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

PLAINTIFF SUED THE CITY AND POLICE UNDER 42 USC 1983 ALLEGING THE CITY AND POLICE HAD AN UNCONSTITUTIONAL POLICY OR PRACTICE ALLOWING POLICE OFFICERS TO FILE FALSE CHARGES, TESTIFY FALSELY AND FALSIFY EVIDENCE WITHOUT CONSEQUENCES; PLAINTIFF WAS ENTITLED TO RECORDS OF SIMILAR COMPLAINTS OR INVESTIGATIONS PURSUANT TO THE CPLR DISCOVERY PROVISIONS AND WAS NOT RESTRICTED TO A FOIL REQUEST (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s request for certain police records should not have been denied. Plaintiff sued the city under 42 USC 1983 alleging an unconstitutional policy or practice by the police which allows officers to swear out false criminal charges, testify falsely at trial and falsify evidence without consequences. Plaintiff sought records of complaints and investigations of similar conduct by officers in a specific task force. Because plaintiff is suing the city, his requests could be brought both pursuant to the Freedom of Information Law (FOIL) and the CPLR discovery provisions. Supreme Court should not have restricted plaintiff’s access to records to that available under the FOIL:

Supreme Court improvidently exercised its discretion with respect to plaintiff’s requests seeking records of complaints and investigations of allegedly similar conduct by officers in the same task force, as those requests did not, in fact, constitute a fishing expedition … . Plaintiff limited his requests to officers assigned only during the six months before his arrest … , and his reference to lawsuits, investigations by the Internal Affairs Bureau, and complaints to the Civilian Complaint Review Board also sufficiently identified documents sought with “reasonable particularity” (CPLR 3120[2] …). Without allowing disclosure of allegations of misconduct by other officers, it is unlikely that plaintiff could demonstrate “that the municipality had a custom or practice that was both widespread and reflected a deliberate indifference to its citizens’ constitutional rights” … .

… Supreme Court should not have imposed a limitation precluding plaintiff from seeking records directly from defendants instead of under FOIL. “When a public agency is one of the litigants, . . . it has the distinct disadvantage of having to offer its adversary two routes into its records” … , and the availability of FOIL does not replace the concomitant right to disclosure under the CPLR. Badia v City of New York, 2023 NY Slip Op 01582, First Dept 3-23-23

Practice Point; Here plaintiff sued the police under 42 USC 1983 alleging an unconstitutional policy to allow the police to file false charges, testify falsely and falsify evidence. Because plaintiff was suing the police, he was entitled to records of similar complaints under the CPLR discovery provisions and was not restricted to FOIL requests.

 

BOTH THE HIPAA PRIVACY RULE AND THE PUBLIC OFFICERS LAW APPLY TO THE FOIL REQUEST FOR RECORDS DOCUMENTING INJURIES SUFFERED BY ATHLETES USING THE OLYMPIC TRAINING FACILITIES IN THE ADIRONDACK PARK; THE HIPAA DEIDENTIFICATION PROCEDURE SHOULD BE APPLIED TO THE REQUESTED RECORDS (THIRD DEPT). ​

The Third Department noted that the HIPAA deidentification procedure was applicable to the FOIL request for sports-related injuries at the Olympic facilities in the Adirondack Park. The FOIL request was made to the respondent NYS Olympic Regional Development Authority:

… [T]he health-related information contained in the reports at issue is subject to the protections of both HIPAA and Public Officers Law § 87 (2) (b). Specifically, the HIPAA Privacy Rule, among other things, addresses the use and disclosure of “individually identifiable health information,” which is defined as “any information, including demographic information collected from an individual, that . . . is created or received by a health care provider, . . . relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual, and . . . identifies the individual . . . or[,] with respect to which[,] there is a reasonable basis to believe that the information can be used to identify the individual” (42 USC § 1320d [6]). Further, as relevant here, Public Officers Law § 89 (2) (b) (i) expressly provides for the protection of medical history, which refers to “information that one would reasonably expect to be included as a relevant and material part of a proper medical history” … . Upon our review, we conclude that the information provided on the subject forms falls within these protections, as it directly pertains to the relevant individual’s present health condition and would reasonably be included as part of his or her medical history. Matter of Getting the Word Out, Inc. v New York State Olympic Regional Dev. Auth., 2023 NY Slip Op 01334, Third Dept 3-16-23

Practice Point: Where a FOIL request involves medical records, the HIPAA Privacy Rule applies and the HIPAA deidentification procedure should be applied to the requested records.

