies to the recent records sought from respondent here. * * *

Petitioners do not even argue that disclosure here would promote the objectives of FOIL. “[I]t is precisely because no governmental purpose is served by public disclosure of certain personal information about private citizens that the privacy exemption” exists … . …

Who among us, in applying for a loan, a bank account or a credit card, has not been asked for our mother’s “maiden” name, or been directed to devise or change a password the creation of which called for information such as a town of origin, wedding anniversary, first school attended and the like. … Such specific identifying facts could readily be gleaned, with a few strokes of a keyboard, from the record indices that petitioners would, upon receipt, make available to the world. In contrast, the “public interest” that would presumably be served by such mass disclosure, as articulated by petitioners, is to, in essence, assist certain members of the public in their pursuit of what is essentially a hobby. In short, in this Internet age, the potential for harm to thousands of private citizens from the disclosure of the personal information at issue far outweighs the presumed benefit to a few genealogical enthusiasts. Thus, under these circumstances, nondisclosure and application of the personal privacy exemption is, we believe, “consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL” … . Matter of Hepps v New York State Dept. of Health, 2020 NY Slip Op 02517, Third Dept 4-30-20

 

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THE INTERIM DECISION ISSUED BY SUPREME COURT WAS NOT THE EQUIVALENT OF AN ORDER; THE FIRST DEPARTMENT, THEREFORE, DISMISSED THE APPEAL FOR LACK OF JURISDICTION (FIRST DEPT).

The First Department, dismissing the appeal in this Freedom of Information Law (FOIL) case, determined the “interim decision” was not an appealable paper, depriving the First Department of jurisdiction:

This proceeding stems from Spectrum News NY1’s (Spectrum) attempts to gain access to video files from the voluntary body camera experiment. Specifically, Spectrum filed a FOIL request for unredacted videos from the NYPD’s voluntary body camera program begun in 2014. NYPD denied the request, claiming that unredacted files were exempt from disclosure under FOIL. Spectrum then commenced this article 78 proceeding seeking a judgment compelling respondent NYPD to comply with its request. …

… [T]he parties stipulated that out of a disputed 328 videos, only 30 would be the subject of the hearing. Supreme Court then issued “an interim decision,” which was not the product of a motion for relief. Instead, the “interim decision,” among other things, permitted respondents to redact the faces of persons other than officers from any video footage recorded by the body cameras and to redact certain communications between officers … . …Supreme Court granted petitioner leave to appeal from the “interim decision.”

This appeal is thus taken from an “interim decision,” which is not an appealable paper. The lack of an appealable paper here deprives the Court of jurisdiction and requires dismissal of Spectrum’s appeal, albeit without prejudice. Where, as here, a party brings an appeal from a nonappealable paper, this Court regularly dismisses the appeal for lack of jurisdiction … . While there are instances where this Court has deemed a paper denominated as a “decision” to nonetheless be appealable because it contained all the hallmarks of an order … , that is not the situation here. Matter of Spectrum News NY1 v New York City Police Dept., 2020 NY Slip Op 00521, First Dept 1-28-20

 

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REPORTS BY THE DISTRICT ATTORNEY’S CONVICTION REVIEW UNIT (CRU) EXONERATING CONVICTED PERSONS ARE EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL); AN EXONERATED PERSON MAY WAIVE THE SEALING REQUIREMENT (CPL 160.50) AND CONSENT TO DISCLOSURE OF A REPORT; THE RELEASED REPORT HERE IS SUBJECT TO REDACTION DETERMINED IN AN IN CAMERA REVIEW BY A JUDGE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, determined: (1) the redacted report of the District Attorney’s Conviction Review Unit (CRU) concerning the exoneration of Jabbar Washington was properly made available to the New York Times because Washington consented to the unsealing of the document (CPL 160.50(a)(d)); (2) absent such consent, the CRU reports are exempt from disclosure under FOIL; and (3) the redaction of the Washington report should be reviewed by a judge (in camera review):

CPL 160.50 does not define what constitutes an official record relating to an arrest or prosecution, and the Court of Appeals has held that “bright line rules are not wholly appropriate in this area” … . …

… [ T]he CRU’s final reports constitute official records created in connection with the arrest and prosecution of the persons whose convictions were ultimately vacated through the conviction review process. At the time the reports were created, the subjects of the reports stood convicted as the result of prosecutorial action. The reports are “official records” in that they were created by the DA’s office itself for the purpose of scrutinizing the propriety of each of the subject convictions. …

