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DOCUMENTS SOUGHT BY PETITIONER WERE EXEMPT FROM DISCLOSURE BASED UPON THE ATTORNEY-CLIENT PRIVILEGE, THE ATTORNEY WORK PRODUCT AND THE INTER-, INTRA-AGENCY COMMUNICATION EXEMPTIONS (THIRD DEPT).

The Third Department, modifying Supreme Court, determined emails between the governor’s office, counsel and Department of Transportation (DOT) employees concerning a gas station sublease which had been held by petitioner, but which was terminated by DOT, were exempt from disclosure based upon attorney-client privilege, attorney work-product, and the inter-, intra-agency communication exemption:

In determining whether a communication is protected by the attorney-client privilege, “the critical inquiry is whether, viewing the lawyer’s communication in its full content and context, it was made in order to render legal advice or services to the client” … . In that regard, inasmuch as facts are the foundation of legal advice, the 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 … . Each of the emails at issue are communications between counsel in the Governor’s Office and DOT employees that contain or reference factual information relevant to counsel providing legal advice regarding the proposed termination of the sublease. Accordingly, we conclude that the emails are protected by the attorney-client privilege and, therefore, Supreme Court erred in ordering their disclosure.

Respondents further contend that preliminary drafts of the letter that was ultimately sent terminating the sublease are exempt from disclosure under FOIL as inter-agency or intra-agency materials and as attorney work product … . The letters are drafts of the final termination notice that incorporate counsel’s recommendations and that were circulated in furtherance of the decision-making process prior to a final determination; accordingly, they are exempt from disclosure under FOIL as inter-agency or intra-agency materials and as attorney work product … . Matter of Gilbert v Office of the Governor of the State of N.Y., 2019 NY Slip Op 02189, Third Dept 3-21-19

 

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RECORDS OF DISCIPLINARY PROCEEDINGS CONCERNING A POLICE OFFICER ARE EXEMPT FROM DISCLOSURE EVEN IF THE IDENTIFYING INFORMATION IS REDACTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirming the appellate division, over a concurring opinion and two dissenting opinions, determined that the records of New York Police Department disciplinary proceedings concerning a police officer are exempt from disclosure, even if the identifying information in the records is redacted:

The FOIL exemption at issue, Public Officers Law § 87 (2) (a), provides that an agency may deny access to records that “are specifically exempted from disclosure by state or federal statute.” The parties agree that the disciplinary decisions requested by the NYCLU are covered by a state statute: Civil Rights Law § 50-a. * * *

“There can be no question” that Civil Rights Law § 50-a permits court-ordered disclosure “only in the context of an ongoing litigation” … . Absent officer consent, protected personnel records are shielded from disclosure “except when a legitimate need for them has been demonstrated to obtain a court order” based on a “showing that they are actually relevant to an issue in a pending proceeding” … . Here, in the context of the NYCLU’s FOIL request, the requested records are not “relevant and material” to any pending litigation … , and accordingly, they are not disclosable. * * *

This case presents a straightforward application of Civil Rights Law § 50-a and Public Officers Law § 87 (2) (a), which mandate confidentiality and supply no authority to compel redacted disclosure. To the extent the dissent would prefer to revoke civil rights protections afforded to police officers (Civil Rights Law § 50-a), victims of sex crimes (Civil Rights Law § 50-b), medical patients (Public Health Law § 2803-c [3] [f]), or others, those arguments are properly directed to the Legislature. Matter of New York Civ. Liberties Union v New York City Police Dept., 2018 NY Slip Op 08423, CtApp 12-13-18

FREEDOM OF INFORMATION LAW, POLICE OFFICERS

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POLICE PERSONNEL RECORDS CAN BE REDACTED TO REMOVE PERSONAL IDENTIFYING INFORMATION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the police personnel records sought in the FOIL request could be redacted to remove personal identifying information:

When this case was previously before this Court, we remitted the matter to Supreme Court for an in camera inspection of records related to the hiring of certain individuals for high-ranking positions within the police departments of the four respondent institutions that are operated by respondent State University of New York … . The matter was remitted with the directive that the court determine the extent to which the requested documents contain information exempt from disclosure and whether such information can be redacted while still protecting the personal privacy of those individuals … . On remittal, Supreme Court reviewed 1,344 pages of resumes, applications and related correspondence sent by applicants for the subject police department positions and, in May 2017, it maintained that redaction was not possible. * * *

While respondents argue that such extreme redaction renders the remaining information useless in determining whether the four respondent institutions complied with Retirement and Social Security Law § 211 in issuing waivers to the incumbents of the subject police department positions, petitioner need not demonstrate the information’s potential efficacy to obtain disclosure …  Further, as the identifying information falls squarely within a personal privacy Freedom of Information Law exemption, the court need not engage in a “balancing [of] the privacy interests at stake against the public interest in disclosure of the information” … , which would have required a review of the purpose of the request and the relevancy of the records. As such, we reject respondents’ notion that all substantive information is identifying, and, while we acknowledge that the task is arduous, the four respondent institutions must review the data once again, delete identifying information while leaving nonidentifying metrics intact and disclose the same. By way of guidance, much of the information concerning particular states, schools and police departments can be easily redacted, leaving the raw data, including positions held, education level, rank and other relevant experience. Matter of Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 2018 NY Slip Op 07019, Third Dept 10-18-18

FREEDOM OF INFORMATION LAW (FOIL) (POLICE PERSONNEL RECORDS CAN BE REDACTED TO REMOVE PERSONAL IDENTIFYING INFORMATION (THIRD DEPT))/RETIREMENT AND SOCIAL SECURITY LAW (FREEDOM OF INFORMATION LAW, POLICE PERSONNEL RECORDS CAN BE REDACTED TO REMOVE PERSONAL IDENTIFYING INFORMATION (THIRD DEPT))/POLICE PERSONNEL RECORDS (FREEDOM OF INFORMATION LAW, POLICE PERSONNEL RECORDS CAN BE REDACTED TO REMOVE PERSONAL IDENTIFYING INFORMATION (THIRD DEPT))/PERSONAL PRIVACY EXEMPTION (FREEDOM OF INFORMATION LAW, POLICE PERSONNEL RECORDS CAN BE REDACTED TO REMOVE PERSONAL IDENTIFYING INFORMATION (THIRD DEPT))

DESPITE THE FACT THAT THE PETITION SEEKING REVIEW OF FREEDOM OF INFORMATION LAW (FOIL) REQUESTS WAS MOOT, PETITIONER HAD SUBSTANTIALLY PREVAILED AND WAS ENTITLED TO COSTS AND FEES, MATTER REMITTED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined petitioner was entitled to costs and fees associated with his FOIL request for information about the confidential informant in the case which led to petitioner’s conviction and incarceration. The state police did not timely respond to petitioner’s requests and eventually provided two police reports and a finding that the remainder of the requested information was exempt from disclosure. The “costs and fees” issue was still viable despite the fact that the proceeding was moot. The Third Department found that the petitioner had substantially prevailed and the state police had not met the time requirements associated with responding to petitioner’s requests:

A court is authorized to award a petitioner “reasonable [counsel] fees and other litigation costs reasonably incurred” where he or she has “substantially prevailed” in the FOIL proceeding and, as relevant here, “the agency failed to respond to a request or appeal within the statutory time” … . “A petitioner ‘substantially prevail[s]’ under Public Officers Law § 89 (4) (c) when [he or she] ‘receive[s] all the information that [he or she] requested and to which [he or she] is entitled in response to the underlying FOIL litigation'”… , regardless of whether “full compliance with the statute was finally achieved” in the form of disclosure, a certification that responsive documents were exempt from disclosure or some combination thereof … . Significantly, the voluntariness of an agency’s disclosure after the commencement of a CPLR article 78 proceeding will not preclude a finding that a litigant has substantially prevailed … . Matter of Cobado v Benziger, 2018 NY Slip Op 04996, Third Dept 7-5-18