 

, , ,

THE REASONS FOR THE DENIAL OF ATTORNEY’S FEES AFTER PETITIONER’S SUCCESSFUL FOIL REQUEST MERELY PARROTED THE STATUTORY LANGUAGE FOR THE LAW-ENFORCEMENT AND SAFETY EXEMPTIONS WITHOUT ANY SUPPORTING FACTS; THEREFORE ATTORNEY’S FEES SHOULD HAVE BEEN AWARDED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined petitioner was entitled to attorney’s fees associated with his ultimately successful FOIL request for the video of the incident which was the basis for the prison disciplinary proceedings. Attorney’s fees were denied on the ground that the respondent had a reasonable basis for denying the request for the video. However the respondent’s reasons for the denial merely parroted the relevant statutory language for the law-enforcement and safety exemptions, which was deemed insufficient:

In denying petitioner’s initial FOIL request and the subsequent administrative appeal, respondent merely quoted the language from the Public Officers Law. It gave no factual explanation or justification for its blanket denial to release the video footage. Although respondent provided an affirmation by its general counsel in this CPLR article 78 proceeding, the affirmation once again merely quoted the statutory language and failed to explain or demonstrate how the footage was compiled for any law enforcement purposes. In a conclusory and speculative fashion, the affirmation referenced some investigations and adjudications, but failed to provide any factual details or explanation of same. Moreover, the affirmation failed to detail how the release of the video footage would affect or interfere with said investigations and adjudications. “[R]espondent[], by merely parroting the statutory language and otherwise failing to provide any adequate sort of harm risked by disclosure, ha[s] failed to meet [its] burden of proving that disclosure of the records would interfere with a pending law enforcement investigation” … .

The affirmation was equally deficient with regard to the safety exemption (see Public Officers Law § 87 [2] [f]), in that it was neither particularized nor specific and failed to articulate an explanation as to how the release of the video footage could potentially endanger or impair the lives of correction officers or their families. Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 2022 NY Slip Op 07277, Third Dept 12-22-22

Practice Point: In order to deny attorney’s fees after a successful FOIL request, the respondent must demonstrate a reasonable basis for the initial denial of the request. Merely parroting the statutory language for the law-enforcement and safety exemptions is not sufficient. The reasons must be fact-based.

 

THE FOIL REQUEST FOR THE DISCIPLINARY RECORDS OF POLICE OFFICERS SHOULD NOT HAVE BEEN CATEGORICALLY DENIED PURSUANT TO THE PERSONAL PRIVACY EXEMPTION; RATHER THE RECORDS MUST BE REVIEWED AND ANY DENIALS OR REDACTIONS EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the request for the disciplinary records of police officers should not have categorically denied pursuant to the personal privacy exemption. The decision encompasses several important issues not summarized here and therefore should be consulted:

… [T]he personal privacy exemption “does not . . . categorically exempt . . . documents from disclosure”, even in the case where a FOIL request concerns release of unsubstantiated allegations or complaints of professional misconduct. In order to invoke the personal privacy exemption here, respondents must review each record responsive to petitioner’s FOIL request and determine whether any portion of the specific record is exempt as an invasion of personal privacy and, to the extent that any portion of a law enforcement disciplinary record concerning an open or unsubstantiated complaint of SPD [Syracuse Police Department] officer misconduct can be disclosed without resulting in an unwarranted invasion of personal privacy, respondents must release the non-exempt, i.e., properly redacted, portion of the record to petitioner … .

Inasmuch as respondents withheld the requested law enforcement disciplinary records concerning open and unsubstantiated claims of SPD officer misconduct in their entirety and did not articulate any particularized and specific justification for withholding any of the records, we conclude that respondents did not meet their burden of establishing that the personal privacy exemption applies … . Respondents further failed to establish that “identifying details” in the law enforcement disciplinary records concerning open and unsubstantiated claims of SPD officer misconduct “could not be redacted so as to not constitute an unwarranted invasion of personal privacy” … . Thus, the court erred in granting that part of respondents’ motion seeking to dismiss petitioner’s request for law enforcement disciplinary records concerning open or unsubstantiated claims of SPD officer misconduct in reliance on the personal privacy exemption under Public Officers Law § 87 (2) (b).  Matter of New York Civ. Liberties Union v City of Syracuse, 2022 NY Slip Op 06348, Fourth Dept 11-10-22

Similar issues in: Matter of New York Civ. Liberties Union v City of Rochester, 2022 NY Slip Op 06346, Fourth Dept 11-10-22

Practice Point: A FOIL request for the disciplinary records of police officers cannot be categorically rejected pursuant to the personal privacy exemption. Rather the records must be reviewed and any denials an redactions explained.