… [T]hat the CRU’s reports might serve a broader public purpose in leading to reform of police agencies or prosecutors’ offices, is not a basis to overlook the protections endowed by CPL 160.50 to the individuals exonerated through the CRU’s work. Matter of New York Times Co. v District Attorney of Kings County, 2019 NY Slip Op 08410, Second Dept 11-20-19

 

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REFERENCES TO JUDGMENTS IN A LICENSE APPLICATION SHOULD NOT HAVE BEEN REDACTED IN THE DOCUMENTS PROVIDED BY THE COUNTY CONSUMER AFFAIRS OFFICE IN RESPONSE TO A FOIL REQUEST (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the response of the Nassau County Office for Consumer Affairs to a request for documents relating to licenses held by Home Beyond Center, LLC should not have had the references to judgments redacted:

FOIL requires government agencies to “make available for public inspection and copying all records,” subject to a number of exemptions (Public Officers Law § 87[2]). One such exemption permits an agency to deny access to records that “if disclosed would constitute an unwarranted invasion of personal privacy” … . Public Officers Law § 89(2)(b) provides that “[a]n unwarranted invasion of personal privacy includes, but shall not be limited to” seven specified kinds of disclosure … . Where none of the seven specifications is applicable, a court “must decide whether any invasion of privacy . . . is unwarranted’ by balancing the privacy interests at stake against the public interest in disclosure of the information” … .

Here, the respondent failed to demonstrate that the redactions of information contained in the license application file of Home Beyond Center, LLC, relating to “judgments” should be exempt from disclosure as an “unwarranted invasion of personal privacy” … . Matter of Liang v Nassau County Off. of Consumer Affairs, 2019 NY Slip Op 07251, Second Dept 10-9-19

 

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ELECTION LAW 3-222 WHICH PROHIBITS DISCLOSURE OF VOTED BALLOTS FOR TWO YEARS AFTER AN ELECTION APPLIES BOTH TO PAPER BALLOTS AND ELECTRONIC BALLOTS (CT APP).

The Court of Appeal, in a full-fledged opinion by Judge DiFiore, over two dissenting opinions (three dissenting judges), reversing the Appellate Division, determined that Election Law 3-222 (2), which prohibits, for two years, the disclosure of “voted ballots” absent a court order of legislative committee direction, prohibits the disclosure of the electronic form of the ballots:

Public Officers Law § 87(2)(a), the FOIL exemption at issue, provides that an agency may deny access to records that are “specifically exempted from disclosure by state or federal statute.” While an applicable “state or federal statute” need not “expressly state it is intended to establish a FOIL exemption, we have required a showing of clear legislative intent to establish and preserve that confidentiality which one resisting a FOIL disclosure claims as protection” … . Respondents assert that Election Law § 3-222 creates such an exemption. To determine whether Election Law § 3-222 reflects the requisite legislative interest in confidentiality, we must interpret the statute. * * *

… . [T]he rule in Election Law § 3-222(2) that “voted ballots” are protected from examination during the first two years after an election absent court order or direction from a relevant legislative committee extends to electronic copies of those ballots. The same is true of absentee and military ballots, which are “voted ballots” under subsection (2) and, along with their envelopes, are also specifically protected in subsection (3). Matter of Kosmider v Whitney, 2019 NY Slip Op 04757, CtApp 6-13-19

 

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UNUSUAL INCIDENT REPORTS, USE OF FORCE REPORTS, AND MISBEHAVIOR REPORTS KEPT BY THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES (DOCCS) RE: INCIDENTS IN PRISONS ARE NOT PERSONNEL RECORDS PURSUANT TO CIVIL RIGHTS LAW 50-a, THEREFORE PETITIONER WAS ENTITLED TO UNREDACTED COPIES PURSUANT TO HIS FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, in a matter of first impression, determined that records kept by the Department of Corrections and Community Supervision (DOCCS) regarding incidents in prisons were not personnel records pursuant to Civil Rights Law 50-a. Therefore petitioner was entitled to unredacted copies pursuant to his Freedom of Information Law (FOIL) request:

… [U]nusual incident reports, use of force reports and misbehavior reports have distinct characteristics. However, they share several important commonalities. To begin with, each category of report is, at its core, a written memorialization of an event that occurred at a DOCCS facility. Additionally, and significantly, each type of report is authored, as a mandatory component of their job duties, by staff members with knowledge of the underlying event. The reports do not arise out of inmate allegations or grievances … . Nor are they written documentation of disciplinary proceedings or disciplinary action taken against a correction officer … . Given their factual nature and that each is written by a witness or witnesses with knowledge of the underlying facility event, we find unusual incident reports, use of force reports and misbehavior reports to be more akin to arrest reports, stop reports, summonses, accident reports and body-worn camera footage, none of which is quintessentially “personnel records” … . * * *

… [W]hile it is relevant that unusual incident reports and use of force reports may be used in employee performance evaluations, that factor alone is not determinative. Otherwise, any employee work product or record documenting an employee’s on-duty actions would classify as a personnel record with the justification that it could be used to evaluate work performance and would, thus, result in a situation in which the exception swallows the rule … .

