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Redaction of Information Which Could Possibly Endanger Witnesses in a Homicide Investigation Is Required

Over a dissent, the First Department determined that information which could endanger confidential witnesses in a homicide investigation should be redacted from documents released pursuant to a FOIL request:

We agree with the dissent’s observation that the public safety exemption of Public Officers Law § 87(2)(f) does not warrant a blanket exception for DD5s …that reveal the identity of individuals (see Gould v New York City Police Dept., 89 NY2d 267, 277 [1996]…). However, the dissent’s rationale for release of this information, i.e., that “they may provide further information that would benefit [petitioner’s] case” is at odds with both the public safety and privacy exemptions of Public Officers Law § 87.

The Gould Court recognized that unlimited disclosure of identifying information on the DD5s is not warranted. It stated that “[d]isclosure of such documents could potentially endanger the safety of witnesses, invade personal rights, and expose confidential information of nonroutine police procedures. The statutory exemptions contained in the Public Officers Law, however, strike a balance between the public’s right to open government and the inherent risks carried by disclosure of police files” (Gould, 89 NY2d at 278, citing Public Officers Law § 87[2][b], [e], [f]). * * *

…[I]n the context of a homicide investigation, “we do not find that there must be a specific showing by respondents that petitioner, who is presently incarcerated, has threatened or intimidated any of the witnesses in his criminal case . . . in order to warrant redaction of certain identifying information” …. . … “The agency in question need only demonstrate a possibility of endanger[ment]’ in order to invoke this exemption” … . In fact, “[e]ven in the absence of such a threat, certain information found in DD-5s could, by its inherent nature, give rise to the implication that its release, in unredacted form, could endanger the life and safety of witnesses or have a chilling effect on future witness cooperation” … . Matter of Exoneration Initiative v New York City Police Dept, 2014 NY Slip Op 00728, 1st Dept 2-6-14

 

Because the Statute Relied Upon by the State Police to Deny a FOIL Request Did Not Pertain to the Sought Documents, the Request Should Have Been Granted/Court Cannot Substitute Another Ground for Denial

The Third Department determined an inmate’s FOIL request for lab reports, raw data, logbook entries, chain of custody forms and other documentation relating to the taking of blood samples should have been granted:

Courts reviewing administrative determinations may only rely on the grounds invoked by the agency, and if those grounds are improper, the courts may not substitute what they deem a legitimate or more appropriate basis … . Respondent relied on the portion of Executive Law § 995-c that states, “DNA records contained in the state DNA identification index shall be released” for only limited purposes, one of which is “for criminal defense purposes, to a defendant or his or her representative, who shall also have access to samples and analyses performed in connection with the case in which such defendant is charged” (Executive Law § 995-c [6] [b]).  For purposes of that statute, a DNA record is defined as “DNA identification information prepared by a forensic DNA laboratory and stored in the state DNA identification index for purposes of establishing identification in connection with law enforcement investigations or supporting statistical interpretation of the results of DNA analysis.  A DNA record is the objective form of the results of a DNA analysis sample” (Executive Law § 995 [8]).

Petitioner seeks lab reports, raw data, logbook entries, chain of custody forms and other documentation related to the taking of the blood sample and transporting of the sample and results.  He acknowledges that he has already received the actual DNA results from the Division of Criminal Justice Services. Aside from the lab reports that he has already received from another source, it does not appear that these documents are kept in the State’s DNA identification index, so they do not fall within the definition of DNA records.  Thus, Executive Law § 995c (6), which only applies to DNA records, does not apply to the majority of petitioner’s request.  As respondent failed to prove that the only ground it invoked for denial would exempt the requested documents – aside from the lab reports of DNA results that petitioner has already received and is not seeking on appeal – petitioner is entitled to receive those other documents… . Matter of Karimzada v O’Mara, 515412, 3rd Dept 11-21-13

 

Request for Employees’ Names and Addresses Not Allowed Under Balancing Test (Privacy versus Public Interest)

The Third Department applied a balancing test to determine whether petitioner’s Freedom of Information Law (FOIL) request for the names and addresses of employees should be granted.  The petitioner, a union employee, wished to communicate with the employees to ensure that nonunion contractors comply with the prevailing wage law (Labor Law 220).  The court affirmed the denial of petitioner’s request:

“FOIL is based on a presumption of access to [government] records, and an agency . . . carries the burden of demonstrating that [an] exemption applies to [a] FOIL request” … .  The personal privacy exemption (see Public Officers Law § 87 [2] [b]) incorporates a nonexhaustive list of categories of information that falls within the exemption (see Public Officers Law § 89 [2] [b] [i]-[vii]).  Where, as here, none of the categories applies specifically, the issue of whether there is an “unwarranted invasion” of privacy is decided “by balancing the privacy interests at stake against the public interest in disclosure of the information” … . * * *

An unwarranted invasion of personal privacy has been characterized as that which “‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities'” … .  Petitioner’s union desires names and home addresses so that it can contact employees of the nonunion contractor to find out if they were paid as reported by their employer.  The scenario of nonunion employees of a nongovernment employer being contacted at their homes by someone from a union who knows their names, their home addresses, the amount of money they reportedly earn, and who wants to talk about that income would be, to most reasonable people, offensive and objectionable. A significant privacy interest is implicated… . Matter of Massaro v NYS Thruway Authority, 516113, 3rd Dept 11-7-13

 

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Inmate’s FOIL Request for Prison Directive Should Have Been Granted

The Third Department determined the inmate’s Freedom of Information Law (FOIL) request for a Department of Corrections directive should have been granted:

…”[T]here is a presumption that government documents are available for inspection, and the burden rests on the agency resisting disclosure to demonstrate that they are exempt under Public Officers Law § 87 (2) by articulating a specific and particularized justification” … .  Although the basis of the denial of petitioner’s request was that the disclosure may endanger the life or safety of a person (see Public Officers Law § 87 [2] [f]), we fail to see how the disclosure of DOCCS Directive No. 4004, which pertains to the specifications for creating unusual incident reports, poses a danger to lives or to anyone’s safety … . Accordingly, the directive must be disclosed. Matter of Flores v Fischer, 516131, 3rd Dept 10-24-13

 

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Eliot Spitzer, Former New York Attorney General, Was a Necessary Party in FOIL Proceeding Seeking His Private Emails In Connection With Civil Enforcement Action against AIG Chief Financial Officer

Petitioner, former Chief Financial Officer of AIG, was the subject of a civil enforcement action against him brought in 2005 by then Attorney General Eliot Spitzer.  Supreme Court granted petitioner’s Freedom of Information Law (FOIL) request for access to private emails of Spitzer.  The Third Department determined that, given the nature of the documents requested, and Spitzer’s current status as a private person, he was a necessary party to the action:

Since at this juncture the object of this proceeding is Spitzer’s private email account(s), and the outcome of this appeal could be a directive to respondent to gain access to and review those private accounts, Spitzer would certainly be “inequitably affected by a judgment in th[is] [proceeding]” and “ought to be [a] part[y] if complete relief is to be accorded between the persons who are parties to [this proceeding]” (CPLR 1001 [a]).  As such, Spitzer is a necessary party herein … .  While not raised directly by the parties, “the court may at any stage of a case and on its own motion determine whether there is a nonjoinder of necessary parties” … .  “The rule . . . insures fairness to third parties who ought not to be prejudiced or ’embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard'” … .

In this matter, resolution of the disputed FOIL demand directly impacts the personal property of Spitzer, now a private citizen who is not before this Court and whose significant private rights and property cannot be said to be protected by the current respondent, which admittedly does not represent Spitzer’s private interests.  However, “[t]his [C]ourt has previously held that a court may not, on its own initiative, add or direct the addition of a party” (…see CPLR 1003).  Accordingly, the matter must be remitted to Supreme Court to order Spitzer to be joined if he is subject to the jurisdiction of the court and, if not, to permit Spitzer’s joinder by stipulation, motion or otherwise and, “if joinder cannot be effectuated, the court must then determine whether the [proceeding] should be permitted to proceed in the absence of necessary parties”… .  Matter of Smith v NYS Office of the Attorney General, 515758, 3rd Dept 10-17-13

 

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Most of Police Internal Investigation Report Deemed Immune from Disclosure

