FREEDOM OF INFORMATION LAW (FOIL) REQUESTS

 

CRITERIA FOR COURT REVIEW OF A DENIAL OF A REQUEST

 

Court review of the denial of a FOIL request is controlled by specific statutory criteria which is distinct and completely different from the criteria used by courts to review administrative determinations generally. As explained in the case excerpt immediately below:

 

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 to be narrowly construed (see Public Officers Law § 89[5][e], [f]..). . This showing requires the entity resisting disclosure to "articulate a particularized and specific justification for denying access" ... . "Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed" ... . Because FOIL is "based on a presumption of access to the records" ..., "FOIL compels disclosure, not concealment'" wherever the agency fails to demonstrate that a statutory exemption applies ...".

 

District Attorney's Office Did Not Adequately Justify Its Denial of Inmate's Requests for Color Photographs and Unredacted Documents Re: 18-Year-Old Murder Prosecution

 

The Second Department determined that the Records Access Officer (RAO) of a district attorney's office did not adequately justify its failure to comply with petitioner requests for color photographs and unredacted documents related to an 18-year-old murder prosecution against him.  The Second Department explained the relevant law in some depth:

 

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 to be narrowly construed (see Public Officers Law § 89[5][e], [f]... . This showing requires the entity resisting disclosure to "articulate a particularized and specific justification for denying access'" ... . "Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed" ... . Because FOIL is "based on a presumption of access to the records" ..., "FOIL compels disclosure, not concealment'" wherever the agency fails to demonstrate that a statutory exemption applies ... .

 

In this case, in response to the petitioner's FOIL requests, the respondent provided the petitioner with certain documents that contained numerous redactions, and denied the petitioner's request for photographs of the deceased victim. The respondent based the redactions and the denial of the request for the photographs upon the "unwarranted invasion of personal privacy" statutory exemption (Public Officers Law § 87[2][b]). However, since the respondent failed to proffer more than conclusory assertions to support these claims, the Supreme Court erred in determining that the respondent met his burden of demonstrating that the redactions and denial of the request for the photographs of the deceased victim fell within this statutory exemption (see Public Officers Law § 89[5][e], [f];...).

 

The Supreme Court also erred in determining that the petitioner was not entitled to receive color copies of certain photographs that were disclosed to him. Public Officers Law § 86(4) provides that photographs are records within the meaning of the statute, and section 87(1)(b) of the statute requires an agency to provide copies or reproductions of records. Pursuant to Public Officer Law § 87(1)(c)(ii), an agency may engage an outside professional service to prepare a copy of a record if its information technology equipment is inadequate to prepare a copy. Applying these principles, we find that since the respondent did not claim he was unable to comply with the petitioner's request, FOIL requires him to provide the petitioner with color copies of all disclosable photographs in his possession. Matter of Baez v Brown, 2015 NY Slip Op 00754, 2nd Dept 1-28-15

 

 

 

EXAMPLE OF A COURT'S UPHOLDING THE DENIAL OF A FOIL REQUEST---COURT MUST DETERMINE WHETHER THE CITED STATUTORY EXEMPTIONS TO DISCLOSURE ARE ADEQUATELY SUPPORTED

 

"Granting the broadly worded request for a trove of NYPD Intelligence Division documents replete with sensitive information about the unit's methods and operations, which could be publicly disseminated and potentially exploited by terrorists, would create "a possibility of endangerment" ... . In addition, the court properly recognized that the requested records are exempt from FOIL because disclosure would constitute an unwarranted invasion of personal privacy."

 

 

FOIL Request for Police "Intelligence Division" Documents Re: Surveillance of "Middle Eastern, South Asian or Muslim Persons" Properly Denied

 

The First Department determined the New York City Police Department (NYPD) properly denied a Freedom of Information Law (FOIL) request seeking documents generated by the Intelligence Division of the NYPD which related, in part, to broad categories, such as businesses "frequented" by Middle Eastern, South Asian or Muslim persons.  The court determined the requests were "overbroad," exempt under the Public Officers Law (law enforcement privilege and danger to  life and safety), and would constitute an invasion of privacy.  With regard to  "danger to life and safety" and "invasion of privacy," the court wrote:

 

The court also properly found that the requested disclosure "could endanger the life or safety of any person" (Public Officers Law § 87[2][f]). Granting the broadly worded request for a trove of NYPD Intelligence Division documents replete with sensitive information about the unit's methods and operations, which could be publicly disseminated and potentially exploited by terrorists, would create "a possibility of endangerment" ... . In addition, the court properly recognized that the requested records are exempt from FOIL because disclosure would constitute an unwarranted invasion of personal privacy ... . Petitioners emphasize the public interest in scrutinizing whether NYPD engaged in improper surveillance or profiling of certain communities, but this is outweighed by the privacy interests at stake given the specific purpose of this counterterrorism police operation. The revelation that a certain person, business, or organization was the subject of counterterrorism-related surveillance would not only have the potential to be embarrassing or offensive, but could also be detrimental to the reputations or livelihoods of such persons or entities. Matter of Asian Am Legal Defense & Educ Fund v New York City Police Department, 2015 NY Slip OP 01559, 1st Dept 2-24-15

 

 

COMMUNITY COLLEGE FAILED TO "UTTERLY REFUTE" ALLEGATION IT WAS A "PUBLIC ENTITY" SUBJECT TO THE FREEDOM OF INFORMATION LAW

 

"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 ... . All 'public agencies' are subject to FOIL ... . An agency is any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature ...". 

 

Community College Foundation, a Not-for-Profit Corporation, Failed to Utterly Refute the Allegation that It Was a Public Entity Subject to FOIL Requests

 

After petitioners' Freedom of Information Law (FOIL) request for documents was denied by the Nassau County Community College Foundation (Foundation), petitioners brought an Article 78 proceeding to compel production. The Foundation is a not-for-profit-corporation formed to support the community college. The Foundation argued that it was not a public agency and therefore was not subject to FOIL requests.  Supreme Court dismissed the petition.  The Second Department reversed, finding that the documents submitted by the Foundation did not utterly refute the allegation that the Foundation had the attributes of a public entity. The Second Department noted that public agencies subject to FOIL include "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature" ... .

 

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'" ... . All "public agencies" are subject to FOIL ... . An "agency" is "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature" ... .Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 2015 NY Slip Op 02972, 2nd Dept 4-8-15