 

,

HERE, IN THIS FOIL PROCEEDING, THE REQUESTED DOCUMENTS WERE ULTIMATELY PROVIDED AFTER AN INITIAL REFUSAL RENDERING THE ACTION MOOT; THE PETITIONER’S REQUEST FOR AN AWARD OF ATTORNEY’S FEES, HOWEVER, WAS NOT PRECLUDED (THIRD DEPT).

The Third Department determined the award of attorney’s fees for a FOIL request is not precluded when the underlying action is rendered moot because the requested documents were ultimately provided (after an initial refusal):

The fact that the proceeding has been rendered moot by the disclosure of the documents does not … preclude petitioner’s request for an award of fees … .The Public Officers Law permits an award of “reasonable [counsel] fees and other litigation costs” where the petitioner “has substantially prevailed” in a FOIL proceeding and “when the agency failed to respond to a request . . . within the statutory time frame” … . Under the circumstances, as petitioner included in his petition a request for fees associated with the FOIL application, the matter must be remitted to Supreme Court for a determination of an award of costs and fees pursuant to Public Officers Law § 89 (4) (c) (i). Matter of Lewis v James, 2022 NY Slip Op 04066, Third Dept 6-23-22

Practice Point: If a FOIL request, after an initial refusal to provide the requested documents, is rendered moot by the respondent’s ultimately providing the documents, an award of attorney’s fees to the petitioner is not precluded.

 

,

PETITIONER WAS ENTITLED TO ATTORNEY’S FEES IN THIS FOIL PROCEEDING; THE RESPONDENTS DID NOT PROVIDE THE BULK OF THE REQUESTED DOCUMENTS UNTIL AFTER THE ARTICLE 78 WAS BROUGHT; RESPONDENTS DID NOT PRESENT AN ADEQUATE EXCUSE FOR FAILING TO INITIALLY DISCLOSE THE REQUESTED DOCUMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner was entitled to attorney’s fees as the prevailing party in this FOIL proceeding. It was only after petitioner brought an Article 78 petition that the respondents provided the bulk of the requested documents:

… [T]he respondents did not timely respond to the petitioner’s FOIL request … . The first response, which consisted of four pages of materials, failed to address three of the four enumerated categories of material the petitioner sought. It was not until after the commencement of this proceeding that the respondents provided a significant number of additional documents responsive to the FOIL request. Under the circumstances of this case, the petitioner was the “substantially prevailing” party … . …

… [T]he respondents did not have a reasonable basis for initially denying the petitioner access to the responsive materials. Although a limited amount of material was reasonably withheld based on attorney-client privilege, the “petitioner’s legal action ultimately succeeded in obtaining substantial unredacted post-commencement disclosure responsive to h[is] FOIL request” … . Matter of McNerney v Carmel Cent. Sch. Dist., 2022 NY Slip Op 02799, Second Dept 4-27-22

Practice Point: Respondents didn’t disclose the bulk of the documents described in the FOIL request until the Article 78 proceeding was started and did not have an adequate excuse for the initial incomplete response. Petitioner was entitled to attorney’s fees as the prevailing party.

 

,

A COURT REVIEWING THE DENIAL OF A FOIL REQUEST CANNOT BASE ITS RULING AFFIRMING THE DENIAL ON A GROUND NOT RAISED BY THE AGENCY TO WHICH THE REQUEST WAS MADE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that a court reviewing the denial of a FOIL request cannot base its ruling on a ground that was not cited by the agency to which the request was made:

“In a proceeding pursuant to CPLR article 78 to compel the production of material pursuant to FOIL, the agency denying access has the burden of demonstrating that the material requested falls within a statutory exemption, which exemptions are narrowly construed” …  This showing requires the agency “to articulate a particularized and specific justification for denying access,” and “[c]onclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed” … . “If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material” … .

“It is the settled rule that judicial review of an administrative determination is limited to the grounds invoked by the agency” … . A reviewing court “‘is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis'” … . Matter of McFadden v McDonald, 2022 NY Slip Op 02265, Second Dept 4-6-22

Practice Point: A court affirming the denial of a FOIL request cannot do so on a ground not raised by the agency to which the request was made.

