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ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED.

The Second Department, in a full-fledged opinion by Justice Dickerson, reversing Supreme Court, determined shopping center development plans which were left for a few days with the town planner, and which were displayed and briefly discussed at a planning board meeting, were “records” within the meaning of the Public Officers Law (Freedom of Information Law). Therefore petitioner’s request for the documents was not frivolous and sanctions, her petition should not have been denied, and attorneys fees should not have been assessed against her:

The Court of Appeals has “required that FOIL be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government'” … . “The legislative purpose is mainly accomplished through the definitions of Agency’ and Record.’ . . . Record’ is broadly defined to include any information kept, held, filed, produced or reproduced by, with or for an agency . . . in any physical form whatsoever'” … . “[T]his very broad definition is not limited by the purpose for which a document was originated or the function to which it relates” … .

Here, it is undisputed that Camarda, the developer’s owner, left the subject architectural renderings in the possession of Williams, the Town Planner, for a number of days, and that Williams displayed the renderings at the meeting of the Planning Board … . Thus, the renderings were “kept” and “held” by an agency, and were “records” within the meaning of FOIL … Since the definition of “record” is not limited by the purpose for which a document was originated or the function to which it relates, the fact that Camarda did not formally submit the renderings as part of an application for approval of an amended site plan is irrelevant. Matter of Fanizzi v Planning Bd. of Patterson, 2016 NY Slip Op 08361, 2nd Dept 12-14-16

 

FREEDOM OF INFORMATION LAW (ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED)/MUNICIPAL LAW (ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED)/TOWN PLANNING BOARD (ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED)

REQUEST FOR NAMES AND ADDRESSES OF RESIDENTS PARTICIPATING IN THE DEER MANAGEMENT PROGRAM, ALLOWING BOW AND ARROW HUNTING ON THEIR PROPERTY, SHOULD HAVE BEEN GRANTED.

The Third Department determined the request for the names and addresses of residents participating in the deer management program should have been granted by the village. The residents at issue allowed deer hunting (bow and arrow) on their property:

To justify the redaction of the names, addresses and other identifying information relating to participants in the deer management program, respondent asserts that disclosure of this information “would constitute an unwarranted invasion of personal privacy” (Public Officers Law § 87 [2] [b]) or “could endanger the li[ves] or safety” of the participants (Public Officers Law § 87 [2] [f]). Turning first to the personal privacy exemption, respondent failed to demonstrate that the redacted information fell into any of the categories of information that the Legislature has specifically determined would qualify as an unwarranted invasion of personal privacy if disclosed (see Public Officers Law § 89 [2] [b]). In the absence of proof establishing the applicability of one of these specifically-enumerated categories, we evaluate whether disclosure would constitute an unwarranted invasion of personal privacy “by balancing the privacy interests at stake against the public interest in disclosure of the information” … . Respondent, however, has not articulated the implicated privacy interests, if any, that are to be weighed against the community’s interest in knowing the locations in which deer-hunting activities may take place. …

Nor did respondent demonstrate that disclosure of the redacted information “could endanger the li[ves] or safety” of the program’s participants (Public Officers Law § 87 [2] [f]). While respondent was only required to demonstrate “‘a possibility of endangerment'” … , respondent’s submissions, which included the [affidavit of] … the Mayor of the Village of Cayuga Heights, which adjoined the Village of Lansing, fell short of such demonstration. [The village clerk] merely stated that deer management programs “can be contentious” and that board members of the Village of Cayuga Heights had received threats when they “considered” those programs. The Mayor of the Village of Cayuga Heights confirmed that “[p]roponents of [the] culling operation, including [her] and other Village officials, ha[d] received death threats and other threats of personal harm.” However, neither affidavit established that similar threats had been made in the Village of Lansing or that participation in the deer management program was controversial in that community. Matter of Laveck v Village Bd. of Trustees of the Vil. of Lansing, 2016 NY Slip Op 08150, 3rd Dept 12-1-16

 

