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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.”​

 

THE NEWSPAPER’S FOIL REQUEST FOR POLICE DISCIPLINARY RECORDS, INCLUDING RECORDS OF UNSUBSTANTIATED ALLEGATIONS AND RECORDS CREATED BEFORE THE REPEAL OF CIVIL RIGHTS LAW 50-A, SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner-newspaper’s FOIL request for police disciplinary records, including records of allegations ruled unsubstantiated and records created before the repeal of Civil Rights Law 50-a, should have been granted:

… [T]he Supreme Court erred in concluding that the privacy exemption under Public Officers Law § 87(2)(b) creates a blanket exemption allowing the respondents to categorically withhold the disciplinary records of unsubstantiated allegations of misconduct … . Inasmuch as the respondents withheld the requested records containing unsubstantiated allegations of misconduct in their entirety and did not articulate any particularized and specific justification for withholding any of the records, the respondents did not meet their burden of establishing that the privacy exemption applies … . The respondents further failed to establish that “identifying details” in the records containing unsubstantiated allegations or complaints of misconduct “could not be redacted so as to not constitute an unwarranted invasion of personal privacy” … .

… [E]ffective June 12, 2020, the New York State 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 … . Thus, the statutory exemption under Public Officers Law § 87(2)(a) no longer applies to law enforcement personnel records. The bill repealing Civil Rights Law § 50-a also made several amendments to FOIL concerning disciplinary records of law enforcement agencies … . Of particular relevance here, Public Officers Law § 86 was amended by adding subdivisions (6) and (7), defining “[l]aw enforcement disciplinary records” and a “[l]aw enforcement disciplinary proceeding.”

Here, as the petitioner made the subject FOIL requests after the legislative amendments were enacted, the petitioner was not seeking retroactive application of the statutory amendments to a pending FOIL request … . Moreover, for the reasons set forth in Matter of Newsday, LLC v Nassau County Police Dept. (222 AD3d at 92-93), we reject the respondents’ contention that in amending the Public Officers Law to provide for the disclosure of records relating to law enforcement disciplinary proceedings, the Legislature intended to exclude from disclosure any law enforcement disciplinary records that were created prior to June 12, 2020 … .. Matter of Gannett Co., Inc. v Town of Greenburgh Police Dept., 2024 NY Slip Op 04071, Second Dept 7-31-24

Practice Point: Absent proof of some privacy exemption, police disciplinary records, including those involving unsubstantiated allegations and those created before the repeal of Civil Rights Law 50-a, may be provided pursuant to a FOIL request.

 

THE PURPOSE OF PETITIONER’S REQUEST FOR CONTACT INFORMATION ABOUT EACH COUNTY EMPLOYEE WAS TO CONVINCE THE EMPLOYEES TO OPT OUT OF JOINING A UNION; NO GOVERNMENTAL PURPOSE WOULD BE SERVED BY PUBLIC DISCLOSURE OF THE INFORMATION; THE FOIL PRIVACY EXEMPTION APPLIES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the privacy provisions in the Public Officers Law shielded the county from the petitioner’s request for information about each employee. “With respect to each employee, petitioner sought the employee’s first name, middle name, last name, gender, public office address, job title, hire date, agency or department, work email address “or naming convention and domain,” work telephone number, and bargaining unit. In addition, petitioner sought “to receive the responsive information electronically in machine-readable format.” The Fourth Department found that the request was made to facilitate petitioner’s campaign to prevent county employees from joining a union:

It is evident here that petitioner’s intent, which “drives [our] analysis” … , in requesting the employees’ names, contact information, and union status, is to contact union members to urge them to opt out of union membership. Indeed, petitioner states in its brief on appeal that it “contacts public employees for the purposes of its educational mission through . . . a project” that it calls ” ‘Opt-Out Today.’ ” There is no indication that petitioner “intends to use the names to, for example, expose governmental abuses or evaluate governmental activities” … . Nor, as petitioner asserts, does the “natural and obvious meaning” we assign to the term “solicitation” conflict “with the legislative intent and . . . general purpose and manifest policy underlying FOIL” … . “If anything, it is precisely because no governmental purpose is served by public disclosure of this information that section 87 (2) (b)’s privacy exemption falls squarely within FOIL’s statutory scheme” … . Matter of Freedom Found. v Jefferson County, 2024 NY Slip Op 03944, Fourth Dept 7-26-24

Practice Point: Here the disclosure of contact information for county employees did not serve a governmental purpose and was prohibited by FOIL’s privacy exemption.

 

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RECORDS OF POLICE DISCIPLINARY PROCEEDINGS WHICH DID NOT RESULT IN DISCIPLINARY ACTION ARE PROPER SUBJECTS OF A FOIL REQUEST (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined records of police disciplinary proceedings which did not result in disciplinary action were a proper subject of petitioner’s FOIL request. The records had been denied on the ground disclosure would constitute an unwarranted invasion of personal property pursuant Public Officers Law 87(2)(b). Petitioner, who prevailed, was entitled to attorney’s fees:

… [C]ontrary to the respondents’ contention, the withheld records were not categorically exempt from disclosure. “[T]here is no categorical exemption from disclosure for unsubstantiated allegations or complaints of police misconduct” … . “Upon repealing Civil Rights Law § 50-a, the Legislature amended . . . Public Officers Law to specifically contemplate the disclosure of ‘law enforcement disciplinary records,’ which it defines to include ‘complaints, allegations, and charges against an employee'” … . “If the Legislature had intended to exclude from disclosure complaints and allegations that were not substantiated, it would simply have stated as much” … . “It did not, and instead included ‘complaints, allegations, and charges’ in its definition of disciplinary records, along with ‘the disposition of any disciplinary proceeding,’ without qualification as to the outcome of the proceeding” … .

Accordingly, disclosure of the withheld records was required unless those records “‘[fell] squarely within the ambit of one of [the] statutory exemptions … . Matter of New York Civ. Liberties Union v Village of Freeport, 2024 NY Slip Op 03824, Second Dept 7-17-24

Practice Point: Records of police disciplinary proceedings which did not result in disciplinary action are not exempt from a FOIL request.​

 

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THE REGULATION WHICH PROVIDES THAT THE TRANSCRIPTS OF PUBLIC EMPLOYMENT RELATIONS BOARD (PERB) HEARINGS ARE THE PROPERTY OF THE STENOGRAPHER CONFLICTS WITH THE ADMINISTRATIVE PROCEDURE ACT AND THE PUBLIC-ACCESS PRINCIPLES UNDERLYING FOIL (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined the Public Employment Relations Board (PERB) regulation (4 NYCRR 208.3 (c)) which provides that PERB hearing transcripts are the property of the stenographer conflicts with the Administrative Procedure Act and the public-access principles underlying FOIL:

“It is established as a general proposition that a regulation cannot be inconsistent with a statutory scheme” … . Here, 4 NYCRR 208.3 (c) is inconsistent with State Administrative Procedure Act § 302 (2), which imposes a duty on the agency to furnish a copy of the transcript to a party upon request.…  Moreover, it is inconsistent with the statutory scheme of FOIL, which “imposes a broad standard of open disclosure in order to achieve maximum public access to government documents” … . Courts must construe FOIL liberally, to “require[ ] government agencies to make available for public inspection and copying all records” … . Accordingly, Supreme Court improperly granted PERB’s motion to dismiss and we remit the matter to Supreme Court for PERB to file an answer pursuant to CPLR 7804 (f). Matter of DeWolf v Wirenius, 2024 NY Slip Op 03790,, Second Dept 7-11-24

Practice Point: A regulation cannot be inconsistent with a statutory scheme.

 

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DEATH RECORDS KEPT BY THE DEPARTMENT OF HEALTH ARE EXEMPT FROM DISCLOSURE TO THE PETITIONER, A NON-PROFIT WHICH PROMOTES GENEALOGICAL RESEARCH (THIRD DEPT). ​

The Third Department, reversing Supreme Court, over a two-justice dissent, determined petitioner’s request for the “New York State Death Index” through December 31, 2017, should have been denied:

Petitioner is a not-for-profit organization that promotes public access to government records for historical and genealogical purposes. Respondent is statutorily charged with “procur[ing] the faithful registration of . . . deaths,” except in the City of New York … .  * * *

While petitioner’s interest in seeking information to assist in genealogical research promotes a legitimate public interest, such a request does not “further the policies of FOIL, which are to assist the public in formulating intelligent, informed choices with respect to both the direction and scope of governmental activities” … . * * *

We agree with respondent’s contention that Public Health Law § 4174 (1) (a) provides an exemption authorizing the withholding of the requested information. That statute allows respondent to release “either a certified copy or a certified transcript of the record of any death” to seven specific categories of applicants. The provision concludes with a qualifier that “no certified copy or certified transcript of a death record shall be subject to disclosure under [FOIL]” … . The term certified transcript is broadly defined as “a computer generated or other reproduction of information abstracted from the original state or local record the elements of which shall be as determined by the commissioner and certified by the commissioner . . . as being an accurate abstract of information contained in the original record” … . We recognize that petitioners are not requesting copies of death certificates or any “certified” records. Even so, in our view, the import of the statute is to limit the disclosure of these records to applicants who fall within the defined categories, whose needs require that the records be certified. The express qualifier precludes a FOIL request otherwise made by a nonqualifying member of the general public. In this context, the statutory focus is not on the certification component but on maintaining the confidentiality of the underlying information … . Matter of Reclaim the Records v New York State Dept. of Health, 2024 NY Slip Op 02854, Third Dept 5-23-24

Practice Point: The Public Health Law  limits the disclosure of death records kept by the health department to specific categories of applicants and state the records are not subject to disclosure under FOIL. Here the request by a non-profit promoting genealogical research was denied in its entirety.