 

IF A GOVERNMENT AGENCY TO WHICH A FOIL REQUEST HAS BEEN MADE DOES NOT POSSESS ANY RESPONSIVE DOCUMENTS, THE AGENCY MUST PROVIDE A CERTIFICATION TO THAT EFFECT (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined that if the records petitioner sought in his FOIL request do not exist or cannot be found, the respondent must so certify:

… [T]he statute commands that a government entity that does not supply any record in response to a FOIL request “shall certify that it does not have possession of such record or that such record cannot be found after diligent search” (Public Officers Law § 89 [3] [a] … ). Although “[t]he statute does not specify the manner in which an agency must certify that documents cannot be located” … , respondent failed to provide any such certification … . Accordingly, “we remit the matter to Supreme Court for a determination of whether respondent has any other documents in [his] possession which are responsive to petitioner’s FOIL request” … , or, if no responsive records can be found after a diligent search, for respondent to provide a proper certification as required … . Matter of Thomas v Kane, 2022 NY Slip Op 02164, Third Dept 3-31-22

​Practice Point: If a government agency to which a FOIL request has been made does not possess any responsive documents, the statute requires the agency to provide a certification to that effect.

 

, ,

CERTAIN FOIL REQUESTS RE: THE TRAINING AND PROCEDURES OF THE BOARD OF PAROLE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE; TWO DISSENTERS DISAGREED (THRID DEPT).

The Third Department, over two partial dissents, determined the FOIL request for certain documents relating to the training and procedures of the Board of Parole was properly denied as protected by the attorney-client privilege:

“[T]he attorney-client privilege protects communications between an attorney and his or her client that convey facts relevant to a legal issue under consideration, even if the information contained in the communication is not privileged” … . Regarding the minor offenders memoranda, these documents … were created by counsel and contain legal advice to the Board regarding the state of law and how the Board should conduct interviews in accord with such law. The court-decisions handouts likewise provide counsel’s summary, view and impression of recent case law to the Board. Similarly, the presentation slides and the parole interviews and decision-making handout discuss various legal standards and regulations and, as the Board’s counsel noted, were provided to the Board so it could understand the requirements imposed by them and how it can comply with them. As to the remaining documents — handouts concerning Board interviews, sample decision language concerning departure from COMPAS [Correctional Offender Management Profiling for Alternative Sanctions] and hypothetical Board decisions — they also involve legal advice as to how to reach decisions on parole matters so as to be in compliance with applicable regulations…. .

From the two partial dissents:

… [M]any of the documents contain sections that are devoted solely to informing the Board of Parole of its duly codified statutory and regulatory duties in rendering parole determinations, without any fact-specific discussions or legal advice on how to apply the law to particular scenarios. Although these documents were prepared by attorneys in the course of a professional relationship, the general legal principles outlined therein are not confidential … * * *

… I disagree with the majority because it is my opinion that the proper basis to withhold these documents is the intra-agency exemption, rather than the attorney-client privilege exemption. Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision, 2022 NY Slip Op 01354, Third Dept 3-3-22

 

, ,

PETITIONER SOUGHT RECORDS FROM THE NYC TAXI AND LIMOUSINE COMMISSION (TLC) TO DETERMINE HOW THE COMMISSION WAS HANDLING LICENSE APPLICANTS WITH CRIMINAL CONVICTIONS; THE REQUEST SHOULD NOT HAVE BEEN DENIED; MATTER REMITTED FOR IN CAMERA REVIEW (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s request for records from the NYC Taxi and Limousine Commission (TLC), including fitness interview decisions (FID”s) should not have been denied. The matter was remitted to Supreme Court for an in camera review of the records:

The Driver’s Privacy Protection Act (DPPA) (18 USC § 2721 et seq.) does not impose a blanket prohibition on disclosure of all motor vehicle records. Instead, the law restricts disclosure of “personal information,” which includes personal identifiers of the type that petitioner agrees should be redacted. Moreover, even as to such personal information, the DPPA still expressly provides for disclosure in various circumstances, such as for research purposes, where the personal information will not be further disclosed … . Motor vehicle records under the DPPA are thus not the kind of records as to which production is absolutely prohibited, as long as they are redacted … .

The record is not clear as to what extent it is possible to anonymize production of the TLC fitness interview decisions (FIDs), which petitioner seeks in order to assess whether the TLC has been applying fair standards in its decision making on licensing determinations with respect to people with one or more criminal convictions … . Matter of Brooklyn Legal Servs. v New York City Taxi & Limousine Commn., 2022 NY Slip Op 00809, First Dept 2-8-22

 

Categories

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

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy