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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determined the FOIL request for county-sheriff disciplinary records which were created before Civil Rights Law 50-a was repealed in 2020 must be disclosed.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 When section 50-a was repealed on June 12, 2020, that exception was removed.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Point: Here the statute protecting county-sheriff disciplinary records from disclosure pursuant to a FOIL request was repealed in 2020.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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THE FOIL REQUEST FOR DOCUMENTS PREPARED BY COUNSEL FOR THE BOARD OF PAROLE WAS PROPERLY DENIED; THE DOCUMENTS ARE PROTECTED FROM DISCLOSURE BY THE ATTORNEY-CLIENT PRIVILEGE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the FOIL requests made to the Board of Parole of the Department of Corrections and Community Supervision (DOCCS) were properly denied. The documents were protected by attorney-client privilege:

… (DOCCS) properly withheld 11 documents prepared by counsel for the Board of Parole as privileged communications exempt from Freedom of Information Law (FOIL) disclosure. Counsel prepared the documents to train and advise Board of Parole commissioners on how to comply with their legal duties and obligations. The documents reflect counsel’s legal analysis of statutory, regulatory and decisional law and they therefore constitute attorney-client communications that were prepared “for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship,” specifically, to provide guidance on matters relevant to the Commissioners’ exercise of their discretionary authority … . Accordingly, DOCCS properly invoked the statutory FOIL exemption for privileged matters (see Public Officers Law § 87 [2] [a]; CPLR 4503 [a]). Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision, 2023 NY Slip Op 06466, CtApp 12-19-23

Practice Point: A FOIL request for documents protected by attorney-client privilege is properly denied.

 

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PETITIONER-REPORTER PREVAILED IN THE FOIL ACTION DESPITE THE AVAILABILITY OF SOME OF THE REQUESTED INFORMATION ON A PUBLIC WEBSITE; THEREFORE PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined petitioner-reporter’s request for an unredacted telephone directory for employees of the county police department should have been granted because the county did not demonstrate the information was exempt from disclosure. In addition, petitioner should have been awarded attorney’s fees and litigation costs because petitioner had prevailed in the FOIL action. The fact that some of the requested information (names and salaries of police officers, for example) was available on a public website, to which petitioner was referred, did not warrant a finding petitioner had not prevailed:

… Supreme Court improperly, in effect, denied that branch of the petition which was to compel the production of a NCPD [Nassau County Police Department] telephone directory, without redactions, insofar as asserted against the County and the NCPD, as those respondents failed to demonstrate the applicability of an exemption to disclosure warranting redaction of the telephone directory …, which did not contain any personal telephone or cell phone numbers (see Public Officers Law § 89[2-b][b]). * * *

… [T]he petitioner substantially prevailed in this proceeding by obtaining a significant portion of the records and information responsive to the FOIL request after the commencement of the proceeding … . Contrary to the respondents’ contention, the purported public availability of the requested records and information does not preclude a determination that the petitioner substantially prevailed … . Moreover, the record reflects that the respondents did not have a reasonable basis for the initial denial of the petitioner’s FOIL request in its entirety … . Matter of Lane v County of Nassau, 2023 NY Slip Op 06139, Second Dept 11-29-23

Practice Point: Unless the municipality can show the information sought by a FOIL request is exempt from disclosure the information must be disclosed.

Practice Point: The fact that information sought in a FOIL request is available on a public website, to which the petitioner is referred, does not preclude a finding that petitioner prevailed in the FOIL proceeding.

 

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UNSUBSTANTIATED COMPLAINTS AGAINST POLICE OFFICERS ARE NOT CATEGORICALLY EXEMPT FROM FOIL REQUESTS (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined “unsubstantiated complaints” against police officers are not categorically exempt from a FOIL request:

The petitioner publishes a daily newspaper in Long Island. Following the Legislature’s repeal of Civil Rights Law § 50-a, the petitioner made requests to the Nassau County Police Department (hereinafter the NCPD) pursuant to the Freedom of Information Law … to obtain certain law enforcement disciplinary records. … [T]he NCPD … withheld all documents relating to complaints that were not determined to be substantiated on the ground that such documents were categorically exempt from disclosure as an “unwarranted invasion of personal privacy” pursuant to Public Officers Law § 87(2)(b). We hold that records concerning unsubstantiated complaints or allegations of misconduct are not categorically exempt from disclosure as an unwarranted invasion of personal privacy, and the NCPD is required to disclose the requested records, subject to redactions with particularized and specific justification under Public Officers Law § 87(2) … . …

Former Civil Rights Law § 50-a provided a blanket shield from public disclosure for police officer personnel records, including records relating to disciplinary proceedings arising out of allegations of misconduct … . Effective June 12, 2020, the 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. Matter of Newsday, LLC v Nassau County Police Dept., 2023 NY Slip Op 06050, Second Dept 11-22-23

Practice Point: Pursuant to the repeal in 2020 of Civil Rights Law 50-a, unsubstantiated complaints against police officers are not categorically exempt from FOIL requests.