FREEDOM OF INFORMATION LAW (REQUEST FOR NAMES AND ADDRESSES OF RESIDENTS PARTICIPATING IN THE DEER MANAGEMENT PROGRAM, ALLOWING BOW AND ARROW HUNTING ON THEIR PROPERTY, SHOULD HAVE BEEN GRANTED)/DEER MANAGEMENT PROGRAM (FREEDOM OF INFORMATION LAW, REQUEST FOR NAMES AND ADDRESSES OF RESIDENTS PARTICIPATING IN THE DEER MANAGEMENT PROGRAM, ALLOWING BOW AND ARROW HUNTING ON THEIR PROPERTY, SHOULD HAVE BEEN GRANTED)

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SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS.

In a matter of first impression, the Second Department determined the SAFE ACT, which allows holders of pistol permits to apply to have their names and addresses removed from the public record, does not affect the application of the Freedom of Information Law (FOIL) exemptions to holders of pistol permits which remain on the public record. Therefore, the newspaper’s (Gannett’s) request for the names and addresses of pistol permit holders (those not “excepted” under the SAFE ACT) was properly granted because none of the FOIL exemptions applied:

The County parties’ argument that, pursuant to Public Officers Law §§ 87(2)(b) and 89(2)(b)(ii), disclosure of the names and addresses of pistol permit holders would constitute an unwarranted invasion of privacy because Gannett intends to use the names and addresses of pistol permit holders for solicitation purposes is without merit. Gannett’s status as a commercial enterprise does not demonstrate that Gannett intends to use the names and addresses to solicit business … , and it represented that it did not intend to do so.

Moreover, the County parties failed to establish that disclosure of the names and addresses would ” be offensive and objectionable to a reasonable [person] of ordinary sensibilities'” … . The County parties also failed to establish that any other exemptions to the FOIL disclosure requirement are applicable to the records at issue. Matter of Inc. v County of Putnam, 2016 NY Slip Op 05999, 2nd Dept 9-14-16

FREEDOM OF INFORMATION LAW (FOIL) (SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS)/SAFE ACT (SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS)/PISTOL PERMITS (SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS)

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DOCUMENTS WHICH REFLECT INFORMATION IN TAX RETURNS ARE EXEMPT FROM DISCLOSURE UNDER THE TAX LAW.

FREEDOM OF INFORMATION LAW (FOIL), TAX LAW.

The Third Department determined Supreme Court properly withheld from disclosure both tax returns and documents which reflect information included in tax returns:

“The policy behind the [tax] secrecy provisions is twofold: to protect personal privacy interests in the information on a return, which may reveal information concerning a person’s activities, associations and beliefs, and to encourage voluntary compliance with the tax laws by preventing use of return information to harm the reporting taxpayer” … . As relevant here, the statute prohibits the disclosure of “any particulars” by any person who “is permitted to inspect” a return, receives “any information contained in any [return]” or who “in any manner may acquire knowledge of the contents of a [return]” (Tax Law § 211 [8] [a]). By its terms, therefore, the confidentially required by the statute necessarily extends to any document that reflects information included in a return. If we were to construe the statute to only protect the secrecy of the return, the purpose of the statute would not be served … , and we find, in particular, that Tax Law § 211 (8) (a) prohibits the Department from releasing an agreement made with another taxpayer (see Tax Law §§ 171 [18]; 210-A [11]). … Contrary to petitioner’s arguments, where, as here, a document is exempt from disclosure pursuant to state statute, it may not be subjected to redaction … . Matter of Moody’s Corp. & Subsidiaries v New York State Dept. of Taxation & Fin., 2016 NY Slip Op 05612, 3rd Dept 7-21-16

FREEDOM OF INFORMATION LAW (FOIL) (DOCUMENTS WHICH REFLECT INFORMATION IN TAX RETURNS ARE EXEMPT FROM DISCLOSURE UNDER THE TAX LAW)/TAX LAW (DOCUMENTS WHICH REFLECT INFORMATION IN TAX RETURNS ARE EXEMPT FROM DISCLOSURE UNDER THE TAX LAW)/TAX RETURNS  (DOCUMENTS WHICH REFLECT INFORMATION IN TAX RETURNS ARE EXEMPT FROM DISCLOSURE UNDER THE TAX LAW)

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DISCLOSURE OF TOWN EMAIL LIST PROPERLY ORDERED.

