Effective: December 2010
FREEDOM OF INFORMATION LAW CASE SUMMARY
PART I - SIGNIFICANT DECISIONS
The following consists of an alphabetical listing of judicial determinations involving the interpretation of the Freedom of Information Law that may have precedential value, up to and including those issued prior to December 31, 2010. The listing includes a brief summary of the determinations.
Provisions of the Freedom of Information Law, both in its original form and as amended, that are cited in determinations are included and distinguished as the "original law" and the "current law".
Albany Custom Floors, Inc. v. O'Shea, (pdf) Supreme Court, Albany County, January 28, 1977 --
Customer list of competitors involved in competitive bidding held available in conjunction with §174 of the State Finance Law. Original Law: §88(3)(a), (d) and (e), §88(7), §88(1)
Allen v. Strojnowski, 129 AD2d 700, 514 NYS2d 463 (2nd Dept 1987); appeal denied 70 NY2d 871, 523 NYS2d 493 (1987) --
Held that physical evidence, such as tools, clothing, does not constitute a "record"; affirmed denial of names and addresses and statements of confidential witness and certain investigative techniques used for processing a homicide scene; Court cited opinion of Committee; has been appeals to Court of Appeals.
American Broadcasting Companies, Inc. v. Siebert, 110 Misc.2d 744, 442 NYS2d 855 (New York County 1981) --
ABC News was granted access to names and business addresses of the principals of check cashing businesses licensed by Banking Department; other aspects of license applications, such as residence addresses, were denied on the basis of §87(2)(f) in order to protect the lives and safety of applicants and their families. Current Law: §87(2)(f)
American Society for the Prevention of Cruelty to Animals v. NYS Department of Agriculture and Markets, (pdf) Supreme Court, Albany County, May 10, 1989 --
Overturned agency's denial of a request for names and addresses of mink and fox farmers; Court agreed with opinion of COG advising that provisions concerning privacy can be asserted only with respect to personal information relating to natural persons and held that "the names and business addresses of individuals or entities engaged in animal farming for profit do not constitute information of a private nature, and this conclusion is not changed by the fact that a person's business address may also be the address of his or her residence."
American Society for the Prevention of Cruelty to Animals v. Board of Trustees of State University of New York 184 AD2d 508, 584 NYS2d 198 (2nd Dept 1992) --
In related decision regarding Open Meetings Law, Appellate Division found that entity's powers and functions were derived from federal law and that, therefore, it was not subject to that statute; using same reasoning, it was held that the entity is not subject to Freedom of Information Law.
Anonymous v. Board of Education for Mexico Central School District, 162 Misc.2d 300, 616 NYS2d 867 (New York County 1994)--
Teacher sought to enjoin District from disclosing any portion of settlement agreement pursuant to which charges of misconduct had been settled, citing lower court decision in LaRocca, which has since been modified. Court held that any confidentiality agreement in conflict with FOIL would be void as against public policy, that there is no blanket exception in the FOIL regarding personnel files, that the settlement is not an "employment history", that the agreement "is not information in which petitioner has any reasonable expectation of privacy where the agreement contains the teacher's admission to much of the misconduct charged", that the agreement is "tantamount to a final agency determination." See LaRocca, Geneva Printing, Buffalo Evening News.
Archdeacon v. Town of Oyster Bay, 12 Misc.3d 438, 813 NYS2d 289 (Nassau County 2006)
Citing opinion of Committee, court held that financial disclosure statements filed with Town are available for inspection and copying, despite local law indicating that the statements were available for inspection only. Agreed with Committee opinion that FOIL governs, not Executive Law, which pertains to State Ethics Commission.
Arrow Electronics v Long Island Power Authority, Supreme Court, New York County, February 28, 2002 –
Substantial competitive injury would likely flow to agency if agency were required to disclose negotiated terms, pricing details, boundary rights, pricing and costs, where agency negotiates in the electric power spot and futures market, is engaged in actual competition in the wholesale and retail electric markets, and has demonstrated that such information is otherwise unavailable. Substantial competitive injury would likely flow to submitting commercial entity if agency were to disclose cost confidential proprietary and pricing information, and project term sheet, which would unfairly benefit competitors, giving them an unfair competitive edge in the market place.
Aurelius Capital Management v. Dinallo, 22 Misc.3d 1122(A), 881 NYS2d 361(U), affirmed 70 AD3d 467, 898 NYS2d 448 (1st Dept 2010)
Aurelius requested from State Insurance Department spreadsheets submitted to the Department by MBIA, a competitor detailing nearly 3000 transactions that MBIA insures. MBIA claimed trade secret status, and Department denied request by Aurelius. Citing Encore and distinguishing Markowitz, court upheld Department denial, finding that Department was the only source of the information, that MBIA would be damaged by disclosure and that, unlike Markowitz, the likelihood of damage was not merely theoretical, but rather was real.
Austin v. Purcell, 103 AD2d 827, 478 NYS2d 64 (2nd Dept 1984) --
Consultants' reports, and in this instance, an opinion of outside counsel, "treated as intra-agency material, even though prepared by an extragovernmental entity". Current Law: §87(2)(g); see also Sea Crest
Babigian v. Evans, 104 Misc.2d 140, 427 NYS2d 688, affirmed 97 AD2d 992, 469 NYS2d 834(U) (1st Dept 1983) --
Court unanimously upheld lower court decision holding that the Office of Court Administration is an "agency" subject to the Freedom of Information Law; Supreme Court also found that Law does not require agency to tabulate statistics, but access to information in computer should not be restricted merely because it is not in printed form; agency argued unsuccessfully that disclosure of list of employees who were awarded back pay would "impair" collective bargaining negotiations; cited opinion of Committee. Current Law: §§86(1) and (3), 87(2)(c) and 89(3); see also Quirk
Bader v. Bove, 273 AD2d 466, 710 NYS2d 379 (2nd Dept 2000) –
Village demonstrated that, to honor request, “the one full-time employee of the Village Clerk’s office would have to manually search through every document filed with the Village going back over 45 years”, and that, therefore, the request did not reasonably describe the records as required by §89(3). See Konigsberg.
Bahnken v. NYC Fire Department, 794 NYS2d 312, 17 AD3d 228 (1st Dept 2005), appeal denied 6 NY3d 701, 810 NYS2d 415 (2005) --
Issue involves propriety of Department’s contention that “contract provisions relating to compensation, patient billing, insurance and hospital quality assurance programs” should be withheld under FOIL’s “trade secret” exception. Lower court upheld agency’s denial, but Appellate Division reversed, stating that “any potential inquiry was not substantial enough to fall squarely within the exemption”, §87(2)(d).
Barrett v. Morgenthau, 74 NY2d 907, 549 NYS2d 649 (1989)--
Petitioner directed request to district attorney and was denied in a letter signed by the records access officer. Petitioner brought suit and court held that: "Inasmuch as the district attorney failed to advise petitioner of the availability of an administrative appeal in the office (see 21 NYCRR 1401.7[b]) and failed to demonstrate in this proceeding that procedures for such an appeal had, in fact, even been established (see, Public Officers Law §87[b]), he cannot be heard to complain that petitioner failed to exhaust his administrative remedies". Court cited Committee's regulations.
Baumgarten v. Koch, 97 Misc.2d 449, 411 NYS2d 487 (New York County 1979) --
Records of committee designated to assist in recommending judges deniable as predecisional; necessity for confidentiality also permits denial under public interest privilege; overriding public interest confidentiality of judicial selection process. Current Law: §85 et seq.
Baynes v. Fairport Central School District, (pdf) Supreme Court, Monroe County, November 1, 2006 --
Union president attempted to block disclosure pursuant to FOIL following request for emails stored on school district computer relating to union activities. Court held that emails sought are clearly “records” and that union lacked standing, “has no remedy” and or basis for bringing a “preemptive proceeding to prevent disclosure.”
Beechwood Restorative Care Center v. Signor, 5 NY3d 435, 808 NYS2d 568 (2005) --
Applicant, a nursing home closed by the Department of Health, requested records and was largely ignored. Department disclosed hundreds of records only after lawsuit was initiated and with prodding from the court. Closing of the facility resulted in several newspaper articles, and applicant applied for award of attorney’s fees. Although Court of Appeals found that “DOH’s failure to follow FOIL’s requirements necessitated this lawsuit, a result that could have been avoided had DOH discharged it statutorily-mandated disclosure obligations in a more thorough and timely fashion”, it rejected request for attorney’s fees because the records sought were not of “clearly significant to the general public.” Although the closing of the facility might have been of significant interest to the public, the records sought, i.e., those involving employee training, job descriptions, correspondence with DOH and the like, would not be of significant interest to the general public.
Bellamy v. New York City Police Department, 272 AD2d 120, 708 NYS2d 5 (1st Dept 2000) --
Conclusory statement that agency could not locate records without indication that person so stating was involved in the search was inadequate, as was failure on the part of agency to indicate contents of records withheld; lower court in those circumstances should have conducted in camera inspection to determine propriety of redactions. See Key, Cuadrado, Gould, Johnson v. NYCPD
Bello v. Department of Law, 208 AD2d 832, 617 NYS2d 856 (2nd Dept 1994) --
Request involved records obtained during the course of a civil investigation. Court held that agency could not meet the burden of proving that records would if disclosed interfere with investigation, that promise of confidentiality would not serve to enable agency to withhold, but that one of the records could be withheld under §87(2)(d), a letter that "digests the results of customer surveys." See also Washington Post
Belth v. Insurance Department, 95 Misc.2d 18, 406 NYS2d 649 (New York County 1977) --
Computer programs and mathematical models submitted to Insurance Department by insurance company held deniable on the ground that the information constitutes a trade secret. Current Law: §87(2)(d)
Belth v. NYS Dept. of Insurance, 189 Misc.2d 508, 733 NYS2d 833 (New York County 2001) --
Petitioner publishes a newsletter and requested names and titles of employees of life insurance companies earning above a certain level. The information is required to be filed and has been routinely disclosed since 1986. Upon learning that petitioner disclosed the information on the internet, various companies expressed opposition to disclosure. Court held that disclosure would not constitute an unwarranted invasion of personal privacy, and that the employees “are non governmental should not ipso facto shield their salary from public view”; Because insurance industry is “highly regulated”, those identified “do not have a greater expectation of privacy rights than would government employees. Filings since 1906 intended to “discourage political corruption and nepotism” in the insurance industry, and “balancing the public interest against non-disclosure”; held that information should continue to be disclosed. Claim that “internet dissemination can have a deleterious result” found to be “conclusory and unsupported.”
Bensing v. LeFevre, 133 Misc.2d 198, 506 NYS2d 822 (New York County 1986) --
Attorney representing inmate sought names of inmates housed with his client in a segregated housing unit. Court held that record is available, rejecting claim that disclosure would constitute an unwarranted invasion of personal privacy; similarly, the Court rejected a denial based upon the Personal Privacy Protection Law. Current Law: §87(2)(b); also, Personal Privacy Protection Law, §95(6)(c)
Bernier v. Mann, 166 AD3d 798, 563 NYS2d 158 (3rd Dept 1990) --
Inmate request for records regarding other inmates involved in a disturbance was denied based upon institutional safety and inmate privacy considerations. Current Law: §87(2)(f); see also Barrett
Bernstein v. City of New York, (pdf) Supreme Court, New York County, NYLJ, November 7, 1990 --
Petitioner requested records of maintenance, inspection, repairs and complaints dealing with the FDR Drive on October 20, 1989; receipt of request was acknowledged November 1; no further response was made, and petitioner sent a second letter, receipt was acknowledged again, and second letter was treated as if it were initial request; petitioner sued, court found that failure to grant or deny access represented a constructive denial of access; although agency argued that petitioner had not exhausted administrative remedies, court found that agency failed to comply with §89(3), for acknowledgments did not include approximation of when request would be granted or denied and that agency's "actions and/or inactions placed petitioner in a 'catch-22' position"; Court refused to dismiss, ordered agency appeals officer to respond within 10 business days as required by §89(4)(a) of FOIL. See Robertson and Lecker
Beyah v. Goord, 309 AD2d 1049, 766 NYS 2d 222 (3rd Dept 2003) --
Court rejected nearly all of the agency’s contentions. Inmate involved in an incident at correctional facility and sought records relating to the incident. Held that employee accident reports could not be withheld as unwarranted invasion of privacy, for they described the “general nature of the correction officers’ injuries...[and] do not reveal details of any existing medical condition” and, therefore, could not be considered part of a medical history. Employee interviews available, because agency could not establish that they would be relied upon in evaluating performance or therefore exempt from disclosure under 50-a of Civil Rights Law; similarly the records did not include confidential source or reveal “nonroutine criminal investigative techniques or procedures” deniable under §87(2)(e)(iii) or (iv). Same result regarding “reports of complaint progress, index sheets and receipt of complaint.” Although employee training records “are personnel records” subject to §50-a and are “clearly relied upon to evaluate performance”, citing Daily Gazette, held that agency failed to demonstrate “a substantial and realistic potential *** for [their] abusive use against the [correction officers]”. One agency directive found to be available, the other deniable because disclosure could endanger life or safety. Rejected request for attorney’s fees because records were not of clearly significant interest to the general public.
City School District of the City of Binghamton v. Civil Service Commission, Supreme Court, Albany County, September 15, 1976 --
Insurance experience data in possession of State Civil Service Commission held to be available; Civil Service Commission was found not to regulate commercial enterprise; detriment to the public interest could not be proven. Original Law: §§85, 88(7)(b)
Bloomberg v. Hennessy, 99 Misc.2d 958, 417 NYS2d 593 (New York County 1979) --
Accident reports of Commissioner of Transportation not exempt from disclosure under §117 of the Transportation Law, but rather accessible under §83 of the Transportation Law and the Freedom of Information Law; in camera inspection made. Current Law: §87(2)(a)
Bly v. City of Yonkers, (pdf) Supreme Court, Westchester County, March 17, 2009 --
Involved request for records concerning 1952 murder of labor leader that "was never solved, and the murder investigation remains open." Request was denied "in its entirety" based on section 87(2)(e)(i), (ii), (iii) and (iv). Court emphasized an agency's responsibility to meet the burden of proof, stating that: "While there is precedent for delaying disclosure of police reports until the completion of a pending law enforcement investigation or prosecution of criminal charges, the Court finds that under the facts and circumstances of this case, Respondents have failed to articulate sufficient reasons why the requested documents are exempt from disclosure", citing Gould and rejecting a "blanket" denial of access. Respondents' "justification of the claim to exemption consists mostly of conclusory and generalized policy concerns." See also Markowitz regarding burden of proof.
Board of Education of the City of New York v. Regan, 131 Misc.2d 514, 500 NYS2d 978 (Albany County 1986) --
For audit purposes, State Comptroller sought to subpoena computer list of certain students who might be eligible for an aid program. Board of Education motion for modification was granted based upon confidentiality restriction imposed by federal Family Educational Rights and Privacy Act (20 USC §1232g).
Boddie v. Goord, 251 AD2d 799, 674 NYS2d 466 (3rd Dept 1998) --
Portions of NYS Department of Correctional Services Employee Manual pertaining to "the supervision and security of inmates" could justifiably be withheld on the ground that disclosure would endanger life or safety. See also Howard v. Malone
Boni v. Mills, (pdf) Supreme Court, Ulster County, February 27, 2003 --
Citing school district’s memorandum, Court dismissed based on finding that petitioner “failed to allege any FOIL violation which occurred when the District decided to provide her with copies of the District Treasurer’s monthly reports in lieu of the considerably more voluminous monthly bank statements which she had sought”; district’s memorandum indicated that there was no significant difference between 295 monthly reports and 2880 pages of bank statements, that those two kinds of documents “included virtually the equivalent information”, that the Treasurer’s reports were readily available in a file drawer, but that the 72 months of bank statements would involve the assignment of an employee to make redactions.
Brightley v. Lai, 266 AD2d 131, 698 NYS2d 487 (1st Dept 1999) --
Held the Petitioner "failed to meet his burden of establishing by admissible evidence that the documents requested had not been provided to the attorney who had represented him at his criminal trial or that they were no longer available to him." See Moore, Scarola, Swinton
Village of Brockport v. Calandra, 191 Misc.2d 718, 745 NYS2d 662 (2002), affirmed 305 AD2d 1030, 758 NYS2d 877 (4th Dept 2003) --
Court denied motion for declaratory judgment regarding proposed responses to “FOIL” request was denied, for it would be equivalent to advisory opinion, which could have been requested from Committee on Open Government. Motion for summary judgment by Village seeking declaration of its rights in relation to disclosure of settlement agreement was granted; disclosure of agreement with former Chief of Police could have resulted in liability under §50-a of Civil Rights Law. Settlement agreement included confidentiality clause that “directly conflicts with the public policy of FOIL.” Court cited Committee opinion 12423 and found that §50-a and provision dealing with unwarranted invasion of personal privacy were inapplicable and did not permit withholding of “financial retirement arrangement” or diminish right of access to “information regarding public expenditure.” Found that agreement “did not evaluate...performance or contemplate...continued employment, rather it specifically provided for...orderly separation from service”, and that therefore, §50-a did not apply. Village and others were “relieved of their obligation to maintain confidentiality.” Court awarded attorney’s fees to newspaper, but not to pro se litigant; Appellate Division affirmed and found that award of attorney’s fees was not abuse of discretion.
Brooklyn College Alumni Association, Inc. v. Murphy, Supreme Court, Kings County, Dec. 18, 1986, affirmed 136 AD2d 973, 523 NYS2d 331 (1st Dept 1988) --
Court granted access to Brooklyn College's alumni mailing list sought by not-for-profit corporation; found that list would not be used for commercial or fund-raising purpose. Current Law: §89(2)(b)(iii)
Brown v. Town of Amherst, 195 AD2d 979, 600 NYS2d 601 (4th Dept 1993) --
Police Department denied access to all records regarding murder of decedent of applicant for the records. Appellate Division found that lower court "erred by denying summarily plaintiff's demands for records", that not all records compiled for law enforcement purposes are necessarily exempt, and that agency failed to meet its burden of proof; remitted to Supreme Court for in camera inspection to determine rights of access.
Brown v. Goord, 45 AD3d 930, 845 NYS2d 495 (3rd Dept 2007) --
Request involved records that included material that could properly be redacted. Citing several Committee opinions, Court held that petitioner had no right to inspect at no charge, and that before making records available, agency could redact and charge requisite fee for copies.
Brown v. New York City Police Department, 264 AD2d 558, 694 NYS2d 385 (1st Dept 1999) --
Petitioner charged with rape, sodomy and assault, but only convicted for assault. Held that records no longer exempt from disclosure “on the ground of their being the subject of an ongoing investigation or judicial proceeding”, and further that Department could not rely on §50-b of the Civil Rights Law, for charges involving sex offenses were dismissed.
Brown v. Yalem, 195 AD2d 979, 600 NYS2d 601 (1993) --
Appellate Division unanimously reversed lower court decision that denied request by Administratrix of Estate for police department records regarding murder of deceased; “Not all material compiled for law enforcement purposes is exempt from disclosure”; “defendants are not entitled to a blanket exemption from disclosure absent a showing that the materials requested fall squarely within a statutory exception. Affidavits that merely parrot the statutory language of the exemption are not sufficient.”
Brownstone Publishers, Inc. v. New York City Department of Buildings, 146 Misc.2d 376, 550 NYS2d 564, affirmed 166 AD2d 294, 560 NYS2d 642 (1990) --
Petitioner sought computer files maintained by agency on computer disks, asked that data be transferred to computer tapes and offered to pay actual cost and personnel time; Court found that the agency, "apparently intending to discourage similar requests, agreed to provide the information only in hard copy, i.e., printed out on over a million sheets of paper" at great cost in money and time to agency and petitioner; held that FOIL requires that the information be transferred onto computer tapes.
Brownstone Publishers, Inc. v. New York City Department of Finance, 167 AD2d 166, 561 NYS2d 245 (1st Dept 1990) --
Petitioner sought information from real property tax returns; lower Court granted most of the request, and Appellate Division found that secrecy provision of NYC Administrative Code did not constitute a "statute" that exempted records from disclosure; in 1989, State Legislature enacted provision to make provisions of Administrative Code a statute for purposes of FOIL; instant case represents application to renew and reargue; Court refused to permit same due to language of enactment and final determination earlier rendered by Supreme Court.
Brownstone Publishers, Inc. v. New York City Department of Finance, 150 AD2d 185, 540 NYS2d 796, appeal denied 75 NY2d 791, 552 NYS2d 92 (1990) --
Court granted access to statistical and factual records concerning transfers of real property, including condominiums and apartment numbers; held that names of buyers and sellers could be withheld.
NOTE: Although court found that records could not be exempted under secrecy provision of the NYC Administrative Code, §11-2115, because a code provision does not constitute a "statute", Chapter 714 of the Laws of 1989 provides that §11-2115 shall be deemed a "state statute" for purposes of §87(2)(a) of the FOIL.
Brusco v. NYS Division of Housing and Community Renewal, 170 AD2d 184, 565 NYS2d 86, appeal dismissed 77 NY2d 939, 569 NYS2d 611 (1991) --
Agency directed landlord to refund overcharge to tenant and made an administrative appeal. Landlord contended that since request to agency for records was made after appeal was denied, the agency's determination should be overturned. Court held, however, that in review of rent appeal, it could not consider arguments or evidence not contained in the records. As such, failure to comply with FOIL was not relevant to rent proceeding.
Buffalo Broadcasting Co., Inc. v. City of Buffalo, 126 AD2d 983, 511 NYS2d 759 (4th Dept 1987) --
Court unanimously reversed Supreme Court decision and held that "tape recordings of certain communications broadcast over police radio" must be disclosed. Agency failed to meet the burden of showing that the records could be withheld under §87(2)(g), particularly provisions involving "instructions to staff that affect the public".
Buffalo Broadcasting Co., Inc. v. New York State Department of Correctional Services, 155 AD2d 106, 552 NYS2d 712 (3rd Dept 1990) --
Television station sought videotapes taken at Attica in 1987 and 1988, and tapes relating to uprising at Coxsackie Correctional Facility, all of which were taken after the uprising; agency said tapes of Coxsackie were transferred to State Police; Court held that transfer of tapes did not relieve agency of responsibility under FOIL, for definition of "record" includes information "produced" by an agency; held that conclusory allegations regarding unwarranted invasions of personal privacy and interference with law enforcement investigations were insufficient, particularly since agency had not reviewed the tapes; held that inmate "has no legitimate expectation of privacy from any and all public portrayal of his person in the facility", and that a blanket denial on security claims under §87(2)(f) is inadequate to sustain burden of proof; ordered agency to redact portions of tape that would "invade an inmate's expectation of privacy or create a serious safety consideration", with a written justification to permit court to determine applicability of claimed exemptions. See Lonski, Bensing, Dobranski
Buffalo Broadcasting Co., Inc. v. NYS Department of Correctional Services, 174 AD2d 212, 578 NYS2d 928 (3rd Dept 1992) --
When court previously heard case (155 AD2d 106), it rejected claim of blanket exemption following request for videotape of uprisings at correctional facilities; agency reviewed tapes and made various redactions under §87(2)(f) on ground that disclosure would endanger safety of inmates or correctional personnel; affirmed lower court's to disclose "scenes witnessed by the general prison population", to withhold tapes involving "strip frisks" based on privacy considerations, techniques for storming a cell and administration of tear gas, and portion of tape "showing the security system switchboard"; stressed that "claims to the safety exemption would not prevail as to matters depicted on the tapes which would have been readily observable by the inmates, unless there was additional support for the claim 'either by a visual demonstration from the tapes or by other evidentiary facts'."
Buffalo Broadcasting Co. Inc. v. County of Erie, 190 AD2d 1086, 593 NYS2d 706, affirmed 203 AD2d 895, 612 NYS2d 1009 (4th Dept 1994).
Held that "The fact records of the Erie County Sheriff's Department are in the temporary possession of the U.S. Attorney for presentation to a Federal Grand Jury does not warrant dismissal of this action to compel production of the records pursuant to the Freedom of Information Law", remitted to lower court to conduct in camera hearing after records returned to determine validity of claimed exemptions.
Buffalo News v. Buffalo Enterprise Development Corp., 84 NY2d 488, 619 NYS2d 695 (1994) --
Issue involved status of a not-for-profit local development corporation, and Court held that the entity in question is a "governmental entity" that performed a governmental function for the City, that its purpose "is undeniably governmental" for it was created by and for the City and that it is subject to FOIL.
Buffalo News v. Buffalo Municipal Housing Authority, 163 AD2d 830, 558 NYS3d 364 (4th Dept 1990) --
Newspaper sought employee payroll, attendance and disciplinary records, including employee name, job title, charges brought, disposition of charges, penalty imposed, and level of adjudication; held that records sought are available, except portions containing "medical information or family situation which is not relevant to the work of the agency." See Sinicropi, Scaccia
Buffalo Teachers Federation v. Buffalo Board of Education, 156 AD2d 1027, 549 NYS2d 541 (4th Dept 1990) --
Union sought to prohibit Board from providing one of its members with names, home addresses, titles and salaries of all employees; Court held that although agency is not required to disclose home addresses, "it may, should it choose, grant access to information which is exempt from disclosure under FOIL". See Capital Newspapers v. Burns
Building a Better New York Committee v. NYS Commission on Government Integrity, 125 Misc.2d 829, 525 NYS2d 488 (Albany County 1988)--
Records prepared pursuant to an investigation by the State Board of Elections constituted "public safety agency records" for purposes of Personal Privacy Protection Law. Also, for purposes of §96(1)(k), held that compulsory legal process pertains to court ordered disclosure.
Buono v. Brodsky, Supreme Court, Albany County, December 30, 2004 --
Buono as chairman of Thruway Authority et al. sought to quash subpoenas served by Brodsky, chair of an Assembly standing committee, based assertion of “‘inter-governmental office communication’ privilege as it pertains to communications between the Governor’s Office and the Canal Corporation”, a subsidiary of the Thruway Authority. Also cited “executive privilege.” Court found that assertion involved §87(2)(g) of the Freedom of Information Law and concluded that there is “no legal authority for petitioners’ proposition that Public Officers Law §87(2)(g) applies to information sought pursuant to a legislative subpoena” and that FOIL has no application. Court also discussed the “deliberative process privilege”, holding that it “is ‘deliberative’ if it is actually... related to the process by which policies are formulated”, and does not protect “a document which is merely peripheral to policy formulation.” Found that petitioners could not demonstrate that documents were either predecisional or deliberative in nature.
Burke v. Yudelson, 81 Misc.2d 368 NYS2d 779, affirmed 51 AD2d 673, 378 NYS2d 165 (4th Dept 1976) --
Accessible records sought by litigant under the Freedom of Information Law remain available to litigant notwithstanding his status or interest; if documents available under Freedom of Information Law, access is not restricted solely because applicant is also a litigant. Original Law: §§85-89, §§88(1)(d), 88(7)(a)
Bursac v. Suozzi, 22 Misc.3d 328, 868 NYS2d 470 (Nassau County 2008) --
County Executive’s actions in publishing name, mugshot and identifying in information regarding DWI, arrest on county’s website, (“the Wall of Shame”), which results “in limitless and eternal notoriety”, despite being accessible under FOIL, represents “stigma plus” and violates due process rights. Ordered that DWI arrest record be removed from press release maintained on County’s website. NOTE: Likely wrong! Any person could acquire same records and do with them as he/she sees fit.
Burtis v. New York Police Department, 240 AD2d 259, 659 NYS2d 875 (1st Dept 1997) --
Petitioner requested records of investigation of harassing phone calls to her at her house and office in the United Nations; lower court upheld denial of access, but Appellate Division unanimously modified, ordering disclosure of various investigative reports following deletion of location of telephone taps under §87(2)(e)(iv), as well as phone numbers and names of those recorded and interviews with them based on privacy concerns. Current Law: §§87(2)(b), (e)(iv).
Burton v. Slade, 166 AD2d 352, 561 NYS2d 637 (1st Dept 1990) --
Agency conceded that it was abuse of discretion to deny requests without first reviewing records sought and "stating, with particularity", the reasons for denial; Court ordered agency to review records and disclose or deny access, with reasons for any denial. See Cornell University
Canandaigua Messenger, Inc. v. Wharmby, Supreme Court, Ontario County, May 11, 2001, affirmed 292 AD2d 835, 739 NYS2d 508 (4th Dept 2002) –
Issue involved status of Canandaigua Recreation Development Corporation (CRDC), a not-for-profit corporation, under FOIL and Open Meetings Law. CRDC was formed to finance and construct the “Roseland Waterpark”, and bonds were issued on behalf of City and City pledged money to finance capital improvements. All members of CRDC Board were appointed by the City, and court questioned claim that the City lacks control. City has option to purchase and will take title when bonds are paid in full. Citing Buffalo News v. Buffalo Enterprise Development Corp., court referred to “CRDC’s intimate relationship with the City and the fact that the CRDC is performing its function in place of the City necessitates a finding that it constitutes an agency...and therefore is subject to the requirements of the Freedom of Information Law.” Found that appeal was timely made and that failure to respond to appeal deemed a denial of the appeal, citing DeCorse and VanSteenburg (see also Floyd). See Stoll, Farms First. Appellate Division affirmed regarding substance of lower court holding, but reversed order of award of attorney’s fees. Found that lower court “abused its discretion” in awarding attorney’s fees under the Open Meetings Law. Note: Court seems to confuse attorney’s fees provisions in the FOIL and Open Meetings Law.
Canty v. NYS Department of Correctional Services, 30 Misc.3d 705, 913 NYS2d 528 (Albany County 2010) --
Inmate requested accident reports pertaining to correction officers injured during riot at correctional facility. Court reviewed them in camera in accordance with 50-a of Civil Rights Law and rejected application of that statute, for records “have not been shown to have any relevancy to the respective officers’ continued employment or promotion.” Held that portions of the report in which employees described accident or injury were accessible, but that Facility Health Services Report exempt from disclosure under HIPAA, section 18 of Public Health Law, and as unwarranted invasion of personal privacy.
Newspapers v. City of Albany,
15 NY3d 759, 906 NYS2d 808 (2010) --
Newspaper sought "gun tags" associated with police officers' purchase of weapons in 1990's and issue involved section 50-a of Civil Rights Law concerning police officers' personnel records. If applicable, records are confidential and exempt from FOIL. Held that "conclusory affidavit did not establish that the documents were 'used to evaluate performance toward continued employment' as required by that statute." Consequently, FOIL applied. Court left open issue of 50-a applies when persons are no longer police officers. See Brockport.
Capital Newspapers v. Bruno and Silver, (pdf) Supreme Court, Albany County, October 23, 2006 --
Involved access to names of state legislators who sponsored “member items”, the appropriations maintained in a pool of funds totaling $170 million distributed as discretionary expenditures. Note that access to records of State Legislature is governed by §88(2), which lists categories of records deemed available to exclusion of all others. Held that disclosure did not affect or unconstitutionally impair Legislature’s ability to legislate and that names did not consist of “deliberative” information, but rather statistical or factual tabulations available under §88(2)(e). Cited Weston.
Capital Newspapers v. Burns, 67 NY2d 562, 505 NYS2d 576 (1986) --
Court of Appeals held that a "lost time report" pertaining to a specific police officer that indicated the number of days and dates of sick leave used are available, notwithstanding claim of confidentiality made under §50-a of the Civil Rights Law and contention that disclosure would constitute an unwarranted invasion of personal privacy. Although §50-a requires confidentiality of certain police officers' personnel records, a review of its legislative history indicated that confidentiality was intended to be asserted only when records were sought in the context of litigation. Court stated that there must be "a clear showing of legislative intent to establish and preserve" a claim of confidentiality based upon a statute other than the Freedom of Information Law. Also held that burden of proof could not be met relative to an unwarranted invasion of personal privacy. Current Law: §§87(2)(a), (b); see also Bahlman, Gannett v. James
Capital Newspapers v. Poklemba, (pdf) Supreme Court, Albany County, April 6, 1989 --
Request involved all conviction records maintained by Division of Criminal Justice Services. Although the records are available from the courts, a review of the legislative history of applicable provisions of the Executive Law resulted in conclusion that the records were exempted from disclosure by statute.
Capital Newspapers Division of the Hearst Corporation v. Whalen, 69 NY2d 246, 513 NYS2d 367 (1987) --
Court of Appeals unanimously reversed decision of Appellate Division and held that "Corning Papers" kept or held by City of Albany are "records" subject to Freedom of Information Law, including those characterized as personal or which pertained to former mayor acting in a political party capacity; to enable agency to determine which documents are not "records" would thwart the objective of the Law. Current Law: §86(3); see also Washington Post, Westchester Rockland v. Kimball, Warder
Capruso v. NYS Police, Supreme Court, New York County, NYLJ, July 7, 2001, modified 300 AD2d 27, 751 NYS2d 179 (1st Dept 2003) --
Request involved “operator’s manual for any radar speed detection devise used” and “State Police Radar and Aerial Speed Enforcement Training Manuals.” Following in camera inspection, court rejected claim that disclosure would interfere with effective law enforcement, stating that agency’s “arguments fail to establish a causal link as to how release of the information in the manufacturers’ operational manual would enable a speeding driver to avoid detection.” Reached same result regarding State Police Manuals and cited Committee opinion, “which while not binding, is nevertheless to be given deferential consideration”, citing Kwasnik. See also Fink; Appellate Division modified, dismissing proceeding against State, which is not a “body or officer”, but affirming essential holding after in camera review, finding that there is no expectation of secrecy regarding documents that are “freely traded in public commerce.”
Carnevale v. City of Albany, Supreme Court, Albany County, November 17, 2008, affirmed 68 AD3d 1290, 891 NYS2d 495 (3rd Dept 2009) --
Petitioners' son was fatally injured after being hit by vehicle involved in a police chase, and they requested records gathered by the City during and after the incident. Held that proceeding was timely commenced, for agency failed to inform petitioners of their right to appeal an initial denial of access. Because agency assured petitioners that it "was working to provide a further response and informing them that more documents may become available once the law enforcement investigation was concluded", petitioners "reasonably concluded that respondent's earlier letters did not constitute final and binding determinations of their FOIL request." That being so, "the statute of limitations did not begin to run when those letters were sent." Court emphasized agency's obligation to meet the burden of proof and held that "Conclusory statements are insufficient to deny access, as are categorical assertions that all law enforcement investigations will be harmed if witnesses' names are available through a FOIL request in this situation." No proof that release of witnesses names or addresses would endanger their lives or safety or constitute an unwarranted invasion of personal privacy. Also held, however, that police officers' statements could be used to evaluate their performance and were exempt from disclosure under section 50-a of the Civil Rights Law. Found that lower court did not abuse discretion denying application for counsel fees.
