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THE EXECUTIVE ORDER TOLLING STATUTES OF LIMITATIONS BECAUSE OF THE COVID PANDEMIC DOES NOT APPLY TO THE TIME LIMITS FOR RESPONSES TO FOIL REQUESTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the district attorney could not use the statutes-of-limitations tolls imposed by executive order because of the COVID pandemic to delay responses to FOIL requests:

By its terms, EO [Executive Order] 202.8 tolls legal “process[es] or proceeding[s] as prescribed by the procedural laws of the state” … . The FOIL framework and deadlines for agency responses to requests are not “prescribed by the procedural laws,” such as the CPLR and CPL. In the context of FOIL requests, legal “proceedings” ensue only when parties are unable to agree on a response to a request, and resort to the courts via CPLR article 78 proceedings. The conduct of article 78 proceedings are “prescribed by the procedural laws” of the CPLR. FOIL requests and responses are not so prescribed … .

Hence, respondents’ position that EO 202.8 tolls their obligation to respond to FOIL requests, is erroneous. Matter of Oustatcher v Clark, 2021 NY Slip Op 05295, First Dept 10-5-21

 

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RESPONDENT DID NOT CONSTRUCTIVELY DENY PETITIONER’S FOIL REQUEST BY EXTENDING ITS SELF-IMPOSED DEADLINES FOR RESPONDING TO THE REQUEST (THIRD DEPT). ​

The Third Department, reversing Supreme Court, over a dissent, determined respondent NYS Department of Transportation did not constructively deny petitioner’s FOIL request by extending the time for a response. Therefore petitioner’s Article 78 proceeding was premature and was rendered moot by petitioner’s ultimate response to the request:

Generally, an agency must respond to a written request for records within a reasonable time and “there is no specific time period in which the agency must grant access to the records” … . The response protocol for an agency to follow is set forth in Public Officers Law § 89 (3) (a). An agency must respond within five business days and has various options — to either provide the records, deny the request or, as pertinent here, to “furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied” … . Respondent exercised that third option through the extension notices. Matter of Save Monroe Ave., Inc. v New York State Dept. of Transp., 2021 NY Slip Op 04639, Third Dept 8-4-21

 

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DOCUMENTS CREATED AND HELD BY A PRIVATE ENTITY PURSUANT TO THE REGULATIONS OF A STATE AGENCY ARE NOT “RECORDS” WHICH THE STATE AGENCY MUST DISCLOSE PURSUANT TO THE FREEDOM OF INFORMATION LAW, DESPITE THE FACT THAT THE AGENCY CAN DEMAND PRODUCTION OF THE DOCUMENTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined documents created and held by a private entity (Union) pursuant to a state agency’s (New York Department of Labor’s) regulations regarding apprenticeship programs are not “records” which the Department of Labor is required to produce under the Freedom of information Law (FOIL):

… [R]espondent [New York Department of Labor] did not delegate a duty to the Union nor did the Union perform any essential service on respondent’s behalf. The mere fact that respondent has the discretionary regulatory authority to ask the Union for the requested documents does not, ipso facto, render all documents that are created and maintained by the Union with respect to its apprenticeship programs subject to disclosure (see Public Officers Law § 86 [4]). Practically speaking, to so hold would render any document that was created or maintained by a private entity in order to comply with a corresponding agency regulation requiring the production and retention thereof a “record” subject to disclosure under FOIL (see Public Officers Law § 86 [4]) … . …

Although we recognize that “FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government” … , we do not find the definition of “record” to be so broad and all-encompassing as to bring within its ambit any document that a private entity might create and maintain pursuant to a state agency’s regulation under the guise that said records are held “for” that agency (see Public Officers Law §§ 86 [4]; 87 [2]; 89 [3] [a] …). Matter of Broach & Stulberg, LLP v New York State Dept. of Labor, 2021 NY Slip Op 03509, Second Dept 6-3-21

 