 

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COUNTY-SHERIFF DISCIPLINARY RECORDS CREATED BEFORE THE 2020 REPEAL OF THE STATUTE WHICH EXEMPTED THEM FROM DISCLOSURE PURSUANT A FOIL REQUEST ARE NOW SUBJECT TO DISCLOSURE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the FOIL request for county-sheriff disciplinary records which were created before Civil Rights Law 50-a was repealed in 2020 must be disclosed. Civil Rights Law 50-a had exempted disciplinary records from disclosure:

Former section 50-a operated as an exception to the general rule that permitted public access through FOIL to certain government records, i.e., it exempted from disclosure “[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency” … . When section 50-a was repealed on June 12, 2020, that exception was removed. ” ‘A statute is not retroactive . . . when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events’ ” … . Likewise, it is not a retroactive application of the repeal of section 50-a to conclude that past police disciplinary records are no longer subject to that exception and are now subject to FOIL; it is merely a recognition that police departments faced with FOIL requests cannot rely on an exception that no longer exists to evade their prospective duty of disclosure … . Matter of Abbatoy v Baxter, 2024 NY Slip Op 02393, Fourth Dept 5-3-24

Practice Point: Here the statute protecting county-sheriff disciplinary records from disclosure pursuant to a FOIL request was repealed in 2020. Disciplinary records created prior to the repeal are now subject to disclosure.

 

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BECAUSE THE RESPONDENT CREATED AMBIGUITY ABOUT WHETHER IT WAS STILL CONSIDERING PETITIONER’S FOIL REQUEST AFTER EXPIRATION OF THE 10-DAY CONSTRUCTIVE-DENIAL PERIOD, THE FOUR-MONTH PERIOD FOR COMMENCING AN ARTICLE 78 PROCEEDING DID NOT START ON THE CONSTRUCTIVE-DENIAL DATE; THE ARTICLE 78 PROCEEDING WAS TIMELY COMMENCED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the respondent Office of Court Administration (OCA) gave petitioner the impression it was still considering petitioner’s FOIL request after the 10-day period for a response from the OCA expired on May 27, 2022. The OCA produced some documents on June 27, 2022. Therefore, the four-month period for commencing an Article 78 proceeding did not start on May 27, but rather on June 27, rendering the Article 78 commenced on November 8, 2022, timely:

… OCA’s ongoing consideration of the request created an ambiguity and the impression of nonfinality regarding its May 27 constructive denial … . Twice, on June 16 and August 5, 2022, OCA issued substantive rulings on the FOIL request, stating that petitioner had 30 days to take a written appeal of the determination. OCA’s treatment of its May 27 constructive denial as a final agency determination is inconsistent with its statements notifying petitioner that it had opportunities for further administrative appeals … . Thus, petitioner was justified in pursuing the administrative appeals that OCA appeared to offer rather than commencing what would have been a timely article 78 proceeding.

OCA created further doubt about the finality of its May 27 constructive denial when it wrote in its June 23, 2022 email that its substantive response to the FOIL request rendered the appeal of the constructive denial moot and issued a ruling on petitioner’s appeal. OCA’s contention that petitioner’s May 13, 2022 appeal was denied with finality on May 27 is incompatible with its later characterization of that appeal as moot. Similarly, the July 27, 2022 production letter from OCA stated that OCA was producing records in response to petitioner’s FOIL request, which, according to OCA, had been “remanded back . . . in response” to petitioner’s appeal. Petitioner was justified in its understanding that its request had not been denied with finality on May 27, as it could not have been both conclusively denied and simultaneously “remanded back . . . in response” to petitioner’s June 23, 2022 appeal.

Because OCA created an ambiguity, it is resolved against the agency, and the petition is deemed timely … . Matter of Portfolio Media, Inc. v New York State Off. of Ct. Admin., 2024 NY Slip Op 01523, First Dept 3-19-24

Practice Point: Here the respondent did not respond to petitioner’s FOIL request within 10 days. But because the respondent created ambiguity about whether it was still considering the request after the constructive-denial date, the constructive-denial date should not have been used to calculate the four-month period for commencing an Article 78 proceeding. Therefore the Article 78 was timely commenced.