Carter v. County of Erie, 255 AD2d 984, 680 NYS2d 768 (4th Dept 1968) --
One several issues involved finding that records pertaining to an incident in County medical center or disciplinary action taken against nurse were not exempt from disclosure under Education Law, §6527(3), for that exemption “pertains only to medical review functions.” Also held that those records are “discoverable in certain circumstances”, citing §96(1)(k) of the Personal Privacy Protection Law; Note: PPPL applies only to state agencies and would have no application to a county facility.
Castle House Development, Inc. v. City of New York Police Department, 24 Misc.3d 1222, 897 NYS2d 668 (New York County 2009) --
Lengthy decision involving a variety of excuses for nondisclosure offered by the NY Police Department. Petitioner’s employee was involved in an accident and brought a civil action against owner of construction site. Request made for copy of investigative reports and photos relating to the incident. Even though “there was no continuing law enforcement proceeding extant”, the Department denied request and appeal on the ground that disclosure of records compiled for law enforcement purposes would interfere with law enforcement investigation or judicial proceeding. Petitioner brought Article 78 proceeding, also claiming that disclosure could deprive a person of a fair trial. Court wondered in print why the Department “took it upon itself to get involved in the civil action and take on the mantel of guardian of other parties’ interest.” Later in the proceeding, Department for the first time claimed that records were sealed pursuant to §160.50 of the CPL. Court was clearly upset with that new allegation, found that the records were indeed sealed and ordered Department to indicate when it knew of sealing order in consideration of the expenditure of time and money by petitioner, as well as a hearing concerning petitioner’s motion involving sanctions and/or the award of costs. Also distinguished and rejected Department’s contentions based on Hawkins, Pittari and Farbman.
CAT ASI v. NYS Insurance Dept., 195 Misc.2d 456, 760 NYS2d 284 (New York County 2002) --
Petitioner failed to gain award following submission of proposal in RFP process and requested winning proposal, all attachments and “bid evaluation and tabulation materials.” Agency failed to respond to request or appeal in timely manner but contended in verified answer that records could be withheld under §87(2)(c) and (g). Court rejected petitioner’s argument that agency’s failure to claim exemptions due to its failure to respond should result in full disclosure, citing Floyd. However, also held that petitioner exhausted administrative remedies and that “once a contract is conditionally awarded to a bidder, the terms of the successful bidder’s response to the Request for Proposal could not longer be competitively sensitive’” and rejected grounds for denial. See Cross Sound Ferry, Contracting Plumbers
Catskill Alliance Heritage Alliance, Inc. v. Office of the Governor, (pdf) Supreme Court, Albany County, March 5, 2010 --
Records sought involved three agencies, the Office of the Governor, Office of the Attorney General, and Department of Environmental Conservation (DEC). AG withheld 25 documents, and after in camera review, court agreed that they were properly withheld under section 87(2)(g) as intra-agency materials; documents withheld by Governor on basis of 87(2)(d) addressed the price of and terms for acquiring certain parcels of land. Court ordered release, for agency offered no explanation as to how disclosure would cause substantial injury to competitive position of any entity and also found that none involved a competitive process. DEC withheld 2,000 documents. Court found claims of attorney work product and attorney-client privilege unjustified, and that CPLR section 4547 concerning records of settlement negotiations did not apply to request under FOIL (see Waterford; no basis for claim under 87(2)(c); also failed to justify assertion of 87(2)(g) and held that "in those instances where an intra-agency exemption is asserted but the document was circulated outside the 'agency' realm, the claim of exemption is rejected." Many records disclosed because no exemption claimed. Despite these outcomes, court found that "award of counsel fees is not justified." Catskill Heritage, September 13, 2010 attached.
Catskill Heritage Alliance, Inc. v. Office of the Governor, Supreme Court, Albany County, September 13, 2010 –
FOIL “does not contemplate necessary release of any record for which an agency has failed to explain the reasons for denying access”; the Legislature chose to motivate compliance by exposing an agency to the risk of an assessment of attorney’s fees and other litigation costs.
Century House Historical Society v. State of New York Public Service Commission, 237 AD2d 844, 655 NYS2d 182 (3rd Dept 1997) --
Unanimously found that “when an interagency or intra agency document, or a portion thereof, is expressly relied upon as a basis for a final determination, the relevant portion of each report becomes subject to disclosure under §87(2)(g)(iii).
Charles v. Abrams, 199 AD2d 652, 604 NYS2d 1013 (3rd Dept 1994) --
Claim of attorney-client privilege by Attorney General was rejected regarding documents concerning policy applicable to litigation in general, rather than any particular lawsuit.
Chatham Towers, Inc. v. New York City of Management and Budget, 25 Misc.3d 1243, 901 NYS2d 905 (New York County 2009) --
Request involved "any and all documents and other records prepared in connection with, concerning, or otherwise related to the planned Joint Operations Center at 109 Park Row..." Held that agency's "bare refusal to provide the documents, based merely on conclusory formulaic reiteration of the statutory language, is insufficient..." In initial denials and appeals, the reasons were not given "in sufficient fashion to allow the petitioners to know, in at least a general fashion, what each document represented." Held that "We know that e-mails are involved, and 'documents', but, what types of documents, to whom they were sent, and why, or any other type of description, has not been expressed. See also West Harlem.
Chebere v. Johnson, 3 AD3d 365, 770 NYS2d 357 (1st Dept 2004) --
Reversed lower court’s denial of request, which involved prosecutor’s interview notes containing witness’s statements made prior to giving testimony during trial. Held that agency failed to show how disclosure would “additionally endanger the witness, whose identity was known at all times by petitioner”, and remanded for in camera inspection and determination as to propriety of denial.
Chittenden v. Novack, (pdf) Supreme Court, Westchester County, NYLJ, July 12, 2001 –
Several holdings. Initial denial by records access officer failed to inform petitioner of right to appeal, and petitioner initiated proceeding. Notwithstanding failure to do so and holding in Barrett, court dismissed due to failure to exhaust administrative remedies since evidence indicated that petitioner made other appeals and was aware of identity of appeals officer. Even if no dismissal, held that response denying request was proper. First, while statistical records involving attendance of public employees (i.e., time sheets) are available, citing Capital Newspapers v. Burns, ”medical reason” for absence, “medical condition and/or treatment for disabilities” would constitute an unwarranted invasion of personal privacy if disclosed, citing Committee opinion. Second, citing Committee opinion, records access officer is not required to answer questions or respond to interrogatories. Third, there is no obligation to create or disclose records that do not exist. And fourth, tape recording of conversation could not be withheld as unwarranted invasion of personal privacy, but due to its contents, could properly be withheld as intra-agency material.
Church of Scientology v. State, 61 AD2d 942, 403 NYS2d 224 (1st Dept 1978), affirmed 46 NY2d 906, 414 NYS2d 900 (1979) --
Where investigation resulted in no further action and there was no intent to commence further action, records held to be available; files concerning complaints accessible except to the extent that names of parties making complaints could be withheld based on privacy provisions, also, agency cannot merely assert grounds for denial, but rather must prove that a ground for denial is appropriately cited based on effects of disclosure. Current Law: §§87(2), 89(4)
Citizens for Alternatives to Animal Labs v. Bd. Of Trustees, 92NY2d 357, 680 NYS2d 205 (1998) –
SUNY contended that records kept pursuant to federal law were outside scope of FOIL; court unanimously disagreed, stating that SUNY is an agency and that purpose for which records are produced, function to which they relate, or limitation based on "federal purpose" for their custody are irrelevant; distinguished holding under the Open Meetings Law in which it was held that entity created to comply with federal law was not a "public body" subject to that statute (see ASPCA v. Board of Trustees of SUNY); see Capital Newspapers v. Whalen, Encore, Russo.
Coalition of Landlords, Homeowners and Merchants v. County of Suffolk, (pdf) Supreme Court, Suffolk County, February 14, 2005 --
Issue involved “the capacity to retrieve the information sought by petitioner from the Suffolk County Clerk’s Office and the Suffolk county RPTSA without the necessity of creating a new record.” Hearing was held and credible testimony established that agency would be involved in creating a record. “According to the uncontroverted proof”, the record sought “would require approximately 171 days (or 34 weeks) worth or technical ‘man hours’”, and that “the issue is not simply one of merely redacting confidential with keystroke or two...nor is the issue one of merely ‘changing technology’...The evidence is clear that the agencies in question would be required to create a record at considerable expense to the tax payers.”
Coleman v. New York City Police Department, 723 NYS2d 494, 282 AD2d 390 (1st Dept 2001) –
Petitioner requested records in February, 1998, and receipt of request was soon acknowledged, indicating that records sought, including ballistics reports, were “at least partially disclosable”, and that determination “would probably take 120 days.” Response made on September 14 with disclosure of certain records, but no mention of ballistics tests. Petitioner initiated Article 78 on September 22, before he knew of September 14 response, based on a claim of “complete noncompliance with the FOIL request.” Department moved to dismiss as moot or, alternatively, for failure to exhaust administrative remedies. Lower court granted motion, but Appellate Division reversed, stating that request should have been remanded regarding request for ballistics reports. “Given the incomplete, belated response to the FOIL request, which neither turned over nor explained the failure to turn over the ballistics reports, the petition cannot be view as moot.” Also held that failure to appeal did not merit dismissal, for petitioner “waited months longer than the outside time frame set by respondent’s agent.” See Newton
Collier County Publishing Company v. Office of the District Attorney of the County of New York, (pdf) Supreme Court, New York County, October 5, 2000 --
Request involved records made available to defense counsel in discovery in cases pending under indictments arising out of an investigation. Committee opinion advised that initial denial did not contain sufficient articulation of justification to overcome presumption of access. Although it was found that courts should defer to Committee opinions, facts upon which opinion was based changed and altered issues. Court held that "the specificity required of an agency to justify non-disclosure will be less when it involves the application of §87(2)(e)(i) to a pending case or investigation." Note that agency did not inform applicant that records included "several truckloads" of materials or that some of the materials were made available to some defendants but not others. Nevertheless, court found that due to volume of request and supervision that would be needed to allow public to view the records, disclosure would interfere with investigations or judicial proceedings "by straining resources and threatening the integrity of this evidence." See also Gould; Legal Aid Society v. NYPD.
Collins v. NYS Division of Parole, 251 AD2d 738, 674 NYS2d 145 (3rd Dept 1998), appeal denied 92 NY2d 811, 680 NYS2d 457 (1998) --
Held that individual's parole records could be withheld pursuant to rules based on statute. Held that: "While not specifically establishing a FOIL exemption, Executive Law [section] 259-k provides a clear legislative intent to establish and maintain the confidentiality of parole records...To that end, Parole Board has promulgated rules prohibiting the release of the information sought...Given that Executive Law [section] 259-k directs that parole case record information be confidential, we conclude that the information and documents...are not subject to disclosure..."
NOTE: decision appears to conflict with Morris and Zuckerman
Community Board 7 of Borough of Manhattan v. Schaeffer, 150 Misc.2d 770, 570 NYS2d 769, affirmed, 183 AD2d 422, 585 NYS2d 1010 (1st Dept), reversed on other grounds 84 NY2d 148, 615 NYS2d 644 (1994) --
Draft of restrictive declaration being negotiated between NYC Planning Department and Trump Organization was denied under §§87(2)(c) and (g). Court reject both arguments, stating that §87(2)(c) is irrelevant because "there is no bidding process involved where an edge could be unfairly given to one company" and "since the Trump organization is the only party involved in these negotiations, there is no inequality of knowledge between the parties." Section 87(2)(g) found to be inapplicable because communications were between city agency and private firm outside of government; Court of Appeals reversed without commeting on previous decisions interpreting FOIL, but rather regarding authority of Community Board to bring an Article 78 proceeding; held that it did not.
COMPS, Inc. v. Town of Huntington, 269 AD2d 446, 703 NYS2d 225, (2000), appeal denied 95 NY2d 758, 713 NYS2d 522 (2000) --
Request involved inventory for parcels referenced on Town's assessment roll. Even though Real Property Tax Law, § 500, specifies that inventory records must be disclosed, court held that denial of access was proper, for the data would be used for commercial purposes and therefore may be withheld under §89(2)(b)(iii). Note: decision seems to ignore §89(6) of the FOIL, which states that if records are available under a different law, they remain available notwithstanding FOIL. See Siegel, Fenchel & Peddy
Connolly v. New York Guard, 175 AD2d 372, 572 NYS2d 443 (3rd Dept 1991) --
Petitioner sought mobilization plans and documents prepared for annual training exercise. After in camera review, court held that portions of the records would if disclosed "present the possibility of endangering the safety of the members of the Guard or others." Current Law: §87(2)(f)
Contracting Plumbers Cooperative Restoration Corp. v. Ameruso, 105 Misc.2d 951, 430 NYS2d 196 (New York County 1980) --
Unsuccessful bidder granted access to successful bid proposal, records reflective of basis for determination to accept successful bid proposal, as well as agency's findings, reports and memoranda; agency could not sustain burden of proof; successful bidder must have expectation that bid proposal will be open to public; application by successful bidder to intervene was denied. Current Law: §87(2)(c)
Corbin v. Ward, 160 AD2d 596, 554 NYS2d 240 (1st Dept), appeal denied 76 NY2d 706, 560 NYS2d 988, reargument denied 76 NY2d 983, 56 NYS2d 770 (1990) --
Court held that proceeding was time barred, for request involved challenge to a second denial of access on same grounds as first denial, without any apparent change in circumstances. Petitioner could not support his speculative contention that not all documents concerning incident had been disclosed.
Cornell University v. City of New York Police Department, 153 AD2d 515 appeal denied, 544 NYS2d 356, 75 NY2d 707, 554 NYS2d 476 (1990) --
Records sought involved investigation into sexual assault upon a student by a security guard employed by Cornell in conjunction with civil lawsuit to be brought against Cornell. Security Guard had pleaded guilty to criminal charge. Supreme Court held that the records were available, except information regarding the complainant, witnesses and a description of the acts committed. Appellate Division modified holding that agency failed to meet its burden of proof, that witnesses were not promised confidentiality, and that details concerning acts perpetrated against victim could not constitute an unwarranted invasion of personal privacy. See also, Hawkins
Corwin Solomon & Tanenbaum v. NYS Division of Lottery, 239 AD2d 763, 657 NYS2d 803 (3rd Dept 1997) --
Lottery withheld press release identifying winners of prizes over $500,000 as an unwarranted invasion of personal privacy; court disagreed and ordered disclosure due to previous release of information and Lottery’s own regulations; also found that intended use of the records was irrelevant, citing Committee’s opinion; see also Empire Realty.
Council of Regulated Adult Liquor Licenses v. New York City Police Department, 300 AD2d 17, 751 NYS2d 438 (1st Dept 2002) –
Court found that disclosure would not frustrate law enforcement activities and that §87(2)(e)(i) and (iii) would not apply to documents containing “primarily statistical information concerning the law enforcement history of certain nightclubs....over a period of a few months.” Information was nearly two years old and required to be disclosed; however, “to the extent that the documents refer to prospective police activity, those references should be redacted.” Applicants reasonably described the records, for they used terms “nearly identical” to those used by agency in labeling documents. Citing Floyd, held that administrative remedies were exhausted when agency failed to determine appeal within ten business days.
Cross-Sound Ferry v. Department of Transportation, 219 AD2d 346, 634 NYS2d 575 (3rd Dept 1995) --
Initial request involved records relating to background of RFP; second request involved proposals received in response to RFP. No response was given to the first, and the second was denied on the ground that disclosure would impair present or imminent contract awards. After Article 78 proceeding commenced, agency disclosed several records regarding first request, and agency moved to dismiss due to mootness; before decision on the motion, agency made conditional award and disclosed portions of winning proposal, and petitioner withdrew request as it related to unsuccessful proposal. Court held that matter of original request was moot, ordered disclosure regarding second request, held that agency acted arbitrarily on both requests and awarded attorneys' fees. Appellate Division rejected claim under §87(2)(c), stating that once the contract was awarded, the RFP response "could no longer be competitively sensitive"; agency also raised "trade secret" exception for first time, and court rejected it, stating that it could have been raised earlier and that there was no support for its contention. Upheld award of attorneys' fees relative to initial request, but reversed award regarding second, stating that agency's position was "substantially justified even though it was not correct."
D., Rowland v. Scully, 152 AD2d 570, 543 NYS2d 497 (2nd Dept 1989) --
Inmate sought forms containing information designed to assist officials in determining placement of inmate in appropriate facility. Following in camera review, court held they "are exempted as intra-agency material, inasmuch as they contain predecisional evaluations, recommendations and conclusions concerning the petitioner's conduct in prison." See also DiRose (2).
Daily Gazette Company v. City of Schenectady, 93 NY2d 145, 688 NYS2d 472 (1999) –
Court of Appeals reversed Appellate Division and held that names of police officers reprimanded in “egg throwing incident” are exempt from disclosure under §50-a of the Civil Rights Law. Found that status and purpose of person seeking records is not determinative of whether FOIL or §50-a applies, for the latter “unambiguously defines the records that are immune from indiscriminate disclosure.” Section 50-a “was designed to prevent abusive exploitation of personally damaging information contained in officers’ personnel records—perhaps most often in connection with a criminal defense attorney’s FOIL application for purposes of general cross-examination of a police witness in a criminal prosecution. Undeniably from the legislative record, however, the legislative objective went beyond precluding disclosure on behalf of defendants in pending criminal cases….The legislative purpose was to prevent disclosure of officers’ personnel records except when a legitimate need for them has been demonstrated sufficiently to obtain a court order, generally upon a showing that they are actually relevant to an issue in a pending proceeding.” Found that “the decisive factor in determining whether an officer’s personnel record was exempted from FOIL disclosure under Civil Rights Law §50-a was the potential use of the information contained therein, not the specific purpose of the particular individual requesting access, nor whether the request was actually made in contemplation of litigation.” Records having remote or no such potential use fall outside the scope of §50-a, as in Capital Newspapers v. Burns; to rely on that statute, “the agency must demonstrate a substantial and realistic potential of the requested material for the abusive use against the officer or firefighter.”
Daily Gazette Company v Schenectady City School District, Supreme Court, Schenectady County, January 29, 2010 –
Petitioner’s appeal for access to factual information from investigator’s report and intra-agency emails denied. Court held that report redacted in accordance with advice from COOG. Court held summaries of interviews with witnesses consisted of consultant’s recollection of interviews, not factual information. Disclosure of names of witnesses would constitute an unwarranted invasion of personal privacy due to extraordinary nature of allegations, that information was not relevant to the agency, and witnesses had expectation of confidentiality. Court affirmed District’s refusal to disclose intra-agency emails “compiled” by a private company pursuant to a subpoena, the disclosure of which would have interfered with the investigation and will now interfere with future judicial proceedings.
Daily News, L.P. v. New York City Office of Payroll Administration, 9 AD3d 308, 781 NYS2d 3 (1st Dept 2003), appeal denied 3 NY3d 609, 786 NYS2d 812 (2004) –
Newspaper requested first and last names, titles or positions, annual pay or hourly rates of pay and current ages and zip codes of residence relating to employees of an agency. Court ordered disclosure, stating that agency did not meet burden of proving that disclosure would constitute an unwarranted invasion of personal privacy, and that “attorney’s affirmation is insufficient to establish that the employees provided their ages or zip codes in confidence.” Agency reliance on Committee advisory opinions suggesting that ages could be withheld was insufficient to sustain its burden of proof; ages and zip codes are not matters of “clearly significant interest to the general public”, and request for attorney’s fees was rejected. Appellate Division briefly affirmed, stating that: “Respondent’s answer, simply parroting Public Officers Law §89(2)(b)(v), claims exemption from disclosure because ‘[t]he ages and zip codes of BOE employees is information that is personal in nature, reported in confidence to the BOE, and is not relevant to the work of the BOE,’ but is utterly devoid any factual basis for these conclusions.”
Daily News Publishing Co. of Memphis, Tennessee v. Office of Court Administration, 186 Misc.2d 424, 718 NYS2d 800 (New York County 2000) –
Petitioner sought OCA database that stores data extracted from court records. Court referred to Babigian and Quirk, acknowledging that OCA is an “agency”, not a court, and distinguished between records maintained by OCA as an agency carrying out administrative functions and records “provided by those persons performing adjudicatory functions”, the latter of which are court records not subject to FOIL. In footnote, court referred to Committee opinion that reached same conclusion and stated that “[w]hile not controlling, formal opinions of the Committee on Open Government are viewed as authoritative in interpreting FOIL”, citing Kwasnik.
Daily Racing Form, Inc. v. State of New York Racing and Wagering Board, (pdf) Supreme Court, New York County, November 20, 2003 --
Agency took four months to determine to grant access of portions of the request and denying others. Held that “Racing Board’s practice of notifying every entity it supervises of a FOIL request for records and arranging a prior review and screening of the Board’s response, is in direct conflict with the Public Officers Law and so delays production of records that it vitiates the public access right it is intended to implement.” Appeal process also found to conflict with FOIL, for “Rather than releasing the requested records to petitioner as the law provides, [the agency] referred the issue back to the records access officer for reconsideration...” Found that contracts and financial statements of Catskill OTB accessible; other documentation available as objective, “factual” information.
D'Alessandro v. Unemployment Insurance Appeal Board, 56 AD2d 762, 392 NYS2d 433 (1st Dept 1977) --
Compilation of subject matter list does not require that opinions of an agency be indexed; final orders issued by agencies need not be indexed into topics or components; a list identifying only broad variety of records maintained must be created. Original Law: §88(4)
Data Tree, LLC v. Romaine, 9 NY3d 454, 849 NYS2d 489 (2007) --
Primary significance of decision is that it laid the groundwork for amendments to FOIL enacted in 2008 (see Ch. 223, Laws of 2008). Key points include reversal of Appellate Division holding that petitioner had to prove that agency acted unreasonably and Court of Appeals confirmation that burden of defending secrecy rests on agency. Confirmed that FOIL does not require person seeking records "to show any particular need or purpose", citing Farbman, and that Data Tree's commercial motive is irrelevant and constituted improper purpose for denial of access. Only instance in which purpose is relevant involves §89(2)(b)(iii) concerning sale or release of list of names and addresses for commercial or fund-raising purposes constituting an unwarranted invasion of personal privacy. Found, however, that Data Tree sought "public land records for commercial reproduction online", not to "solicit any business." Note: provision as amended pertains to lists...used for "solicitation" or fund-raising. Also confirmed that FOIL deals with records maintained electronically and that "A simple manipulation of the computer necessary to transfer existing records should not, if it does not involve significant time or expense, be treated as creation of a new document". That holding is also reflected in Ch. 223.
David v. Lewisohn, 142 AD2d 305, 535 NYS2d 793 (3rd Dept 1988), appeal denied 74 NY2d 610, 546 NYS2d 554 (1989) --
Notations contained in real property transfer data provided by New York City to the State Board of Equalization and Assessment indicated whether particular transfers were considered "significant" or "insignificant" ("S" or "I" notations). Court held that the notations do not denote facts, but rather were "nonfinal recommendations" and opinions and upheld denial of the notations.
Davis v. Scott, (pdf) Supreme Court, New York County, NYLJ, November 23, 1999 --
In earlier proceeding, court found that no diligent search for records was made, ordered such a search. After "inordinate and unacceptable delay", witness testified that she does not maintain the records and that they are kept at a different agency facility. She later phoned the facility, which located the records "within minutes." Court held that agency acted in "bad faith", that its affirmation constituted "frivolous and misleading conduct”; also stated that Assistant Corporation Counsel, who assured that he would be personally responsible for compliance, failed to return calls to judge. NYC Departments of Correction and Law both fined $5000; contempt hearing held to determine whether additional sanctions should be imposed. See Key; C.B. Smith
Dawkins v. David, (pdf) Supreme Court, New York County, 2009 Slip Op 30609 --
NYPD denied request initially, and following appeal, added three more. Request related to incident concluding in conviction that was appealed, and Department cited 87(2)(e) as basis for claim that disclosure would interfere with judicial proceeding. Court found that contention unacceptable, citing Legal Aid and Pittari, both of which involved requests made prior to termination of trial. Here, "discovery has been completed, and the trial concluded well over a year ago." Also, none of the requested documents were presented at trial.
Day v. Town Board of Town of Milton, (pdf) Supreme Court, Saratoga County, April 27, 1992 --
Held that public employees' W-2 forms are available after deleting personal information, i.e., social security numbers; court cited and relied upon Committee advisory opinion.
DeCorse v. City of Buffalo, 239 AD2d 949, 659 NYS2d 604 (4th Dept 1997) --
Short decision with many principles. Victim of assault requested records of complaints of criminal conduct at her apartment building during preceding two years, copies of some “60 incident, investigation and follow-up reports.” City redacted personal information with no reason; on appeal, City said names and addresses would be used for commercial purpose, i.e., to sue owner of building. Court held that City failed to respond to initial request within five business days and “that failure deemed a denial”; that petitioner was not obliged to serve subpoena pursuant to CPLR §2307, for “the provisions of the CPLR relating to discovery in civil actions do not apply to FOIL requests”; that use of information in a civil action is not a commercial purpose; and that city did not meet burden of proof that disclosure could result in unwarranted invasion of personal privacy.
De Oliveira v. Wagner, 274 AD2d 904, 711 NYS2d 592 (3rd Dept 2000) --
Some aspects of records were deleted from records, and court upheld denial of access, stating that portions of records could be withheld, despite petitioner's claim that he knew the identities of those interviewed during criminal investigation; also held that records of communications with victims relatives and others could be withheld as unwarranted invasion of personal privacy, and that disclosure of some aspects of the records could "reveal nonroutine procedures utilized by law enforcement personnel in conducting investigations and gathering information.” See Johnson v. NYPD, Mulhall, Spencer
DeZimm v. Connelie, 64 NY2d 860, 487 NYS2d 320 (1985) --
Denial of request for all State Police regulations concerning an officer's duty to record conversations while wearing a monitoring device upheld. Some procedures contained in the Manual were not "routine" and could "allow miscreants to tailor their activities to evade detection."
Dillon v. Cahn, 79 Misc.2d 300, 359 NYS2d 981 (Nassau County 1974)
Checks and account records relative to travel and other reimbursable expenses of District Attorney's office are available; a mere assertion that records are "confidential" is insufficient. Original Law: §86 et seq., §88(1), (7), (8)
DJL Restaurant Corp. v. Department of Buildings, 273 AD2d 167, 710 NYS2d 564 (1st Dept 2000) --
Petitioner sought "a particularized justification for denying the requests, issued on a document by document basis, including a reasonable identification of the person who prepared the document, the addressee and each actual recipient thereof, and the title and a general summary of the contents of each document.” Lower court held that "a document-by-document explanation for denial was unnecessary", but Appellate Division found that "Affidavits merely repeating the statutory phrasing of an exemption are insufficient to establish the requirement of particularity", citing Gould and Brown v. Town of Amherst, and that when an agency claim of an exception cannot be evaluated on the basis of the documentation submitted, an in camera inspection is "likely necessary."
Dobranski v. Houper, 154 AD2d 736, 546 NYS2d 180 (3rd Dept 1989) --
Inmate sought all documents in a file compiled during an investigation leading to his conviction. Records were disclosed, with the exception of identikit papers, personal reference cards regarding other inmates who were in a lineup with him, handwritten notations identifying inmates in his cellblock and a criminal complaint filed against him that was not pursued. Court held that disclosure of the identikit papers "might alert prospective criminals to characteristics important and thus encourage them to tailor their appearance to evade detection", found that the materials are "not routine" and upheld denial under §87(2)(iv); reference cards were found to contain information publicly available via arrest and conviction records and were found to be available for there would have been no invasion of privacy, except those portions not typically disclosed in arrest and conviction records, i.e., names of next of kin, dietary requirements, etc.; notes identifying other inmates found to be available; name and address of complainant held to be exempt due to possibility of endangerment; inventory list of evidence used against him made available. See Buffalo Broadcasting v. Department of Correctional Services
Doolan v. BOCES, 48 NY2d 341, 422 NYS2d 927 (1979) --
Court of Appeals held that salary and fringe benefit data compiled by one agency for the use and information of another are available; disclosure would not impair collective bargaining negotiations; factual compilation available. Current Law: §§87(2)(c), 87(2)(g)
NOTE: Court of Appeals appears to have abolished the "governmental privilege" [see Cirale v. 80 Pine St. Corp., 35 NY2d 113 (1974)], stating that "[T]he public policy concerning governmental disclosure is fixed by the Freedom of Information Law; the common-law interest privilege cannot protect from disclosure materials which that law requires to be disclosed...Meeting the public's legitimate rights of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds."
Duncan, Matter of, (Bradford Central School District), 90 Misc.2d 282, 394 NYS2d 362 (Steuben County 1977) --
Rights of access to school district records not limited to qualified voters of a school district; regulations of school district must comply with those promulgated by Committee on Public Access to Records. Original Law: §§85 et seq., 88
Dunlea v. Goldmark, 85 Misc.2d 198, 380 NYS2d 496 affirmed 54 AD2d 446, 389 NYS2d 423 (3rd Dept), affirmed 43 NY2d 754, 401 NYS2d 1010 (1977) --
Budget examiners work sheets are accessible and the use of the word "statistical" or "factual" data does not exclude such information merely because an opinion is based thereon; a request need not identify information sought down to the last detail. Original Law: §§85 et seq., 88, 88(1)(b), (d)
Dwyer, Matter of, (Fire Department, City of New York), 85 Misc.2d 104, 378 NYS2d 894 (New York County 1975) --
Fire chief's report is accessible on the ground that it constitutes a final opinion of the agency. Original Law; §§85 et seq., 88(1)(a)
Eisenberg v. Goldstein, (pdf) Supreme Court, Kings County, February 26, 1988 --
Court held that Kingsborough Community College Foundation Inc., a not-for-profit corporation formed to promote the interests of the College, is an "agency" subject to the Freedom of Information Law, citing Westchester Rockland Newspapers v. Kimball, held that "the Foundation would not exist but for its relationship with the College"; held further that the documents sought were maintained by the college and constituted "records" subject to the Freedom of Information Law.
Elentuck v. Green, 202 AD2d 425, 608 NYS2d 701 (2nd Dept) appeal denied 84 NY2d 809, 621 NYS2d 519 (1994), reargument denied 85 NY2d 858, 624 NYS2d 326 (1995) --
Intra-agency reports and "unsatisfactory lesson observation reports" found to be deniable under §87(2)(g) as predecisional, advisory, evaluative.
Empire Golf Management, LLC v. Olivieri, 18 AD3d 334, 794 NYS2d 649 (1st Dept 2005) --
“The winning proposals should be disclosed since the submission process had ended, the winning proposals were identified, and contract negotiations were well underway. Given these circumstances, the winning proposals could no longer be considered ‘competitively sensitive’ and therefore exempt from FOIL disclosure under Public Officers Law §87(2)(c)”; see Cross-Sound Ferry.
Empire Realty Corp. v. NYS Division of the Lottery, 230 AD2d 270, 657 NYS2d 504 (3rd Dept 1997) --
Request involved list of names and city of residence of lotto jackpot winners and was rejected as unwarranted invasion of personal privacy by agency; agency’s regulations includes authority to publicize winnings and name and city of residence of winners; even though list would be used for commerical purpose, court ordered disclosure due to regulation authhorizing publicity, because address merely involved “city of residence” and because of lack of expectation of privacy; court limited disclosure to information “already the subject of a publicly disseminated press release”; cited Committee opinions; see Corwin.
Encore College Bookstores, Inc. v. Auxiliary Service Corporation of the State University, 87 NY2d 410, 639 NYS2d 990 (1995) --
A branch of the State University (SUNY) contracted with the Auxiliary Service Corp., a not-for-profit corporation created to conduct various functions for SUNY, including operation of a campus bookstore. When request was made for booklist kept by the bookstore, the not-for-profit said it was not subject to FOIL, and SUNY said that it did not have possession of the list and that FOIL did not apply. Court of Appeals held that SUNY is an "agency", and citing definition of "record", found that the booklist was "kept" or "held" by the bookstore for SUNY and was an "agency record" subject to FOIL. However, Court found that the record could be withheld under §87(2)(d) because the requester, Barnes & Noble, a competitor of the entity that developed the booklist, "would enable Encore to obtain the requisite information without expending its resources, thereby reducing its cost of business and placing Barnes & Noble at a competitive disadvantage."
Fappiano v. New York City Police Department, 95 NY2d 738, 724 NYS2d 685 (2001) --
Section 50-b of the Civil Rights Law prohibits agencies and courts from disclosing records insofar as records identify victims of sex offenses. Held that an exception in §50-b authorizing disclosure to persons “charged” with a sex offense did not apply to those seeking post-conviction relief. Consequently, records sought were specifically exempted from disclosure by statute. Court was careful to point out that §50-b does not authorize a “blanket denial” of access and that it applies only to records which if disclosed would identify the victim of a sex offense. See also, Karlin
M. Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY2d 75, 476 NYS2d 69 (1984) --
Court of Appeals reversed Appellate Division and held that "access to records of a government agency under the Freedom of Information Law...is not affected by the fact that there is pending or potential litigation between the person making the request and the agency"; Court distinguished Freedom of Information Law from Article 31 of the CPLR, finding that access under Article 31 depends on status and need", while "Freedom of Information Law's mandate of open disclosure requires that an agency's public records remain as available to its litigation adversary as to any other person"; held that CPLR Article 31 is not a statute specifically exempting records from disclosure; also found that records are "reasonably described" when the agency "may locate the records in question". See also Brady, Burke, Fitzpatrick, Moussa
Farrell v. Village Board of Trustees, 83 Misc.2d 125, 372 NYS2d 905 (Broome County 1975) --
Reprimands of particular police officers following investigation of off-duty employment held to be available; disclosure resulted in permissible, not unwarranted invasion of personal privacy. Original Law: §§88(1), (3), (7)
Federation of New York State Rifle and Pistol Clubs, Inc. v. New York City Police Department, 73 NY2d 92, 538 NYS2d 226 (1989) --
Not-for-profit corporation sought names and addresses of holders of pistol and rifle permits "to solicit membership dues to help support its informational, lobbying and other activities." Court of Appeals held that, since the circular to be sent by petitioner included a statement of membership rates and a detachable membership application, there was "little question that the direct-mail membership solicitation proposed here would constitute 'fund-raising'." Also found that its construction of the term "fund-raising" does not serve to enable agencies to withhold records helpful to the public in making choices regarding the direction and scope of governmental activities. See New York Teachers Pension Associates
Feliciano v. State, 175 Misc.2d, 669 NYS2d 457 (Court of Claims, 1997) --
Claimant was a 14 year old patient at a psychiatric center seeking damages for an alleged sexual assault by an employee characterized as "G"; sought the investigation file and G's personnel records. Held that §96 of the Personal Privacy Protection Law did not preclude disclosure of G's personnel file; also found that exemptions from disclosure in §§2805-l and 2805-m of the Public Health Law dealing with incidents relating to the quality of care pertain to care and treatment, not to records relating to a sexual assault; similarly, §6527 of the Education Law was found not create a bar to disclosure, for that statute provided confidentiality in relation to medical review functions.