… [W]ith regard to the legislative objective of Civil Rights Law § 50-a, respondents have not demonstrated a “substantial and realistic potential” for the unredacted reports to be used against the officers in a harassing or abusive manner … . Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 2019 NY Slip Op 03421, Third Dept 5-2-19

 

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CITY AGENCY FAILED TO DEMONSTRATE THE REPORT SOUGHT BY PETITIONERS WAS SUBJECT TO THE INTRA-AGENCY EXEMPTION FROM THE FREEDOM OF INFORMATION LAW (FOIL) BECAUSE THE AGENCY DID NOT PRESENT PROOF THE PREPARER OF THE REPORT WAS RETAINED BY THE AGENCY, SUPREME COURT SHOULD HAVE CONSIDERED PETITIONERS’ REQUEST FOR ATTORNEY’S FEES AS MANDATED BY A 2017 AMENDMENT TO FOIL (FIRST DEPT).

The First Department determined Supreme Court correctly held that the respondent, NYC Dept of Parks & Recreation, was not entitled to the intra-agency materials exemption from the Freedom of Information Law (FOIL) because the respondent did not demonstrate that it retained a third party, “Owens Studio,” to prepare the report sought by petitioners. The First Department went on to find that the statute obligated Supreme Court to address their request for attorney’s fees:

… [R]espondent failed to establish that it retained Owens Studio for purposes of preparing the report, a necessary prerequisite for invocation of the intra-agency materials exemption for documents prepared by an outside consultant … . The affidavit submitted by respondent on this point is on its face conclusory. The fragmentary documents to which respondent’s affiant points demonstrate only that Owens Studio was retained to perform some work. They do not on their face establish that respondent retained Owens Studio to prepare the subject study and report, nor establish what Owens Studio was retained to do, nor, in particular, establish that respondent itself, as opposed to some other entity, retained Owens Studio to prepare the report … . …

The attorneys’ fees provision of FOIL was amended, effective December 13, 2017, to provide that the court “shall” award counsel fees where the agency has no basis for denying access to the material sought. The legislative history of the recent amendment notes that “[o]ften, people simply cannot afford to take a government agency to trial to exercise their right to access public information,” and that an award of attorney’s fees is intended to “encourage compliance with FOIL and to minimize the burdens of cost and time from bringing a judicial proceeding” … . Matter of Reiburn v New York City Dept. of Parks & Recreation, 2019 NY Slip Op 03295, First Dept 4-30-19

 

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MEDICAL RECORDS OF THE VICTIM OF SEXUAL ASSAULT SHOULD NOT HAVE BEEN MADE AVAILABLE TO THE PETITIONER, WHO WAS CONVICTED OF THE SEXUAL ASSAULT, PURSUANT TO PETITIONER’S FREEDOM OF INFORMATION LAW (FOIL) REQUEST, THE RECORDS ARE PROTECTED FROM DISCLOSURE BY THE PUBLIC HEALTH LAW, THE CIVIL RIGHTS LAW AND THE PUBLIC OFFICERS LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical records of the victim of sexual assault could not be disclosed to the petitioner, who was convicted of the sexual assault, pursuant to a Freedom of Information Law (FOIL) request. The medical records were protected from disclosure by the Public Health Law, the Civil Rights Law and the Public Officers Law:

“All government records are presumptively open for public inspection unless specifically exempt from disclosure” … . Public Officers Law § 87(2)(a) provides that an agency may deny access to records that are specifically exempted from disclosure by state or federal statute … . Here, the medical records of the victim sought by the petitioner are exempted from disclosure by Public Health Law §§ 2803-c(3)(f) and 2805-g(3) … . Also, the medical records are exempt from disclosure pursuant to Civil Rights Law § 50-b, which, with exceptions not relevant here, prevents any public officer from disclosing documents that would identify the victim of a sex offense … . Further, the records are exempt from disclosure pursuant to Public Officers Law § 87(2)(e)(i) … . Matter of Crowe v Guccione, 2019 NY Slip Op 03044, Second Dept 4-24-19

 

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