In determining that most of a police department’s internal investigation report need not be disclose pursuant to a Freedom of Information Law (FOIL) request, the Second Department wrote:

The Freedom of Information Law (Public Officers Law art. 6; hereinafter FOIL) was enacted “to promote open government and public accountability” and “imposes a broad duty on government to make its records available to the public” … . Under FOIL, government records are presumptively open for public inspection unless they fall within one of the exceptions specified by Public Officers Law § 87(2), which permits an agency to deny access, inter alia, to records which “are specifically exempted from disclosure by state or federal statute” (Public Officers Law § 87[2][a]… ). One such statute exempting records from disclosure is Civil Rights Law § 50-a(1), which provides, in relevant part, that “[a]ll personnel records used to evaluate performance toward continued employment or promotion” of police officers “shall be considered confidential and not subject to inspection or review.” However, “when access to an officer’s personnel records relevant to promotion or continued employment is sought under FOIL, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law § 50-a to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer” … . Matter of Cook v Nassau County Police Dept, 2013 NY Slip Op 06364, 2nd Dept 10-2-13

 

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Only Personnel Records Used to Evaluate Police Officer’s Performance Protected from Disclosure​

In a full-fledged opinion by Justice Peters, the Third Department determined that the records of a hit-and-run accident involving a state trooper, sought in a Freedom of Information Law (FOIL) request made by a newspaper journalist, may be protected by the Civil Rights Law 50-a if they are personnel records used to evaluate performance toward continued employment, even after employment has been terminated.  In this particular case, however, the Third Department ruled that the respondent (police department) failed to demonstrate that the records sought fell squarely within the Civil Rights Law exception and the motion to dismiss should not have been granted.

Respondent’s motion to dismiss must nevertheless be denied because, at this juncture, it has failed to demonstrate that the requested records “fall[] squarely within the exemption”….   Here, petitioners’ FOIL request sought all “records, in any form” that “relate[d] to” the off-duty incident involving Beardsley. In reply, respondent withheld all of the requested records on the basis of a blanket invocation of Civil Rights Law § 50-a, without describing any of the documents withheld or offering a specific basis for the claimed exemption … .  In the Matter of Hearst Corporation… v New York State Police, 515693, 3rd Dept, 5-30-13

 

 

Petitioner Entitled to Attorney’s Fees Based on Respondent’s Failure to Timely Respond to Requests for Information

The Third Department determined petitioner should be granted attorney’s fees because of respondent’s ignoring a FOIL request until an Article 78 proceeding was brought.  Even though respondent indicated the requested documents didn’t exist, the Third Department ruled that petitioner had “prevailed” in the FOIL proceedings and was therefore entitled to attorney’s fees:

By commencing this proceeding to force respondent to respond to its request, after a tortuous history, petitioner finally “received all the information that it requested and to which it was entitled in response to the underlying FOIL litigation, [and thus] it may  be said to have substantially prevailed within the meaning of Public Officers Law § 89 (4) ©” … .

The fact that full compliance with the statute was finally achieved in the form of a certification that the requested record could not be found after a diligent search, as opposed to the production of responsive documents, does not preclude a  petitioner from being  found  to have substantially prevailed, for the petitioner received the full and only response available pursuant to the statute under the circumstances. As we have emphasized, the counsel fee provision was added in recognition that persons seeking to force an agency to respond to a proper FOIL request “must engage in costly litigation,” and the statute was recently amended “in order to ‘create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL’”… . Matter of Legal Aid Society v NYS Department of Corrections …, 515257, 3rd Dept 4-4-13

 

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Home Addresses of Handgun Licensees and Hate Crime Victims Not Released.

In a Freedom of Information Law (FOIL) case brought by the New York Times against the City of New York Police Department, the First Department determined several important procedural aspects of a FOIL request including the proper vehicle to address an untimely response or ruling (Article 78), the proper vehicle for hybrid FOIL and declaratory relief (combined petition and complaint), and the “futility exception” to the exhaustion of administrative remedies applies to FOIL requests.  With respect to the substance of the FOIL request, the First Department ruled that the home addresses of handgun licensees and the home addresses of hate crime victims should not be released.  New York Times Company vs City of New York Police Department, 7994, 116449/10 First Dept. 2-5-13

 

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