In decision in which FOIL not at issue, Court of Appeals held that §6527(3) of the Education Law provides that incident reports, including those regarding allegations of violent behavior by employees prepared pursuant to §29.29 of Mental Hygiene Law, are confidential. See Katherine F. v. State of NY, 94 NY2d 200, 702 NYS2d 231 (1999).
Fenstermaker v. Crozier, 48 AD3d 564, 856 NYS2d 115 (2nd Dept 2008) --
Facts, which are not described in the decision, involved a request for copies of records in 48 boxes of records. Agency charged statutory fee for photocopies, resulting in bill of $4,666. Applicant refused to pay, contending that agency should have charged lowest possible price. When he made second request, agency refused until he paid amount due, and he later sued. Supreme Court and Appellate Division found his suit to be frivolous and ordered him to pay agency $15,960 in costs and attorney's fees. Court cited Committee opinion advising that agency not required to honor second request until fees were paid for copies made pursuant to previous request.
124 Ferry Street Realty Corp. v. Hennessy, Commissioner of New York State Department of Transportation, 82 AD2d 981, 440 NYS2d 419 (3rd Dept 1981) --
Requests of Department of Transportation's appraisal reports and related data for a specific real estate parcel appropriated by the State was denied by the Court on the basis of §87(2)(g), as inter-agency or intra-agency materials. Current Law: §87(2)(g)
Fink v. Lefkowitz, 63 AD2d 610, 404 NYS2d 864 (1978) modified 47 NY2d 567, 419 NYS2d 467 (1979) --
Office manual of Special State Prosecutor for Nursing Homes, Health and Social Services accessible except to the extent that manual consisted of non-routine investigative techniques and procedures; should not "furnish the safecracker with the combination to the safe"; in camera inspection was made. Original Law: §§88(1)(e), 88(7)(d) Current Law: §87(2)(e)(iv)
Fisher & Fisher v. Davison, (pdf) Supreme Court, New York County, NYLJ, October 6, 1988 --
Massive number of records sought by landlords' organization were denied based upon privacy considerations. Court held that the request "transcends a normal or routine request...It violates privacy interests of thousands of persons, subserves a commercial purpose outside the concerns of the Freedom of Information Law, and would bring in its wake an enormous administrative burden that would interfere with the day-to-day operations of an already heavily burdened bureaucracy."
Fitzpatrick v. County of Nassau, 83 Misc.2d 175, 372 NYS2d 905 affirmed 53 AD2d 628, 385 NYS2d 510 (2nd Dept 1976) --
Engineer's report containing expert opinion sought by County Attorney to resist a claim that might be litigated was held to be material prepared for litigation under CPLR, §3101(d), and therefore exempt from disclosure. Original Law: §88(7)
Flower & Medalie, Esqs. v. New York State Division of Alcoholic Beverage Control, App. Div, First Dept, NYLJ May 28, 1997 --
Law firm sought complete copies of leases pertaining to 8 topless bars and denied access under privacy provisions; court granted access, holding that agency did not meet burden of proof and that “FOIL is not designed to protect against the production of documents merely because they may be used to gather financial information; also held that failure to respond to appeal resulted in exhaustion of administrative remedies.
Floyd, Matter of v. McGuire, 87 AD2d 388, 452 NYS2d 416, appeal dismissed 57 NY2d 774, 452 NYS2d 416 (1982) --
Failure of agency to respond timely to an appeal brought within the statutory time period constituted an exhaustion of administrative remedies by the applicant. Administrative default does not mandate disclosure of all records requested.
Franklin v. Keller, 254 AD2d 83, 678 NYS2d 330 (1st Dept 1998) –
Individual not entitled to disclosure of material provided to his attorney in absence of showing that such documents were no longer available to him. See Swinton; Moore
Fusco v. Putnam County Sheriff's Office, (pdf) Supreme Court, Putnam County, September 2, 2008 --
Petitioner ticketed for allegedly passing a stop sign. Video camera used in deputy's vehicle, and petitioner requested tape of the event. Held that petitioner could not invade his own privacy and that claim by County that disclosure would interfere with judicial proceeding could not be substantiated.
Gandin, Schotsky & Rappaport v. Suffolk County, 226 AD2d 339, 640 NYS2d 214 (2nd Dept 1996) --
Appellate Division sustained Supreme Court holding that County Code provision authorizing a fee of $20 for copy of accident report was invalid, for only a statute, an act of the State Legislature, can enable agency to charge more than 25 cents per photocopy. See also, Sheehan (2)
Gannett Co., Inc. v. Constance B. James as Records Officer of the City of Rochester, et al., 108 Misc.2d 862, 438 NYS2d 901, affirmed 86 AD2d 774, 447 NYS2d 781, appeal denied 56 NY2d 502, 450 NYS2d 1023 (1982) --
Complaints against police officers and records compiled by police department in investigation of conduct of police officers were found to fall within confidentiality requirements of §50-a of Civil Rights Law; affirmed by the Fourth Dept. Current Law: §87(2)(a)
Gannett Newspaper v. County of Monroe, Supreme Court, Monroe County, August 27, 1997 --
Request involved police reports regarding a death relative to a criminal proceeding still pending; Court cited Gould, Brown v. Yalem, Moore in opposition to blanket denial of access and held that the “confidentiality exemption [§87 (2)(e)(iii)], does not apply unless the persons who furnished documents or statements to the police were promised confidentiality.” Rejected as conclusory that “ it is the general practice” of the police department and the DA’s office that all records relating to a criminal investigation or pending court case are confidential; mere speculation or possibility of interference with law enforcement investigation or judicial proceeding is insufficient to meet burden of proof.
Gannett Co. v. County of Monroe, 59 AD2d 309, 399 NYS2d 534, affirmed 45 NY2d 954, 411 NYS2d 557 (1978) --
Names, job titles and salary levels of county employees who had been terminated due to budget reductions are available under the Freedom of Information Law; county could not prove that disclosure would result in personal or economic hardship to the terminated employees and that the records sought were not relevant work of the agency. Original Law: §88(3)(a)
Gannett Co., Inc. v. County of Ontario, 173 Misc.2d 304, 661 NYS2d 920 (1997) --
Case involving “Elisa’s Law”; father of the deceased children convicted of murder and other charges and Gannett sought records relating to the family from Department of Social Services in addition to report furnished under Social Services Law, §20(9); held that governing statute is §422-a of Social Services and that §422-a is “an exemption to FOIL”; also held that denial of information subject to discretionary disclosure without offering specific reasons represented failure to comply with §422-a; due to sensitive nature of information, court granted access subject to in camera inspection.
Gannett Co. Inc. v. City Clerk's Office, City of Rochester, 157 Misc.2d 349, 596 NYS2d 968, affirmed 197 AD2d 919, 604 NYS2d 848 (4th Dept 1993) --
In "issue of first impression", case involved access to names of marriage license applicants are subject to disclosure "for general publication purposes" by newspaper. Court rejected claim that records were exempted from disclosure under Domestic Relations Law, §19, and that intended use by media was not a commercial purpose; found that records sought could not be regarded as "intimate private information" and granted "unrestricted access to names of couples to whom marriage license have been issued."
Gannett Co. Inc. v. Rochester City School District, 179 Misc.2d 502, 684 NYS2d 757, affirmed 267 AD2d 964, 701 NYS2d 679 (4th Dept 1998) –
Agency claimed that internal audit could be withheld in its entirety under §87(2)(g); court rejected that argument, stating that “intra-agency documents that contain statistical or factual tabulations or data are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination”; citing Gould and cited opinion by Committee’s director and considered it as opinion of the Committee. Despite holding, attorney’s fees not awarded because case presented “a novel legal issue.”
Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 99 Misc.2d 235, 415 NYS2d 780 (1979) --
Drug abuse surveys taken in secondary schools held to be available, despite contention that such records were protected under common-law privilege on the ground that when survey was taken, anonymity and confidentiality were guaranteed to school districts which cooperated with state agency. Current Law: §§85 et seq., 87(2), 89(2)(a) and (b)
P.J. Garvey Carting and Storage, Inc. v. County of Erie, 125 AD2d 972, 510 NYS2d 365 (4th Dept 1987) --
Unsuccessful bidder sought money damages and claimed a loss due to unauthorized release of its "route list". Court held that the route list does not constitute a trade secret, "as it can be created by any knowledgeable person in the moving business." Current Law: §87(2)(d)
General Electric Company v. New York State Department of Environmental Conservation, (pdf) Supreme Court, Albany County, September 14, 2000 --
Calculations prepared by agency staff as part of recommended strategy and "hypothetical scenarios" found to be deniable in view of intent of §87(2)(g) to permit exchange of "opinions, ideas, or advice as part of the consultative or deliberative process of government decision making"; calculations were "hypothetical not factual”, and disclosure would "serve to provide insight into the deliberative process and defeat the reason for the protection afforded by the exemption." Court also appears to have held that unless a basis for denial is expressed in an initial denial of access or the determination of an administrative appeal, the agency cannot raise a new ground for denial when a judicial proceeding follows. Court sustained the denial of a request for records shared with US Environmental Protection Agency on the basis of the "common interest privilege." "Though sharing the work product [of an attorney] with a third party waives the privilege", the common interest privilege may be asserted when "a party and his counsel may expect that confidences will be kept in communications with another if the purpose of the communication is to share information in furtherance of a common legal strategy".
General Motors Corporation v. Town of Massena, 180 Misc.2d 682, 693 NYS2d 870 (1999) –
Petitioner challenged tax assessments and sought to obtain “descriptions of the comparables and any sales information including dates and terms of sale” within appraisals prepared by outside consultant for Town. Court upheld the denial and that the comparables do not constitute “statistical or factual tabulations or data” available under §87(2)(g)(i): “To prepare a real estate appraisal the professional appraiser must necessarily cull through public real estate transaction records from many sources to find properties which he or she, subjectively, deems similar enough to the subject property to warrant analysis.” Different “from an appraisal that lists all the sales of commercial properties within a Town for a certain period or all transactions within the state with sales prices in excess of Ten million dollars.”
Geneva Printing Co. v. South Seneca School District, (pdf) Supreme Court, Monroe County, July 12, 1982 --
"Memorandum of Understanding" between superintendent and principal found to be available following in camera inspection; since the memorandum detailed direction and instructions regarding the performance duties, it was found to constitute instructions to staff that affect the public and a final agency determination; disclosure would not result in an unwarranted invasion of personal privacy, as record was clearly relevant to the performance of official duties; cited opinion of Committee. Current Law: §§87(2)(b), 2(g)(ii), (iii)
Geneva Printing Co. v. Village of Lyons, (pdf) Supreme Court, Wayne County, March 25, 1981 --
Petitioner sought the terms of settlement of village employee's arbitration hearing which was claimed to be confidential by union. Held that disclosure would not constitute an unwarranted invasion of personal privacy, that result of disciplinary actions concern routine functions of government and, therefore, are available; respondent could not prove impairment of collective bargaining process by means of disclosure; respondent could not by means of collective bargaining agreement compromise rights of access; public entitled to know nature of penalty imposed on public employees; settlement contained factual information and was a final determination. Cited opinion of Committee. Current Law: §§87(2)(b), (c) and (g), 89(2)(b)
Glens Falls Newspapers, Inc. v. Counties of Warren and Washington Industrial Development Agency, 257 AD2d 948, 684 NYS2d 321 (3rd Dept 1999) –
Denial of access to settlement agreement between private parties and WWIDA that included confidentiality agreement sustained because “public disclosure of the details of the settlement agreement with WWIDA would be an obvious advantage to NIMO’s competitors by jeopardizing NIMO’s ability to negotiate effectively with other producers in order to obtain the lowest rates for its customers”, citing §87(2)(d). Rejected petitioner’s contention that NIMO’s failure to assert confidentiality under §89(5) precludes denial based on §87(2)(d).
Golbert v. Suffolk County Department of Consumer Affairs, (pdf) Supreme Court, Suffolk County, September 5, 1980 --
Request for list of licensed home improvement contractors denied; applicant failed to provide certification that list would not be used for "commercial or fund-raising purposes" as requested by county; without certification, county could "reasonably infer" that petitioner wanted list for commercial or fund-raising purpose. Cited opinion of Committee. Current Law: §§87(2)(b) and 89(2)(b)(iii)
Gomez v. Fischer, 74 AD3d 1399, 902 NYS2d 212 (3rd Dept 2010) --
Inmate observed reaching to pants of fiancée, Padilla, and search revealed that he passed pills to her. Court confirmed finding that disciplinary rules were violated, but that Department of Corr. Svcs. Improperly withheld witness statements given by Padilla, stating that "Statements by a witness must be disclosed absent a showing that he or she was a confidential informant or requested or was promised anonymity, or that his or her life or safety would be endangered by disclosure", citing John H. and Carnevale. Department contended that other records sought did not exist, even though referenced in another document, and court ordered disclosure unless it could certify that a "diligent search" was made and that records could not be located. Held that request for "all communications from [inmate] received by the "administration" did reasonably describe records and should have been provided. See also Cornell
Gould, Scott and DeFelice v. New York City Police Department, 89 NY2d 267, 653 NYS2d 54 (1996) --
Police department's complaint follow-up reports, "DD5's", were withheld in their entirety and Department claimed that police officers' memo books or activity logs were not agency records. Court of Appeals reversed and held that DD5's are subject to rights of access conferred by the Freedom of Information Law and that memo books are agency records. Agency required to review records in their entirety to determine which portions, if any, may justifiably be withheld. Additionally, the Court rejected suggestion that records are exempt because they are "nonfinal"; found that "factual data", a phrase it construed broadly, within such documentation must be disclosed.
Grace v. Chenango County, 256 AD2d 890, 681 NYS2d 695 (3rd Dept 1998) –
Sole issue involved attorney’s fees, and Appellate Division agreed with lower court that petitioner prevailed and that there was no reasonable basis for a denial of access, but that the records were not “of clearly significant interest to the general public.” Also found that even if each condition is met for an award of attorney’s fees under §89(4)(b), award is in discretion of the court.
Gray v. Faculty-Student Association of Hudson Valley Community College, 186 Misc.2d 404, 717 NYS2d 507 (2000) --
Petitioner sought copies of invoices for textbooks purchased from publishing companies for sale as new books in bookstore operated by Faculty-Student Association. Court found that records contain “much the same information as that contained in the booklist in the Encore College case” in which the Court of Appeals held that the records could be withheld on the ground that disclosure would cause substantial injury to the competitive position of a commercial enterprise. However, court held that the invoices must be made available “in redacted form” and required disclosure of the names of the books and each book’s unit price, for “[s]uch a disclosure would not reveal the bulk of the competitive information which respondents desire to protect, apart from any information which is readily available to any member of the public simply by walking into the bookstore.” Court noted that request was made after semester had begun and books had been ordered and shipped. Although court found that petitioner’s suit was successful, it also determined that he did not “substantially prevail” and, therefore, denied award of attorney’s fees. See also Mohawk Book.
Green v. DeBuono, (pdf) Supreme Court, Albany County, June 7, 1997 --
Health Department maintains a database of unusual incidents that occur at hospitals, the Patient Events Tracking System (PETS). Individual incident reports are confidential pursuant to §2805-l of the Public Health Law, and agency contended that the PETS data, which consists of a aggregation of tabulations of the types of incidents that occur at particular hospital, is confidential. Court disagreed, finding that the statutory exemption pertained only to the individual reports, not the statistical data: "No details of the incident would be provided, nor could the data be used to reconstruct or identify the incidents upon which the statistical outcomes are based"; concluded that no FOIL exemption applied.
Greene v. City of New York, 196 Misc.2d 125, 763 NYS2d 880 (2003) --
In proceeding to review administrative determination, court is limited to grounds invoked by agency. However, when petitioner sought review of determination as well as order directing disclosure, “this Court’s review is not limited to the grounds asserted in the....determination.” Found that the statute of limitations is not extended when “a subsequent FOIL request is duplicative of the prior request”.
Grune v. Alexanderson, 168 AD2d 558, 562 NYS2d 739 (2nd Dept 1990) --
Appellate Division reversed dismissal of petition in which applicant sought county's arson control plan. Review of the plan indicated that various portions were routine and innocuous remitted to Supreme Court enable parties to ascertain which portions of the plan could justifiably be withheld under 87(2)(e)(iv).
Guerrier v. Hernandez Cuebas, 165 AD2d 218, 566 NYS2d 406 (3rd Dept 1991) --
Request involved data that was maintained on computer, but not computer program had been developed to produce the information sought. Court held that §89(3) does not require that agency create a new record via reprogramming.
Hamilton v Board of Education of the Jordan-Elbridge Cent. School Dist., 29 Misc.3d 1201(A), 958 NYS2d 307 (Table) (Onondaga County 2010) –
Disclosure of an employment contract does not constitute an unwarranted invasion of personal privacy, based on COOG opinions and Steinmetz. Awarded attorney’s fees.
Hanig v. State Department of Motor Vehicles, 79 NY2d 106, 580 NYS2d 715 (1992) --
Attorney representing person injured in auto accident sought driver license application of person who struck her. Agency deleted responses to questions on application regarding previous or present treatment for disabilities. Court upheld denial on ground that disclose would result in unwarranted invasion of personal privacy and that information sought is a medical history, even though it was not given to a health care provider, "in that it encompasses the very sort of detail about personal medical condition that would ordinarily and reasonably be regarded as intimate, private information; Court rejected "balancing of interests" argument, stating that "Once it is determined that the requested material falls squarely within a FOIL exemption, no further policy analysis is required".
Hansen v. Town of Wallkill, (pdf) Supreme Court, Orange County, December 9, 1999, affirmed 270 AD2d 390, 705 NYS2d 246 (2nd Dept 2000) –
Issue involved alleged breach of “a confidentiality provision” by disclosing amount paid to petitioner in response to a question raised at a town board meeting; petitioner contended that FOIL “did not mandate disclosure.” Court held to the contrary, stating that “any attempt to conceal the financial terms of the expenditure would violate” FOIL; held that the disclosure was “required by law”, and that “this member of the public was not forced to go through the formal motions of a written FOIL request is of no consequence.” Further, “Even if the agreement was construed, for the sake of argument, to require a written request under FOIL before disclosure, any damage sustained by virtue of this immediate verbal disclosure, rather than by way of document disclosure some days thereafter, would be de minimis...” Appellate Division agreed that record indicating severance payment must be disclosed and that court authorization was not needed to disclose.
Harris v. City University of New York, Baruch College, 114 AD2d 805, 495 NYS2d 175 (1st Dept 1985) --
Petitioner sought curricula vitae of all faculty at Baruch College promoted to full professor during past five years. Court held that deletion of names, addresses and social security numbers will not impede petitioner's ability to compare his credential of those of other professionals, while, concurrently, deletions will protect against unwarranted invasions of personal privacy. Current Law: §§87(2)(b), 89(2)(b)
Harvey v. Hynes, 174 Misc.2d 174, 665 NYS2d 1000 (1997) --
Petitioner requested grand jury testimony of witnesses who testified against him from district attorney; district attorney denied access initially and following appeal on the ground that grand jury testimony is secret; only after an Article 78 proceeding was initiated did the agency raise the additional ground that grand jury minutes are court records that fall beyond the scope of FOIL. Court held that "precedent that applies the rule limiting judicial review of agency determinations to the grounds invoked by the agency during the administrative proceeding to cases involving mandamus to review and certiorari..., or excuses application of the rule to mandamus to compel..., does not necessarily apply to a FOIL case." Further, found that a court's determination is not limited to the grounds offered by an agency (see Sportsmen’s Association for contrary view of that point). Also held that grand jury records are court records not subject to FOIL.
Hassig v. NYS Department of Health, 294 AD2d 781, 742 NYS2d 442 (3rd Dept 2002) --
Request involved records in State Cancer Registry concerning “cancer site specific diagnoses and deaths” for a twenty year period in St. Lawrence County, except in instances in which there were two or less cancer site specific records for a particular year and zip code. Court cited section 2402 of the Public Health Law and federal statutes stating that agency could not divulge information that could reveal the identity of a cancer patient. Held that in “possible scenarios”, the information sought could, “in combination with other readily available information”, i.e., “personal knowledge of individuals in a particular community”, lead to disclosure of the identity of a certain cancer patient. NOTE: decision seems to conflict with holding in New York Times v. NYS Dept. of Health; also, if the possibility of personal knowledge were to serve as a standard for protecting privacy, few records would ever be disclosed.
Hawkins v. Kurlander, 98 AD2d 14, 469 NYS2d 820 (4th Dept 1983) --
Request involved statements of thirty-six witnesses, whose names and addresses had been disclosed, interviewed by district attorney in conjunction with investigation of death of petitioner's spouse in a hospital; court cited "law enforcement purposes" exception, holding that one of its major purposes "is to encourage private citizens to furnish controversial information to government agencies by assuring confidentiality under certain circumstances"; upheld denial, for disclosure would have "chilling effect" upon future investigations by the district attorney; dissenting opinion stated that burden of proof was not met and no "chilling effect" would occur; has been appealed. Current Law: §87(2)(e)
Hawley v. Village of Penn Yan, Supreme Court, Yates County, November 30, 2004 --
Bills pertaining to mayor’s use of village cell phone were disclosed after deletion of all phone numbers. Court held that agency could not meet burden of proving that disclosure of numbers called would constitute an unwarranted invasion of privacy, citing opinion of Committee.
Hawley v. Village of Pen Yan, 38 AD3d 1371, 834 NYS2d 885 (4th Dept 2007) --
Mayor’s cell phone bills found to be available, except portions indicating unlisted phone numbers; that attorney’s fees would not be awarded, for agency had reasonable basis for redactions. Cited opinions of the Committee on Open Government.
Hearst Corporation v. Office of the State Comptroller, 24 Misc.3d 611, 882 NYS2d 862 (2009) --
Request involved 14 state payroll tables including, salary, other earnings, position, retirement, etc., as well as metadata, record layouts, etc. “in any commonly-used digital database of spreadsheet format or as ASCII text delimited files...” OSC disclosed names, public office addresses, titles and salaries, but withheld remainder based on assertion that computer programming would be necessary; denied access to birth dates as unwarranted invasion of privacy; denied access to metadata and record layouts under trade secret exception and exception regarding disclosure that would jeopardize security of information technology assets. Court held that 2008 amendments, Ch. 223 of Laws of 2008, became effective after request finally denied and, therefore, did not apply. That being so, issue was whether OSC demonstrated that records sought were not “retrievable with reasonable effort.” Held that payroll tables that do not use social security numbers as primary key must be disclosed, for OSC failed to demonstrate that exporting specified data from these tables into an electronic spreadsheet would result in disclosure of Oracle’s trade secret or cause substantial injury to Oracle’s competitive position. With respect to remaining tables that use social security numbers, held that replacement of social security numbers “with non-sensitive unique identifiers” would involve creation of new records and would take 85 to 90 hours. Held, however, that agency must grant access to 14 tables based on alternative “inferior” approach by using “SQL” (Structured Query Language), which would enable the data to be retrieved with reasonable effort. Dates of birth found to be deniable as unwarranted invasion of personal privacy and can be used “to facilitate identity theft.” Based on Oracle’s contention, court agreed that metadata and record layouts exempted as trade secrets. Held that although petitioners substantially prevailed, OSC had reasonable basis for denial of material found to be accessible.
Hearst Corporation v. Research Foundation of the State of New York, (pdf) Supreme Court, Albany County, September 17, 2010 --
Suit followed denial of access to timesheets pertaining to Foundation employee based on assertion that Foundation is not an "agency" required to comply with FOIL. Same issue considered by court in Siani, in which same court determined that Foundation is an agency. Held Foundation is barred by collateral estoppels from relitigating the case, that records available under FOIL and that attorney's fees awarded.
Held v. Town of Harrison, (pdf) Supreme Court, Westchester County, December 12, 1996 --
Court granted leave to reargue, stating that proceeding was “mistakenly dismissed on the basis that petitioner failed to exhaust her administrative remedies” because Town never designated an appeals officer or was advised of right to appeal as required by §1401.7 (a) of Committee’s regulations; ordered disclosure to extent that records exist. Also held that town determination that no records exist “is belied by documentary evidence submitted by petitioner.”
Herald Companies v. Town of Geddes, 122 Misc.2d 236, 470 NYS2d 81 (1983) --
Freedom of Information Law is not applicable to records of a justice court; as a general matter, notes made by a judge are not accessible under §2019-a of the Uniform Justice Court Act. Current Law: §86(3)
Herald Company v. NYS Department of Economic Development, (pdf) Supreme Court, Albany County, February 8, 2007 --
Request involved “Section D data” from Business Annual Report (BAR) regarding businesses participating in New York’s Empire Zones Program. Qualifying businesses gain tax advantages, “including sales tax exemptions, real property tax credits and business tax credits” and alleged trade secret. Section D of the BAR requires a qualified business “to detail the dollar value of each tax credit claimed over the course of a year.” Held that there was no evidence to support contention that disclosure would result in disadvantage to participating businesses or substantial competitive injury. Also held that unless businesses request protection in accordance with §89(5), there is “no duty to inform business” of “intent to disclose”, and that BAR’s are not tax returns and, therefore, are not exempt under statutes in the Tax Law. Cited opinion of the Committee on Open Government, which should be upheld and given deference by the court if not “unreasonable or irrational.” Chose not to award attorney’s fees because agency’s denial did not indicate bad faith and reflected a reasonable basis for denial, even though it could not meet burden of proof.
Herald Company, Inc. v. Feuerstein, 3 Misc.2d 885, 779 NYS2d 333 (2004) --
Racing and Wagering Board authorized to regulate Indian gambling pursuant to compact entered into by state and Oneida Nation. Request involved daily inspection reports concerning safety, health conditions, etc. Compact states that records provided to the State by Nation “shall be deemed confidential and proprietary information belonging to the Nation and shall not be subject to public disclosure by the State without the express written consent of the Nation.” Based on that language, agency claimed that records sought were specifically exempted from disclosure by statute and therefore exempt from FOIL under §87(2)(a). Court referred to opinion of Committee on Open Government disagreeing with agency’s denial of request. Held that documents are agency records, that blanket exemption is inconsistent with FOIL, that “compacts are agreements, not legislation, and are interpreted as contracts”, and that §87(2)(a) is inapplicable as a basis for denial. Court noted that Federal Indian Gaming Regulatory Act did not specify that records at issue are not subject to state access laws, such as FOIL, and that the Act did not preempt application of FOIL. Although agency did not prevail, held that it had a reasonable basis for denial and rejected application for award of attorney’s fees.
Herald Company v. Murray, 136 AD2d 954, 524 NYS2d 949 (4th Dept1988) --
Newspaper sought records indicating the identities and blood alcohol content of all people involved in alcohol related traffic fatalities. Court held that autopsy reports are confidential with respect to the public pursuant to §677 of the County Law; and that MV-105 forms containing the same information are also confidential.
Herald Company v. The NYS Lottery, (pdf) Supreme Court, Albany County, November 6, 1987 --
Newspaper sought annual sales figures for lottery agents in Onondaga County. Court granted access; rejected claims of privacy, stating that "lottery agents are business agents of the State."
Herald Company v. School District of City of Syracuse, 104 Misc.2d 1041, 430 NYS2d 460 (1980) --
Name of and charges placed against tenured teacher held to be deniable; court found that records were "specifically exempted from disclosure by statute", even though statutory language contained no "specific denial of disclosure", rejected opinion of Committee. Current Law: §§87(2)(a), 87(2)(g); see also Sinicropi
Herald Company and O'Brien v. NYS Division of State Police, (pdf) Supreme Court, Albany County, February 21, 2008 --
Involved request for records relating to highly publicized murder-suicide after case closed. State Police withheld records in their entirety based on precedent involving incidents where allegations were made but no arrest or conviction. Court rejected argument and distinguished cases because perpetrator committed suicide. Citing New York Times, rejected police claims regarding privacy, finding that privacy interests of perpetrator or his relatives "cannot accurately be described as compelling", and that family of victim "called for full disclosure." Police contended that 50 pages of investigatory file would if disclosed reveal non-routine criminal investigative techniques and procedures, but court upheld denial of only 8 pages; property logs from crime scene, diagrams and field notes do not contain nonroutine investigatory procedures. Police contended that portions of the file were exempt based on §677 of the County Law because they were derived from an autopsy report, and court agreed, with exception of list of digital photos that had to be disclosed. Rejected request for attorney's fees due to "colorable" legal argument.
Hopkins v. City of Buffalo, 107 AD2d 1028, 486 NYS2d 514 (4th Dept 1985) --
Court reversed City's denial of union official's request for complete payroll records of several public works projects. Conclusory allegations that the list would be used for commercial purposes or would result in economic or personal hardship were insufficient to meet City's burden of proof that the requested materials fall within one of the Freedom of Information Law exemptions.
Attorney's fees were not awarded since the City had a reasonable basis for withholding the records.
Housing Works, Inc. v. Guiliani, (pdf) Supreme Court, New York County, NYLJ, December 15, 1998 –
Petitioner encountered series of delays and failures to respond to request, despite repeated efforts of petitioner, appealed to records access officer and asked that appeal be forwarded to appropriate person. Held that agency “neither complied with the time limits provided in [§89(3)], nor with [the records access officer’s] statement of the approximate date (‘within ten days’) for a response. Instead respondents have kept petitioner waiting for more than nine months...” Failure to name appeals officer not sufficient to claim that petitioner failed to exhaust administrative remedies.
Howard v. Malone, 247 AD2d 665, 668 NYS2d 418 (3rd Dept 1998) --
Inmate convicted of murdering another inmate sought records indicating names of persons who transmitted reports concerning interviews with prosecution witnesses, dates reports were sent, and names of recipients of reports. "Recognizing that the information...could subject certain individuals to retribution", held that disclosure would endanger life and safety and sustained the denial of access. See Boddie
Hudson v. Jurczynski, (pdf) Supreme Court, Schenectady County, February 2, 1998 --
Petitioner sought complaints regarding assessments; court held that the records must be disclosed, citing Szikszay; decision appears to be contrary to Scott, Sardano & Pomeranz; for contrary point of view, see FOIL Advisory Opinion 10886 under “Assessment Information”
Hudson River Fisherman's Association v. New York City Department of Environmental Protection, (pdf) Supreme Court, New York County, July 12, 1990 --
Petitioner made several requests, was continually delayed and put off by agency, despite efforts to resolve the matter; Court agreed with advisory opinion rendered by Committee, found that shortage of manpower is not a defense to any agency's failure to comply, that agency failed to respond in timely manner, that petitioner's status as a litigant had no effect upon its rights under FOIL, that agency failed to adequately specify its basis for withholding; Court granted request of attorney's fees, finding that agency failed to act promptly, that there was no showing of good faith effort or rationale for denial. See United Federation of Teachers, Farbman, Friedland, Steele, Powhida, Kline
Huston v. Turkel, 236 AD2d 283, 653 NYS2d 584 (1st Dept 1997) --
Records previously disclosed to petitioner or his attorney could be withheld due to failure to show that they are no longer available; medical records may be withheld as unwarranted invasion of personal privacy.
Ingram v. Axelrod, 90 AD2d 568, 456 NYS2d 146 (3rd Dept 1982) --
Petitioner sought a report prepared by Department concerning incident involving the death of a spouse. Court found that factual data appearing in narrative form should be available under §87(2)(g)(i) and stated that the Department erroneously claimed that a record "necessarily is exempted if both factual data and opinion are intertwined in it"; other portions of the report were available, for they were prepared neither by nor for the Department and, therefore, fell outside of the exceptions regarding inter-agency and intra-agency materials. Current Law: §87(2)(g); see also Miracle Mile Associates v. Yudelson
Inner City Press v. NYC Dept. of Housing Preservation and Development, (pdf) Supreme Court, New York County, November 9, 1993 --
Petitioner sought records relating to transfer of buildings pursuant to Urban Development Area Act, which requires public hearings prior to transfer; Agency disclosed some records, but contended that requests were so voluminous that it could not comply within time limits imposed by Freedom of Information Law and New York City's Uniform Rules. Court held that agency failed to respond in timely manner by virtue of actual denials and denial "by silence"; reviewed records in camera and found that much of the contents, particularly statistical and factual data, should have been disclosed; court awarded attorney's fees and referred to agency's "disdain" for Freedom of Information Law and its "utter ignoring of time constraints forcing petitioner to bring this proceeding..."
Investigation Technologies, LLC v. Horn, (pdf) Supreme Court, New York County, NYLJ, August 4, 2004 --
Issue involved access to dates of birth of detainees housed in NYC correctional facilities. While NYC administrative code requires that detainees’ ages be disclosed, no specific reference is made to dates of birth. Despite opinion by Committee on Open Government, court upheld denial, stating that request involved a commercial interest and that dates of birth are unrelated to any matter concerning “legitimate public oversight of governmental operations.” Court also distinguished “convicted inmates sentenced to a term of imprisonment in a state facility and transient detainees of New York City jails, many of whom have not been convicted of anything and may have no direct involvement in the criminal process. Note: NYS Department of Correctional Services includes inmates’ dates of birth on its website accessible to the public.
Irwin v Onondaga County Resource Recovery Agency, 72 AD3d 314, 895 NYS2d 262 (4th Dept 2010)
Issue involved access to "all electronically stored photographs" in possession of Agency available for use in any Agency publication, except those identifying staff, as well as "associated metadata" relating to photos. Reversed lower court and held that unpublished photos are accessible, except those relating to an ongoing law enforcement investigation. Also held that request cannot be denied "merely because it is voluminous" and that the request "reasonably described" the records, citing Konigsberg. Held that metadata associated with photos accessible, included a definition of that term and referred to items reflecting changes and instructions" and is useful in showing "the history of proposed revisions or changes." System metadata reflects "automatically generated information about the creation or revision of a document, such as the document's author, or the date and time of its creation or modification." Embedded metadata "is data that it inputted into a file by its creators or users, but that cannot be seen in the document's display", such as formulas used to create spreadsheets, hidden columns, etc. Concluded that "system" metadata constitutes a "record" subject to disclosure under FOIL, but did not reach issue of whether substantive or embedded data are subject to FOIL.
Irving Bank v. Considine, 138 Misc.2d 849, 525 NYS2d 770 (1988) --
One bank, BNY, filed an application seeking approval for hostile takeover of another bank, IBC. IBC sought the information submitted by BNY to the Banking Board. BNY sought confidential "trade secret" treatment of the records it submitted. That request was granted in part and denied in part. IBC requested the records but failed to appeal within the time specified in section 89(5)(c)(1) and, therefore, did not exhaust its administrative remedies. Court rejected IBC's claims that disclosure was requested by due process.