​FREEDOM OF INFORMATION LAW (FOIL) (DESPITE THE FACT THAT THE PETITION SEEKING REVIEW OF A FREEDOM OF INFORMATION LAW (FOIL) WAS MOOT, PETITIONER HAD SUBSTANTIALLY PREVAILED AND WAS ENTITLED TO COSTS AND FEES, MATTER REMITTED (THIRD DEPT))/PUBLIC OFFICERS LAW (FREEDOM OF INFORMATION LAW (FOIL), DESPITE THE FACT THAT THE PETITION SEEKING REVIEW OF A FREEDOM OF INFORMATION LAW (FOIL) WAS MOOT, PETITIONER HAD SUBSTANTIALLY PREVAILED AND WAS ENTITLED TO COSTS AND FEES, MATTER REMITTED (THIRD DEPT))/FEES AND COSTS  (FREEDOM OF INFORMATION LAW (FOIL), DESPITE THE FACT THAT THE PETITION SEEKING REVIEW OF A FREEDOM OF INFORMATION LAW (FOIL) WAS MOOT, PETITIONER HAD SUBSTANTIALLY PREVAILED AND WAS ENTITLED TO COSTS AND FEES, MATTER REMITTED (THIRD DEPT))

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CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER THE PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the Civilian Complaint Review Board (CCRB) records concerning a particular police officer were exempt from disclosure under the Public Officers Law and Civil Rights Law:

Public Officers Law § 87(2)(a) provides, among other exceptions, that an agency may deny access to records that “are specifically exempted from disclosure by state or federal statute.” One such statute is Civil Rights Law § 50-a, which, as relevant here, provides: “All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department . . . shall be considered confidential and not subject to inspection or review . . . except as may be mandated by lawful court order” (Civil Rights Law § 50-a[1]). As the Court of Appeals has acknowledged, the Legislature’s purpose in enacting Civil Rights Law § 50-a(1) was “to limit access to said personnel records by criminal defense counsel, who used the contents of the records, including unsubstantiated and irrelevant complaints against officers, to embarrass officers during cross-examination” … .

We agree with the Appellate Division, 1st Department, that records of the CCRB relating to complaints and proceedings against police officers are exempt from disclosure under Civil Rights Law § 50-a(1)… . The records that the petitioner requested are “personnel records used to evaluate performance toward continued employment or promotion.” Matter of Luongo v Records Access Officer, 2018 NY Slip Op 03681, Second Dept 5-23-18

​FREEDOM IN INFORMATION LAW (FOIL) (CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER TH PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT))/POLICE OFFICERS (FREEDOM OF INFORMATION LAW, CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER TH PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT))/CIVILIAN COMPLAINT REVIEW BOARD (POLICE OFFICER, FREEDOM OF INFORMATION LAW, CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER TH PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT))

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INTRA- OR INTER- AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY), PREVAILING PARTIES ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that the intra- or inter-agency exemption from the Freedom of Information Law (FOIL) could not be stretched to include communications between Mayor de Blasio’s office and an outside consultant retained by a private organization (Campaign for One New York or CONY), as opposed to a consultant hired by a government agency. Because the reporters seeking the information had substantially prevailed in seeking disclosure, they were entitled to attorney’s fees:

It is well settled that for communications between a governmental agency and an outside consultant to fall under the agency exemption, the outside consultant must be retained by the governmental agency … .

Respondents seek to broaden the agency exemption to shield communications between a governmental agency and an outside consultant retained by a private organization and not the agency. This attempt expands the agency exemption and closes the door on government transparency. Requiring an agency to retain an outside consultant to protect its communications comports with the fundamental principle that FOIL exemptions should be “narrowly interpreted so that the public is granted maximum access” to public records … . Matter of Rauh v de Blasio, 2018 NY Slip Op 03115, First Dept 5-1-18

​FREEDOM OF INFORMATION LAW (FOIL) (INTRA OR INTER AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY) (FIRST DEPT))/INTER- INTRA- AGENCY EXEMPTION (FREEDOM OF INFORMATION LAW (FOIL) (INTRA OR INTER AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY) (FIRST DEPT))/ATTORNEY’S (FREEDOM OF INFORMATION LAW (FOIL), PREVAILING PARTIES ENTITLED TO ATTORNEY’S FEES (FIRST DEPT)/CONSULTANTS (FREEDOM OF INFORMATION LAW (FOIL), INTRA OR INTER AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY) (FIRST DEPT))

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ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT).