 

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THE PETITIONER MAKING THE FOIL REQUEST IS A LAW FIRM; THE FACT THAT THE FIRM’S CLIENT ALSO HAD STANDING TO MAKE THE FOIL REQUEST DID NOT DEPRIVE THE LAW FIRM OF STANDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 proceeding contesting the denial of petitioner’s FOIL request should not have been dismissed for lack of standing. Petitioner is a law firm seeking information on behalf of a client. The fact that the client could also make the FOIL request did not deprive the law firm of standing:

Supreme Court erred in concluding that the petitioner lacked standing to pursue this proceeding. The petitioner submitted the FOIL request to the Agency and its request was denied, both initially and on administrative appeal. Since the petitioner’s FOIL request was denied, it had standing to seek judicial review of the Agency’s determination … , regardless of whether it submitted the FOIL request, in whole or in part, on behalf of a client … . The petitioner’s standing was not extinguished by the fact that its client also would have had standing to commence a proceeding challenging the denial of the FOIL request … . Matter of Law Offs. of Cory H. Morris v Suffolk County, 2023 NY Slip Op 06046, Second Dept 11-22-23

Practice Point: Here a law firm made FOIL requests that were denied. The law firm then brought an Article 78 proceeding which was erroneously dismissed for lack of standing. The fact that the firm’s client had standing to bring the FOIL proceedings did not deprive the law firm of standing.

 

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THE FOIL REQUEST FOR THE NUMBER AND LOCATION OF LICENSE PLATE READERS (LPR’S) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined the FOIL request for the location of license plate readers (LPR’s) should have been granted. The majority decision and the dissent include comprehensive discussions of the relevant caselaw which are far too extensive to fairly summarize here:

In light of the presumption of accessability and the narrow interpretation we are required to apply to a claimed exemption, under the circumstances of this case, we find that the respondents failed to sustain their burden of proving that the law enforcement records exemption pursuant to Public Officers Law § 87(2)(e)(iv) applied to the records pertaining to the number and location of the LPRs sought by the petitioner’s request … . Matter of Lane v Port Wash. Police Dist., 2023 NY Slip Op 05605, Second Dept 11-8-23

Practice Point: Here the majority’s and dissent’s discussion of FOIL request for the number and location of license plate readers (LPR’s), which the majority held should have been granted, includes a comprehensive discussion of the relevant caselaw.

 

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THE AVAILABILTY OF GOVERNMENT RECORDS ON A PUBLIC WEBSITE DOES NOT SATISFY A FOIL REQUEST; HERE THERE WERE QUESTIONS OF FACT WHETHER THE VILLAGE SHOULD HAVE WORKED WITH THE PETITIONER TO IDENTIFY THE REQUESTED DOCUMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, in a comprehensive full-fledged opinion by Justice Iannacci, determined the article 78 petition seeking to compel the village to release documents about recusals and conflict-of-interests disclosures by village officials should not have been dismissed. The availability of government records on a public website was deemed insufficient to satisfy a FOIL request. There were questions of fact about whether the requested documents were sufficiently described:

The principal questions presented on appeal are whether the requested records were “reasonably described” (… [Public Officers Law] § 89[3][a]) so as to allow the Village to locate and identify them, and whether the Village satisfied its obligations under FOIL by maintaining a public website, on which much of the information sought by the petitioner could be found. We hold that the mere availability of government records on a public website is insufficient to satisfy a request under FOIL for reproduction of such materials. However, we further conclude that questions of fact exist as to the Village’s ability to locate, identify, and produce the records requested by the petitioner, thereby precluding summary determination of the petition. * * *

… [T]here is no evidence that, before denying the petitioner’s request in its entirety, the Village made any effort to work with her to more precisely define the information desired … , if possible, or to “attempt to reasonably reduce the volume of the records requested” … . * * *

Holding that an agency satisfies a FOIL request for reproduction of records merely by referring the requestor to a public website does not adequately safeguard the public right of all of this State’s citizens. Matter of Goldstein v Incorporated Vil. of Mamaroneck, 2023 NY Slip Op 05500, Second Dept 11-1-23

Practice Point: The availability of government records on a government website does not satisfy a FOIL request for documents.

Practice Point: The municipality may have an obligation to work with the party making a FOIL request to identify the requested documents.

 

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