James, Hoyer, Newcomer v. State of New York, Office of the Attorney General, 27 Misc.3d 1223(A), 910 NYS2d 762 (Table)(2010)
Investigation by AG revealed that student loan industry "infected with serious conflicts of interest", precluding students and parents from making informed decisions. Entered into settlement with "student lending giant Sallie Mae", and request involved records associated with the AG's investigation as they pertain to Sallie Mae, now SLM, or its subsidiaries. Denied under section 87(2)(e)(i), stating that records compiled for law enforcement purposes the disclosure of which would "interfere with law enforcement investigations or judicial proceedings..." SLM also asked that various records that it submitted to AG be withheld under trade secret exception. Court held that investigation of student loan industry is ongoing and upheld denial on basis of 87(2)(e)(i). Current or potential targets could utilize records to avoid revelation of improper conduct and evade detection. With respect to protection of trade secrets, held that equivalent exception in federal FOIL applicable disclosure would "impair the government's ability to obtain necessary information in the future or cause substantial injury to competitive position of commercial enterprise. Cited Encore and sustained assertion of exception. Also found that disclosure of information regarding borrowers would constitute an unwarranted invasion of privacy. Held that merely labeling a document a "work product" is insufficient, that "it must be shown that the material, even when prepared by the attorney, is peculiar to the attorney's trade and talent." Finally, "blanket request" for "documents related to SLM Corporation and its affiliates obtained by the OAS during its investigation", and "introductory 'general' " request, that "This request includes, but is not limited to:", are "global document requests" that "do not reasonably describe the records requested." However, in this instance, standard was met due to enumeration of categories of records sufficient for locating and identifying the records.
John v. NYS Ethics Commission, 178 AD2d 51, 581 NYS2d 882 (3rd Dept 1992) --
Since Executive Law states that financial disclosure statements filed with Commission are available for inspection, Court held that photocopies need not be made and that Freedom of Information Law is unapplicable.
Johnson v. Morgenthau, 214 AD2d 343, 625 NYS2d 21 (1st Dept 1995) --
Request inadvertently mishandled, agency failed to respond, and petitioner appealed; records access officer later acknowledged receipt of request; agency denied request after Article 78 initiated on ground that records were previously disclosed to petitioner's attorney; held that response made matter moot and dismissed. See Moore.
Johnson v. New York City Police Department, 257 AD2d 343, 694 NYS2d 14 (1st Dept 1999) --
DD-5’s initially withheld under §87(2)(g) (220 AD2d 320), but matter was later remanded in light of Gould; held that “blanket exemption to disclosure advocated by NYPD pursuant to…§§87(2)(b) and (f) is not legally sustainable” but that application should not be “granted outright”. Court rejected conclusory claims by NYPD that “all witnesses always believe in and rely on the confidentiality of all of their statements to the police.” Held that “NYPD’s failure to present a more expansive ‘particularized and specific justification for denying access’…and instead seeking a blanket exemption on privacy or safety grounds is unfortunate, and precludes a summary disposition of petitioner’s request.” However, under the circumstances present here, “where there has been a homicide investigation, we find that NYPD’s showing with respect to the nature of police investigation and the type of information contained in DD-5’s is sufficient to demonstrate the necessity of protecting the safety and privacy rights of witnesses….A decision reflecting the necessary delicate balance between these two competing interests [FOIL’s policy of disclosure v. privacy and security] can best be achieved after an in camera review of the requested information by the Supreme Court.”
Johnson Newspapers Corp., v. Call, 115 AD2d 335, 495 NYS2d 813 (4th Dept 1985) --
“Releasable copies” of offense reports maintained by sheriff could not be withheld as an unwarranted invasion of personal privacy “solely because the person reporting the offense initials a box on the form indicating his preference that ‘the incident not be released to the news media’...” Court, by declaratory judgment, found the procedure to be contrary to law.
Johnson Newspapers Corp. v. Stainkamp, 94 AD2d 825, 463 NYS2d 122, modified 475 NYS2d 272, 61 NY2d 958 (1984) --
Petitioner sought records of the identities of persons arrested for speeding in Jefferson County and "all arrest records of the State Police, infractions or otherwise". Appellate Division held that the request reasonably described the records sought, that the records could not be withheld as intra-agency materials merely because the tickets and lists were used to compile police records, stating that the exceptions to rights of access should be construed narrowly; concurred with opinion of the Committee. Court of Appeals modified, granting access, but possibly exempting records sealed under §160.50 of Criminal Procedure Law, if that provision applies; court did not address issue of applicability of §160.50 to traffic tickets. Current Law: §§89(3), 87(2)(a) and (g)
Joint Industry Board of Electrical Industry v. Nolan, 159 AD2d 241, 552 NYS2d 839 (1st Dept 1990) --
Petitioner requested home addresses of employees of contractors employed by NYC Board of Education; Court upheld denial, finding that "the interest of the contractors' employees in avoiding a substantial invasion of their privacy is favored over the minimal public interest involved in the disclosure of their home addresses", that disclosure of home address "facilitates entry into an individual's private life", and that case law interpreting the federal Freedom of Information Act is "unavailing". See Hopkins v. City of Buffalo, New York Teachers Pension Associates
Kalish v. City of New York, (pdf) Supreme Court, Queens County, NY Slip Op 31958(U), June 30, 2009 --
Request made for various reports to Department of Environmental Protection on March 17, but no response; follow up letter regarding status of request sent on May 5. Receipt of request acknowledged on May 9 with statement that request “will be handled as expeditiously as possible.” Petitioner sent letter to acting commissioner on December 4 protesting failure to respond. DEP sent letter on Feb. 2 stating that records available upon payment of fee. Check sent on Feb. 4, but by March 9, no records disclosed. Suit ensued. Held that by not responding within statutory time, request deemed denied. No approximate date given, another failure, citing Rhino Assets. Also, letter to acting commissioner “effectively amounted to an appeal”; therefore, petitioner exhausted administrative remedies. Request for attorney fees rejected due to issue regarding payment of fee, Nevertheless, citing Friedland, confirmed that “a party has ‘substantially prevailed’ in a FOIL proceeding where the initiation of the proceeding brought about the release of the requested documents.”
Karlin v. McMahon, 96 NY2d 842, 729 NYS2d 435 (2001) --
Citing Fappiano, Court of Appeals reiterated that exception in §50-b of the Civil Rights Law authorizing disclosure of records identifiable to a victim of a sex offense does not apply when sought after the requester has been convicted, but also stated that agency must make particularized showing that all of the records sought fall within §50-b and remitted to Supreme Court. Most significantly, court held that the agency is “ not obligated to provide the records even though redaction might remove all details which ‘tend to identify the victim’”, citing Short.
Kaufman v. NYS Department of Environmental Conservation, 289 AD2d 826, 734 NYS2d 694 (3rd Dept 2001) --
Following issuance of permit, petitioner requested records generated thereafter by agency regarding reconstruction project. Portions of records were disclosed; others consisting of “opinions, recommendations or policy formulations” were properly withheld under §87(2)(g). Court stressed that information withheld may continue to be withheld “whether or not action is taken” and even though the “the ‘deliberative process’ that resulted in the issuance of the reconstruction permit ended....” See Xerox
Kavanagh v. Department of Correctional Services, (pdf) Supreme Court, Albany County, April 22, 1986 --
Petitioner, a district attorney, requested misbehavior reports and their final dispositions pertaining to a particular inmate. Court held that disclosure would constitute an unwarranted invasion of personal privacy "resulting in personal hardship to said inmate". Among other items, the reports contained allegations that were not substantiated. The Court held further that petitioner could not demonstrate a right, in his capacity as district attorney, pursuant to the Personal Privacy Protection Law. Current Law: § 89(2) (b) (iv); also Personal Privacy Protection Law, § 95
Kelber v. University of the State of New York, Empire State College and Empire State College Foundation, (pdf) Supreme Court, Albany County, April 14, 2010 --
Request involved records relating to the Dr. Harry Kelber Endowment in Labor Studies, which defrays cost of distinguished guest lecturers. Contended by respondents that endowment was established by the Foundation, not the College, and that the Foundation is not subject to FOIL. After lengthy analysis, court directed Foundation to comply with FOIL and disclose records sought, except personal information pertaining to "private" donors on ground that disclosure would constitute an unwarranted invasion of privacy.
Kerr v. Koch, Supreme Court, New York County, NYLJ, February 1, 1988 --
Newspaper reporter requested appointment calendars that identify Mayor's meal guests and nature of trips charged to his expense account. In granting access, Court held that the documents are "records" and that disclosure would not result in an unwarranted invasion of personal privacy.
Key v. Hynes, 205 AD2d 779, 613 NYS2d 926 (2nd Dept 1994) --
Agency denied access based on claim that records could not be found after diligent search; court reversed dismissal by Supreme Court, stating that: "The requirement of evidentiary proof and the rule that entirely conclusory statements do not constitute such proof apply as much when the agency seeks to avoid disclosure of a document it presumably should have but cannot locate (Public Officers Law §89) as when the agency claimed that the document in question is altogether exempt from disclosure (Public Officers Law §87). There is no basis in law or in reason to apply, in the context of FOIL proceedings, a rule any different from the general rule of civil practice which states that conclusory allegations, especially ones made 'upon information and belief' by persons with no apparent direct knowledge are legally valueless." Conclusory claim of "due diligence" is inadequate to dismiss a petition; must be an "adequate affidavit attesting" to such diligence. Reversed by Rattley. See also Smith, Swinton, Thomas
Kheel v. Ravitch, 62 NY2d 1, 475 NYS2d 814 (1984) --
Memorandum prepared by agency staff for internal use addressing a position the agency might take in pending or prospective negotiations was not a "final determination" and, therefore, was deniable. Current Law: § 87 (2) (g)
King v. Dillon, (pdf) Supreme Court, Nassau County, December 19, 1984 --
Minutes of village board meeting available under the Freedom of Information Law even when they were transferred to District Attorney pursuant to a Grand Jury subpoena. Section 190.25 of the Criminal Procedure Law prohibits disclosure of Grand Jury proceedings but does not "eradicate records otherwise public in nature."
Wm. J. Kline & Sons v. County of Hamilton, 235 AD2d 44, 663 NYS2d 339 (3rd Dept 1997) --
Held that tape recording of executive session is exempt from FOIL under §87(2)(a), which pertains to records that are specifically exempted from disclosure by state or federal statute. Note: There is no statute that exempts such records from disclosure; holding seems to conflict with decisions of Court of Appeals; see also Runyon in Open Meetings Law case summary.
Knapp v. Board of Education, Canisteo Central School District, (pdf) Supreme Court, Steuben County, November 13, 1990 --
In response to request for billing statements provided to school districts for legal services, agency provided only the time period covered and amounts owed. Court held that agency must disclose records revealing the date, general nature of services rendered and time spent, and that such disclosure would not be "violative of client confidentiality."
Konigsberg v. Coughlin, 68 NY2d 245, 508 NYS2d 393 (1986) --
Inmate requested "any and all" records kept by Department of Correctional Services about him or under his identification number. Agency denied on ground that he failed to "reasonably describe" the records sought, which consisted of some 2,300 pages. Affidavit of agency official indicated that staff could locate the records. Therefore, Court found that the agency "failed to establish that the documents were not 'reasonably described'." The Court held further that the "failure of a requester to 'reasonably describe' desired records...is a ground for nondisclosure that is entirely separate from the exemption provisions" and that the agency has "the independent burden of establishing that the material fell squarely within the ambit of the statutory exemptions' by denying access'." Current Law: § 89 (3). See also, Farbman
Kooi v. Chu, 129 AD2d 393, 517 NYS2d 601 (3rd Dept 1987) --
State Department of Taxation and Finance created special bureau to ensure compliance with Tax Law by its employees. Plaintiff had not filed a return, and a list identifying plaintiff was forwarded to agency discipline unit. Court held that disclosure of fact that employee failed to file a return did not violate secrecy provisions of Tax Law or the Personal Privacy Protection Law; found that disclosure was proper under § 96 (1) (d) of that statute.
Krauss v. Nassau Community College, 122 Misc.2d 298, 469 NYS2d 553 (1983) --
Request involved names and addresses of students; held that when names and addresses are designated as "directory information", Buckley Amendment (12USC §1232g) does not bar disclosure; but if names and addresses are not designated as directory information, the Buckley Amendment and, therefore, the Freedom of Information Law prohibits disclosure. Cited opinion of Committee. Current Law: §87 (2) (a)
Kryston v. Board of Education, East Ramapo School District, 77 Ad2d 896, 430 NYS2d 688 (2nd Dept 1980) --
Agency is not required to create a record to respond to a request; however, court ordered that standardized test scores of students listed alphabetically be "scrambled" with names deleted in order to protect privacy in conjunction with Freedom of Information Law and federal Family Educational Rights and Privacy Act; "scrambling" would "impose no onerous burden" on school district. Current Law: §85 et seq., 89 (3); also 20 U.S.C. §1232g
Kwasnik v. City of New York and City University of New York, 262 AD2d 171, 691 NYS2d 525 (1st Dept 1999) --
Petitioner sought records regarding employment of six CUNY employees; court cited and agreed with Committee opinion that public employment history and portion of resumes and applications indicating that employment criteria have been met must be disclosed; many employment records reviewed in camera; rejected claim that petitioner failed to exhaust administrative remedies because agency failed to inform petitioner of right to appeal, citing Barrett; held that request reasonably described and “is not impermissibly vague simply because the [the petitioner] is unaware of the specific document upon which that information was recorded”, even though review might involve hundreds of records, citing Ruberti. Appellate Division affirmed lower court decisions, citing opinions of committee.
Kwitny v. McGuire, 53 NY2d 968, 441 NYS2d 659 (1981) --
Approved pistol license applications on file with New York City Police Department accessible under Freedom of Information Law and Penal Law, § 400.00 (5). Cited opinion of Committee.
Laborers’ International Union of North America, Local Union No. 17 v. New York State Department of Labor, 280 AD2d 66, 719 NYS2d 354 (3rd Dept 2001) --
Case involved access to lease between Department and Cargex for construction of major facility at Stewart Airport. Lease was requested after its submission to Comptroller and Attorney General for approval but was withheld because it “is not yet approved” and disclosure would impair present or imminent contract awards in accordance with §87(2)(c). Lease was later approved and disclosed, and Department moved to dismiss on the ground that the matter was moot. Court held that “the circumstances presented in this case bring it within the exception to the mootness doctrine”, which involves three conditions: (1) a likelihood of repetition; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., “substantial and novel issues.” Court was not persuaded that disclosure of lease not yet approved by Comptroller and Attorney General would “jeopardize the bargaining position” of the agency. In this instance, there was no competitive bidding procedure, and court could “perceive no legal or logical basis for respondent’s rationale that, until approved, the contractor’s competitors could upset the contract process by, for example, offering a greater contract price.” See Cross Sound Ferry
LaRocca v. Board of Education of Jericho Union Free School District, 220 AD2d 424, 632 NYS2d 576 (2nd Dept 1995) --
Request involved settlement agreement, and lower court decision was modified. Charges brought against tenured administrator under §3020-a of the Education Law were disposed of by negotiation and a settlement agreement. Held that the record is not deniable as an employment history "merely because it records facts concerning employment", that an agency "cannot bargain away the public's right of access for public records", and that the settlement agreement is available, except portion that "contains references to charges which were denied and/or not admitted...or which contain the names of any teachers." See also Anonymous, Geneva Printing (2), Buffalo Evening News (1).
Laureano v. Grimes, 179 AD2d 602, 579 NYS2d 357 (1st Dept 1992) --
Issue involved inmate's request for police officer's memo book entries; Supreme Court dismissed due to finding that statute of limitations expired and that denial was not unreasonable; Appellate Division reversed, finding that final determination to deny triggered four months limitation period, and that by filing on time, petitioner initiated Article 78 and obtained 60 day extension for effecting service of process beyond basis 4 month period; also found that conclusory denial based on §87(2)(e)(iii) without assertion that informants were promised confidentiality was inadequate; held that any expection of confidentiality by witnesses was lost when they testified at trial: see also Cornell University, Cromwell, Gould.
Lawrence v. State, 180 Misc.2d 337, 688 NYS2d 392 (1999) –
Court of Claims held that §97(3) of the Personal Privacy Protection Law does not “explicitly create a separate right of action premised solely upon an alleged violation” of that statute, but that a “private right of action may nevertheless be implied.” Found that “there is no common law action for violation of the right to privacy in New York”; even assuming private right of action under Personal Privacy Protection Law, former prisoner could not support claim for alleged wrongful disclosure of his criminal history when such disclosure allegedly led to a loss of job, for records of prior conviction were available in public records kept in local courthouse in “general geographical area” of incident upon which claim is based.
Lecker v. New York City Board of Education, 157 AD2d 486, 549 NYS2d 673 (1st Dept 1990) --
Court invalidated portion of Committee's regulations, 21 NYCRR 1401.5 (d), that required agencies to grant or deny access to records within ten business days of acknowledgement of receipt of request, for no such time limitations is contained in the FOIL; specified that FOIL requires that acknowledgement must include statement of approximate date when request will be granted or denied. See Bernstein, Robertson.
Leeds v. Burns, 205 AD2d 540, 613 NYS2d 46 (2nd Dept 1994) --
Law student brought pro se action against CUNY Law School at Queens College Dean to obtain records prepared by ABA a "Site Evaluation Report" and related materials; held that ABA is not an "agency" and that, therefore, communications between ABA and CUNY were not inter-agency materials under §87(2)(g); held that attorney's fees would not be awarded, because law student was not yet an admitted attorney. Affirmed lower court decision that petitioner could not be awarded attorney's fees because he was not an attorney.
Legal Aid Society v. New York City Police Department, 274 AD2d 207, 713 NYS2d 3 (1st Dept 2000) --
Held that when a request is denied under §87(2)(e)(i), there is no requirement that such request may be denied "only upon a 'prompt, detailed, fact-specific' reason for nondisclosure", thereby reversing lower court. Agency offered same response to all requests by criminal defendants awaiting trial on the ground that disclosure would interfere with the prosecutions, and court agreed, citing Pittari. Note: holding seems to circumvent holding in Gould; also found that agency did not have to comply with own rule regarding the time to respond to requests, for no similar restriction appears in the FOIL.
Legal Aid Society of Northeastern New York v New York State Department of Social Services, 195 AD2d 150, 605 NYS2d 785 (3rd Dept, 1993) –
While the identity of an applicant or recipient of public assistance is confidential pursuant to Social Services Law §136(2), §369(4), 42 USC §602(1)(9) and §1396a(a)(7), the Department of Social Services failed to provide “particularized and specific justification” for redacting the county names from fair hearing determination records. Disclosure of the name of the county in which a hearing was held would not constitute an unwarranted invasion of personal privacy of the recipient or applicant for public assistance.
Legal Aid Society of Northern New York, Inc. v. Albany Local Development Corporation, Supreme Court, Albany County, January 27, 1989 --
Local Development Corporation is a not-for-profit corporation that "performs an essential governmental function" pursuant to Not-for-Profit Corporation Law, §1411. Court applied the reasoning of the Courts in Westchester Rockland Newspapers v. Kimball and Pitts, as well as opinions of the Committee and found that Corporation is subject to FOIL, for it is an "agent" of the City of Albany.
Legal Aid Society v. New York City Police Department, (pdf) Supreme Court, New York County, NYLJ, October 22, 1998 --
Citing Gould, reiterated that the Criminal Procedure Law does not preclude defendants from using FOIL and found that the Police Department "has consistently failed to adhere to its dictates." Denials of access did not refer to specific contents of records and agency staff apparently did not review records prior to denying access. Petitioner sought class certification because each applicant for records "receives the same denial", and court held that "this is one of those rare cases where the continued and obvious resistance on the part of government officials to follow the mandate of the law makes class certification appropriate." Agency in denying access must state "with factual particularity how and why" an exception applies; the rationale for delays in responding to requests must be "explicitly explained".
Legal Aid Society of Northeastern New York v. NYS Department of Social Services, 195 AD2d 150, 605 NYS2d 785 (3rd Dept 1994) --
Petitioner sought fair hearing decisions involving Schenectady County. Agency acknowledged that decisions are generally available, so long as identifying details are deleted. Issue was whether it was necessary to redact name of county in order to maintain confidentiality. Since agency argued that failure to redact "could" breach client confidentiality, court held that agency did not meet burden of proof by showing "a particularized and specific justification for denying access"; court denied request for attorney's fees, stating that lower court did not abuse its discretionary authority on that issue.
Leibowitz v. Safir, 251 AD2d 581, 674 NYS2d 736 (2nd Dept 1998) --
Request involved records pertaining to the release of certain persons arrested during a civil disturbance. Held that "Pursuant to CPL 160.50(3)(j), a criminal action is deemed 'terminated' when an arrested individual is released without being prosecuted. Thereafter 'all official records and papers *** relating to the arrest [are to be] sealed (CPL 160.50[c]) when 'the head of the arresting police agency [serves] a certification of such disposition upon the division of criminal justice services. Failure to perform the "ministerial act of filing ...does not negate" that the records "of those arrested and never prosecuted be sealed". As such, records exempt from disclosure by statute under §87(2)(a) of FOIL; also held that disclosure would constitute an unwarranted invasion of personal privacy.
Lewis v. Giuliani, Supreme Court, New York County, NYLJ, May 1, 1997 --
Lengthy decision involving request by newspaper for “closing memoranda” prepared by NYC Department of Investigation (DOI) and records of disciplinary action taken against city marshalls; held that closing memoranda for DOI’s non-criminal investigations fall outside scope of “law enforcement purposes” exception and that DOI made “no factual showing” that would allow general assertion of the exception regarding other cases; that closing memoranda are “final determinations” available under §87(2)(g)(iii), unless other exceptions can be asserted; rejected DOI’s general promises of confidentiality; held that names of marshalls who were disciplined should not have been withheld; names of DOI’s investigators must be disclosed: “DOI may not engage in mantra-like invocation of the personal privacy exception...”; discussed intra-agency exception, cited Gould; rejected DOI’s attempt to assert common law privilege; court cited Committee’s opinion in several areas.
Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001 --
Request made on July 26, and Department indicated on July 30 that process of locating and reviewing records would be completed within 120 days. On August 8, petitioner appealed, contending that request was constructively denied, because “the data had been available for pickup in mid-July.” Department contended that litigation was premature since 120 day period had not expired and since section 89(3) of FOIL does not specify response time following acknowledgment of receipt of request. Court found that “[t]his argument, if accepted, would completely insulate from judicial review an agency’s decision about the amount of time it needed to respond to FOIL requests” and “undermine the very purpose of FOIL.” In citing opinion of Committee, court held had agency should be given a “reasonable” time to comply with a FOIL request. What is reasonable must be determined on “a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure.” See De Corse, Corvetti, Held, Newton
Lipsman v. Bass, 67 AD2d 654, 412 NYS2d 611 (1st Dept 1979) --
Grade distribution sheets and evaluations of the CUNY programs available, except to the extent that disclosure would result in unwarranted invasion of personal privacy as determined by in camera inspection. Current Law: §84 et seq.
Lockheed Martin v. NYS Dept. of Family Assistance, 256 AD2d 847, 681 NYS2d 656 (3rd Dept 1998) –
Firm that contracted with agency waived right to claim FOIL exemption for portions of its RFP proposal because agency’s RFP notice informed the firm confidentiality would not be guaranteed, and that FOIL excemption must be claimed at time proposal is submitted.
Lockwood v. Suffolk County Police Department, Supreme Court, Suffolk County, NYLJ, February 14, 2001 --
Request involved a certain videotape and “any other non-privileged documents or items” relating to an incident. Incident involved sealing of records under CPL, section 160.55, which pertains to situations in which a person is charged with a “printable” offense, but was ultimately convicted of an offense for which fingerprinting is not authorized. Upon termination of such proceeding, “all official papers and records relating to the arrest or prosecution” must be sealed. Found that records are not “official” and therefore are not subject to sealing requirements when they are not “related” to a defendant’s arrest or conviction or had not been created as part of an investigation, but rather by other parties. Videotape in this instance was created by business entity in the regular course of surveillance of its premises, and court held that it was not part of the “official” records of the case.
Lockwood v. Suffolk County Police Department, 42 AD3d 538, 839 NYS2d 808 (2nd Dept 2007) --
Request involved operating manual pertaining to alcohol detection machine. Held that manual available for inspection, but not copying due to copyright (seems wrong!).
Lonski v. Kelly, 149 AD2d 977, 540 NYS2d 114 (4th Dept 1989) --
Due to risks of violence and threat to safety, request for videotape depicting inmate's transfer to a special housing unit was denied under §87(2)(f).
Maffeo v. State of New York Organized Crime Task Force, Supreme Court, Westchester County, April 14, 1993 --
Petitioner requested records in custody of OCTF regarding named individuals who were publicly identified as cooperating witnesses in various criminal actions. OCTF argued that disclosure of existence or lack of existence of records would indicate whether or not it was involved in investigation. Court held that it would make an in camera determination "as to whether respondents will be directed to disclose the existence or nonexistence of the requested documents, i.e., whether the FOIL request "would cause harm cognizable under a [FOIL] exemption...and whether records are exempt" under §87(2)(e).
Leon Malman v. Supervisor and Town Board of the Town of Islip, Supreme Court, Nassau County, August 20, 1981 --
Petitioner sought resolution passed by Town Board which authorized stipulation of settlement in a foreclosure action in which petitioner was involved. Court held foreclosure action would not bar petitioner's Article 78 proceeding to obtain resolution and that it did not constitute material prepared for litigation; court also found that disclosure was "mandated" due to failure to comply with procedural aspects of the Law. See also Westchester Rockland Newspapers v. Mosczydlowski. Current Law: § 89 (4) (a)
Malowsky v. D'Ella, 160 AD2d 798, 553 NYS2d 836 (2nd Dept 1990)
Adult who had been in foster care sought medical histories of natural parents under § 373-a of Social Services Law; court cited broad intent of FOIL, held that agency could not rely upon § 87 (2) (b) as a means of interfering with petitioner's rights, and indicated that records must be disclosed after deletion of identifying details where appropriate.
Mantica v. NYS Dept. of Health, 94 NY2d 58, 699 NYS2d 1 (1999) --
Held that patients may obtain their own medical records from a state agency pursuant to FOIL, despite the prohibition in Public Health Law, §18(6), against redisclosure of patient information by third parties; intent of §18(6) “was not to prevent disclosure to patients of their own medical records. Rather, section 18 was intended to grant patients a right of access to their medical records subject to some limitations”, none of which were applicable here; “the fact that petitioner could obtain his records from the hospital pursuant to section 18 does not diminish his right to obtain them under FOIL.”
Marino v. Morgenthau, 1 AD3d 275, 769 NYS2d 10 (1st Dept 2003) --
Request was made for agency’s subject matter list required to be maintained under §87(3)(c) of FOIL. Agency provided a list “enumerating 215 types of documents”. Petitioner dissatisfied, contended that list is incomplete because it does not contain “all prosecution case files” and “each and every record contained in each prosecution case files.” Court dismissed, stating that “subject matter list need not refer to each and every document [the] agency maintains, but only to categories of records in detail sufficient to permit an applicant to ‘identify the category of records that may include records sought.’”
Markowitz v. Serio, 11 NY3d 43, 862 NYS2d 833 (2008) --
Request to Insurance Department involved "for each Kings County zip code, including by carrier, the number of voluntary [automobile] policies issued, renewed, cancelled [other than for non-payment of premium], or nonrenewed" for a three year period. Petitioner referred to Department regulation specifying that reports containing the information sought "shall be public record." Department denied the request on basis of §87(2)(d), contending that disclosure would cause substantial injury to competitive position of insurance companies. Interested insurers were permitted to intervene by stipulation. Court held that the "public record" clause in the Department's regulation "does not negate an insurer's right to assert that some information required to be included in the reports are exempt from disclosure under FOIL", citing Xerox and discussion of "public records". However, with respect to claim regarding substantial injury to competitive position, "the Department and insurers have failed to meet their burden. The evidence suggesting they will suffer a competitive disadvantage is theoretical at best." Held that "To meet its burden, the party seeking exemption must present specific, persuasive evidence that disclosure will cause it to suffer a competitive injury; it cannot merely rest upon a speculative conclusion that disclosure might potentially cause harm."
McAulay v. Board of Education, City of New York, 61 AD2d 1048, 403 NYS2d 116 affirmed 48 NY2d 659, 421 NYS2d 560 (1979)
Documents prepared by an advisory hearing panel regarding an unsatisfactory rating that were solely advisory held to be deniable as inter-agency and intra-agency materials; predecisional materials, prepared to assist an agency decision-maker that may be accepted or rejected are deniable. Current Law: § 87 (2) (g)
McAulay v. Commissioner of Department of Transportation, 99 Misc.2d 32, 415 NYS2d 589 (1979) --
Department of Transportation compelled to grant access to records in connection with investigation of an accident caused by a public vehicle under Freedom of Information Law and Transportation Law; § 83 (see also Bloomberg, supra.) Currant Law: §87
McGraw-Edison v. Williams, 133 Misc.2d 1053, 509 NYS2d 285 (1986) --
Records disclosed included inadvertent release of a preliminary draft that was exempt from disclosure under § 87 (2) (g); Court held that inadvertent disclosure did not constitute a wavier of the authority to deny access; an appropriate waiver must be accomplished by an intent to waive.
Messina v. Lufthansa German Airlines et.al.,(In the Matter of Philip Ross, as Industrial Commissioner of the State Of NY), 83 AD2d 831, 441 NYS2d 557, (2nd Dept 1981) --
§537 of the Labor Law was strictly construed to restrict access to records only when supplied by the employer and/or the employee relative to, unemployment insurance; nevertheless, records of recipients' unemployment insurance benefits found to be deniable as unwarranted invasion of personal privacy. Current Law: § 87 (2) (b)
Metro-ILA Pension Fund v. Waterfront Commission of New York Harbor, (pdf) Supreme Court, New York County, NYLJ, Dec. 16, 1986 --
Commission is an interstate agency and therefore is not an "agency" as defined by the Freedom of Information Law. Current Law: § 86 (3)
Metropolitan Museum Historic District Coalition v. De Montebello, 20 AD3d 28, 796 NYS2d 64 (1st Dept 2005) --
Museum was not controlled by municipal officials and is not a governmental agency; therefore, it is not subject to FOIL. See Buffalo News v. Buffalo Enterprise Development Corp.
Miller v. NYS Department of Environmental Conservation, (pdf) Supreme Court, Albany County, June 21, 2006 --
Issue involved award of attorney’s fees and whether petitioner “substantially prevailed.” Court found that condition was met because agency took 12 weeks to provide first set of documents and 15 ½ to provide remainder and did so only after commencement of judicial proceeding.
Miller v. Department of Health, 91 AD2d 975, 457 NYS2d 564 (2nd Dept 1983) --
Petitioner sought records pertaining to an investigation of a nursing home; court found that the records, including confidential medical records, were deniable under § 87 (2) (g) as well as Public Health Law, § 2803-d (6) (c). Current Law: § 87 (2) (g); see also Short v. Board of Managers of Nassau County Medical Center.
Miller v. Hewlett-Woodmere Union Free School District #14, Supreme Court, Nassau County, NYLJ, May 16, 1990 --
Request involved records, minutes recommendations, etc. relating to a decision denying petitioner's request for a change of school for his daughter. Court cited distinction between "predecisional intra-agency communications that debate a course to be set upon by the agency, and communications linked with the agency's final determination". held that, under the circumstances, records characterized as "recommendations" were accessible, for Superintendent in making decision "endorsed the recommendation...adopting the reasoning as his own"; held that "When, as here, a concord exists as to intra-agency views, when deliberation has ceased and the consensus arrived at represents the final decision, disclosure is not only desirable but imperative for preserving the integrity of governmental decision making". See McCaulay v. NYC Board of Education, Sinicropi, Scacia, Rome Sentinel.
Minerva v. Village of Valley Stream,(pdf) Supreme Court, Nassau County, August 20, 1981 --
Requests to examine and copy the front side of village attorney's pay check granted; however, agency's denial of reverse side of check upheld on the basis that disclosure of manner in which a public employee spends his/her money after receipt would result in a unwarranted invasion of personal privacy under § 87 (2) (b).
Miracle Mile Associates v. Yudelson, 68 AD2d 176, 417 NYS2d 142, appeal denied 48 NY2d 706, 422 NYS2d 68 (1979) --
In camera inspection was made, but is not automatic; internal memoranda and other inter-agency and intra-agency materials available, except portions that were solely advisory; factual deliberative material available; advice of committee on Public Access to Records should be upheld if not unreasonable. Current Law: §84, § 85 et seq., § 87 (2) (g)
Mitchell, Matter of, Supreme Court, Nassau County, NYLJ, March 9, 1979 --
Petition dismissed on the ground that it was not timely commenced with the four month statute of limitations required by Article 78; while statute of limitations may act as a bar to a particular proceeding under the Freedom of Information Law, person is not barred from seeking records again under applicable procedures. Current Law: § 89(3), §89(4)(b)
Mitchell v. Borakove, 225 AD2d 435, 639 NYS2d 791, appeal dismissed 88 NY2d 919, 646 NYS2d 987 (1996)--
Held that §557(g) of the New York City Charter has the effect of a statute and that it exempts autopsy and related records from disclosure in conjunction with §87(2)(a) of FOIL; also held that New York City is not subject to §677 of the County Law.
Mitzner v. Sobol, 173 AD2d 1064, 570 NYS2d 402 (3rd Dept 1991) --
Interim report and analysis of allegations of deliberate inflation of student test scores held to be predecisional intra-agency materials deniable under §87(2)(g). Also held that the unauthorized disclosure of the report did not operate as a waiver of the ability to deny access. See also Scaccia, McGraw-Edison
Mohawk Book Company, Ltd. v. State University of New York, 288 AD2d 574, 732 NYS2d 272 (3rd Dept 2001) --
Petitioner runs an off campus bookstore and sent requests for records indicating books used in classes to SUNY/Albany's records access officer and individually to hundreds of faculty members. The access officer did not respond, and petitioner appealed. In response to the appeal, the request was denied, citing Encore. Although the Appellate Division found that SUNY was not required to maintain or create a master booklist, it determined that the individual lists maintained by faculty members constituted agency "records" and that the access officer, as part of his responsibility to coordinate SUNY's response pursuant to the regulations promulgated by the Committee, must collect the lists or ensure that faculty members disclose them. Also held that individual lists are accessible, distinguishing this situation from Encore. In Encore, the request involved a master list developed by Barnes and Noble that could properly be withheld under the "trade secret" exception. Cited and agreed with Committee opinion.