The Second Department determined the town board did not articulate any valid reason for refusing to disclose an email list (gblist) consisting of the addresses of town residents who wished to be kept informed of news on matters of public concern:

 

Here, the Town parties did not articulate the applicability of any enumerated exemptions under Public Officers Law § 89(2)(b), nor did they show that the privacy interests at stake outweigh the public interest in disclosure of the information … . The petitioner seeks “to further the public discourse on matters of public importance and concern in the Town” by obtaining the names and email addresses of those persons who subscribe to the gblist—persons who have willingly divulged that information to the Town so that they may receive news and information, in electronic form, on matters of public concern in the Town. The Town parties did not articulate any privacy interest that would be at stake in the disclosure of the records. The Town parties’ contention that disclosure of the requested email addresses would render the gblist subscribers more susceptible to phishing, spamming, and other email scams is speculative; the Town parties failed to show that disclosure of the information would make the gblist subscribers more susceptible to such acts than they ordinarily would be. Matter of Livson v Town of Greenburgh, 2016 NY Slip Op 05570, 2nd Dept 7-20-16

FREEDOM OF INFORMATION LAW (FOIL) (DISCLOSURE OF TOWN EMAIL LIST PROPERLY ORDERED)/MUNICIPAL LAW (FREEDOM OF INFORMATION LAW, DISCLOSURE OF TOWN EMAIL LIST PROPERLY ORDERED)

COURT MAY NOT PROHIBIT DISCLOSURE ON A GROUND NOT RAISED IN OPPOSITION TO DISCLOSURE.

The Third Department, finding Supreme Court should have allowed disclosure of some of the requested documents, noted that a court cannot justify withholding documents on grounds not raised in opposition to disclosure:

A court is limited to considering only those exemptions to disclosure that are invoked by the party from whom disclosure is sought … . Accordingly, the court should not have relied on a justification for withholding documents … that was not raised by respondent. Matter of Rose v Albany County Dist. Attorney’s Off., 2016 NY Slip Op 05536, 3rd Dept 7-14-16

FREEDOM OF INFORMATION LAW (FOIL) (COURT MAY NOT PROHIBIT DISCLOSURE ON A GROUND NOT RAISED IN OPPOSITION TO DISCLOSURE)

GLOMAR RESPONSE, NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF DOCUMENTS, APPROPRIATE UNDER THE FACTS.

The First Department determined, under the facts, the police department's Glomar response to the request for documents was appropriate. A Glomar response refuses to admit or deny the existence of documents:

FOIL does not prohibit respondents from giving a Glomar response to a FOIL request — that is, a response “refus[ing] to confirm or deny the existence of records” where, as here, respondents have shown that such confirmation or denial would cause harm cognizable under a FOIL exception … . Although petitioners contend that such a response is impermissible in the absence of express statutory authorization, the Glomar doctrine is “consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL” … . * * *

Respondents met their burden to “articulate particularized and specific justification” for declining to confirm or deny the existence of the requested records, which sought information related to NYPD investigations and surveillance activities … . In particular, respondents showed that answering petitioners' inquiries would cause harm cognizable under the law enforcement and public safety exemptions of Public Officers Law § 87(2) (see § 87(2)[e], [f] … . Matter of Abdur-Rashid v New York City Police Dept., 2016 NY Slip Op 04318, 1st Dept 6-2-16

FREEDOM OF INFORMATION LAW (FOIL) (GLOMAR RESPONSE, NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF DOCUMENTS, APPROPRIATE UNDER THE FACTS)/GLOMAR RESPONSE (FOIL, GLOMAR RESPONSE, NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF DOCUMENTS, APPROPRIATE UNDER THE FACTS)

TOWN DID NOT DEMONSTRATE PREPAYMENT BEFORE RETRIEVING PAPER DOCUMENTS WAS JUSTIFIED.