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RESPONDENT CITY DID NOT DEMONSTRATE THE FOIL REQUEST WOULD INTERFERE WITH LAW ENFORCEMENT OR JUDICIAL PROCEEDINGS OR WOULD REVEAL A CONFIDENTIAL SOURCE; MATTER REMITTED FOR IN CAMERA REVIEW TO DETERMINE WHETHER THE FOIL REQUEST WAS PROTECTED BY THE INTER- OR INTRA- AGENCY MATERIALS EXEMPTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that two of the grounds for denying the FOIL request were invalid and the third, the inter-agency or intra-agency materials exemption, could not be assessed absent an in camera review of the documents. The matter was remitted:

Respondent failed to meet its burden of establishing that disclosure of any records responsive to petitioner’s FOIL request would “interfere with law enforcement investigations or judicial proceedings” … . This exemption “ceases to apply after enforcement investigations and any ensuing judicial proceedings have run their course” … . …

Respondent also failed to establish that disclosure would “identify a confidential source or disclose confidential information relating to a criminal investigation” … , “in the absence of any evidence that [any] person received an express or implied promise of confidentiality'” … . Respondent’s assertion that disclosure would reveal nonroutine “criminal investigative techniques or procedures” … is conclusory.

The email messages submitted by petitioner in support of the article 78 petition are covered by the inter-agency or intra-agency materials exemption … because they amount to “opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making”… . However, the applicability of this exemption to any other responsive records cannot be determined on this record in the absence of in camera review … . Matter of Jewish Press, Inc. v New York City Dept. of Investigation, 2021 NY Slip Op 02108, First Dept 4-6-21

 

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A WARNING LETTER ISSUED TO THE NYC MAYOR BY THE NYC CONFLICTS OF INTEREST BOARD MUST BE RELEASED PURSUANT TO A FOIL REQUEST BY THE NEW YORK TIMES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined that a warning letter issued to the NYC mayor by the Conflicts of Interest Board (Board) must be released pursuant to a Freedom of Information Law (FOIL) request:

At issue in this appeal is whether a “private” warning letter issued to the Mayor of the City of New York by the Conflicts of Interest Board (Board) is subject to disclosure pursuant to the Freedom of Information Law (FOIL). The City of New York office of the Mayor (Mayor’s Office) declined to disclose the letter to the New York Times (NYT) on the ground that the letter was exempt pursuant to New York City Charter § 2603(k), which states that “the records, reports, memoranda and files of the board shall be confidential and shall not be subject to public scrutiny.” The Mayor’s Office argues that since the letter was designated as “private” by the Board, and therefore confidential, it falls within the ambit of § 2603(k). We disagree. As the plain text of section 2603(k) indicates, it is meant to protect the confidentiality of documents in possession of the Board. Once the letter was issued to another entity, the Mayor could not rely on section 2603(k), because the NYT sought disclosure from the Mayor and not from the Board … . The Mayor’s Office’s privacy arguments are also inconsistent with the public interest in disclosure of warning letters, contrary to its own past practice of disclosing the Board’s correspondence, and otherwise have no merit. Accordingly, the letter must be disclosed. * * *

DOI [NYC Department of Investigations] found that the Mayor’s Office solicited contributions for CONY [Campaign for One New York] from executives of real estate development firms that likely had or potentially had business pending before the City. Although there was no finding of any quid pro quo, on several occasions, a firm achieved a favorable outcome from a City agency after it had made a donation to CONY … . These findings were transmitted to the Board, whose Chairman declined “for confidentiality reasons,” to tell a reporter whether the Board had issued a private warning letter, the only action available … . …

The NYT reporter to whom the Board chairman had spoken then filed a FOIL request with the Mayor’s Office for “a copy of a letter” sent by the Board to the Mayor’s Office regarding his fundraising for [CONY].” The request was denied on the ground that “the class of records you have requested would be exempt from disclosure pursuant to New York City Charter § 2603(k).” Matter of New York Times Co. v City of New York Off. of the Mayor, 2021 NY Slip Op 01948, First Dept 3-30-21

 

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THE PETITION SEEKING EMAILS AND RECIPIENT LISTS IN ELECTRONIC FORM FROM THE VILLAGE SHOULD NOT HAVE BEEN DISMISSED; THE VILLAGE DID NOT DEMONSTRATE THE REQUEST COULD NOT BE GRANTED WITH REASONABLE EFFORTS; PETITIONER WAS NOT ADVISED OF THE AVAILABILITY OF AN ADMINSTRATIVE APPEAL, THEREFORE THE APPEAL WAS NOT UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking emails and the related recipient lists in electronic form should not have been dismissed because the denial of the request did not indicate no one employed by the village had the expertise to provide the information in electronic form. In addition, the appeal of the denial of another similar request should not have been deemed untimely because the petitioner was never advised of the availability of an administrative appeal:

Guazzoni {the Village Trustee] stated that he lacked the technical sophistication to manually transfer the email addresses of each of his individual recipients onto an Excel spreadsheet in order to provide an electronically formatted response to the FOIL request. However, Guazzoni did not address whether any other employee of the Village could, with a reasonable degree of time and effort, create an Excel spreadsheet that would comply with the terms of the FOIL request. It cannot be said, therefore, that the amended petition fails to state a cause of action, as it presents a question of fact as to whether reasonable efforts by Village employees could be undertaken to provide an electronically formatted response … . …

Public Officers Law § 89(3)(a) and (4)(a) requires that FOIL requests be granted or denied by an agency within five business days, and that any administrative appeal of a denial, as required for exhausting administrative remedies, be undertaken within 30 days of the denial. 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. However, since there was no advisement to the petitioner of the availability of an administrative appeal as required by 21 NYCRR 1401.7(b), the Supreme Court erred in concluding that the petitioner’s administrative appeal, which was filed on July 13, 2017, was time barred … . Matter of Madden v Village of Tuxedo Park, 2021 NY Slip Op 01415, Second Dept 3-10-21

 

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THE ZIP CODES ASSOCIATED WITH THE HOME ADDRESSES OF STATE EMPLOYEES SHOULD NOT BE PROVIDED PURSUANT TO A FOIL REQUEST BECAUSE THE FULL HOME ADDRESSES COULD EASILY BE FOUND ON THE INTERNET BY SEARCHING FOR AN EMPLOYEE’S NAME WITH THE RELATED ZIP CODE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, reversing (modifying) Supreme Court, determined the request for the zip codes association with the residences of state employees should not have been granted on invasion-of-privacy grounds. The court noted that the employees’ full addresses could easily be determined by using the Internet to search for the person by name along with the related zip code:

As to special protections for state employee records, the Legislature’s enactment of Public Officers Law § 89 (7) indicates its desire to protect public employees from harassment at home. That statute provides that “[n]othing in [FOIL] shall require the disclosure of the home address of an officer or employee” of the state … . Moreover, by executive order the Governor has prohibited state agencies from disclosing state employees’ home addresses except when “compelled . . . by lawful service of process, subpoena, court order, or as otherwise required by law” … . These policy goals are relevant to the interests in protecting the personal privacy of government employees.

The scenario of numerous — or perhaps most — state employees being contacted at home by a private individual or organization that knows who they are, where they live and what they do for a living seems likely to be offensive and objectionable to most reasonable people … . Thus, release of home zip codes would constitute an unwarranted invasion of personal privacy under these circumstances. Accordingly, as respondent met its burden of proving that the requested zip codes are exempt from disclosure under FOIL, Supreme Court erred in ordering the disclosure of such data. Matter of Suhr v New York State Dept. of Civ. Serv., 2021 NY Slip Op 01113, Third Dept 2-18-21

 

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PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AS THE PREVAILING PARTY BECAUSE THE POLICE DEPARTMENT TURNED OVER THE REQUESTED BODY CAM VIDEOS VOLUNTARILY WHILE THE PROCEEDING WAS PENDING; THE RESPONDENTS HAD NO REASONABLE BASIS FOR DENYING THE REQUEST (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner was entitled to attorney’s fees in this FOIL action which sought police body cam videos for an incident involving deadly force. Petitioner was the prevailing party because the respondents voluntarily provided the videos while the proceeding was pending:

… [P]etitioner substantially prevailed when respondents, during the pendency of this proceeding, disclosed the records sought in the FOIL request … . “[T]he voluntariness of . . . disclosure is irrelevant to the issue of whether petitioner substantially prevailed” … . …

… [R]espondents had no reasonable basis for denying access to the records sought. To invoke the FOIL exemption applicable to records that ‘are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations’ … , an ‘agency must identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents’ … . ‘Put slightly differently, the agency must still fulfill its burden under Public Officers Law § 89(4)(b) to articulate a factual basis for the exemption’ … . In response to the FOIL request, NYPD did identify the generic kinds of documents at issue; it is undisputed that the responsive records, which have now been disclosed, were videos recorded by body cameras worn by NYPD officers during an incident in which NYPD used deadly force. However, NYPD’s assertions in response to the FOIL request that disclosure would interfere with an ongoing internal investigation into the incident, which was being conducted by the Force Investigation Division at the time, was conclusory in the absence of any factual showing as to how disclosure would have interfered with that investigation.” Matter of Dioso Faustino Freedom of Info. Law Request v New York City, 2021 NY Slip Op 00907, First Dept 2-11-21

 

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NYC FIRE DEPARTMENT DOCUMENTS COULD HAVE BEEN REDACTED TO PROTECT PRIVACY AND WERE NOT INTER-AGENCY MATERIALS; THEREFORE THE FOIL REQUESTS FOR THESE DOCUMENTS SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined certain FOIL requests for NYC Fire Department (FDNY) should have been granted:

… [T]he FDNY withheld the records identified in the petitioner’s FOIL request numbers 4, 9, and 16, which sought records concerning requests for religious accommodations and the determinations made thereon, and accommodations from the FDNY dress requirements. The FDNY withheld those records on the grounds that releasing them would be an unwarranted invasion of personal privacy under Public Officers Law § 87(2)(b) and the records were inter-agency materials exempt by Public Officers Law § 87(2)(g). * * *

… [T]he FDNY failed to sustain its burden of proving that the personal privacy exemption applied to the records sought, since it failed to establish that the identifying details could not be redacted so as to not constitute an unwarranted invasion of personal privacy … . Its conclusory assertions that the records fall within the exemption were insufficient to meet its burden of proving that the statutory exemption applies … . The FDNY should have produced the requested records, redacting whatever portions are necessary to safeguard the identities of the individuals who sought the accommodation, and leaving nonidentifying information intact … .

The FDNY also failed to establish that the exemption for inter-agency materials applied, since the agency determinations sought were final on the accommodation requests and therefore not subject to the exemption … . Matter of Aron Law, PLLC v New York City Fire Dept., 2021 NY Slip Op 00556, Second Dept 2-3-21

 

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THE PRIOR APPELLATE DECISION DIRECTING THE COLLECTION OF MORE EVIDENCE IS THE LAW OF THE CASE; THE DIRECTION WAS NOT COMPLIED WITH BY SUPREME COURT UPON REMITTAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the decision in the prior appeal was the law of the case and Supreme Court did not follow the instruction to collect additional evidence:

In our prior decision and order, we noted that the issue of the burden that would be imposed upon the DOE [Department of Education] to comply with the petitioner’s FOIL request and whether the DOE is able to engage an outside professional service to cull the records sought was not addressed by the Supreme Court and could not be resolved on the record before us … . We noted that “[a]mong other things, it is unclear as to how much time would be involved for an employee at each school to review the relevant files. Further, although the petitioner has expressed its willingness to reimburse the [DOE] for reasonable costs involved in having the [DOE’s] employees, or an appropriate third party, review and copy the [DOE’s] records, there is no information in the record as to what that cost would be or whether the petitioner would in fact be willing to reimburse the [DOE] for the full amount of those costs, once those costs are determined” … . Accordingly, we remitted the matter to the Supreme Court for further proceedings, including additional submissions by the parties … .

Our prior decision and order was law of the case and binding on the Supreme Court … . However, the court failed to conduct further proceedings, including the taking of additional submissions on the issues of burden, cost and reimbursement, in accordance with our decision and order. Accordingly, we reverse the judgment and remit the matter for further proceedings in accordance with our decision and order in Matter of Jewish Press, Inc. v New York City Dept. of Educ. (183 AD3d 731). Matter of Jewish Press, Inc. v New York City Dept. of Educ., 2021 NY Slip Op 00173, Second Dept 1-13-21

 

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