 

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THE NYPD’S FAILURE TO TIMELY COMPLY WITH A COURT ORDER REQUIRING THE RELEASE OF DOCUMENTS PURSUANT TO A FOIL REQUEST WARRANTED THE AWARD OF ATTORNEY’S FEES TO PETITIONER; RESPONDENT NYPD’S ABANDONING AN ISSUE IN A PRIOR APPEAL PRECLUDED APPELLATE REVIEW OF THAT ISSUE IN A SUBSEQUENT APPEAL (FIRST DEPT).

The First Department determined the NYPD’s failure to timely comply with a court order mandating a response to petitioner’s FOIL request warranted the award of attorney’s fees to petitioner:

… [T]he court properly granted attorney’s fees and costs arising from NYPD’s noncompliance with this Court’s prior order. NYPD’s argument, that this noncompliance was justified because some of the records were sealed after NYPD’s final administrative determination, was abandoned in the prior appeal … , and this Court has “no discretionary authority” to reach this unpreserved issue in the interest of justice in this article 78 proceeding challenging an administrative determination … . The court providently exercised its discretion in holding NYPD in civil contempt, given that NYPD waited several months before disclosing a video and 407 heavily redacted pages of responsive records, after which petitioner was forced to continue litigating its entitlement to complete disclosure of unredacted copies of the records. After this Court’s January 2021 order, NYPD should have disclosed all records responsive to petitioner’s FOIL request, without the need for any further proceedings. “Once the court has issued a valid order, it is not for the recipient of that order to fashion its own remedy” … . The “lengthy delay” caused by NYPD “was unreasonable under the particular circumstances of this case,” warranting an award of attorney’s fees and costs pursuant to FOIL … . Matter of Jewish Press, Inc. v New York City Police Dept., 2024 NY Slip Op 01511, First Dept 3-19-24

Practice Point: Failure to timely respond to a court order requiring the release of documents pursuant to a FOIL request, necessitating further litigation by the petitioner, warrants the award of attorney’s fees to petitioner.

 

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PETITIONER’S FOIL REQUEST FOR DOCUMENTS AND EVIDENCE RELATING TO HIS MURDER CONVICTION SHOULD NOT HAVE BEEN DENIED ON THE GROUND RESPONDING TO THE REQUEST WOULD INTERFERE WITH PETITIONER’S HABEAS CORPUS PROCEEDINGS IN FEDERAL COURT; THE FEDERAL COURT HAD ISSUED A STAY-IN-ABEYANCE ORDER TO ALLOW PETITIONER TO EXHAUST HIS STATE REMEDIES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wan, addressing a matter of first impression, determined petitioner’s FOIL request for documents and evidence related to his murder prosecution should not have been denied on the ground that granting the request would interfere with petitioner’s pending habeas corpus proceedings in federal court. The federal court issued a stay-and-abeyance order in the habeas corpus action to allow petitioner to exhaust his state remedies. Because the stay-and-abeyance order is in effect, the Second Department held that responding to the FOIL request would not interfere with the habeas corpus proceedings and the petition to compel production of the requested records should have been granted:

On July 12, 2020, the petitioner made a request to the Kings County District Attorney (hereinafter the District Attorney), pursuant to the Freedom of Information Law …, for “any and all material” related to the matter of People v Sarkodie, Indictment No. 2544/13, “including, but not limited to, any and all recordings, whether video or audio, DD-5’s, medical reports, witness statements, police memo books, crime scene investigative reports, evidence vouchers, and ballistics reports.” … On December 13, 2020, the petitioner’s counsel filed a second habeas corpus petition in the EDNY, which was consolidated with the petitioner’s pro se habeas petition In the federal habeas proceeding, the petitioner alleged both exhausted and unexhausted state law claims.

By order dated December 23, 2020 (hereinafter the stay-and-abeyance order), the EDNY acknowledged that the federal habeas proceeding “contains unexhausted claims that are not plainly meritless.” Accordingly, the EDNY “f[ound] a stay to be appropriate and h[eld] the Petition [*2]in abeyance” to allow the petitioner to “exhaust his unexhausted claims and perfect the petition … .  * * *

… [T]he District Attorney failed to establish that the records sought were exempt from disclosure pursuant to Public Officers Law § 87(2)(e)(i), since the District Attorney failed to establish that disclosure would interfere with the pending federal habeas proceeding … . Matter of Sarkodie v Kings County Dist. Attorney, 2024 NY Slip Op 00908, Second Dept 2-21-24

Practice Point: A FOIL request for documents and evidence related to defendant’s murder conviction should not have been denied on the ground that responding to the request would interfere with petitioner’s habeas corpus proceedings in federal court  The federal court had issued a stay-and-abeyance order to allow petitioner to exhaust his state remedies. Therefore, the petition to compel production of the sought documents and evidence should have been granted.

 

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