The Second Department determined the town did not demonstrate the need for prepayment of the costs associated with locating the requested documents:

The only evidence in the record that justified the imposition of costs was a letter to the petitioner stating that it would take a Town employee a minimum of eight weeks, at $240 per week, to review 2,500-3,000 files to identify the records available for inspection. Although an agency may charge for employee time spent extracting or segregating data from an electronic database (see Public Officers Law § 87[1][c]), FOIL does not permit an agency to charge for employee time spent searching for paper documents … . Here, the Town failed to demonstrate that the prepayment costs were properly based upon employee time related to retrieving electronic files, rather than a manual search of hard copies for which the Town's recoupment costs are limited to 25¢ per photocopy … . Matter of Ripp v Town of Oyster Bay, 2016 NY Slip Op 04226, 2nd Dept 6-1-16

FREEDOM OF INFORMATION LAW (FOIL) (TOWN DID NOT DEMONSTRATE PREPAYMENT BEFORE RETRIEVING PAPER DOCUMENTS WAS JUSTIFIED)

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REQUEST FOR DOCUMENTS ABOUT AN UNSOLVED 1987 HOMICIDE SHOULD HAVE BEEN DENIED; APPEAL FROM A NONFINAL ORDER ALLOWED.

The First Department, reversing Supreme Court, determined petitioner was not entitled to all documents held by the NYC Police Department (NYPD) concerning an unsolved 1987 homicide. The court noted that, although an appeal as of right does not generally lie from a nonfinal order in an Article 78 proceeding, leave to appeal was granted here given the important, substantive issues raised:

NYPD properly withheld the requested materials pursuant to the exemption to FOIL for documents that “are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations” (Public Officers Law § 87[2][e][i]). NYPD met its burden of “identify[ing] the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents” … . In particular, NYPD submitted an affidavit by a detective averring that he was handling an active, ongoing investigation into the homicide, and had recently pursued potential leads. The detective's affidavit established that disclosure of the records could interfere with the active investigation by, among other things, leading to witness tampering or enabling the perpetrator to evade detection. Given the foregoing determination, we need not reach the other exemptions cited by NYPD. Matter of Loevy & Loevy v New York City Police Dept., 2016 NY Slip Op 04099, 1st Dept 5-26-16

FREEDOM OF INFORMATION LAW (FOIL) (REQUEST FOR DOCUMENTS ABOUT AN UNSOLVED 1987 HOMICIDE SHOULD HAVE BEEN DENIED; APPEAL FROM A NONFINAL ORDER ALLOWED)/APPEALS (REQUEST FOR DOCUMENTS ABOUT AN UNSOLVED 1987 HOMICIDE SHOULD HAVE BEEN DENIED; APPEAL FROM A NONFINAL ORDER ALLOWED)

REQUEST FOR STATEMENTS OF NON-TESTIFYING WITNESSES IN A CRIMINAL MATTER PROPERLY DENIED.

The Second Department determined the request for statements made by non-testifying witnesses in a criminal matter was properly denied:

… [T]he respondents met their burden of demonstrating that the statements and other documents containing information provided to law enforcement officials during the criminal investigation by witnesses who did not testify at trial were exempt from disclosure under Public Officers Law § 87(2)(e)(iii). Thus, the documents sought by the petitioner, which contain statements of nontestifying witnesses, are not disclosable under FOIL. Matter of Brown v DiFiore, 2016 NY Slip Op 04045, 2nd Dept 5-25-16

FREEDOM OF INFORMATION LAW (FOIL) (REQUEST FOR STATEMENTS OF NON-TESTIFYING WITNESSES IN A CRIMINAL MATTER PROPERLY DENIED)

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