The Third Department, over a concurrence and a two-justice dissent, determined electronic images of election ballots are accessible under the Freedom of Information Law (FOIL) after they have been preserved in accordance with the Election Law:

The dispute before us poses a question of public significance: whether electronic images of ballots cast in an election are accessible under the Freedom of Information Law … . We conclude that, once electronic ballot images have been preserved in accordance with the procedures set forth in Election Law § 3-222 (1), there is no statutory impediment to disclosure and they may be obtained through a FOIL request.

Our analysis is informed by the advent of electronic voting in New York (see generally Election Law § 7-202 [4]). As more fully set forth in the record, upon inserting a ballot into an electronic voting machine, it is scanned and an image of it is stored in a random fashion on portable flash drives, which preserve the secrecy of the ballot. The original ballot is then deposited by the scanner into a secure ballot box under the machine. After the polls close, the machine prints out a tabulated results tape containing the official record of votes cast on that particular machine. One of the flash drives is removed from the machine and returned to the applicable board of elections, while the other remains with the machine and is used during the recanvass process. As is relevant here, the content on the portable flash drives is then copied to permanent electronic storage media, such as a hard drive, after which the temporary storage media may be reused in another election … . Matter of Kosmider v Whitney, 2018 NY Slip Op 02517, Third Dept 4-12-18

​ELECTION LAW (FREEDOM OF INFORMATION LAW (FOIL), ELECTRONIC VOTING, ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))/FREEDOM OF INFORMATION LAW (FOIL) (ELECTION LAW, ELECTRONIC VOTING, ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))/ELECTRONIC VOTING (ELECTION LAW, FREEDOM OF INFORMATION LAW (FOIL), ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))//BALLOTS (ELECTION LAW, FREEDOM OF INFORMATION LAW (FOIL), ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))

NEW YORK CITY POLICE DEPARTMENT, IN RESPONSE TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST, PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a partial dissenting opinion and a two-judge dissenting opinion, determined that the New York City Police Department, pursuant to a request for records of surveillance of Talib Abdur-Rashid, Samir Hahsmi, a mosque and a university student association, properly refused to confirm or deny such records existed:

The agency denied the requests, stating in each case that the information, “if possessed by the NYPD”, would be protected from disclosure under various statutory exemptions, including the law enforcement, public safety and personal privacy provisions. After the NYPD adhered to those decisions on administrative appeal, petitioners commenced separate CPLR article 78 proceedings challenging the determinations. Petitioners asserted that the NYPD was engaged in an ongoing domestic surveillance program in which, as alleged in press articles, it had targeted Muslim individuals, places of worship, businesses, schools, student groups and the like. It was in this context that petitioners attempted to ascertain whether they were subjects of surveillance or investigation, noting that they had supplied certifications of identity waiving their personal privacy interests and authorizing the NYPD to release responsive records to their attorneys. …

The NYPD’s response, although styled as a motion to dismiss the petition in each case, did not assert a procedural objection but defended the FOIL responses on the merits. The agency explained the basis for its denial of the FOIL requests and its refusal to disclose whether it possessed responsive documents in a 22-page affidavit of its Chief of Intelligence, Thomas Galati. Without offering any specific information relating to petitioners, Chief Galati described the NYPD’s ongoing and wide-ranging counterterrorism efforts, acknowledging that the agency was actively engaged in covert surveillance and other intelligence gathering in its effort to preempt acts of terrorism in New York City, which remains a prime target in the wake of the World Trade Center attacks. The Galati affidavit averred that disclosure of whether the NYPD possesses records responsive to the FOIL requests would necessarily reveal whether petitioners had been the subjects of its investigation, information which — particularly if aggregated — would provide unprecedented and invaluable information concerning NYPD counterterrorism strategies, operations, tactics and techniques to those planning future terrorist attacks. The Galati affidavit also averred that the NYPD intelligence strategies are monitored by individuals and organizations with the goal of developing counterintelligence measures, and the greatest vulnerability to the NYPD Intelligence Bureau is the release of even “seemingly innocuous information” which would inexorably reveal sources from which information is gathered by the NYPD. Matter of Abdur-Rashid v New York City Police Dept., 2018 NY Slip Op 02206, CtApp 3-29-18

FREEDOM OF INFORMATION LAW (FOIL) (NEW YORK CITY POLICE DEPARTMENT PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP))/POLICE (FOIL, SURVEILLANCE, COUNTERTERRORISM,  (NEW YORK CITY POLICE DEPARTMENT PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP))/SURVEILLANCE (POLICE, COUNTERTERRORISM, FOIL, NEW YORK CITY POLICE DEPARTMENT PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP))/COUNTERTERRORISM (SURVEILLANCE, POLICE, FOIL, NEW YORK CITY POLICE DEPARTMENT PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP))

TRAFFIC AND PARKING VIOLATIONS AGENCY IS A HYBRID AGENCY PLAYING BOTH JUDICIAL AND PROSECUTORIAL ROLES, ALTHOUGH DOCUMENTS RELATING TO THE JUDICIAL ROLE ARE EXEMPT FROM FOIL DISCLOSURE, DOCUMENTS RELATING TO THE PROSECUTORIAL ROLE ARE NOT (SECOND DEPT).

The Second Department sent the matter back to Supreme Court to determine whether documents sought by petitioner under the Freedom of Information Law (FOIL) were exempt from disclosure. The documents (re: the photo speed monitoring system) are held by the Nassau Court Traffic and Parking Violations Agency (TPVA). Supreme Court found that the TPVA was exempt from as part of the judiciary. However, although part of the TPVA’s role is judicial, there are aspects of the agency which are prosecutorial. Supreme Court should have reviewed the documents to see whether the judiciary exemption applies to all the requested documents:

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FOIL applies to “agency” records, but its definition of “agency” expressly excludes the “judiciary” … . FOIL defines “judiciary” as “the courts of the state, including any municipal or district court, whether or not of record” … , the Court of Appeals stated that for purposes of jurisdiction over certain matters, the TPVA is “an arm of the District Court,” so that matters pending in the TPVA are considered to be pending in the District Court. Accordingly, it is indisputable that, at least for certain purposes, the TPVA is part of the judiciary. The Supreme Court erred, however, in holding that the TPVA is entirely judicial and thus not subject to FOIL at all. The Court of Appeals expressly recognized in Matter of Dolce v Nassau County Traffic & Parking Violations Agency that the TPVA is a “hybrid agency that exercises both prosecutorial and adjudicatory responsibilities,” and that the prosecutorial function is “distinct from the adjudicatory function” (id. at 498). Accordingly, to the extent that a TPVA record concerns the nonadjudicatory responsibilities of the TPVA, it is not exempt from disclosure under the definition of “agency” in Public Officers Law § 86(3). Without examination of the records that the petitioner seeks, the Supreme Court cannot make a determination as to whether they are exempt from disclosure as records of the “judiciary” … . Matter of Law Offs. of Cory H. Morris v County of Nassau, 2018 NY Slip Op 00835, Second Dept 2-7-18

FREEDOM OF INFORMATION LAW (FOIL) (TRAFFIC AND PARKING VIOLATIONS AGENCY IS A HYBRID AGENCY PLAYING BOTH JUDICIAL AND PROSECUTORIAL ROLES, ALTHOUGH DOCUMENTS RELATING TO THE JUDICIAL ROLE ARE EXEMPT FROM FOIL, DOCUMENTS RELATING TO THE PROSECUTORIAL ROLE ARE NOT (SECOND DEPT))/TRAFFIC AND PARKING VIOLATIONS AGENCY (FOIL, TRAFFIC AND PARKING VIOLATIONS AGENCY IS A HYBRID AGENCY PLAYING BOTH JUDICIAL AND PROSECUTORIAL ROLES, ALTHOUGH DOCUMENTS RELATING TO THE JUDICIAL ROLE ARE EXEMPT FROM FOIL, DOCUMENTS RELATING TO THE PROSECUTORIAL ROLE ARE NOT (SECOND DEPT))

2ND DEPT USED THE WRONG STANDARD FOR APPLYING THE CONFIDENTIAL SOURCE EXEMPTION TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST FOR DOCUMENTS, CASE REMITTED, PETITIONER SOUGHT DOCUMENTS RELATING TO A REVIEW OF HIS SEX OFFENSE CASE WHICH WAS PROSECUTED AMID NATIONWIDE HYSTERIA OVER ALLEGATIONS OF RITUAL ABUSE AT DAY CARE CENTERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge partial dissent, determined that the standard for the confidentiality-source exemption for documents sought under the Freedom of Information Law (FOIL) in the 2nd Department was incorrect and remitted the matter. The requested documents relate to a review of petitioner’s conviction by a panel specifically created for that review. Petitioner had pled guilty to several sex offenses at a time when a hysteria surrounding allegations of ritual child abuse at day care centers was sweeping the country:

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The legislature’s policy of broad public access, as expressed in FOIL, dictates that the exemption for confidential sources and information be narrowly circumscribed. Therefore disclosure under FOIL can only be refused pursuant to section 87 (2) (e) (iii) if the agency presents a “particularized and specific justification for denying access” … , based on an express promise of confidentiality to the source, or by establishing that, under the circumstances of the particular case, the confidentiality of the source or information can be reasonably inferred.

Application of this rule is case and information specific, and depends on the particular facts and circumstances. In determining whether information obtained in the course of a criminal investigation should be treated as confidential or whether a source spoke on the assumption that the source’s identity or statements would remain confidential, courts may consider, as they deem relevant, such factors as the nature of the crime, the source of the information in relation to the crime, and the content of the statements or information. Where the content of a statement or information and the circumstances surrounding its compilation by law enforcement convince a court that its confidentiality can be reasonably inferred, it may be withheld or released with appropriate redactions pursuant to section 87 (2) (e) (iii). Otherwise, absent an explicit assurance of confidentiality, it may not be withheld or redacted under that FOIL exemption.

Here, because the [2nd] Department majority misconstrued the FOIL exemption asserted by respondent, the order below must be reversed and the matter remitted for consideration under the correct standard. Matter of Friedman v Rice, 2017 NY Slip Op 08167, CtApp 11-21-17

 

FREEDOM OF INFORMATION LAW (FOIL) (2ND DEPARTMENT USED THE WRONG STANDARD FOR APPLYING THE CONFIDENTIAL SOURCE EXEMPTION TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST FOR DOCUMENTS, CASE REMITTED, PETITIONER SOUGHT DOCUMENTS RELATING TO A REVIEW OF HIS SEX OFFENSE CASE WHICH WAS PROSECUTED AMID NATIONWIDE HYSTERIA OVER ALLEGATIONS OF RITUAL ABUSE AT DAY CARE CENTERS (CT APP))/CONFIDENTIAL SOURCE EXEMPTION (FREEDOM OF INFORMATION LAW (FOIL), 2ND DEPARTMENT USED THE WRONG STANDARD FOR APPLYING THE CONFIDENTIAL SOURCE EXEMPTION TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST FOR DOCUMENTS, CASE REMITTED, PETITIONER SOUGHT DOCUMENTS RELATING TO A REVIEW OF HIS SEX OFFENSE CASE WHICH WAS PROSECUTED AMID NATIONWIDE HYSTERIA OVER ALLEGATIONS OF RITUAL ABUSE AT DAY CARE CENTERS (CT APP))

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