Moore v. Santucci, 151 AD2d 677, 543 NYS2d 103 (2nd Dept 1989) --
Petitioner requested records form a district attorney compiled during an investigation resulting in a conviction, including police reports, scientific records and statements made by petitioner, co-defendants and prosecution witnesses who testified at his trial. Court held that a blanket denial was improper, and even though disclosure was available through some other discovery device (i.e., CPLR, Article 301 or CPL, Article 240), that fact does not preclude that use of the FOIL. If petitioner or his attorney received a record requested pursuant to an alternative discovery device and possesses a copy, a court may uphold an agency's denial as academic; however, agency bears burden of proving that such record was previously furnished or no longer exists. Held that not all police reports are necessarily exempt, for they may be withheld or redacted only to the extent that the exceptions with § 87(2)(e) [involving records complied for law enforcement purposes] apply; also held that, "while statements of the petitioner, his co-defendants and witnesses obtained...in the course of preparing a criminal trial are generally exempt under FOIL...once the statements have been made in open court, they have lost their cloak of confidentiality and are available for inspection by a member of the public."
Morgan v. NYS Dept. of Environmental Conservation, 9 AD3d 586, 779 NYS2d 643 (3rd Dept 2004) --
Appraisal report and review of report by agency employee deniable as intra-agency material, citing Xerox; because office of Attorney General is “obligated to prosecute, defend and control all legal business of state agencies”, was held that reports, notes and diagrams prepared by AG consisted of attorney work product, exempt under CPLR 3101(c), and that communications between AG and agency employees were subject to attorney-client privilege. Privilege does not apply to communications obtained from or sent to third parties.
Morris v. Martin, 82 AD2d 965, 440 NYS2d 365, reversed 55 NY2d 1026, 449 NYS2d 712 (1982) --
New York City real property owners requested copies of sales data lists while engaged in tax certiorari litigation; Appellate Division reversed lower court, stating that disclosure is prohibited by § II 46-15.0 of the New York City Administrative Code, which has the effect of a statute. The Court of Appeals reversed and reinstated the Supreme Court judgment which held that records requested were not exempt form disclosure under §87(2)(a), (b), or (g)
Mothers on the Move, Inc. v. Messer, 236 AD2d 408, 652 NYS2d 773 (2nd Dept 1997) --
Parents organization sought records relating to school district’s compliance with Chancellor’s regulation concerning selection of supervisory school based personnel, particularly forms identifying candidates interviewed at first and second stages of screening process, names of members of interviewing committee and certifications that Chancellor’s regulations were followed; held that “factual observations are not exempt from disclosure, even in documents issued before final decision”; citing New York Newspaper and Russo; “There is nothing about the form which would suggest that it should be considered predecisional material prepared to assist an agency decision maker or that it is in the nature of deliberative materials”, also found that “A record is not considered an employment history merely because it records facts concerning employment”, citing Larocca, said that information was not “intimate”; Note: Parties and court seemed to be unaware of §89(7).
Mullady v. Bogard, 153 Misc.2d 1018, 583 NYS2d 744 (1992) --
Petitioner, convicted of murder, sought autopsy report from New York City Medical Examiner, under §677 of the County Law, which authorizes disclosure to persons having substantial interest. Court held that §677 applied to counties outside of New York City, that §557(g) of City Charter is "just as binding" as a statute; court also rejected claim that records should be disclosed due to agency's failure to respond in a timely manner. See Mitchell, Floyd
Muniz v. Roth, 163 Misc.2d 293, 620 NYS2d 700 (1994) --
Held that the fact that a document subject to FOIL is available elsewhere does not remove agency responsibility under FOIL to disclose. Records regarding fingerprint tests found to be routine investigative techniques that may be available; agency could not prove that "knowledge of how phony fingerprints may be detected and proved" could enable potential lawbreakers to avoid detection. Held that agency failed to meet its burden of proof by merely stating that information was acquired from confidential sources but found that certain records prepared in the course of an investigation could be withheld in conjunction with §73(8) of the Civil Rights Law.
Murray v. Troy Urban Renewal Agency, Supreme Court, Rensselaer County, April 24, 1980, reversed 84 AD2d 612, 56 NY2d 888 (1982) --
Supreme Court held that an appraisal report prepared by a consultant for an urban renewal agency could not be withheld as inter-agency or intra-agency material nor as material which could impair contracts awards; Appellate Division reversed, holding that the liberal language of §87(2)(c) concerning contract awards is satisfied if an agency's procedure can reasonably be anticipated to result in a contract award; Court of Appeals affirmed; since the agency agreed to release appraisal reports after sale of real property, other grounds for denial were not considered. Current Law: §87(2)(c)
Murtha v. Leonard, 210 AD2d 411, 620 NYS2d 101 (2nd Dept 1994)--
Affirmed lower court decision sustaining propriety of village rule concerning the number of persons who could view documents at a given time and use of personal copiers as a valid exercise of municipal authority. However, held that village rule limiting hours during which records could be inspected "to a period of time less than the business hours of the clerk's office" violated FOIL and Committee's regulations.
Nalo v. Sullivan, 125 AD2d 311, 509 NYS2d 53, appeal denied 69 NY2d 612, 517 NYS2d 1027 (1987) --
Request involved records referring to petitioner "as a member of organized crime or as an escape risk". Court upheld the denial under §87(2)(g) and (f) and found that lower court's failure to establish that the documents fell squarely within the ambit of exceptions did not constitute error. To make such disclosure would effectively subvert the purpose of these statutory exceptions which is to preserve the confidentiality of this information. Current Law: §87(2)(f), (g); see also Farbman.
City of Newark v. Law Department of the City of New York, 305 AD2d 28, 760 NYS2d 431 (1st Dept 2003) –
“This appeal presents the issue of whether a confidentiality order issued by an arbitration panel can override the public’s right of access to government records under the Freedom of Information Law.....We hold that such a confidentiality order does not override FOIL.” Held that documents created or obtained solely as the result of arbitration constitute “records”; that records might be used in litigation against agency was irrelevant; blanket denial of access on the basis of affidavits citing §§87(2)(a),(d) and (g) that merely reiterated the language of those exceptions was inadequate to meet burden of proof; remanded for further proceedings. See Farbman, DJL, Gould, Encore
Newman v. Dinallo, 69 AD3d 636, 892 NYS2d 500 (2nd Dept 2010) --
Request involved 21 items, but “With three possible exceptions…items set forth in…’request for information’ did not demand production of any particular record, document, or any other type of information kept ‘in any physical form’…but, instead, requested that the respondent formulate responses to certain direct questions.” Held that request did not reasonably describe” any existing records and affirmed dismissal.
News 12 v. Office of the Suffolk County District Attorney, Supreme Court, Suffolk County, February, 1999 --
Held that FOIL granted right to obtain and air a copy of videotape used in a murder trial. Judge ruled from the bench.
Newsday v. New York City Police Department, 133 AD2d 4, 518 NYS2d 966 (1st Dept 1987) --
Court held that police records concerning police officers' use of force could be withheld as "intra-agency materials" and due to similarity to facts in Gannett v. James. A lengthy dissent sought to distinguish the records from those considered in Gannett. Current Law: §87(2)(g); see also Gannet v. James, Capital Newspapers v. Burns
Newsday, Inc. v. NYS Department of Health, (pdf) Supreme Court, Albany County, October 15, 1991 --
Newspaper sought names and various empirical data concerning the performance of cardiac surgeons working in hospitals participating in a study. Although agency denied access under Personal Privacy Protection Law as an unwarranted invasion of personal privacy, the court, citing a Committee opinion, held that the names of surgeons must be disclosed, stating that the public interest outweighs andy privacy interest on the part of a surgeon.
Newsday v. Sise, 71 NY2d 146, 524 NYS2d 35 (1987) --
Names and addresses of jurors found to be exempted from disclosure by statute, §509-a of the Judiciary Law; however, it was suggested that the proper procedure to obtain the information "is by way of application to the Appellate Division", has been appealed to Court of Appeals. Current Law: §87(2)(a)
Newsday v. State Department of Transportation, 10 AD3d 201, 780 NYS 2d 402, affirmed 5 NY3d 84, 800 NYS2d 67 (2005), certiorari dismissed 546 US 930, 126 SCT 410 (2005)--
Records regarding hazardous intersections and highways required to be maintained pursuant to federal law, which states that those records are not subject to discovery or admitted into evidence “in a federal or state court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists or data.” Appellate Division affirmed lower court decision holding that federal statute does not serve as statute that exempts records from disclosure under §87(2)(a) of FOIL when sought by an entity “not engaged in a court proceeding involving an accident occurring at a location mentioned in such data.” Also held that there must be “clear legislative intent” to properly assert that a statute renders records exempt from disclosure, and that Congress demonstrated no such intent. Court rejected argument that federal statute “preempts” state law and found that preemption must be expressly stated or so comprehensive that, implicitly, it occupies the “field” of its subject matter. Court of Appeals affirmed, stating that federal statute restricting use of certain records in litigation “does not render the sought....exempt from disclosure under FOIL.”
Newsday, Inc. v. Commission on Quality of Care for the Mentally Disabled, (pdf) Supreme Court, Albany County, December 22, 1992 --
Central issue related to child abuse records that are confidential under §422 of Social Services Law, and an exception to that statute authorizing disclosure to "any person engaged in a bona fide research purpose." Request was made by reporter, who contended that she engaged in bona fide research. Court disagreed and held that "bona fide research purpose" should be construed to mean "academic, administrative or scientific research for the purpose of ascertaining the causes of child abuse and methods of alleviating or eliminating the problem."
Newsday v. Empire State Development Corporation, 98 NY2d 359, 746 NYS2d 855 ( 2002) -
Newspaper sought subpoenas duces tecum from state agency that had been served on agency by district attorney. Appellate Division held that “subpoena is...a mandate of the court issued for the court” and, therefore is a court record” that “remains a judicial record which need not be disclosed because ‘the judiciary is exempt from the reach of FOIL’”. Court of Appeals disagreed, stating that the state agency “is not part of the judiciary” and must disclose records “irrespective of whether they are deemed to have been a mandate of a court and issued for a court.” Judiciary, i.e., courts, are excluded from FOIL, but court records or any others that come into possession of agency are agency records, citing the “Corning papers” case, Capital Newspapers v. Whalen.
New York, City of v. Bus TOP Shelters, Inc., 104 Misc.2d 702, 428 NYS2d 784 (1980) --
Records in possession of an agency that were compiled for law enforcement purposes by another agency may be denied under §87(2)(e), where appropriate; under the circumstances, records were withheld, for at least one of the conditions under §87(2)(e) regarding records compiled for law enforcement purposes was applicable.
New York City and Vicinity Carpenters Labor-Management Corporation v. State of New York Office of General Services, (pdf) Supreme Court, Albany County, September 18, 2008 --
Request involved certified payroll records relating to private construction company that contracted with OGS to perform construction services at a state facility. OGS withheld names, addresses and social security numbers of employees of company. Citing Committee opinion, court agreed that disclosure would constitute an unwarranted invasion of personal privacy, stating that items withheld are largely irrelevant to compliance with prevailing wage requirements and citing "potential hardship" to private sector employees whose personal data is sought.
New York Civil Liberties Union v. New York City Police Department, (pdf) Supreme Court, New York County, May 7, 2008 --
NYCLU sought Police Department database containing content of 850,000 worksheets involving forcible stops and searches of civilians; worksheets, UF-250's, also known as "Stop and Frisk Report Worksheet"; request specifically excluded "individually identifiable information or other private information", such as, the name of the person stopped, the street address of the person stopped, and the tax ID number of the officer who completed the form." Department "invoked six exemptions but failed to provide any explanation, much less a particularized and specific justification, as to why any of them was applicable to the stop-and-frisk database" and "did not address the feasibility of turning over the requested database with a redaction of the names and personal information of the police officers." Court required disclosure with exception of names and addresses of persons forcibly stopped and the names, addresses and tax ID numbers of the officers who made the stops..." Question: Why should the names of police officers, acting in the performance of their duties, be withheld???
New York Civil Liberties Union v. City of Schenectady, 2 NY3d 657, 781 NYS2d 267 (2004) --
Issue involved access to incident reports prepared by police officers pertaining to the use of force. Initial request not answered by City; no response to appeal. NYCLU brought proceeding, and City contended that reports were same as those found to be exempt in Gannett v. James; both Supreme Court and Appellate Division agreed, holding that denial was “entirely proper”, despite contention that Gould implicitly reversed or modified holding in Gannett.. After brief filed with Court of Appeals, City informed Court that it does not maintain records sought. Court found that “The City’s inconsistent position....creates a quandary” and that decision on the merits is academic. City admitted that it has incident and arrest reports that may include reference to use of force and would be willing to disclose them subject to redaction or in camera review. Court of Appeals found, however, that the denial of the request was “not entirely proper”, stating that “What is clear above all is that the ‘runaround’ must end” and remanding to Supreme Court for in camera review.
New York Committee for Occupational Safety & Health v. Bloomberg, 72 AD3d 153, 892 NYS2d 377 (1st Dept 2010) --
Thoughtful decision involving many components. Issue involved request for data concerning workers’ compensation claims by New York City employees required to be transmitted to Mayor pursuant to City Administrative Code, and requiring Mayor to prepare annual report. Lower court dismissed, finding “rational basis” for city’s contention that disclosure of information would require preparation of information and constitute an unwarranted invasion of personal privacy. Appellate Division found that standard incorrect under FOIL, which is based on presumption of access. Rejected claim that records are exempt from disclosure under 110-a of Workers’ Compensation Law, for that statute pertains only to records maintained by or for Workers’ Compensation Board. Found that disclosure of personally identifying details would constitute an unwarranted invasion of privacy under FOIL, but did not have sufficient information to determine whether disclosure would involve creation of new records or whether City could disclose with “reasonable effort.” Remanded “for a hearing as to whether respondents must produce any records that are electronically stored, and as to whether producing responsive records that are maintained in hard copy would place an undue burden on respondents”.
NY Environmental Law and Justice Project v. City of New York and New York City Police Department, (pdf) Supreme Court, New York County, April 10, 2006 --
Protesters brought to Pier 57 during political convention, and various records were requested due to numerous reports of environmental contamination and illnesses. Held that leases, agreements, stipulations and the like cannot be characterized as having been compiled for law enforcement purposes, but rather were prepared in ordinary course of business. Records relating to medical conditions available following redaction.
New York News v. Grinker, 142 Misc.2d 325, 537 NYS2d 770 (1989) --
Petitioner requested records regarding child abuse case from respondent, who wanted to disclose, but was forbidden from disclosing by Commissioner of State Department of Social Services, citing §§372 and 422 of Social Services Law. Petitioner sought an order declaring that respondent has the power to disclose. Despite disclosure of some records through "leaks", court held that "such breaches by agency or court personnel do not abrogate the confidentiality interest inherent in SSL [§422]. The statute and underlying policy do not permit disclosure". Accordingly, the records were exempted from disclosure by statute under §87(2)(a) of the FOIL.
New York 1 News v. Office of the Borough President of Staten Island, 166 Misc.2d 270, 631 NYS2d 479, affirmed 231 AD2d 524, 647 NYS2d 270 (1996) --
Request involved a "copy of the guilty verdict and investigation of 'racial insensitivity'" against a former employee that was described on television by the Borough President. Supreme Court held that Borough President adopted the findings contained in a memorandum and incorporated them into his determination and that therefore the memo "would no longer qualify as pre-decisional", that ability to withhold was waived, and that agency failed to demonstrate that disclosure of names in the memo would result in an unwarranted invasion of personal privacy. Appellate Division affirmed, stating that Borough President "expressly adopted" investigator's memorandum, that "factual observations are not exempt from disclosure, even in documents issued before decision", and that disclosure would not constitute an unwarranted invasion of privacy, because "employee discipline is clearly relevant to the work of the agency." See also, Professional Standards, Buffalo News v. Buffalo Municipal Housing Auth., Obiajulu, Powhida, LaRocca
New York Public Interest Research Group v. Cohen, 188 Misc.2d 658, 729 NYS2d 379 (2001) --
Database concerning childhood blood level screening included both accessible and deniable items, and NYPIRG sought, in electronic format, only available portions of database. Agency contended that it could not prepare the data “in an electronic format, with individual identifying information redacted, without creating a unique computer program, which the agency is not required to prepare pursuant to Public Officers Law section 89(3)”, but agreed to print out the information at a cost of twenty-five cents per page and redact deniable information “by hand; in that instance, there would be approximately 50,000 pages. Expert witnesses testified that agency “would only be performing queries within [the database], utilizing existing programs and software”, and it was “undisputed that providing the requested information in electronic format would save time, money, labor and other resources – maximizing the potential of the computer age.” Court found that “It makes little sense to implement computer systems that are faster and have massive capacity for storage, yet limit access to and dissemination of the material by emphasizing the physical format of a record....Denying petitioner’s request based on such little inconvenience would violate” FOIL’s policy of maximum access to records. Also found that “To sustain respondents’ positions would mean that any time the computer is programmed to provide less than all the information stored therein, a new record would have to be prepared. Here all that is involved is that DOH is being asked to provide less than all of the available information. I find that in providing such limited information DOH is providing data from records ‘possessed or maintained’ by it. There is no reason to differentiate between data redacted by a computer and data redacted manually insofar as whether or not the redacted information is a record ‘possessed or maintained’ by the agency. Moreover, rationality is lacking for a policy that denies a FOIL request for data in electronic form when to redact the confidential information would require only a few hours, whereas to perform the redaction manually would take weeks or months...and probably would not be as accurate as computer generated redactions.”
New York Racing Association, Inc. v. Division of the Budget, and Franchise Oversight Board, (pdf) Supreme Court, Albany County, March 10, 2010 --
NYRA brought suit to prevent agency from disclosing its proposed budget in response to FOIL request made by Albany Times Union. Court specified that, contrary to NYRA's contention, its review is not "under the 'arbitrary and capricious' standard but, instead … the entity claiming an exemption under FOIL bears the burden of proving entitlement to that exemption". Citing Markowitz, NYRA could not prove how disclosure would cause substantial injury to its competitive position.
New York Racing Association v. Racing and Wagering Board, Supreme Court, New York County, April 10, 2001 --
Board granted request for NYRA’s financial statement, and NYRA sought to block disclosure under the “trade secrets” exception. Held that NYRA’s failure to request that the record be exempted from disclosure pursuant to §89(5) “at the time of submission” to NYRA barred NYRA “from enforcing a statutory right to administrative review.”
NY Racing Association v State of NY Racing & Wagering Board, (pdf) Supreme Court, New York County, NYLJ, August 18, 2008
Request involved bidding correspondence between NYRA and the Board concerning 10 proposed changes to NYRA's NYSRWB approved "above-$250,000 competitive bidding policy, 6 of which were approved and required by law to be submitted. Board found them to be accessible; remaining 4 were not in effect and found to be of no value to competitors. NYRA sued under §89(5) contending that records could be withheld under §87(2)(d), the "trade secret" exception. Citing rationale in Encore, held that all of the correspondence constituted "proprietary trade information" that could enable a competitor to "potentially glean a competitive advantage over NYRA's ability to effectively continue its operations, renew its franchise and revive itself from the throes of bankruptcy."
New York Regional Interconnect, Inc. v. Oneida County Industrial Development Agency and Observer Dispatch, as Intervenor, Supreme Court, Oneida County, February 28, 2007 --
Petitioner sought to enjoin IDA from disclosing information in a lease agreement. Despite Committee opinion, Court granted standing to the petitioner. At issue was disclosure of information regarding option fees in the lease agreement between private parties and the assertion of trade secret exception, §87(2)(d). Court held that option could be estimated through review of other records, that petitioner could not prove that information at issue was of value to competitors, and that it was not in the nature of a trade secret. Court referred to concepts of “horizontal competition” in which there is direct competition with a rival or rivals within an area of commerce, and “vertical competition”, as argued by petitioner, involving “tangential economic consequences” of disclosure, i.e., “companies it contracts with for goods or services or provides services to or other entities or individuals it will be negotiating with to bring to fruition this or other projects.” Held that trade secret exception properly applied regarding horizontal competition, but rejected contention regarding vertical competition. Granted access.
New York State Rifle and Pistol Association, Inc. v. Kelly, 55 AD3d, 863 NYS2d 439 (2008) --
Request for list, in digital format, of names and addresses of all pistol licensees in New York City. Lower court granted access; Appellate Division reversed, citing §89(2)(b)(iii) concerning unwarranted invasion of privacy when list of names and addresses is sought for commercial (now "solicitation", see Ch. 223, L. 2008) or fund-raising purposes. Found that "given the nature and format of the information sought and the petitioner's organizational purpose, a reasonable inference can be drawn that the petitioner sought a copy of the digital list both to advertise, and build its not-for-profit organization by soliciting new members" and that "The invasion of privacy argument here" is founded "upon the invasive use of the digital list to solicit the licensees for fund-raising purposes." See Federation of NY Rifle & Pistol Clubs; Data Tree; Kwitny
State United Teachers v. Brighter Choice Charter School, 15 NY3d 560, 915 NYS2d 194 (2010) --
Charter schools agreed to provide titles and salaries of its employees but withheld names. Court of Appeals found that charter schools "are clearly subject to FOIL", and that those schools are required to maintain a payroll record that includes "the name, public office address, title and salary of every officer or employee..." However, because NYSUT sought the list to solicit employees, the court upheld the denial based on section 89(2)(b)(iii), which states that disclosure of a list of names and addresses that would be used for solicitation or fund-raising purposes may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy. (Dissent in 4-3 decision seems to be closer to judicial precedents distinguishing between privacy of private citizens and public employees.)
New York Times Company v. City of New York Fire Department, 4 NY3d 477, 796 NYS2d 302 (2005) --
Request involved transcripts of interviews conducted by the Department with its employees concerning the events of 9/11 (the “oral histories”), and all tapes and transcripts of radio communications involving any Department personnel starting at the time of the attack. Those latter records included calls made by members of the public in the Twin Towers and those on the Department’s internal communications system involving its employees. Due to “extraordinary facts in this case”, held that records indicating words spoken by persons in Twin Towers could be withheld as unwarranted invasion of personal privacy: “Almost everyone, surely, wants to keep from public view some aspects not only of his or her own life, but of the lives of loved ones who have died. It is normal to be appalled if intimate moments in the life one’s deceased child, wife, husband or other close relative become publicly known, and an object of idle curiosity or a source of titillation.” Words of people confronted with imminent death “are likely to include expressions of the terror and agony the callers felt and of their deepest feelings about what their lives and their families meant to them.” A grieving family “might be deeply offended” if words can be heard on TV or read in a newspaper. Court specified that not all 911 records are necessarily exempt, but that those at issue are due to the unequaled public attention in the event. Dissenting opinion suggested that tapes or transcripts be made available following redactions made to protect privacy.
Dispatch calls made within the Department were “intra-agency materials”, and Court held that the point of the exception “is to permit people within an agency to exchange opinions, advice and criticism freely and frankly” and that purpose “applies not only to comments made in the official policy meetings and well-considered memorandums, but also to suggestions and criticisms offered with little chance of reflection in moments of crisis.”
Oral histories found to be available, with exception of portions that “are exceedingly personal in nature”, for purpose of the oral histories is that employees’ words “are intended to be passed on verbatim to the world at large.” Since they were intended to be an “historical record” exception involving intra-agency materials was not applicable.
Agency could not demonstrate that six tapes intended to be used by US Justice Dept. in trial of Moussaoui fell within law enforcement exception, §87(2)(e)(i) or (ii). However, due to importance of the need for a fair trial, court delayed disclosure to give Justice Dept. an opportunity to provide a valid reason for withholding to Supreme Court.
New York Times Company v. New York State Department of Health, 243 AD2d 157, 674 NYS2d 826 (3rd Dept 1998) --
Requests for data contained within "SPARCS" system initially withheld, and lower court found that personally identifying data could be withheld, but that data concerning physicians, hospitals and insurers must be disclosed. In so holding, found that Department's regulations were void insofar as they were inconsistent with FOIL. On appeal, only issue involved disclosure of names of physicians. App. Div. affirmed, stating that even if physician data is combined with other disclosable data, disclosure would not constitute an unwarranted invasion of personal privacy; mere speculation was not enough to justify a denial of access.
New York Veteran Police Association v. New York City Police Department Article I Pension Fund, 61 NY2d 659, 472 NYS2d 85 (1983) --
Petitioner, a not-for-profit corporation sought list of names and addresses of retirees of New York City Police Department receiving pensions and annuities; Court of Appeals denied access based upon amendment to Freedom of Information Law stating that nothing in the Law requires the disclosure of the home address "of an officer or employee, former officer or employee, or of a retiree of a public employees' retirement system". Current Law: §89(7)
Niagara Environmental Action v. City of Niagara Falls, 100 AD2d 742, 473 NYS2d 653 (4th Dept 1984) --
Petitioner sought reports, analyses, records of soil borings regarding a drinking water treatment plant prepared by a consulting firm; the respondent failed to provide reasons for a denial and the court found that petitioner was deemed to have exhausted administrative remedies; court rejected contention that the records were confidential as they consisted of material prepared for litigation, found that an agreement of confidentiality could not stand, and that the materials were of a factual nature; Appellate Division modified by disallowing attorney fees awarded by Supreme Court. Current Law: §§89(4)(a), 87(2)(a) and 89(4)(c); see also Floyd v. McGuire and Burke v. Yudelson
Niagara Mohawk Power Corporation v. NYS Department of Environmental Conservation and Long Lake Energy Corporation, (pdf) Supreme Court, Albany County, July 18, 1989 --
Petitioner sought to annul agency's determination that report it submitted constituted a trade secret. Report submitted to agency as part of application for water quality certification, which was needed to obtain a hydroelectric license. Court held that the report is not a trade secret, for it has no independent commercial value, disclosure would not held a competitor produce power more cheaply or efficiently, because "secrecy over facts relating to the environmental soundness of property" belong to the state "would be contrary to public policy", and because the "'monopoly' by which petitioner alone is able to control the flow of the river is not the type of interest protected by the trade secret exemption in Section 87(2)(d)."
North Star Contracting Corp. v. Department of Public Service, (pdf) Supreme Court, Albany County, April 24, 1985 --
North Star entered into agreement with Consolidated Edison, and litigation arose between them. Thereafter, Con Ed sent certain records to Department in response to inquiry by Department as regulator. Northstar requested those records. Held that the documents "were prepared for litigation and, as such, are privileged. In addition, the exemption accorded such privileged documents was not waived by Con Ed when it responded to the direction of the Public Service Commission....This is true particularly in light of the fact that Con Ed had specifically reserved its privilege when it submitted such documents pursuant to a directive of the Commission."
Norton v. Town of Islip, (pdf) Supreme Court, Suffolk County, December 15, 2003 --
Records sought included retainer agreements, records of payments, billing invoices involving town and outside law firms retained to defend Town in action brought by Norton in federal court under Civil Rights Act claim that due process rights violated when Town revoked right to maintain legal nonconforming use of property. Agency delayed and denied access to records sought, but disclosed a figure reflecting total expenditures by Town. Town contended that it complied by so doing and denied access to records sought based on claim of attorney-client privilege. Court disagreed, citing Priest v. Hennessey [ 51 NY2d 62, 69], which held that “The fee arrangements between attorney and client do not ordinarily constitute a confidential communication and, thus, are not privileged in the usual case.” Note: Norton recently granted approx. $300,000 in actual damages; punitive damages, if any, yet to be determined.
Orange County Publications v. Kiryas Joel Union Free School District, 282 AD2d 604, 724 NYS2d 167 (2nd Dept 2001) --
Appellate Division reversed lower court holding that statute of limitations had run, finding that agency failed to advise petitioner of right to administrative appeal and failed to demonstrate that procedures for appeal had been established, even though petitioner “was aware, in theory” of right to appeal; also found that one person could not serve as records access and appeals officer.
Orange County Publications, Inc. v. County of Orange, 168 Misc.2d 346, 637 NYS2d 596 (1995) --
County was represented in a lawsuit by outside counsel, and newspaper requested invoices, bills, vouchers, etc. submitted to the County by the law firm "justifying and itemizing the expenses". Itemization was withheld on the basis of attorney-client privilege. Second request made for detailed monthly vouchers and similar records. Court distinguished between privileged communications and "descriptions" of those communications and held that they may be withheld only if they are so detailed that they are essentially "protected communications"; held that there is nothing in FOIL to the effect that "the existence of pending litigation somehow creates a complete bar to disclosure"; that attorney work product is "uniquely the product of the professional skills" of an attorney, not the bills prepared by an attorney; and that the records constitute factual tabulations. Court would review records in camera to determine whether attorney's fees should be awarded. See also Knapp, Steele, Farbman, Dunlea, Weston.
O'Shaughnessy v. New York State Division of State Police, 202 AD2d 508, 609 NYS2d 18 (2nd Dept 1994) --
Petitioner was informed that his application for NYS trooper would no longer be considered because he did not meet requirements and sought "the specifics of why" he was rejected; later requested all records relating to his job application. Held that agency is not required to create a record indicating more specifics where none exist; found that records fell within §87(2)(g) and consisted of opinions, advice, evaluations, etc., and that records were public safety agency record beyond rights of access conferred by the Personal Privacy Protection Law.
City of Oswego v. Sinnott, Supreme Court, Albany County, April 10, 2000 --
Persons denied access following appeal generally have four months to initiate Article 78 proceeding to seek judicial review. Held, however, that under §89(5)(c), which is part of the special trade secret procedure, both parties, the firm resisting disclosure and the person seeking records whose request has been denied, have fifteen days to initiate such a proceeding.
Town of Oyster Bay v. Williams, 134 AD2d 267, 520 NYS2d 599 (2nd Dept 1987) --
Opinions, advice, recommendations, evaluations and the like were found to be deniable under §87(2)(g) following in camera inspection. Current Law: §87(2)(g); see also McAulay P., John v. Whalen, 75 AD2d 1021 (1980), affirmed 54 NY2d 89 (1981) --
In proceedings arising out of charges of professional misconduct, court denied access to statements made by patients treated by applicant, notes and memoranda of investigating committee from interviews with patients, statements by other physicians regarding charges; deniable under Freedom of Information Law due to statutory exemption under Public Health Law, § 230; Court questioned authority of Committee to render opinions after determination on appeal has been rendered; Committee opinions not binding, should be given weight when in agreement with agency determination. Current Law: § 87 (2) (a), 89 (1) (h)
Palomino v. Gill, (pdf) Supreme Court, New York County, July 12, 2004 --
Issue involved access to copy of settlement agreement executed after a rent strike; agreement included a confidentiality clause exempting the agreement “pursuant to the public interest exception to the Freedom of Information Law.” Citing Doolan, court held that agency offered “absolutely no legal support for its position that the Settlement’s confidentiality clause trumps FOIL” and that “Case law- from this State’s highest authority- compels the exact opposite result.” Costs awarded to petitioner.
Pasik v. State Board of Law Examiners, 102 AD2d 395, 478 NYS2d 270 (1st Dept 1984) --
Held that Board of Law Examiners exercises a judicial function, is part of the "judiciary" and, therefore, is outside the scope of the Freedom of Information Law; has been appealed. Current Law: §86(1) and (3)
Passino v. Jefferson-Lewis, 277 AD2d 1028, 716 NYS2d 229, appeal denied 96 NY2d 709, 725 NYS2d 639 (2001)
Municipal cooperative benefit plan established by public educational institutions to provide health insurance benefits to employees and retirees of those institutions pursuant to a municipal cooperation agreement under §4702(d) of Insurance Law found to be an “agency” subject to the Freedom of Information Law. However, “by legislative design”, it is a “commercial enterprise”, and the records sought found to be deniable based on substantial competitive injury. Citing Encore, held that the Freedom of Information Law would be “sole means by which competitors can obtain the requested information”, and , therefore, “ the inquiry ends [t]here.”
Paul Smith's College of Arts and Science v. Cuomo, 186 AD2d 888, 589 NYS2d 106 (3rd Dept 1992) --
Petitioner was subject of complaint alleging age discrimination and engaged in stipulation of settlement prior to hearing in order to "eliminate any negative publicity." Thereafter, however, agency issued news release detailing charges and indicating that settlement had been reached. Court held that disclosure was arbitrary and abuse of discretion, but reversed order enjoining disclosures made pursuant to requests under the FOIL.
Pennington v. Calabrese, 4 AD3d 778, 771 NYS2d 422 (4th Dept 2004) --
Wife of inmate convicted of murder requested photograph of assistant county medical examiner who testified concerning autopsy performed on murder victim, but who allegedly did not perform the autopsy. Held that conclusory statement that photo was “inherently personal” insufficient to deny access as unwarranted invasion of personal privacy and rejected contention that disclosure “would inherently endanger his life or safety.” “While a photograph of a county employee is personal in nature, it cannot be said that the photograph is not relevant to his or her employment.” Appellate Division unanimously affirmed in one sentence.
Pennington v. Clark, 1 AD3d 912, 767 NYS2d 718, following remand, appeal and cross appeal 16 AD3d 1049, 791 NYS2d 774 (4th Dept 2005) --
Petitioner and her husband each filed requests for records concerning investigation leading to his conviction. Same court upheld denial of husband’s request, and this court reversed lower court decision on the merits without first determining whether proceeding was timely commenced. Lower court held that it saw no reason in considering timeliness issue because nothing would preclude her from submitting a subsequent FOIL request and initiating a separate proceeding. Appellate Division disagreed, citing Greene holding that “If two FOIL requests are duplicative, the court may dismiss the proceeding challenging a determination of the latter request, as a belated attempt to seek judicial review of the denial of the first request.” Remanded to Supreme Court for its determination regarding issue of timeliness; original order modified and held that initial proceeding was timely commenced, upheld grant of access to autopsy photographs to petitioner, for she had a “substantial interest” in accordance with §677 of the County Law, granted access to videotapes of news broadcasts, even though they did not originate with the agency and upheld denial of access to “information attributed to non-witnesses” on ground that disclosure would constitute an unwarranted invasion of personal privacy.
Pelt v. Police Department, City of New York, 258 AD2d 382, 685 NYS2d 687 (1st Dept 1999) --
“...this second article 78 proceeding constituted an improper attempt by petitioner to relitigate his prior article 78 proceeding”, which was dismissed as time barred.
Perez v. City University of New York, 5 NY3d 522, 806 NYS2d 460 (2005) --
Court of Appeals found that pursuant to §87(3)(a) of FOIL, a public body cannot take action by secret ballot.
Person - Wolinski Associates v. Nyquist, 84 Misc.2d 930, 377 NYS2d 897 (1975) --
Lists of applicants for New York State CPA examinations denied on the ground that disclosure would constitute an unwarranted invasion of personal privacy, for list would be used for commercial purpose; list denied notwithstanding prior practice of making it available prior to passage of Freedom of Information Law; earlier practice did not establish a right. Original Law: § 88 (3) (d)
Physicians Committee for Responsible Medicine v. Hogan, 29 Misc.3d 1220(A), 918 NYS2d 400 (2010)
Animal Rights group requested various records from the Office of Mental Hygiene concerning the work since 2000 of specified researchers employed by that agency. Court rejected contention that disclosure could endanger life or safety, despite history of violence on part of activists. Names and work of researchers was well known, and agency could not demonstrate likelihood of harm; held that privacy exception inapplicable, except for precise contact information, such as room and floor numbers. Contrary to other decisions, held that unfounded allegations of misconduct also public, for there was no proof that researchers' reputations would be damaged or that disclosure would result in personal or economic hardship. Held that section 6527 of Education Law inapplicable, for it exempts records relating to quality assurance functions regarding patients by hospitals and health care providers. Insufficient proof regarding trade secret exception.
Pittari v. Pirro. 258 AD2d 202, 696 NYS2d 167 (2nd Dept 1999) –
Issue “is whether a defendant in a pending criminal proceeding may seek disclosure under the FOIL...of records compiled for law enforcement purposes ‘pertaining to the arrest and prosecution’ of the defendant.” Held that requests could properly be denied under §87(2)(e)(i) “while the criminal proceeding was still pending.” Cited several federal court decisions, and notwithstanding Gould, found that “a generic determination could be made that disclosure under FOIL would cause interference”, also seems to conflict with Legal Aid Society v. NYC Police Department.
S.W. Pitts Hose Company v. Capital Newspapers, Supreme Court, Albany County, January 25, 1988 --
Court held that volunteer fire companies are "agencies" subject to the Freedom of Information Law. Court cited advisory opinion of Committee. See Westchester Rockland Newspapers v. Kimball.
Planned Parenthood of Westchester, Inc. v. Town Board of Town of Greenburgh, 154 Misc.2d 971, 587 NYS2d 461 (1992) ---
Not-for-profit corporation sought names, addresses and photographs people arrested during an abortion protest; several of the arrests were dismissed, and records sealed and photographs returned pursuant to Criminal Procedure Law, §160.55; remaining cases were pending and although photos were compiled for law enforcement purposes, no support was given for claim that disclosure would interfere with investigation or deprive person of right to fair trial under §87(2)(e)(i) or (ii); Court also found that disclosure would not result in unwarranted invasion of personal privacy and that nothing in the record supported claim that disclosure would result in "economic or personal hardship".
Polansky v. Regan, 81 AD2d 102, 440 NYS2d 356 (3rd Dept 1981) --
Data contained in a document entitled "Budget Examiner's Worksheet" which is considered an estimate or recommendation is not "automatically excluded from disclosure". In camera inspection made to determine extent to which materials consisted of statistical or factual data; court stressed that portions of record may be accessible or deniable, depending upon contents. Current Law: §87(2)(g)
Powhida v. City of Albany, 147 AD2d 236, 542 NYS2d 865 (3rd Dept 1989) --
Off-duty police officer entered petitioner's home without permission to conduct a termite inspection. Petitioner filed a complaint regarding officer's conduct and later requested records of the officers who were investigated, rules found to have been violated, the discipline imposed and the officer's work schedule, on day of the incident. Request, except for the work schedule was denied based on §50-a of the Civil Rights Law. Following issuance of advisory opinion by the Committee on Open Government advising that the records should be disclosed, petitioner commenced a proceeding. Thereafter, the agency disclosed and sought stipulation of discontinuance. Petitioner refused and sought attorney's fees. Court rejected respondent's contention that petitioner "cannot be deemed to have substantially prevailed since the documents were released before any defense was asserted", stating that such a defense would be "irrational" and allow an agency to "moot" a proceeding and preclude an award of attorney's fees by disclosing the records. Court also found that agency lacked a reasonable basis for withholding, citing Capital Newspapers v. Burns, for records were not sought in the context of litigation; see also, Kline v. Fallows.
Pride International Realty LLC v. Daniels, 4 Misc.3d 1005A, 791 NYS2d 873 (2004) --
Pride is real estate broker licensed by Department of State that came under investigation following Department’s receipt of complaint regarding its business practices. Request for complaint denied on basis of §87(2)(e)(i), enabling an agency to deny access to records “compiled for law enforcement purposes” when disclosure would interfere with law enforcement investigations or judicial proceedings.” Petitioner contended that Department of State is not a criminal law enforcement agency and cannot rely on that exception, citing Young, a decision rendered under the original FOIL in 1976. Court found that term “enforcement” is used in NY statutes to apply civil as well as criminal enforcement and held accordingly. Cited Committee opinion and held that “limiting the phrase ‘law enforcement purposes’ to criminal investigations could substantially hamper the important responsibilities of administrative agencies and the New York State Attorney General to enforce civil law and administrative regulations, so many of which can be crucial to the health, safety and well being of the State and its citizens.” Department indicated that records would be made available after completion of investigation, subject to any other applicable exception. Court ordered in camera inspection.
Prisoners' Legal Services of New York v. NYS Department of Correctional Services, 73 NY2d 26, 538 NYS2d 190 (1988) --
Inmate grievances against correction officers and the administrative decisions relating to the grievance found to be exempt under §50-a of the Civil Rights Law. Held that "Documents pertaining to misconduct or rules violations by correction officers - which could or will be used in various ways against the officers - are the very sort of record which, the legislative history reveals, was intended to be kept confidential", and that 50-a is intended "to prevent release of sensitive personnel records that could be used in litigation for the purpose of harassing or embarrassing correction officers." See Capital Newspapers v. Burns, Powhida
Professional Standards Review Council of America Inc. v. NYS Department of Health, 193 AD2d 937, 597 NYS2d 829 (3rd Dept 1993) --
Agency sought requests for proposals (RFP's) inviting bids for AIDS Intervention Management System. Two proposals were received, and in conjunction with criteria for selection indicated in RFP, an agency review committee analyzed proposals and "gave a score" prior to awarding contract. Losing bidder requested various records, was denied initially pursuant to §87(2)(c) and (g). Following initiation of suit, some records disclosed, §87(2)(c) argument was dropped, but §87(2)(d) was added. Held that there was no showing that records are "trade secrets" or that disclosure would cause substantial injury to winning bidder's competitive position or that winning bidder "had any reasonable expectation of not having its bid open to the public." Also held that "rating sheets" consisted of "backup statistical and factual data" that were available, but that "subjective comments, opinions and recommendations" could be withheld under §87(2)(g). See also, Dunlea, Contracting Plumbers, Washington Post.
Purcell v. Jefferson County District Attorney, 77 AD3d 1328, 909 NYS2d 238 (4th Dept 2010) –
Upheld lower court decision that found that petitioner had right to initiate proceeding due to agency’s failure to inform her of right to appeal and that she exhausted administrative remedies through request that second letter be treated as an appeal. Also found that award of attorney’s fees was proper, for agency had no reasonable basis for denying access to majority of records sought and failed to respond within statutory time limits, and that award did not involve an abuse of discretion on part of lower court.
Quirk v. Evans, 116 Misc.2d 554, 455 NYS2d 918 (1983) --
Since the Office of Court Administration is an "agency" subject to the Freedom of Information Law, it must create a subject matter list and promulgate regulations as required by §87(3)(c) and 87(1)(b). Petitioners' status as union representatives does not diminish their rights under the Freedom of Information Law. See also Babigian.
Rabinowitz v. Hammons, 228 AD2d 369, 644 NYS2d 726 (1st Dept 1996) --
Petitioner, an academic researcher, sought intake referral forms in redacted form from the Visiting Psychiatric Service, a unit of the Office of Health and Mental Health Services. Agency withheld pursuant to §§136 of the Social Services Law and 18 of the Public Health Law. Supreme Court ordered disclosure following deletion of personal and identifying information. Appellate Division reversed, citing §87(2)(a) of FOIL and Short and holding that the records are exempt from disclosure in their entirety.
Rankin v. City of New York Department of Information Technology & Telecommunications, (pdf) Supreme Court, New York County, January 28, 2009 ---
Agency denied request for “map of the entrance and exit points to subways, bus stops, the path train and other transit points in a Shapfile format, specifically ESRI SHP” on basis of §87(2)(f) and contention that disclosure could endanger life or safety. Request was modified following initiation of proceeding to exclude “data related to top secret New York City Police Department locations, communications infrastructure, power conduit clusters and the like.” Based on that modification designed to exclude items that might endanger public safety, court ordered that those redacted items be disclosed and thereafter engage in “a compliance conference to address any issues that might be left unresolved by the records so disclosed.”
Rattley v. New York City Police Department, 96 NY2d 873, 730 NYS2d 768 (2001) --
Issue involved certification by agency that records could not be found. Effectively nullifying holdings in Key and Sanders, Court of Appeals held that the Freedom of Information Law “does not” specify the manner in which an agency must certify that documents cannot be located. Neither a detailed description nor a personal statement from the person who actually conducted the search is required. Averring that records that could be located were disclosed and that it had conducted a diligent search was adequate.
Reese v. Mahoney, (pdf) Supreme Court, Erie County, June 28, 1984 ---
Petitioners requested "voter history computer tapes with phone numbers for all registered voters for all townships and cities in Erie County". Respondents offered a tape containing different information at a cost of $600, payable by certified check; also, a local law contained an appeal procedure additional to that described in §89(4)(a) of the Freedom of Information Law; held that the tape sought was a "registration poll record" available under the Election Law; phone numbers available even though not required to be maintained; must be made available for $125, the actual cost of reproduction, and the County required to accept U.S. currency; also found that County's multi-tiered appeal procedure was void, for it conflicted with Freedom of Information Law. Current Law: §89(4)(a); see also Farbman and Szikszay.
Riley-James v. Soares, 33 AD3d 1171, 825 NYS2d 151 (3rd Dept 2006) --
Petitioner, convicted of various crimes, requested copies of any documents pertaining to promises made or funds given to witnesses at his trial and any documents pertaining to proposed plea agreements; request was denied and lower court dismissed. Appellate Division found that none of the requests appear to come within any statutory exemptions and that although District Attorney “‘contends in his brief that the materials requested were provided to petitioner’s then defense counsel,” affidavit “provides only that petitioner ‘has failed...to come forward with an adequate showing that the records requested are no longer available through [his] criminal defense counsel.’ This is far from a sworn assertion that the requested materials indeed were turned over to defense counsel and certainly fails to demonstrate, through documentary proof, that copies of such documents were previously furnished to defense counsel.” Agency must provide sworn statement that requested materials were turned over to defense counsel to prove that documents were previously furnished. Agency cannot rely merely on petitioner’s failure to show that requested records are no longer available through his criminal defense counsel. See Moore
Robertson v. Chairman of NYS Board of Parole, 122 Misc.2d 829, 471 NYS2d 1015 (1984) ---
Parolee requested records, was not answered within five business days and commenced judicial proceeding; held that, although he was constructively denied, petitioner did not appeal and, therefore, did not exhaust his administrative remedies. Current Law: §89(4)(a)
Rockland County Patrolmen's Benevolent Association v. Collins, 225 AD2d 534, 638 NYS2d 747 (2nd Dept 1996) --
Public Health Law §18(6) states that patient information disclosed by a health care provider to a third party must be kept confidential by the party receiving the information and that agency violated that statute by releasing medical records to NYS Retirement System without authorization.
Rodriguez v. Johnson, 17 Misc.3d 1120(A), 851 NYS2d 73 (2007) --
Videotaped statements of witnesses were viewed in camera by court, which held that District Attorney did not meet burden of proof; was not an unwarranted invasion of personal privacy, for disclosure would not be “offensive and objectionable to a reasonable person of ordinary sensibilities;” could not claim “public safety exemption” under §87(2)(f), for such claim “can not be based on mere speculation”; no basis for claim of “public interest privilege.”
Rold v. Coughlin, 142 Misc.2d 877, 538 NYS2d 896 (1989) ---
Request involved access to forms involving medical treatment of inmates specified that identifying details be redacted. Court held that disclosure would not constitute an unwarranted invasion of personal privacy if identifying details are deleted and that records could not be withheld as intra-agency materials because they are "generally available to individual patients who might seek the them", and "are not deliberative material but instead constitute an official record of patient care." Court granted attorney's fees in the amount of $7,500.
Romero v. Morales, (pdf) Supreme Court, New York County, June 25, 2007 --
Decisions refers to various proceedings involving FOIL requests by inmate to District Attorney beginning in 2003. Several holdings: due to failure of District Attorney to inform petitioner of right to appeal, petitioner “should be permitted to appeal;” petitioner’s affidavit validly established that records previously disclosed “are no longer available to him.” Although District Attorney interpreted request to involve one document, court found that request involves all records relating to case, that request reasonably described records, citing Konigsberg, that District Attorney “did not seek clarification of Petitioner’s request even though this proceeding has been pending since 2004 and the FOIL request was made over three years ago” and that, therefore, “petitioner should not be required to begin the process anew by serving another FOIL request.” Agency ordered to respond to request for all records in petitioner’s case files.
Ruberti, Girvin & Ferlazzo v. NYS Division of State Police, 218 AD2d 494, 641 NYS2d 411 (3rd Dept 1996) --
Held that test scores on promotional exams taken by state troopers and discrimination complaints filed against troopers are personnel records exempt from disclosure under §50-a of the Civil Rights Law, but that records indicating employees' educational background had to be disclosed, for disclosure would not result in unwarranted invasion of privacy; also held that disclosure of "the troop, zone and station assignments of each of sworn members could endanger the life and safety of those officers", citing §872)(f) and stating that the agency need only demonstrate "a possibility of endangerment" to invoke that exception. Also held that disclosure of station assignments of police officers would endanger life or safety and deniable under §87(2)(f). See Prisoners' Legal Services, Dobranski, Connolly
Rumore v. Board of Education of the City School District of Buffalo, 35 AD3d 1178, 826 NYS2d 545, appeal denied 8 NY3d 810, 834 NYS2d 506 (2007) --
Education Innovation Consortium, Inc., ( EIC), a not-for-profit corporation whose budget is not approved by government, has a “self-elected board” , and no government role in hiring or disciplining employees, is not an agency and, therefore, is not subject to FOIL. School district had no obligation to acquire records from EIC to comply with request.
Russo v. Nassau County Community College, 81 NY2d 690, 603 NYS2d 294 (1993) --
Court of Appeals reversed Appellate Division and held that "film and filmstrips used by a professor in a course given in a public college constitute 'agency records' subject to FOIL" disclosure. Rejected contention that college's faculty committees and academic components are not subject to FOIL when performing an educational function; found that purpose for which documents were created or their function are irrelevant -- all are "records"; also referred to inter-agency materials as "'deliberative material', i.e., communications exchanged for discussion purposes not constituting final policy decisions"; held that none of the exceptions applied; referred to Committee opinion. See Capital Newspapers v. Whalen, Xerox
Ryan v. Mastic Volunteer Ambulance Corp., 212 AD2d 716, 622 NYS2d 795, appeal denied 88 NY2d 804, 645 NYS2d 446 (1996) --
Held that a volunteer ambulance company that performs its duties solely for an ambulance district, which is a municipal entity, and a town is an "agency".
Sagaponack Homeowners Assoc. v. Town of Southampton, (pdf) Supreme Court, Suffolk County, NYLJ, September 29, 1998 --
Involved request for building plans relating to a mansion, and issue involved copyright protection and possible injury to competitive position of copyright holder. Court cited Committee opinion advising that Copyright Act cannot be considered an exemption statute and agreed; found that claim that disclosure would cause injury to competitive position under §87(2)(d) was conclusory; same regarding claim under §87(2)(f) regarding endangerment; court scheduled hearing to determine the extent, if any, to which burden of proof could be met regarding claims of harm and to establish parameters of fair use under copyright principles, if necessary.
People v. Sajous, 80 Misc.2d 693, 695 NYS2d 471, appeal denied 93 NY2d 1026, 697 NYS2d 585 (1999) --
Defendant charged under Vehicle and Traffic Law sought to suppress information contained in DMV abstract, but court held that there was no “legitimate expectation of privacy in the DMV file searched and society would not accept such as expectation as objectively reasonable.” Superseded by Federal Driver’s Privacy Protection Act 180 USC §2721.
Sambucci v. McGuire, (pdf) Supreme Court, New York County, Nov. 4, 1982 ---
Court held that agency could require payment in advance following a request for a voluminous number of records.
Samuel v. Mace and Penfield Central School District, (pdf) Supreme Court, Monroe County, December 18, 1991 --
Applicant was denied access to District mailing list of households sought in form of mailing labels; Court found that list was not requested for commercial or fund-raising purpose, that it was not a list of students or their parents that would be exempt under FERPA, that "Whatever manner the respondent is able to extract the information for its own mailing in connection with mailing labels should be made available"; court awarded attorney's fees. See also, Brownstone (1)
Santomero v. Board of Education of the Bedford Central School District, (pdf) Supreme Court, Westchester County, March 31, 2009 --
Superintendent hired via five year contract resigned in less than a year, and parties agreed to a settlement. Draft disciplinary charges were never filed nor proven, and court held that disclosure would constitute an unwarranted invasion of personal privacy and as intra-agency material. Also held that “Factual observations are not exempt from disclosure even in documents issued before final decision.”
Save Our Stores Association v. Yonkers Industrial Development Agency, (pdf) Supreme Court, Westchester County, September 10, 2003 –
Held that Yonkers Baseball Development Inc. is an agency subject to FOIL because it “was created by and is totally controlled by the Yonkers Industrial Development Agency (“YIDA’), which itself is an ‘agency’ under FOIL and...has as its Chairman, Vice-Chairman and Executive Director the Mayor and Deputy Mayor of Yonkers and the Vice Chairman of YIDA, respectively.” Cited opinion of Committee.
Scarola v. Morgenthau, 246 AD2d 417, 668 NYS2d 174 (1st Dept 1998) --
Petitioner entitled to records previously made available to his attorney based on "satisfactory proof that his former attorney did not provide him with the documents, was no longer in possession of them and is no longer practicing law and has been disbarred." Upheld denial of statements made by informants based on considerations of privacy, safety and identification of confidential sources. See Key, Thomas, Moore and Swinton
Schanbarger v. New York State Commissioner of Social Services, 109 AD2d 1037, 487 NYS2d 156, appeal denied 65 NY2d 604, 493 NYS2d 1026 (1985) ---
Court dismissed petitioner's causes of action relating to the Commissioner's refusal to grant access to all copies of fair hearing decisions since January, 1980. Commissioner rationally and reasonably compiled with §89(3) by offering to make the voluminous records available on business days between 8:30 a.m. and 5:00 p.m.
Henry Schein, Inc., v. Eristoff, 35 AD3d 1124, 827 NYS2d 718 (3rd Dept 2006) --
Petitioner, the subject of an audit, requested all documentation utilized or prepared by the Department of Taxation and Finance during the audit. Initially, the Department provided 1,121 pages of documents but withheld 297 as exempt, for specified reasons. As the result of an administrative appeal, the Department provided petitioner with an additional 5 pages of documentation. Petitioner commenced Article 78 proceeding, and at oral argument, the Department disclosed an additional 101 pages. After an in camera review of the remaining 181 pages, Supreme Court directed the Department to disclose 17 additional pages. The Supreme Court denied petitioner’s request for counsel fees. Appellate Division affirmed, finding no abuse of discretion, and citing Beechwood, Beyah and Grace, agreed with Supreme Court that case-specific documents are not of significant interest to the public in general. “Further, the court’s decision to order the release of 17 pages of the remaining 181 pages in dispute, does not, in our view, necessarily indicate that petitioner ‘substantially prevailed’ in the dispute or that the Department lacked a reasonable basis for withholding them.”; Note: Court likely should have relied on new provision regarding award of attorney’s fees.
City of Schenectady v. O'Keeffe, 50 AD3d 1384, 856 NYS2d 281 appeal denied 11 NY3d 702, 864 NYS2d 389 (2008)
Niagara Mohawk was granted a special franchise allowing it to occupy and use public rights of way within the City of Schenectady for the transmission of electricity and gas to customers and is required to provide the Office of Real Property Services (ORPS) with cost and inventory data identifying and tracking all of its assets used along the right of way. ORPS prepared an assessment of the value of the franchise, and Niagara Mohawk, pursuant to §89(5) of FOIL asked that it be exempted from disclosure. City sought those records. Court determined that data "has significant commercial value not only to the utility, but to potential competitors as well” and is used in part to determine the regulated rate that the utility may charge.
Schenectady County Society for the Prevention of Cruelty to Animals v. Mills, 74 AD3d 1417, 904 NYS2d 512 (3rd Dept 2010) --
Request involved names and addresses of all licensed veterinarians and veterinary technicians located in Schenectady County. Although names were provided, street addresses withheld as unwarranted invasion of personal privacy. Education Department asserted that it is unable to distinguish whether licensee has supplied a business or home address. Referred to and agreed with Committee opinion advising that business address "would not implicate personal privacy" and must be disclosed. Lengthy dissent. Questionable whether Court of Appeals will affirm in consideration of Brighter Choice.
Schuldiner v. City University of New York, (pdf) Supreme Court, Richmond County, NYLJ, September 13, 1999 –
Based on Smith v. CUNY, held that College of Staten Island Association is a “public body” subject to OML and an “agency” subject to FOIL. Court overturned Association vote to ban use of tape recorders, despite Association’s concerns that “the tape recordings could be used against them in litigation”; for purposes of FOIL, held that vote by secret ballot was prohibited and that record of votes must be prepared to comply with §87(3)(a). Court rejected request for attorney’s fees for “there was a reasonable basis for withholding the record at the time the request was made…because none existed.” Also rejected request for attorney’s fees under §107 of the OML because Smith had not yet been decided at the time of the meeting at issue; as such, the violation of the OML was neither “intentional or flagrant.”
Schulz v. NYS Board of Elections, (pdf) Supreme Court, Albany County, September 7, 1995 --
Petitioner, an independent candidate for Governor, sought an injunction precluding the agency from furnishing computerized election and enrollment records to major political parties under the Election Law on a different basis from himself. Court used FOIL as the basis for determining the fee for duplication and held that the charge could not exceed the actual cost of reproduction, which could include "only the most direct of costs involved in such reproduction and...not include any indirect costs nor the cost of the compilation of the information..."
Matter of Estate of Schwartz, 130 Misc.2d 786, 497 NYS2d 834 (1986) ---
In proceeding in Surrogate's Court for letters of administration, the Nassau County Police Department and District Attorney moved to quash subpoenas. The surviving spouse was not excluded as a suspect regarding the possible be withheld under the "law enforcement purposes" exception in the Freedom of Information Law, but that exceptions under the Freedom of Information Law do not automatically create an evidentiary privilege under the CPLR, stating that the CPLR provides "a second level of access to the litigant". However, in the interest of preserving confidentiality of an investigation of a possible homicide, petitioner's subpoena was quashed, without prejudice to a renewed application following termination of criminal proceedings, or at some other future time if such proceedings are not commenced. See also, Farbman.
Scott, Sardano & Pomeranz v. Records Access Officer of Syracuse, 65 NY2d 294, 491 NYS2d 289 (1985) --
All records of governmental agencies are presumptively available for public inspection and copying, without regard to the status, need, good faith or purpose of the applicant requesting access. The Freedom of Information Law obviates the need to show an "interest therein" as otherwise required by §66-a of the Public Officers Law relating to accident reports. Section 66-a does not constitute the kind of specific statutory exemption permitting a denial of access under §87(2)(a). Names and addresses of accident victims must be deleted from the reports as an unwarranted invasion of personal privacy in view of stated intention for request, direct mail solicitation by law firm.
Sea Crest Construction Corp. v. Stubing, 82 AD2d 546, 442 NYS2d 130 (2nd Dept 1981) --
Records of correspondence between town and an architectural-engineering consultant firm were found to be intra-agency materials subjects to in camera inspection; court made analogy to federal Freedom of Information Act trend; see also Xerox. Current Law: §87(2)(g)
Seelig v. Sielaff, 201 AD2d 298, 607 NYS2d 300 (1st Dept 1994) --
Lower court enjoined agency from disclosing employees' social security numbers without their consent pursuant to the Personal Privacy Protection Law; Appellate Division reversed and held that agency may withhold social security numbers under FOIL as an unwarranted invasion of personal privacy, but that Personal Privacy Protection Law applies only to state agencies and that relief granted on basis of that law was improper.
Sheehan v. City of Binghamton, 59 AD2d 808, 398 NYS2d 905 (3rd Dept 1977) --
The phrase "police blotter" defined as "a log or diary in which events reported by or to a police department are recorded" and such log does not contain investigative information; advice of Committee on Public Access to Records should be upheld if not unreasonable. Original Law: §§85-89, 88(1)(f), 88(9), 88(7)(d)
Sheehan v. City of Syracuse, 137 Misc.2d 438, 521 NYS2d 207 (1987) --
Petitioners challenged city ordinance authorizing a fee of $7.00 for copies of accident reports. Court held that fee was restricted by Freedom of Information Law to 25 cents per photocopy, and that a "statute" authorizing a higher fee can only be an act of the State Legislature; cited Committee's annual report as basis for decision.
Short v. Board of Managers of Nassau County Medical Center, 57 NY2d 399, 456 NYS2d 724 (1982) --
Petitioner sought twenty-nine medical records with identifying details deleted; Court of Appeals held that "the statutory authority to delete identifying details as a means to remove records from what would otherwise be an exception to disclosure mandated by the freedom of information law extends only to records whose disclosure without deletion would constitute an unwarranted invasion of personal privacy, and does not extend to records excepted in consequences of specific exemption from disclosure by state or federal statute"; therefore, since records were exempted from disclosure by Public Health Law and Social Services Law, confidentiality was required and deletion of identifying details in the Freedom of Information Law "restricts the rights of the agency if it so chooses to grant access to records within any of the statutory exemptions, with or without deletion of identifying details". Current Law: §§87(2)(a) and 89(2)(b)
Siani v Farmingdale College Foundation, Supreme Court, Suffolk County, November 3, 2010.
Not for profit corporation, whose purpose is to accept and encourage gifts for advancement of SUNY college, who receives all funding from private sources, is governed by a self-elected board 23 out of 26 members are from the private sector, and maintains independent decision making control over its finances is not an “agency” subject to FOIL, nor is it a “public body” subject to OML.http://www.nycourts.gov/reporter/pdfs/2010/2010_33283.pdf
Siani v. Research Foundation of the State University of New York, (pdf) Supreme Court, Albany County, March 26, 2007 --
Research Foundation, a not-for-profit corporation, exists "to assist in developing and increasing facilities of the State University", serves as the "fiscal administrator of funds awarded by the federal government and other authorized sources", and all applications made by the Foundation "require prior written approval of the chief administrative office of the college or other institutions of the University where the sponsored program is be conducted and the prior written approval of the Chancellor or his designee." Chancellor is ex officio chair of Foundation. "Given the functional relationship between the Research Foundation and the State University, the importance of the role played by the Research Foundation in the educational efforts of the University and the power it has with respect to sponsored programs...the Research Foundation exercises a governmental function” and is, therefore, subject to the provisions of the Freedom of Information Law.
Siegel, Fenchel & Peddy, P.C. v. Central Pine Barrens Joint Planning & Policy Commission, 251 AD2d 670, 676 NYS2d 191, appeal denied 93 NY2d 804, 689 NYS2d 429 (1999)
Law firm specializing in the areas of tax certiorari and condemnation sought "inventory of real property parcels lying within the Central Pine Barrens Area", refused to certify that it would not use the inventory for commercial purposes, and agency denied access. Lower court held that the inventory must be disclosed following deletion of names and addresses. Appellate Division found that deletion of those details "would ordinarily be a proper and sufficient remedy", but "the Commission met its burden of establishing that release of the inventory's tax map numbers would still allow the petitioner to identify the names and address of the property owners listed thereon..." As such, denial of access found to be proper. Cited opinion of Committee. See Corwin Solomon, Scott Sardano
Simpson v. Town of East Hampton, (pdf) Supreme Court, Suffolk County, June 4, 1997 --
Issue involved fees for copies of assessment records sought for commercial purpose; held that disclosure would not constitute unwarranted invasion of personal privacy because records available under Real Property Tax Law (see Szikszay); found that, “ significantly”, opposition to request by agency was “because petitioner was so rude.” Held that: “maintenance costs” could not be included in determining fee, that actual cost involved computer tape and electricity; if necessary to pay staff overtime, agency could charge for that personnel cost; citing Leeds, court refused to order award of attorneys fees because petitioner not an attorney, but found that Town, due to its conduct, delay and attitude toward petitioner “slipped perilously close to frivolous” that could have resulted in sanctions.
Sinicropi v. County of Nassau, 76 AD2d 832, 428 NYS2d 312, appeal denied 51 NY2d 704, 432 NYS2d 1028 (1980) --
Materials relating to disciplinary proceeding consisting of notes and communications made in preparation for hearing were predecisional intra-agency memoranda that were not reflective of final agency policy or determinations, therefore were denied; petitioner granted access to charges against named employee, the answer of the employee, the demand, the bill of particulars and stipulation of settlement. Current Law: §87(2)(g)
C.B. Smith v. County of Rensselaer, (pdf) Supreme Court, Rensselaer County, May 13, 1993 --
Petitioner sought copies of itemized bills prepared and submitted by Industrial Development Agency (IDA) attorney for IDA projects within a certain period. Although IDA disclosed some records, it indicated it maintained no additional records. IDA attorney asserted that he received no compensation from the IDA, but rather that his fees were paid by individual applicants before the IDA and contended that any invoice or bill he submits to a bond applicant is not an agency record. Court disagreed, held that his fees were generated in his capacity as counsel to the IDA and the IDA was his client, and that he "comes under the authority of the IDA" and is part of its "operation and activities." Court directed the attorney to provide the IDA with copies of the records which, upon receipt, would be made available to petitioner.
C.B. Smith v. County of Rensselaer, (pdf) Supreme Court, Rensselaer County, December 17, 1998 –
In camera review not warranted where no factual basis to support claimed exemptions and where no request has been made for such review; statute of limitations does not begin to run “until the aggrieved party is notified of the determination.” Agency denied several aspects of request with “blanket” denial, no “factual affidavits” establishing exemptions, referred only to sections of the statute, and court found “absolute failure...to demonstrate that the records are exempt”, citing Church of Scientology; second part of case dealt with long distance and cellular phone bills and records of reimbursement by County Executive for personal calls. Court found no evidence of written denial or written appeals decision; held that denial of FOIL request without determination is “irrational”; third aspect involved records regarding employee’s “on call” status; held that records constituted “factual data” and would not result in unwarranted invasion of personal privacy or interfere with law enforcement investigation if disclosed; other records found to be available, but attorney’s fees not awarded because it was not shown that records were of clearly significant interest to general public.
C.B. Smith v. County of Rensselaer, (pdf) Supreme Court, Rensselaer County, August 26, 1999 –
Motion to reargue and/or renew earlier decision of same title relative to award of attorney’s fees. Petitioner presented various newspaper clippings not available at time of earlier proceeding which “would qualify as newly discovered evidence”; motion to reargue denied, but motion to renew granted, and court granted application for attorney’s fees. See Corvetti
C.B. Smith v. Zwack, (pdf) Supreme Court, Rensselaer County, May 17, 2000 --
Records found to be available and ordered to be disclosed were not disclosed, and petitioner sought a finding of contempt on the part of County Executive and others. Court held that §753 of the Judiciary Law permits such a finding. Held that "In the absence of any denial of Smith's charges or reasonable explanation by respondents of what happened to the missing documents, the Court reluctantly concludes that Rensselaer and Zwack willfully ignored the mandates of both this Court and FOIL by failing to retain and protect the requested documents and instead destroyed them or improperly attempted to place them beyond Smith's reach by transferring them to Bruno [the District Attorney] for safekeeping. Rensselaer and Zwack actions were calculated to and actually did defeat, impair, impede and prejudice the rights and remedies of Smith to exercise his rights pursuant to FOIL." Fined County and Zwack and ordered payment of attorney's fees. Also found that "public documents not prepared as part of a criminal investigation prior to being submitted to the grand jury...have not lost their public character", citing King v. Dillon and Jones v. State, 62 AD2d 44, 49
Smith v New York State Office of the Attorney General, Supreme Court, Albany County, April 16, 2010 –
Referring to FOIL-AO-15751, among others, court held that where drafts of correspondence are not indexed in a meaningful manner and locating them would require review of more than 91,000 pages, such request did not reasonably describe records of the agency. While the court was “sympathetic”, it found no basis in FOIL or CPLR 3101 to support OAG’s denial of access to draft settlement agreements or communications regarding settlement, finding that any privilege does not apply to records obtained from or communicated to third parties.
Social Services Employees Union, Matter of v. Cunningham, 109 Misc.2d 331, 437 NYS2d 1005, affirmed 90 AD2d 696, 455 NYS2d 308 (1st Dept 1982)--
Civil Service examination questions and answers which have not been "finally administered" found deniable under the Freedom of Information Law, court cited Committee opinion. Appellate Division affirmed without opinion. Current Law: §87(2)(h)
Spargo v. State Commission on Government Integrity, 140 AD2d 26, 531 NYS2d 417, appeal denied 72 NY2d 809, 534 NYS2d 667 (1988) --
Court held that Personal Privacy Protection Law was not applicable to and did not bar disclosure of records that could not be retrieved by means of a person's name or other identifier; also found that the term "record" as defined in the Personal Privacy Protection Law applied only to "computerized" records and excluded "manual" files.
Spencer v. NYS Police, 187 AD2d 919, 591 NYS2d 207 (3rd Dept 1992) --
Convicted murderer sought records relating to investigation, and primary basis for withholding was §87(2)(e)(iv) involving the capacity to withhold criminal investigative techniques and procedures, except routine techniques and procedures. Held that purpose of that provision "is to prevent violators of the law from being apprised of nonroutine procedures by which law enforcement officials gather information and upheld denial accordingly; however, found that ballistics and fingerprint tests were accessible, as were description of surveillance of places frequented by petitioner, establishment of roadblocks, and lists of evidence, for those latter categories did not pertain to "nonroutine investigatory procedures." See also, Fink, Dobranski.
Sportsmen's Association for Firearms Education, Inc. v. Kane, 178 Misc.2d 185, 680 NYS2d 411, affirmed 266 AD2d 396, 698 NYS2d 170 (2nd Dept 1999) --
Case involved information relating to the grant or denial of applications for pistol licenses and the interpretation of §400.00(5) of the Penal Law. Based on legislative history, court held that only names and addresses of licensees must be disclosed and rejected contention that "because the statute does not specifically exempt any other portion of the application, the limitation of disclosing the name and address of the applicant is improper." Disagreed with Committee opinion. Also held that judicial review is limited to the grounds invoked by the agency, which is contrary to practice and precedent (see Harvey for contrary view on this point)..
Steele v. NYS Department of Health, 119 Misc.2d 963, 464 NYS2d 925 (1983) --
Petitioner requested records relating to drilling into areas adjacent to landfills, including copies of inspection logs, results of monitoring tests, information identifying monitoring equipment detection levels and Health Department notes were handwritten, other records consisted of drafts that had not yet been type-written; petitioner also questioned whether the agency informed him of all the records that existed that fell within the area of his request; court found that "to be certain that respondent has informed the petitioner of all records which are in existence respondent shall submit a list to petitioner of all documents in its possession relating to petitioner's demand", and that hand-written field notes, drafts of monitoring reports and other memoranda were available, that a memorandum from a staff attorney to counsel to the agency was deniable on the ground that it fell within the scope of the attorney-client privilege and was prepared for litigation; court granted attorney fees to petitioner.
Stein v. NYS Department of Transportation, 25 AD3d 846, 807 NYS2d 208 (3rd Dept 2006) --
Following in camera review, Appellate Division sustained lower court denial of access to “predecisional, nonfinal discussion and recommendations by employees within and among agencies to assist decision makers in formulating a policy or decision.” Other aspect of decision involved requirement that applicant must “reasonably describe” records sought. With respect to one series of the requests, “Given respondent’s plausible explanation of its difficulty interpreting the wording of these requests and petitioner’s flat refusal to provide any clarification”, court was “satisfied that the descriptions were insufficient...” However, court rejected contention that lower court decision to disclose “a single folder containing over 500 unindexed e-mails was improper.” Agency argued that request did not reasonably describe “because the task of determining whether the subjects of these items of correspondence match petitioner’s request would require a review of each document”, but court held that request reasonably described “these locatable materials and failed to demonstrate that they were exempt.”
Steinmetz v. Board of Education, East Moriches, (pdf) Supreme Court, Suffolk County, NYLJ, October 30, 1980 --
Access granted to records regarding particular teachers reflective of step hired on, year hired, present step, written approvals for courses including names of course and number of credits, or if no written approval, the name of courses and number of credits, and verification of satisfactory completion of each course; although records were reflective of or contained in "personnel files", their placement within personnel files was irrevelant, for such records are subject to the Freedom of Information Law, cited opinions of Committee.
Stewart Park and Reserve Coalition, Inc. v. NYS Dept. of Transportation, (pdf) Supreme Court, Albany County, April 21, 1999 –
Records submitted in response to RFP prior to award of contract found to be deniable under §163(9) of the State Finance Law and §87(2)(c) of FOIL concerning impairment of contract awards. Court distinguished from Cross Sound Ferry, where records were requested after conditional award of contract.
Stoll v. NYS College of Veterinary Medicine at Cornell University, 94 NY2d 162, 701 NYS2d 316 (1999) --
Request was made for complaints brought under the University's code of conduct against students, faculty or staff of any "statutory college" operated by Cornell. Held that statutory colleges are not state agencies, but that they are "subject to certain oversight by the SUNY Board of Trustees." Whether statutory colleges are subject to FOIL "cannot be answered by reference to broad classifications, but rather turns on the particular statutory character of these sui generis institutions." In this instance, there is a University-wide code of conduct applicable to all aspects of the University; it is not unique to a statutory college and, therefore, the records sought are not subject to FOIL. Court concluded as follows: "...we underscore that, by this decision and analysis, we do not 'rule that the entire administration of the statutory colleges is not subject to FOIL'...We hold only that, given the unique statutory scheme applicable here, Cornell's disciplinary records are not subject to FOIL disclosure. Other, more public aspects of the statutory colleges may well be subject to FOIL, but we need not reach such issues today."
Stony Brook Statesman v. Associate Vice Chancellor for University Relations, (pdf) Supreme Court, Ulster County, January 22, 1996 --
Held that the Student Polity Association, a not-for-profit corporation that acts as SUNY/Stony Brook's student government and provides student services pursuant to the Education Law and regulations, is an "agency" that falls within the coverage of the FOIL. Polity is responsible for allocating mandatory student activity fees. Court adopted the reasoning of an opinion rendered by the Committee. See also, Open Meetings Law summary re: Smith and Maitland
Stronza v. Hoke, 148 AD2d 900, 539 NYS2d 528, appeal denied 74 NY2d 555, 546 NYS2d 555 (1989) --
Requested involved "unredacted copies of certain program and security assessment summaries". Portions were withheld. Following in camera inspection, court held that redactions were proper as intra-agency materials and because disclosure would pose a danger to life or safety under §87(2)(f). Court held that to meet burden of proof under §87(2)(f), agency must prove that "there need be only a possibility that such information would endanger the lives or safety of individuals".
County of Suffolk v. First American Real Estate Solutions, U.S Court of Appeals, 2nd Circuit, 261 F.3rd 179 (2001) --
Reversed District Court holding that tax maps prepared pursuant to law were not subject to copyright protection. Held that the Freedom of Information Law does not abrogate County’s claim of copyright and County could comply with the Freedom of Information Law while preserving rights under Copyright Act to claim protection and infringement. Also held that opinion of Committee on Open Government not entitled to deference when opinion involves statutes other than the Freedom of Information Law; was remanded to District Court to determine whether maps met requisite level of creativity to be copyrighted, but was settled before judicial determination rendered.
Sunset Energy Fleet LLC v. NYS Department of Environmental Conservation, 285 AD2d 865, 728 NYS2d 279 (3rd Dept 2001) --
As part of approval process for construction of electric generating facility, Fleet was required to conduct a “cumulative air quality modeling analysis “of pollutants within 55 mile radius of site” and “expended 2,200 hours and approximately $225,000" in preparing analysis for Department of Environmental Conservation. Fleet’s claim of exemption from disclosure under §87(2)(d) was rejected, for it “did not apply unique or proprietary methods”, but rather “standard methodology”; same information could be acquired by a third party. Fleet could not prove that disclosure would cause substantial competitive injury, and court held that every facility in same business “has regulatory costs attached to its operation.” Despite expenditure of effort and money, could not “demonstrate the commercial value of the information...to its competitors” or “decrease its ability to secure the proper permits.”
Sunter v. David, (pdf) Supreme Court, New York County, NYLJ, July 17, 2008 --
The statute of limitations for initiating an Article 78 proceeding, 120 days from the agency's final determination, "begins with the petitioner's receipt of notice of the determination, rather than the date the determination was issued."
Sustainable South Bronx, Inc. v. Horn, (pdf) Supreme Court, New York County, January 15, 2008 --
Community organization sought numerous records form both NYC Department of Correction and NYC Economic Development Corp. related to "Oak Point", a 27 acre parcel located in the South Bronx. After numerous delays, some records produced, but others withheld under several exceptions. In brief, court rejected claims of exemption under attorney-client privilege and attorney work product, stating that "Not a scintilla of information regarding the documents...has been presented to demonstrate that the materials falls into" those exemptions. Claim of disclosure of impairment of contract awards found to be insufficient, as is claim regarding inter-agency and intra-agency materials. Court granted petitioner's request that respondents "be required to prepare a list of charts describing, in detail, each record withheld and each redaction made", citing Gould and Committee opinion advising that no such requirement exists when records denied at agency level, but that "burden of justifying denial in a judicial challenge is clearly more stringent."
Swinton v. Records Access Officer for the City of New York Police Department, 198 AD2d 165, 604 NYS2d 59 (1st Dept 1993) --
Petitioner brought suit beyond fourth month statute of limitations and agency met its obligation by certifying that after a diligent search, the records were not maintained by agencies; court dismissed. See also Key
Syracuse & Oswego Motor Lines, Inc. v. Frank, (pdf) Supreme Court, Onondaga County, October 15, 1985 --
Names and addresses of respondent's charter customers (clients) were properly denied pursuant to §87(2)(d).
Syracuse United Neighbors v. City of Syracuse, 80 AD2d 984, 437 NYS2d 466, dismissed 55 NY2d 995, 449 NYS2d 201 (1982) --
Records generated by appointed task force on housing designated by mayor constituted records in possession of the City of Syracuse and therefore subject to Freedom of Information Law; court dismissed argument that task force was advisory in nature and therefore not required to comply with the Freedom of Information Law; minutes subject to rights of access.
Szikszay v. Buelow, 107 Misc.2d 886, 436 NYS2d 558 (1981) --
County tax maps and computerized assessment roll tapes represent assessment information historically available under General Municipal Law, §51 and the Freedom of Information Law; computer format of the information did not change its character or alter rights of access; since traditional assessment books have long been available, disclosure in computer format would constitute permissible not unwarranted invasion of personal privacy. Fee of $4.00 per copy for tax maps established by a county committee did not constitute fee "established by law"; therefore fee provisions in the Freedom of Information Law and Committee regulations applicable and fees based upon actual cost of reproduction; court found that "map maintenance expense" could not be included. Current Law: §§86(4), 87(1)(h) and 2(b)
Tartan Oil Corporation v. Department of Taxation and Finance, 239 AD2d 36, 668 NYS2d 76 (3rd Dept 1998) --
Request involved audits of an tax returns pertaining to a particular company, as well as the company’s cash receipt and disbursement journals, invoices and the like. Held that the records sought were exempt from disclosure under §1146(a) of the Tax Law. Restricting the exemption for confidentiality under that statute literally to “reports and returns” would defeat its purpose of “encouraging taxpayers to make full and truthful declarations without fear that these statements will be revealed or used against them for other purposes.”
Taylor v. New York City Police Department, 25 AD3d 347, 806 NYS2d 586, appeal denied 7 NY3d 714, 824 NYS2d 607 (2006) --
Court of Appeals rejected argument “that because respondents did not respond to his November 26 request until December 13, after the statutory five-day deadline had expired..., he could properly institute this proceeding...without first taking an administrative appeal.”
Thomas v. Scully, 131 AD2d 488, 515 NYS2d 885 (2nd Dept 1987) --
Inmate sought presentence report from a correctional facility. Court affirmed prior holding that the report is confidential unless the sentencing court authorizes its release, cited Civil Practice Law, §§390.50 and 390.60. See also, Zavaro.
Thomas v. City of New York, Department of Housing Preservation and Development, 12 Misc.3d 547, 817 NYS2d 864 (2006) --
Held that waiting lists containing names and addresses of persons on waiting lists for Mitchell-Lama housing (public housing) must be disclosed. Found that “financial resources of an applicant is not relevant to being placed on these lists; eligibility relating to financial resources is relevant and determined only at the time the apartment is offered, that it is “virtually impossible to determine with any accuracy...the income of a qualified applicant by the applicant’s mere presence on a list...” Also, city regulations (RCNY) require that waiting lists be made available to tenants association, residents, city officials and applicants. Distinguished opinions of committee advising that disclosure would result in unwarranted invasion of privacy when it could be known that applicant was of low income level. Court awarded attorney’s fees.
Thompson v. Weinstein, 150 AD2D 782, 542 NYS2d 33 (2nd Dept 1989) --
Petitioner sought certain grand jury testimony and a witness's criminal record. Court upheld lower court's denial of grand jury testimony, but granted access to records of "the criminal convictions and any pending criminal action against the witness", stating that disclosure would not constitute an unwarranted invasion of personal privacy. See Allen v. Strojnowski.
TJS of New York, Inc. v. NYS Department of Taxation and Finance, (pdf) Supreme Court, Albany County, August 18, 2010 --
In earlier decision, court determined that petitioner entitled to copies of records in electronic format, and this controversy involved the Audit Framework Extension (AFE) software program used by the Department sought to be used by petitioner to install on his computer conduct analyses. Citing Committee opinion, court upheld denial of access under section 87(2)(i), which states that an agency may deny access when disclosure "would jeopardize an agency's capacity to guarantee the security of its information technology assets." Found that AFE program could enable recipient to create forms and letters ostensible produced by Department "notifying unsuspecting taxpayers of an audit and then obtain confidential financial records.
Tobin & Dempf v. Felton, (pdf) Supreme Court, Albany County, August 10, 2007 --
Request to State Police involved incident in which petitioner was injured. State Police located one record and denied access as an unwarranted invasion of personal privacy. Other records were found but their existence was not acknowledged in determination of appeal. After suit initiated, some records were disclosed but redactions made to prevent unwarranted invasion of personal privacy regarding seven witnesses or persons interviewed. Police offered “no explanation to how material it sent to petitioner could on the one hand be a response to the FOIL request of December 14, 2006...and at the same time be a response to what it terms a second FOIL request: the letter dated April 5, 2007.” Found that “Respondent proposes an outcome by which petitioner would be punished with dismissal of its petition for cooperating post-commencement in an attempt to resolve the issues....” Held that there was “no factual basis...offered to show that individuals who spoke to police had some reasonable expectation that their identities would be shielded from public release, or that some identifiable harm would result from release of that information.” Police failed to meet burden of proof.
Todd v. Craig, 266 AD2d 626, 697 NYS2d 722, appeal denied 94 NY2d 760, 706 NYS2d 80 (2000) --
Issue involved award of attorney's fees, and although agency did not meet its burden of proof, the Court held that it was "unable to conclude that respondents lacked a reasonable basis for withholding the worksheets." Also found that the records at issue represented a small portion of the records sought, and that, therefore, the Supreme Court would not have abused its discretion in denying an award of attorney's fees. See Corvetti.
Tri-State Publishing Company v. City of Port Jervis, 138 Misc.2d, 523 NYS2d 954 (1988) --
Involved request for death certificate of person suspected to have died of AIDS; held that privacy provisions of Freedom of Information Law do not extend to the deceased, that agency is required to meet burden of defending secrecy under Freedom of Information Law when read in conjunction with §4174 of Public Health Law, and that a request by a newspaper for purpose of reporting constitutes a proper purpose.
Tri-State Publishing Company v. City of Port Jervis, Community Development Agency of Port Jervis, Supreme Court, Orange County, March 4, 1992 --
Newspaper sought records regarding HUD "Section 8" program, and specified that it did not want those portions that would identify tenants, who are eligible on the basis of financial need. Court held that names of landlords available, and that locations of tenants' residence could be withheld only when disclosure would readily permit their identification. Found that "while certain of the information ordered disclosed could indirectly permit an astute and industrious individual to research the identity of Section 8 recipients, the speculative likelihood and remoteness of this occurrence...must be balanced against the presumption in favor of disclosure"; also specified even though that portion of a record is exempt, the whole record is not. Request for attorney's fees rejected.
Troy Sand and Gravel v. NYS Dept. of Transportation, 277 AD2d 782, 716 NYS2d 772 (3d Dept 2000) --
Troy Sand requested test reports regarding “coarse aggregate” approved by DOT for State construction projects. DOT demonstrated actual competition and likelihood of substantial competitive injury from disclosure with evidence of professional association’s long history of keeping such information confidential based on a member who lost business due to competitor’s insinuations regarding same data released in 1982. Court found Committee opinion in this instance unpersuasive. Rule: agency denying access to records pursuant to §87(2)(d) must demonstrate actual competition and likelihood of substantial competitive injury from disclosure.
Tuck-It-Away Associates, L.P. v. Empire State Development Corporation, 54 AD3d 154, 861 NYS2d 51 (1st Dept 2008) (** affirmed West Harlem Business Group v Empire State Development Corp., 13 NY3d 882, 893 NYS2d 825 ) --
"The question presented is whether an intra-agency or inter-agency exemption attaches to the government agency's communications with a firm hired as a consultant by that agency whose approval is required for the project, when the same firm was also hired by the entity promoting the project in question." Held that communications between agency and consultant "lose their exemption if there is reason to believe that the consultant is communicating with the agency in its own interest or on behalf of another client whose interests might be affected by the agency action addressed by the consultant."
Turner v. Department of Finance of the City of New York, 242 AD2d 146, 673 NYS2d 428 (1st Dept 1998) --
“This is a case that pits the principle of literal interpretation of a statute against the intention of the legislative body that enacted the statute.” Some aspects of records sought under the FOIL were withheld, but after the proceeding was commenced, petitioner contended that the records in question were available under §§1058 and 1059 of the New York City Charter, which state, in essence, that all City agency records are accessible. Court held that those provisions were derived from sections of the Charter that preceded the enactment of FOIL and had always been interpreted with limitations on access. Held that literal interpretation would nullify exceptions in FOIL and was not the intent of the legislative body; cited Xerox.
United Federation of Teachers v. New York City Health and Hospitals Corporation, 104 Misc.2d 623, 428 NYS2d 823 (1980) --
Union granted access to some fifteen-hundred grievances and decisions rendered on grievances filed by nurses represented by a competing union; agency could not prove that disclosure would impair imminent contract awards or collective bargaining negotiations; shortage of manpower to comply with request is no defense, for denial on that basis would "thwart the very purpose of the Freedom of Information Law", disclosure of grievances and grievance decisions or dispositions would not result in an unwarranted invasion of personal privacy. Current Law: §§87(2)(b), (c) and 89(2)(b)
United Food & Commercial Workers District Union, Local One v. City of Schenectady Industrial Development Agency, 204 AD2d 887, 612 NYS2d 477 (3rd Dept 1994) --
Bank maintaining records sought were held in trust for holders of bonds issued by IDA. Petitioner sought to compel IDA to obtain and disclose the records. Court found no agency relationship between the IDA and the Bank and concluded that records sought are those of a private entity, not an "agency", and that the IDA never had possession of the documents or requested the Bank to prepare them.
Urban Justice Center v. New York Police Department, (pdf) Supreme Court, New York County, September 1, 2010 --
Division of UJC, the Sex Workers Project, engaged in protecting rights of "sex workers" and victims of human trafficking. Request involved records "relating to raids on certain bondage, dominance, sadism and masochism... establishments", such as training materials, and records relating to investigations. Some training records made available, and court held that NYPD "adequately established the non-existence of additional training materials." Held that investigative records were not "reasonably described", because NYPD database "does not have a keyword search capability (i.e., 'domination'), and instead, can be searched by the location of an incident, a complaint number, a precinct of occurrence or an incident date or a case number." However, with additional information supplied via news accounts, i.e., names of persons arrested and locations of arrests, requests would meet standard of reasonably describing records, and Department indicated it was not opposed to new request. Court made in camera review of certain investigative procedures found that they were "not routine" and could be withheld under section 87(2)(e)(iv). Undercover operations found to be non-routine. Other aspects of records deniable under 87(2)(f), for disclosure could endanger lives or safety of law enforcement personnel.
VanNess v. Center for Animal Care and Control, (pdf) Supreme Court, New York County, January 28, 1999 –
Animal rights group sought records from Center, a not-for-profit corporation that performs “an essential service for City of NY” and over which the city has “direct control” regarding composition of Center’s board. Citing Westchester News v. Kimball, Buffalo News v. Buffalo Ent. Devel. Corp. and adopting “impeccable reasoning” in opinion of Committee, court held that Center is an agency for purpose of FOIL and that it’s board is subject to the Open Meetings Law. Request involved approximately 200,000 pages, many of which included information that could be deleted (i.e., names and addresses of persons who found, surrendered or adopted animals, their addresses, social security numbers, etc.). Citing another Committee opinion, court held that there was no right to inspect records that included items that could be withheld, and that applicant could be charged in advance for photocopies from which deletions would be made.
Verizon New York, Inc. v. Bradbury, 40 AD3d 113, 837 NYS2d 291 (2nd Dept 2007) --
Village determined to disclose records submitted by Verizon. Verizon tried to block disclosure, and lower court held that §87(2)(d), the trade secret exception, was inapplicable [see opposite conclusion in Verizon v. Mills] but that §87(2)(c) concerning impairment of contract awards was applicable. Verizon appealed, contending that §87(2)(d) applied; App., Div., held that the two exceptions “could overlap” citing Committee opinions, but that Verizon and Cablevision are not competitors for issuance of a franchise, that Verizon could not demonstrate that records could be withheld under either §87(2)(c) or (d). See also, Verizon v. Mills.
Verizon N.Y., Inc. v. Devita, 60 AD3d 956, 879 NYS2d 140 (2nd Dept 2009)--
Two proceedings appealing denial of injunction by lower court enjoining Village of Laurel Hollow from disclosing quarterly franchise reports to Cablevision pursuant to a FOIL request. Same issue involved Town of Hempstead. Motions granted, and Village and Town enjoined from disclosing, and matters remitted to those municipalities “to determine whether to grant the respective Freedom of Information Law requests as a matter of discretion.” “The Supreme Court erred in determining that the material requested did not fall squarely within an exemption from FOIL disclosure under Public Officers Law §87(2)(d).....Nevertheless, because the municipalities retain discretion under FOIL to disclose Verizon’s quarterly franchise reports even if the reports fall under an exemption....and because each of the municipalities here indicated that its decision to release...[the] reports was based on its determination that the...reports did not fall under any statutory exemption to FOIL, we remit the matters to the respective municipalities in order to allow them to exercise their discretion as to whether to disclose” the reports, even though they fall within the scope of the exception.
Verizon N.Y. Inc. v. Mills, 60 AD3d 958, 875 NYS2d 572 (2nd Dept 2009) --
Cable franchise agreement between Verizon and Village of Elmsford required Verizon to pay franchise fee based on a percentage of annual gross revenues derived from its operation of the system in the Village; also required submission of quarterly reports. Verizon asked that reports be kept confidential and that FOIL requests be denied. Request made by Cablevision, Village informed Verizon of its intent to disclose, and Verizon brought suit to annul Village decision to disclose. Supreme Court agreed that reports could be withheld under trade exception. NOTE: How did Verizon have standing to sue? Held by App. Div. that despite Village’s discretionary authority to disclose despite the applicability of the exemption, “the stated basis for its decision here was simply a desire not ‘to become an arbiter of pending disputes between Verizon and Cablevision.’” That being so, held that Village action was without “a sound basis in reason” and was “arbitrary and capricious. Remitted to Village “to allow it to exercise its discretion as to whether, despite the exemption, the franchise reports should be disclosed.”
Wallace v. City University of New York, Supreme Court, New York County, NYLJ, July 7, 2000 --
Question involved whether the University Student Senate (USS) at CUNY is subject to FOIL and the Open Meetings Law and if USS election of officers by secret ballot vote violated those statutes. USS is funded by mandatory student activity fees, which are considered to be public funds, and the allocation of those funds constitutes a governmental function. Also, Chancellor cannot allocate certain funds without initial recommendation by USS. Held that "USS's decision not to allocate funds for a particular purpose is tantamount to a final determination" and as such, "USS performs a governmental function for purposes of the OML and FOIL" and the secret ballot election of USS officers violated" both statutes. Court awarded attorney's fees under OML to "successful party." See Smith; Ilion
Walsh v. Wasser, 225 AD2d 911, 639 NYS2d 506 (3rd Dept 1996) --
Affirmed lower court dismissal and findings that records at issue either did not exist, had already been disclosed to petitioner or his attorney, were in possession of district attorney or were exempt from disclosure.
Warburton v. State of New York, 173 Misc.2d 879, 662 NYS2d 706 (Court of Claims 1997) --
Held that violation of FOIL does not provide a private right of action for money damages; to do so “would be inconsistent with the carefully crafted remedies set forth” in FOIL, referring to §89(4)and 89(8).
Warder v. Board of Regents, 97 Misc.2d 86, 410 NYS2d 742 (1978) --
Notes taken by Secretary to Board of Regents at meetings of the Board are accessible; notes are "records" within scope of the Law and not "personal" in camera inspection resulted in a finding that the notes consisted of "factual data". Current Law: §§§86(4), 87(2)(g), 89
Washington Post v. Insurance Department, 61 NY2d 557, 475 NYS2d 263 (1984) --
Request involved a practice whereby insurance companies. for purposes of convenience, voluntarily submitted records to agency under a promise of confidentiality; Appellate Division found that the documents were not "records" but rather the private property of the insurance companies; Court of Appeals reversed, citing broad definition of "record" and indicating that neither a promise of confidentiality nor the fact that the documents originated outside of government would be relevant in relation to the status of the documents under the Freedom of Information Law: Court cited opinion of Committee. Current Law: §86(4)
Wasserman Grubin & Rogers, LLP v. New York City Dept. of Education, (pdf) Supreme Court, New York County, August 7, 2009, NY Slip Op 31797(U) --
On April 8, 2008, request made for records relating to Employee Protection Provisions in school bus transportation contract specifications, and a “privilege log” concerning denials of access. 7 pages made available in November, and other records denied based on claim of attorney work product, attorney-client privilege and as inter/intra agency materials. Request for privilege log denied, but applicant informed of right to appeal. Held that official before whom administrative appeal would go had direct involvement in initial denial, but considered DOE’s response sufficient to consider the matter moot. Therefore, denial of petition on ground that petitioner failed to exhaust administrative remedies is “unwarranted.” Department argued that disclosure of communications with State Legislature would violate “speech and debate clause” of state constitution. Held that “to the extent a document is provided to the legislature for consideration in creating legislation, the Clause applies.” That such documents fall outside the intra-agency exemption does not render the privilege afforded by the Speech and Debate Clause any less effective.”
Waste-Stream, Inc. v. St. Lawrence County Solid Waste Disposal Authority, 166 Misc.2d 6, 630 NYS2d 1020 (1995) --
Petitioner sought a list of potential customers, names and addresses of customers that answered respondent's questionnaire, proposed contracts with certain customers and lists of all accounts, extended credit currently or within the past two years. Agency denied access under S§87(2)(b), (c) and (d). Respondent conceded that request was limited to commercial customers, not private individuals. Held that privacy exception applied only to natural persons not to commercial customers, that agency failed to show that records sought pertained to "contract awards" or, therefore, that §87(2)(c) would apply, and that, even though the parties agreed that the agency, due to its nature, might in appropriate circumstances rely upon §87(2)(d) to withhold its records, it could not meet its burden of proof; it could not be shown that its customer lists constituted a "trade secret" or that its customers were not "known in the trade". Cited Committee opinion.
Wattenmaker v. NYS Employees' Retirement System, 95 AD2d 910, 464 NYS2d 52 (3rd Dept 1983) --
Court found that the agency was not required to prepare a list not in existence for the convenience of the petitioner and that it was not required to create a new list by subject matter that indexed its final opinions. Current Law: §87(c); see also D'Alessandro v. Unemployment Insurance Appeal Board.
West 41st Street Realty LLC.v. NYS Urban Development Corp. (pdf) Supreme Court, New York County, NYLJ, July 16, 2002 --
Thousands of records were disclosed concerning complex and multi-faceted development project in Times Square area involving multiple sites, but others were withheld. Held that section 87(2)(c) concerning impairment of present or imminent contract awards did not justify denial of access to “drafts of leases distributed to an
agency’s negotiating adversaries...after the agreement is finalized” because regarding other sites did not involve “imminent” contract awards. Denial of access to other records denied as intra-agency materials was sustained, but rejected contention that a certain letter was deniable under section 87(2)(d), for there was “no showing that, if disclosed, the December 12 Letter would cause substantial injury to the competitive position” of a commercial entity. Denied request for attorney’s fees. See Community Board 7; Cross Sound; Stewart Park
Westchester Rockland Newspapers v. Donohue, (pdf) Supreme Court, Westchester County (1977) --
Names of persons who purchased bond anticipation notes from municipality were held to be available; the fact that a record was kept, although not required to be kept, brought that record within the scope of rights of access. Original Law: §§88(3)(e), 85
Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 430 NYS2d 574 (1980) --
Court of Appeals held that in applying the Freedom of Information Law, no distinction is made between a volunteer organization on which local government relies for performance of essential public service and an organic arm of government when the volunteer organization is the channel through which services are delivered; Court stressed legislative declaration, which states that public accountability should be extended "wherever and whenever feasible", since volunteer fire company is not exempt from the Freedom of Information Law, it is covered and considered an "agency"; temporary removal of records "does not necessarily oust a permanent possessor of the control which would make it subject to the responsibilities imposed by the Freedom of Information Law"; in camera inspection by court to determine extent to which identifying details may be deleted was proper.
Westchester Rockland Newspapers v. Mosczydlowski, 58 AD2d 234, 396 NYS2d 857 (2nd Dept 1977) --
Material prepared solely for litigation is deniable, but a report prepared by police department for multiple purposes did not fail within the exemption regarding material prepared for litigation in the CPLR; report in question was intra-agency memorandum but represented final agency opinion, therefore, report was made available after in camera review to determine which portions should be withheld to protect privacy. Original Law: §88(7)(d) The "public interest privilege" was also invoked and upheld.
Western Suffolk BOCES v. Bay Shore Union Free School District, 250 AD2d 772, 672 NYS2d 776 (1998) --
Disciplinary charges found to be deniable; although stipulation of settlement must be disclosed, portions identifying students and their parents must be withheld; cited LaRocca.
West Harlem Business Group v. Empire State Development Corporation, 13 NY3d 882, 893 NYS2d 825 (2009) --
Request for records related to an agreement between Columbia University and ESDC. Litigation could have been avoided had ESDC complied in the first instance with FOIL and fully explained in writing the basis for denial. ESDC failed to articulate particularized and specific justification in its motion to dismiss. Court found ESDC failed to meet its burden of proof, affirmed the decision to disclose all of the records, with costs.
Weston v. Sloan, 84 NY2d 462, 619 NYS2d 255 (1994) --
Court of Appeals found that records pertaining to mailings of a state senator were available under §88(2)(e) on the ground that they are factual tabulations "of or with respect to" legislation that was otherwise available by law.
Whitehead v. Morgenthau, 146 Misc.2d 806, 552 NYS2d 518 (1990) --
Inmate sought a waiver of copying fees due to indigence; Court distinguished FOIL from federal FOIL Act, said nothing in FOIL requires waiver of fees; cited and relied upon opinion of Committee, which "is entitled to great weight and , if not irrational or unreasonable, should be upheld".
Willett v. CUNY Law School, 231 AD2d 642, 647 NYS2d 798, appeal denied 90 NY2d 801, 660 NYS2d 555 (1997) --
Failure to record vote as required by §87(3)(a) did not warrant annulment of determination, see Smithson.
Williams & Connolly v. Axelrod, 139 AD2d 806, 527 NYS2d 113 (3rd Dept 1988) --
Certain records found to be exempted from disclosure by statute, Public Health Law, §206(j); others were intra-agency materials, accessible or deniable based on their contents; in discussion of attorney-client relationship, Court held that "to invoke this privilege, the party asserting it must demonstrate that an attorney-client relationship was established and the information sought to be withheld was a confidential communication made to the attorney to obtain legal advice or services.
Williams v 106 Clarkson Realty LLC, 27 Misc.3d 1224(A), 911 NYS2d 697 (2010) --
Focus on section 160.50 of Criminal Procedure Law requiring that records are sealed following dismissal of charges in favor of accused. Found that “sealing is considered a statutory privilege which may be waived by subsequent action of the formerly criminally accused person, as where that person sues on a civil cause of action related to his [or] her arrest. Also found that it “is abundantly clear, however, that no matter how material the records….may be to the instant civil action, the movants may not on their own motion compel access to these records via the Freedom of Information Law.” Records are exempted from disclosure under FOIL based on 160.50, and requesters “are merely defendents in a civil action which has no right whatsoever to access records held under seal pursuant to CPL section 160.50”.
Williams v. Erie County District Attorney, 255 AD2d 863, 682 NYS2d 316 (4th Dept 1998) –
Criminal history records (“rap sheets”) are exempt from disclosure by statute [Executive Law, §837(8)], citing Bennett and Woods, but DA is required to disclose such records concerning convictions and pending criminal actions of witnesses called by DA in a criminal trial, citing Woods, Thompson and Spencer; petitioner cannot obtain those records if he or his attorney obtained them from prosecutor in prior proceeding, citing Wasser and Moore; would be available if no longer in possession of petitioner or his attorney, citing Scarola.
People v. Williams, 29 Misc.3d 1222, 920 NYS2d 243 (2010) --
Videotapes of defendant engaged in conversations with undercover police officer were introduced into evidence and played for jurors in open court. On day after they were played, Newsday and New York Post requested copies. Claim that disclosure would deprive person of fair trial rejected; court cited constitutional and common law right of access to courtroom and presumption of access.
Wilson v. Town of Islip, 179 AD2d 763, 578 NYS2d 642 (2nd Dept 1992) --
Appellate Division affirmed lower court decision that agency complied with request by producing "summary pages" of costs for cellular phone use, for "petitioner never requested any further or more detailed information with respect to the telephone bills"; modified other aspect of request, stating that Homestead Program applications should not have been withheld in their entirety, but only those portions that would result in unwarranted invasion of personal property if disclosed.
Woods v. Kings County District Attorney’s Office, 234 AD2d 554, 651 NYS2d 595 (2nd Dept 1996) --
Held that rap sheets could be withheld, citing Bennett and distinguishing Thompson, which was limited to criminal history records of peoples’ witnesses; denied access to other records as attorney work product and interagency or intra agency materials.
Wool, Matter of, (pdf) Supreme Court, Nassau County, NYLJ, November 22, 1977 --
Union dues check-off information contained within payroll record held to be deniable on the ground that participation in a union has no relevance to the performance of official duties; therefore, disclosure would result in an unwarranted invasion of person privacy. Original Law: §88(3)
Wurster v. LeFevre, 152 AD2d 810, 543 NYS2d 591 (3d Dept 1989) --
Petitioner was denied access to names of inmates confined in a special housing unit at a correctional facility. Supreme Court, relying on Bensing v. LeFevre, granted access to the records but denied application for attorney's fees. Held that names of inmates in the unit was not of "clearly significant interest to the public"; therefore, rejection of application for attorney's fees was upheld. See Bensing.
Xerox Corporation v. Town of Webster, 65 NY2d 131, 490 NYS2d 488 (1985) --
Opinions and recommendations that would, if prepared by agency employees, be exempt from disclosure under the Law as "intra-agency materials" do not lose their exempt status simply because they are prepared for the agency, at its request, by an outside consultant. Thus, reports prepared by outside consultants at the request of an agency as part of the agency's deliberative process may be withheld as "intra-agency material". The consultant's opinion or recommendation is not a final agency determination since Freedom of Information Law protects against disclosure of predecisional memoranda or other nonfinal recommendations, whether or not action is taken. To the extent that the access provisions of §51 of the General Municipal Law conflict with the exemptions listed in the Freedom of Information Law, the latter must be read as having engrafted, as a matter of public policy, certain limitations on the disclosure of otherwise accessible records. Court remanded for in camera inspection to determine which portions are available under access provisions of §87(2)(g).
Young v. Town of Huntington, 88 Misc.2d 632, 388 NYS2d 978 (1976) --
Record of town building department held to be available on the ground that the "law enforcement purposes" exemption could be invoked only by criminal law enforcement agencies; determinations regarding the assertion of the governmental privilege must be made on the case by case basis. Original Law: §§88(7)(d), 85
Zaleski v. Hicksville Union Free School District, Board of Education of Hicksville Union Free School, Supreme Court, Nassau County, NYLJ, Dec. 27, 1978--
Agency records access officer to coordinate agency response to requests; regulations of Committee on Public Access to Records have force of law, tape recordings of open meetings are accessible, fees must be based upon actual cost of reproduction, excluding fixed costs of the agency, such as operator salaries. Current Law: §§87(2), 89(4)(a), (b) and 89(3)
Zuckerman v. NYS Board of Parole, 53 AD2d 405, 385 NYS2d 811 (3rd Dept 1976)--
Minutes of Board of Parole held to be available; provision regarding records specifically exempted from disclosure by statute applicable only with respect to records enumerated with particularity; regulations more restrictive than statute were void to that extent. Original Law: §§85, 88(7)(a), (c), (d)
PART II - MINOR DECISIONS
The following consists of an alphabetical listing of judicial determinations involving the interpretation of the Freedom of Information Law that likely have little precedential value. The listing includes a brief summary of the determinations.
Provisions of the Freedom of Information Law, both in its original form and as amended, that are cited in determinations are included and distinguished as the "original law" and the "current law".
Decisions that were not identified in last year's case summary or which have been updated are marked with an asterisk (*).
Abel v. Town of Rye, Supreme Court, Westchester County, January 30, 2004 --
Held that petition was defective due to failure to name Town Board as a part, and that no record containing the information sought existed. Also found that decision by the Board “to withhold the names of individual renters” of facilities in a Town park “does not shock the Courts conscience as would be necessary to warrant judicial intervention.” NOTE: the Court seems to have failed to consider the Town’s obligation to prove that an exception was properly asserted and sustained Town’s action based on typical Article 78 Standards rather than FOIL burden of defending a denial of access.
Acosta, Matter of, 193 AD2d 732 (1993) --
Records sealed under Criminal Procedure Law, 160.50 (where criminal charges are dismissed in favor of accused) are exempted from disclosure under FOIL.
Adams v. Hirsch, 182 AD2d 583, 582 NYS2d 724 (1992) --
Agency destroyed ballistics report and could not locate line-up photograph; court found that under §89(3) agency was "not required (nor able)" to provide the records; also held that although photograph is a "record", providing photocopy was adequate to comply with law.
Adirondack Park Local Government Review Board v. Adirondack Park Agency, Supreme Court, Essex County (1981) --
In a suit in which one agency challenged a denial by another, it was held that the former has the capacity to sue only in conjunction with its ability to carry out its functions prescribed by the State Legislature; access to a report was granted after an in camera inspection and a finding that it consisted of factual materials reflective of a meeting of a legal affairs committee; the affirmation of the report also resulted in a finding that it could be characterized as "instructions to staff that affect the public". Current Law: §87(2)(g)
Ahlers v. Dillon, 143 AD2d 225, 532 NYS2d 22 (1988) --
In response to request for records, assistant district attorney asserted, following a search, that the records were not in possession of that office, but rather a different county office of district attorney. Petitioner claimed he had a right to a hearing on the issue of whether the records were in possession of the agency. The court held that there is no such right and dismissed the proceeding.
Akras v. Suffolk County Department of Civil Service, 137 AD2d 523, 524 NYS2d 266 (1988) --
Petitioner requested records pertaining to his application for reclassification of his incumbent position. The documents consisted largely of inter-office memoranda. Following in camera inspection, "primarily factual, objective information" was made available; the remainder was denied as inter-agency or intra-agency materials. Current Law: §87(2)(g)
Alderson v. NYS College of Life Sciences at Cornell University, 4 NY3d 225 (2005) --
In consideration of Cornell University, which is private in part but which operates four “statutory colleges”, it was held that records involving research and other academic activities were not subject to any oversight by the State University and, therefore, were outside the scope of FOIL, but that financial records within the state’s oversight authority are subject to FOIL. Decision appears not fully consistent with Stoll.
Alexander v. State of New York, 27 AD3d 273, 809 NYS2d 910 (2006) --
Appellate Division, First Dept. affirmed decision of Court of Claims, holding essentially that Port of Authority is not an agency subject to FOIL.
Alexanian v. City of New York, 184 AD2d 452 (1992) --
Court upheld prior order which incorporated a prior agreement to make available records reasonably described pursuant to a schedule to which the parties had previously agreed.
Aliano, Matter of (Board of Higher Education of New York City), Supreme Court, New York County, NYLJ, July 5, 1978 --
Reasons for denial of tenure need not be provided nor created; terms of collective bargaining agreement precluded disclosure.
Aliano v. Lusterman, 187 Misc.2d 699, 724 NYS2d 271 (2001) –
FOIL referenced in malpractice action in relation to disciplinary files maintained by State Education Department pertaining to professional licensees. Files are confidential, unless disclosure is court ordered in pending action or proceeding under Education Law, §6501(8), and exempt from FOIL and CPLR discovery. Cited Johnson Newspapers v. Melino
Alicia v. New York City Police Department, 287AD2d 286, 731 NYS2d 19 (2001)
Manner of certifying that diligent search for records was made is not delineated in FOIL, and agency’s statutory obligation is satisfied “by averring that all responsive documents had been disclosed and that it had conducted a diligent search for the documents it could not locate.” See Rattley.
Allen Group, Inc. (Allen Test Products Division) v. NYS Department of Motor Vehicles, 147 AD2d 856 (1989) --
Request involved investigative report prepared by State Inspector General clearing employees of misconduct following allegations of corrupt conduct, and related documents. Although the Court agreed that the records constituted inter-agency or intra-agency materials, it was held that the agency's "conclusory allegations do not satisfy the agency's burden to particularize that the material requested falls within the ambit of the statutory exemption". The decision also found that Supreme Court's denial of an in camera inspection was improper and remitted.
Alliance for the Preservation of Religious Liberty, Inc. v. State of New York, Supreme Court, New York County, NYLJ, April 10, 1979 --
Records compiled by Department of Law under Executive Law, §63(8) and Civil Rights Law, §73(8) are exempted from disclosure by statute. Current Law: §89(4)(a), (b), §87(2)(a)
Almodovar v. Altschuller, Supreme Court, Albany County, November 15, 1995--
Although agency failed to respond in a timely manner, it eventually disclosed some records and withheld others. Because of its failure to inform the applicant of the right to appeal at the time of the denial, agency informed him that he had 30 days from later letter to appeal. As such, court dismissed on the ground that petitioner failed to exhaust his administrative remedies.
Almonor v. Rosenberg, Supreme Court, New York County, July 26, 1995--
Citing Scott, upheld denial of request for DD5's and police officers' memo books. Reversed by Gould.
Almonor v. Rosenberg, Supreme Court, New York County, NYLJ. February 24, 1998 --
This is the review following the decision rendered in Gould. Court held that DD5's available after deletion of personal information about witnesses, victims and victims' families involved in petitioner's case.
Amaker v. Rosenberg, Supreme Court, New York County, NYLJ, June 26, 1995--
This is another in the series of cases dealing with police officers' memo books. In this instance, it was determined that the documents in question are "records" subject to FOIL and that they are intra-agency materials accessible or deniable in whole or in part, depending on their contents. See also Laureano, Gould.
Anzalone v. Bonanno, 176 Misc.2d 159, 670 NYS2d 1013 (1998); --
Assistant DA offered sufficiently detailed basis to support that diligent search had been made; also, in camera review of records was determined to be unnecessary, for agency adequately supported claims of nonpossession of records and exemptions.
Argentieri v. Goord, 25 AD3d 445, 807 NYS2d 445 (2006) --
Affirmed holding that inmate grievances against correction officers are personnel records exempt from disclosure pursuant to §50-a of the Civil Rights Law, citing Prisoners’ Legal Services and other precedents. Another document involving altercation between petitioner and his cellmate denied on basis of §87(2)(f), for “one inmate’s disclosure of information regarding another inmate’s possible criminal activity would expose the disclosing inmate to an increased risk of retribution.”
Argentieri v. Board of Education, Hornell City School District, Supreme Court, Steuben County, April 25, 2002 –
Petitioner is an attorney and also a member of the Board of Education who represented several infant plaintiffs allegedly sexually abused by a school janitor. Following settlement of that case, he sought all records pertaining to the case under FOIL. FOIL suit dismissed due to failure to exhaust administrative remedies. In dicta, found that court records maintained by or for District were not subject to FOIL, a conclusion later rejected by the Court of Appeals in Newsday v. Empire State Development Corp.
Arzuaga v. New York City Transit Authority, 73 AD2d 518 (1979) --
After filing notice of claim, request was made for "all police and other records in possession of the transit authority"; court denied, stating that Law not intended to be research tool for private litigants that request would have been too broad even in discovery (Arzuaga case cited in Brady v. City of New York, infra.).
Asian American Legal Defense Education Fund v. New York City Police Department, 56 AD3d 321, 867 NYS2d 412 (2008) --
Citing Data Tree, affirmed lower court holding that records relating to immigration related arrests could not be retrieved from the databases with reasonable effort.
Auburn Publishers, Inc. v. City of Auburn, 147 AD2d 900, appeal denied 74 NY2d 614 (1989) --
Affidavits taken by police department in course of investigation of a death were reviewed in camera and denied on the ground that release "would interfere with law enforcement investigations or disclose confidential information"; see also, Hawkins and Allen v. Strojnowski.
Capital Mgt., LP v. Dinallo,
22 Misc. 3d 1122, affirmed 70 AD3d 467 (2010) --
Affirmed lower court holding that information sought "would likely result in substantial competitive injury" to commercial enterprise.
Babcock Enterprises, LTD v. State of New York, Court of Claims, July 8, 1999 –
Issue involved a “Project Visitation Report” prepared by the NYS Department of Transportation. Held that the report “consists of non-final opinions, advice, evaluations, recommendations and other subjective materials all compiled for the purpose of helping agency decision makers to develop/improve the NYSDOT’s design/build process for future projects” and could be withheld under §87(2)(g).
Babi v. David, 35 AD3d 266, 824 NYS2d 902 (2006) --
Proceeding initiated three months after petitioner appealed and rendered moot when agency granted request and remanded for further research.
Baez v. City of New York, Supreme Court, Bronx County, NYLJ, April 2, 1998 --
Records sought in wrongful death action, but the death was under criminal investigation. To hasten discovery, it was agreed that various "GO-15 statements", statements by police officers interviewed as part of the investigation, would be provided to counsel for all parties, but that they would be subject to a confidentiality order. Since Go-15's are "unique investigative tools" that are used to root out police corruption, court declined to vacate confidentiality order. Held that the statements were exempt as inter-agency or intra-agency materials, that confidentiality accorded by §50-a of the Civil Rights Law is "analogous to 'privileged' information within the meaning of CPLR 3101". Notwithstanding the foregoing, found that FOIL is broader than CPLR discovery.
Bagley v. Halpern, Supreme Court, New York County, NYLJ, September 3, 1996--
Citing Thompson and Woods, court granted access to portion of DCJS rap sheet maintained by District Attorney indicating convictions; specified that certain portions of the rap sheet need not be disclosed, i.e., social security number, FBI and NYSID numbers, home address and fingerprints.
Bahlman v. Brier, 462 NYS2d 381 (1983) --
Court held that names of city employees and number of sick time hours accumulated by each employee could be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy. Current Law: §87(2)(b)
Banchs v. Coughlin, 168 AD2d 711, 563 NYS2d 864 (1990) --
Petitioner, an inmate, substantially prevailed in a suit to gain access to records, and the issue on appeal involved the propriety of an award of attorney's fees. Held that Supreme Court did not abuse its discretion in awarding attorney's fees, for records sought were clearly factual in nature. Current Law: §§89(4)(c), 87(2)(g)
Banfield v. Michael, Supreme Court, New York County, NYLJ, March 20, 1985 --
Court upheld denial by Department of Finance of records relating to income and expense profiles of income producing properties as records which would interfere with law enforcement investigations and reveal criminal investigative techniques.
Banigan v. Roberts, 515 NYS2d 944 (1986) --
Petitioner requested records that were insufficiently described to enable Department of Labor to locate them. As such, court could not determine rights of access but suggested that a more detailed request be made; Court also held that Department's Field Tax Manual is accessible and should, according to Department regulations, be made available at a Department office convenient to petitioner.
Bannon v. New York City Police Department, Supreme Court, New York County, September 8, 1997 --
Since agency did not make DD5's available for in camera inspection and the papers did not contain a detailed analysis of their contents, court granted the petition following redaction of information identifying witnesses; held that other aspects of the records, i.e., those involving investigative techniques, must be submitted for in camera review prior to withholding.
Bartczak v. Dillon, Supreme Court, Nassau County, NYLJ, November 2, 1990 --
Various expense and attendance records sought from Nassau County District Attorney were withheld under §2207 of the Nassau County Government Law, which was found to be a statute that exempts records from disclosure pursuant to §87(2) of the FOIL. NOTE: §2207 was repealed in 1990; see Newsday v. O'Brien.
Bartczak v. Dillon, Supreme Court, Nassau County, April 24, 1991, leave to appeal denied, App. Div., Second Dept., NYLJ, Nov. 7, 1991 --
Petitioner requested District Attorney's office diaries, time sheets and payroll records. District Attorney claimed that records do not exist and moved to dismiss. Court denied motion, stating that "Whether such records exist is a question of fact that cannot be disposed of on a motion to dismiss". Court also held that petition could not be dismissed due to failure to exhaust administrative remedies, because initial denial did not inform petitioner of right to an administrative appeal. Earlier request was properly denied under statute that has since been repealed, and court held that doctrine of res judicata did not apply. See also Barrett
Bartlett v. Nassar, 420 NYS2d 265 (1979) --
Court upheld a denial of a memo containing opinions regarding projected conditions of County's general fund; in camera inspection indicated that the memo did not contain "statistical or factual tabulations".
Bashford v. NYS Department of Environmental Conservation, Supreme Court, Westchester County, December 30, 2004 --
Sustained agency’s denial, with exception of six documents determined to be accessible in unredacted form, for DEC could not demonstrate that redactions necessary to carry out its law enforcement function.
Bassinson v. New York State Police, Supreme Court, Albany County, November 30, 1994 --
Without description of records, court found that they were compiled for law enforcement purposes and that disclosure would interfere with investigation and reveal non-routine criminal investigative techniques and procedures.
Inc. v. Megna, 69 AD3d
1040, 892 NYS2d 642 (3rd Dept 2010) --
Following in camera inspection Appellate Division affirmed lower court finding that records withheld "fall squarely within this exemption [section 87(2)(g) concerning intra-agency materials] as predecisional, nonfinal discussions and recommendations by employees within the agency used to assist the decision makers in formulating a determination."
Batten v. Records Access Officer, Supreme Court, New York County, April 16, 1999 –
Court upheld Police Department’s denial of request for police and immigration records pertaining to both an informant and a person whom petitioner claimed was arrested on the basis of information provided by the informant. Held that “Disclosure of any records concerning the informant or an individual connected with the informant ‘would constitute an unwarranted invasion of personal privacy’ and ‘might endanger the [informant’s] safety”.
Bellamy v. New York City Police Department, 59 AD3d 353 (2009) --
Lower court found that information sought to be redacted was "very old" and "probably" could not implicate privacy, safety or law enforcement concerns, and ordered disclosure of records unredacted. Appellate Division reversed, holding that age of records is not alone a sufficient basis for finding exceptions to be inapplicable. Remanded for review by Supreme Court.
Belth v. Muhl, Supreme Court, NY County, June 3, 1997 --
Request involved responses by insurance companies to Insurance Department dealing with certain internal company practices; after submission, there is a review procedure that includes insurance company’s ability to seek a hearing regarding the Department’s findings; held that petitioner’s request was premature because insurers did not yet have opportunity to comment and, therefore, reports were exempt from disclosure under §311 (a) of Insurance Law; also held that §87(2)(d) of FOIL permitted denial of access.
Belth v. Muhl, Supreme Court, New York County, April 30, 1995 --
Reports on Examination prepared by Insurance Department pursuant to the federal Consumer Product Safety Act become accessible to the public following the completion of a procedure designed to ensure that information presented is accurate and fair. Prior to that time, the reports are exempted from disclosure by statute, §311(b)(1) of the Insurance Law. In addition, records indicating the "internal systems" of companies that are the subjects of the reports constitute trade secrets that may be withheld under §87(2)(d).
Benedict v. Albany County and David Soares as District Attorney, Supreme Court, Albany County, NY Slip Op 28469 (2009) --
Request involved correspondence between Offices of District Attorney and County Comptroller. DA denied request, citing §87(2)(g). Appeal made to County's appeal officer, who found that blanket denial of access was inconsistent with law and determined that records should be disclosed. However, appeals officer wrote that he had no authority to enforce compliance: NOTE: system breaks down if appeals officer lacks authority, and court failed to address that issue. Court rejected DA's contention that applicant failed to exhaust administrative remedies, found that there is no requirement that an applicant must pursue administrative and judicial remedies "against each and every agency within a political subdivision that might have a copy of such records." Court denied DA's motion to dismiss and ordered County and DA to respond to the petition and to conduct further proceedings.
Bennett v. Girgenti, 226 AD2d 792, 640 NYS2d 307 (1996)--
Criminal history records maintained by Division of Criminal Justice Services are exempt from FOIL; see also, Capital Newspapers v. Poklemba, Thompson
Bentley v. Demskie, 250 AD2d 895, 673 NYS2d 226 (1998) --
Request for transcript of resentencing was properly denied because "no such transcription exists".
Benyi v. Broome County, 887 F.Supp. 395 (1995)--
Federal court found that petitioner's claim under FOIL was separate from his civil rights claim and chose not to exercise jurisdiction regarding FOIL.
Bernard v. NYC Police Department, Supreme Court, New York County, NYLJ, May 2, 1995--
Despite opinion issued by the Committee, held DD5's are exempt; effectively reversed by Gould.
Bezjak and Heinegg v. New York City Police Department, Supreme Court, New York County, July 17, 2008 --
Elements involving FOIL relate to principle that it pertains to existing records, and that affidavits by agency employees that records could not be located after having made diligent search were adequate to comply. Cited Rattley.
Billups v. Millet, Supreme Court, New York County, January 29, 1991 --
Inmate requested a variety of records from the New York City Police Department, received no response, appealed and received no response, and brought suit. Was later given some records, but many were denied. Held that agency "failed to respond to petitioner's request in a timely fashion, has failed to produce any affidavits to establish the basis for the exemption and has not satisfied this court that the generalized statutory reasons sufficiently warrant withholding of the documents". Current Law: §87(2)(e), (g)
Billups v. Rizzo, Appellate Division, Second Department, NYLJ, June 25, 1996, 228 AD2d 587--
After viewing mental health records pertaining to him under §33.16 of the Mental Hygiene Law, petitioner asked for copies. Appellate Division reversed lower court and held that there was no reason for agency's refusal to provide copies.
Billups v. Santucci, 151 AD2d 663, 542 NYS2d 726 (1989) --
Held that the lower court "erred in dismissing the petition on the ground that much or all of the information sought could have been obtained by the petitioner in his status as a defendant in a previously pending criminal prosecution", for agency failed to produce any evidence from which the Supreme Court could properly conclude that any of the requested documents are protected from disclosure..."; remitted to Supreme Court for in camera review and held that "Supreme Court may, in its discretion, direct respondent to index the documents produced so as to facilitate the identification of those which are claimed to be exempt" and to produce "detailed affidavits" necessary to determine adequacy of assertion of exemptions; see also, Farbman.
Blain v. Rockland County Department of General Services, Supreme Court, Rockland County, June 7, 1999 –
Issue involved cellular phone bills, and court held that persons receiving calls from County employees have an expectation of privacy and that numbers called could be withheld as an unwarranted invasion of personal privacy. Note: Court did not consider whether recipients of calls were other public employees, business entities or members of the public or distinguish among them; appears to be incomplete reasoning; also held that “release of the cellular phone number of each County employee’s cellular telephone” would also constitute an unwarranted invasions of privacy and likened them to unlisted numbers. See also Smith v. Rensselaer County
Blakeslee v. Town of Brookhaven, 220 AD2d 410, 632 NYS2d 20 (1995) --
Request involved "billing invoices and subpoenas", and court held that agency could not meet its burden of proof to justify a denial of access.
Blanche v. Cherney, Supreme Court, Washington County, March 13, 1992 --
Court ordered disclosure to certain records of public defender and that they be sent to petitioner at correctional facility at his expense, that he deposit a like amount to pay to return records within thirty days of his receipt of records for inspection and copying.
Blanche v. Denusch, Supreme Court, Wyoming County, March 29, 2005 --
Agency could provide no reason for withholding transcript of petitioner’s parole hearing and directed that agency to disclose; agency provided index identifying records withheld in whole or in part and ordered preparation of affidavits to support denial of access or in camera inspection.
Blanche v. Winn and Constantine, Supreme Court, Cayuga County, September 17, 1990 --
Petitioner requested various records, many of which had been destroyed or were not maintained by respondent agencies, which were "under no duty to maintain these files, nor to reconstruct them..."; Court upheld denial of certain forensics reports under §87(2)(e)(iv), victim's phone under §87(2)(b) and certain items of clothing because they were not "records"; was granted access to police reports often redaction names and addresses of victim and victim's mother, an evidence inventory list, a victim's statement under Civil Rights Law, §50-b, as well as sperm samples be provided and State Police investigative report "which does not reveal non-routine investigative techniques which would aid anyone in detection", following deletion of identifying details.
Blecher v. Board of Education, City of New York, Supreme Court, Kings County, NYLJ, October 25, 1979 --
Complaints, reprimands, and evaluations contained in a personnel file relevant to the duties of an agency and constitute "final determinations", available under §87(2)(g) of the Freedom of Information Law. Current Law: §§87(2)(b), (g) and 89(2)(b)
State, Div. of State Police v. Boehm, 71 AD2d 810, 419 NYS2d 23 (1979) --
Citizen's right to obtain information essential for prosecution of civil action must be subordinated to public interest privilege; identities of confidential informants who assisted police are deniable. Current Law: §87(2)(e)(iii)
Boghosian v. Heritage Springs Sewer Works, Inc. v. Heritage Springs Sewer Works, Inc., Supreme Court, Saratoga County, December 19, 2006 --
Held that corporate entity providing sewer services is not an agency subject to FOIL, despite requirement that its functions must be approved by the Town, its performance of a governmental function, its authority to condemn property through eminent domain and advisory opinion from the Committee on Open Government.
Bogle v. Coughlin, Supreme Court, Wyoming County, January 23, 1992 --
Agency could not demonstrate that request did not reasonably describe records, but court upheld denial of access to inmate grievances against correction officers, citing §50-a of Civil Rights Law. Agency could not support denial of access to entirety of videotapes of riot at correctional facility or IG’s report regarding incident, and directed agency to prepare an affidavit to justify denial.
Boomer v. Lynch, Supreme Court, Albany County, July 3, 2000–
Inmate sought records from public defender in his defense file on numerous occasions but received no responses. Requests made between 1995 and 1997, again in 2000, and response indicated that records were destroyed. However, correctional facility returned the response, indicating erroneously that petitioner had been released. Upon service of Order to Show Cause, new search resulted in locating voluminous records. Court held that dismissal, in view of facts, would be “unfair” and ordered disclosure at no cost to petitioner.
Boomer v. New York State Police, 60 AD3d 1218, 875 NYS2d 334 (2009) --
Affirmed finding that certification regarding inability to locate record after diligent search was adequate.
Bosshart v. Perales, 202 AD2d 498, 609 NYS2d 30 (1994) --
Fair hearing decisions available but "form" fair hearing decisions found to be deniable as intra-agency materials under §87(2)(g).
Bowers v. Deutsch, Supreme Court, New York County, NYLJ, May 12, 2005 --
Waterfront Commission of New Harbor was created by Congress and compact between New York and New Jersey. That being so, court held that it is not an “agency” subject to FOIL.
Boyce v. Board of Education, Supreme Court, Steuben County, June 8, 2004 --
Involved request for records relating to personal injury case brought on behalf of infant plaintiffs who had allegedly been sexually abused by a janitor employed by school district. Various records already disclosed to petitioners’ attorney, and that portion of request deemed moot, citing Moore. Some documents found to be exempt based on finding that they consist of attorney work product/material prepared for litigation or were subject to attorney-client privilege; others exempt under Family Educational Rights and Privacy Act. Settlement agreements found to be available, despite “confidentiality clauses”. Notices of claim, letters, news articles, litigation papers, etc., found to be available.
Brady v. City of New York, 84 AD2d 113, 56 NYS2d 311 (1st Dept 1982) --
The Freedom of Information Law and New York City Charter §1114 may not be employed to obtain records normally available under disclosure when petitioner did not pursue available disclosure devices and had filed a note of issue and statement of readiness (Cites Matter of D'Alessandro, infra, and Arzuaga, supra).
Brander v. Town of Warren Town Bd., 18 Misc.3d 477, 847 NYS2d 450 (2007) --
Critical issue involved Open Meetings Law (see OML Summary); FOIL issue involved failure to appeal and, therefore, failure to exhaust administrative remedies relative to request for records.
Braxton v. Commissioner, New York City Police Department, 283 AD2d 253, 724 NYS2d 608 (2001) –
Based on facts, court ordered that petitioner be given 30 days to file administrative appeal from partial denial of access. Cited Almodovar and Malerba
Bray v. Mar, 106 AD2d 311, 482 NYS2d 759 (1984) --
"Intra-agency" materials of staff and a committee of the Council on the Arts are exempt as such entities are a part of the Council as an agency; the panel of outside experts are also part of the agency since their function is to recommend grants. Actions of panels or committees represent "final agency determinations" when adopted by Council.
Bridgehampton Restaurant v. Town of Southampton, Supreme Court, Suffolk County, NYLJ, Jan. 8, 1997 --
Held that identity of complainant should be disclosed based on factual circumstances, for agency could not meet burden of proof.
Bridgewater v. Johnson, 44 AD3d 549, 844 NYS2d 39 (2007) -->
Held that records sought were disclosed to the extent that they could be found, that certification regarding diligent search was proper.
Brodie v. Petito, Supreme Court, New York County, October 27, 1998 –
In addition to minor issues relating to fees for copies, court held that “in camera inspection of documents redacted as to names/addresses of witnesses/subjects/suspects unnecessary as defendant has satisfied its burden that such redactions are proper”, citing Davidson, Woods; however, ordered that in camera inspection be made with respect to “redactions of information relating to non-routine investigatory techniques”.
Broughton v. Lewis, Supreme Court, Albany County (1978) --
Case file sought by complainant in possession of Insurance Department held to be available; Insurance Department not a criminal law enforcement agency, therefore, could not cite §87(2)(e) as a ground for denial; a request for confidentiality by insurance company is irrelevant under the Freedom of Information Law. Current Law: §§84, 87(2)(e)(i)
Brown v. Berry, 151 AD2d 882, 543 NYS2d 179 (1989) --
Petitioner, an inmate, challenged agency's denial of preliminary application for a barbering license and denial of access to preliminary application report. Court upheld agency's denials, stating that had he pursued the inmate grievance procedure, "a factual record would have resulted", affording him an opportunity to review the agency's decision concerning the license.
Brown v. Goord, 19 AD3d 773, 796 NYS2d 439 (2005) --
Petitioner was charged with several crimes, but charges involving rape and sodomy were dismissed. Consequently, in an earlier decision, Brown v. New York City Police Department, Appellate Division reversed lower court and held that records were not exempt under §50-b of Civil Rights Law. This decision involved request pursuant to 7 NYCRR 55.50 to expunge portions of records citing him in relation to sex crimes. Court granted petition and ordered expungement to reference to petitioner as sex offender and to commission of crimes for rape and sodomy.
Brown v. Goord, Supreme Court, Albany County, June 13, 2006 --
Multi-faceted decision: first, held that agency could not charge fee to create a redacted copy of a document for inspection. Note: holding conflicts with VanNess; that names and DIN numbers of inmates who worked in particular area of correctional facility are accessible; agency failed to show how disclosure would endanger safe or invade privacy.
Brownell v. Grady, 554 NYS2d 383 (1990) --
Inmate requested records concerning his conviction from District Attorney; after series of correspondence with no disclosure, petitioner sued; Court held that claimed exemptions "must be particularized and supported by detailed affidavits"; despite claim that records already disclosed, agency must furnish another copy upon payment of fee if petitioner demonstrates that record longer exists; respondent asked that Court review records in camera but Court found that "Such a request constitutes a wholesale and improper attempt to shift to this court a responsibility which rests squarely with agency"; Court refused to condone a failure to comply with time limits in FOIL and excuse that records sought were voluminous, required agency to make first 200 pages available free of charge. See Bernstein
Browning-Ferris Industries of New York, Inc. v. Town of Coxsackie, Supreme Court, Greene County, November 6, 1986 --
Town failed to respond to requests. Court granted access to Town master plan, letters read at open meetings and an environmental assessment form approved by zoning commission. Court refused to award attorney's fees because it could not find that the records were of clearly significant interest to the public; found rather that records were requested as part of petitioner's activities toward monitoring Town's actions that could affect its proposed landfill project. Current Law: §89(4)(c)(i)
Buffalo Evening News v. Board of Education of the Hamburg Central School District, Supreme Court, Erie County, June 12, 1987 --
Court held that a settlement agreement between Board of Education and teacher involving disciplinary proceedings and a federal action brought by teacher against the Board is available; court relied upon advisory opinion rendered by Committee and found that such opinions should be upheld if not irrational or unreasonable when only the Freedom of Information Law is involved.
Buffalo Evening News v. City of Lackawanna, Supreme Court, Erie County, June 24, 1985 --
City deleted names of companies or persons who made deposits with the City pursuant to escrow agreements relating to negotiations for acquisition of property to be used to develop an aluminum mill. The agreements indicated that proposed participants' identities would not be disclosed without participants' consent. Court rejected claims that disclosure would result in an unwarranted invasion of personal privacy or impair any contractual agreement. Request for attorney's fees was rejected even though the court found that the information was of significant interest to the public and the City had no reasonable basis for withholding. Current Law: §§87(2)(b), (c)
Bulgatz v. State of New York Department of Taxation and Finance, Supreme Court, Albany County, June 1, 1989 --
Request was made for records relating to payments of state and local income taxes that were unclaimed. Since the information is derived from tax records that are confidential under §697 of the Tax Law, court held that it was exempted from disclosure by statute under §87(2)(a), solely because applicant is also a litigant. Original Law: §§85-89, §§88(7)(a), 88(1)(d)
Burtis v. New York City Police Department, Supreme Court, New York County, September 25, 1995 --
Court held that records sought should be reviewed in camera to determine "whether the records are nonroutine and the disclosure of which would give rise to a substantial likelihood that violators could evade detection." Case involved videotapes and related records regarding a person who made harassing calls to petitioner.
Burtis v. New York City Police Department, 294 AD 2d 315, 742 NYS2d 545 (2002).
Petitioner sought damages for Department’s failure to properly investigate and refer complaints to District Attorney and to comply with FOIL in timely manner. Held that actions of Police Department involved exercise of discretion and that FOIL does not authorize an award of money damages.
Butler v. McGuire, Supreme Court, New York County, June 2, 1980 --
Denied access to deliberative, advisory, predecisional material prepared to assist district attorney in deciding whether or not to seek an indictment in homicide case.
Butler v. City of New York, 15 Misc.3d 1134(A), 841 NYS2d 818 (2007) --
Exception in FOIL in Civil Rights Law, §50-a, did not serve as a basis for refusal to answer questions in action involving federal civil rights claim; narrowly construed public interest privilege, tied its assertion to harm.
City of Yonkers, 27
Misc.3d 1202 (2010) --
Petitioner sought records concerning "the disposition of criminal charges against a witness who testified at Butler's criminal trial..." from "in essence... the files of the Westchester County District Attorney's Office and the Yonkers City Court." DA's office certification that records not maintained by that office was sufficient. Court found that records request from City court were exclusively maintained by that entity, which is not an "agency" subject to FOIL.
Campney v. Fischer et al, Supreme Court, Albany County, Slip Op 32571 (2008) --
Involved several requests with several responses by the court, including order to produce certain records for in camera inspection, dismissal of other aspects of petitioner's claims.
Canales v. Hammock, Supreme Court, Richmond County, NYLJ, September 18, 1980 --
Names of Parole Board members who decided administrative appeal available to appellant under construction of Executive Law, §259-i(4)(a).
Capital Newspapers v. City of Albany, Supreme Court, Albany County, September 1, 1998 --
Involved request for photographs taken of an individual by law enforcement personnel to document the individual's appearance after claim that he had been beaten by police. Court held that blanket claim of "law enforcement purposes" exception could not be justified; no showing by agency of how disclosure would interfere with investigations or deprive person of fair trial or impartial adjudication; court, however, was mindful of victim's privacy, and petitioner was directed to serve copy of decision on alleged victim who had until a time certain to file any objection to disclosure.
Capital Newspapers v. City of Albany, Supreme Court, Albany County, June 27, 2008 --
Confusing decision relating to request for records concerning purchases of weapons by police officers in the 1990's, as well as audits of the police department's evidence room. Court found that purchase records, due to current investigation, were compiled for law enforcement purposes, but that City could not demonstrate that disclosure would interfere with law enforcement investigation. The only records reviewed by court that identified particular officers were "tags used to identify weapons", and Chief of Police contended that they would be used "when evaluating and/or promoting" officers. Court held, therefore, that they were exempt from disclosure pursuant to §50-a of Civil Rights Law, and that names of officers could be withheld. With respect audits, held that portions that related to ongoing investigation or opinions and recommendations could be withheld. Even though court held petitioners substantially prevailed, rejected request for attorney fees due to respondents' "colorable legal argument." Has been appealed.
Capital Newspapers v. NYS Department of Transportation, Supreme Court, Albany County, June 21, 2006 --
Records sought related to partial collapse of bridge access ramp, specifically the inspection records and a “Bridge Inspection Number (BIN)” folder or file pertaining to a particular ramp number, as well as maintenance, inspection and design folders, and complaints or notifications regarding problems conveyed to the Department, etc. Most materials were disclosed, but redactions were made in 16 pages, and four memos were withheld in their entirety on the basis of §87(2)(g) concerning intra-agency materials. Following in camera inspection, court sustained agency’s denial, finding that the materials consisted of “pre-decisional, non-final discussions and recommendations by employees within and among agencies to assist decision makers in formulating a policy or determination.” Rejected petitioner’s argument that disclosure of some of the materials created a waiver regarding the materials found to be properly withheld.
Capital Newspapers v. New York State Division of State Police, Supreme Court, Albany County, May 18, 1998 --
Columnist sought records pertaining to investigation of Christmas eve package bomb delivered to a private home that injured a child. Only record released was a redacted copy of a 23 page investigation report. Although that report was submitted to court for in camera review, petitioner and the court believed that the State Police had "custody and control of considerably more records relating to their investigation...than the 23-page investigation report." Following conferences, records stored at Troop G were found, and it was stated that certain State police officials did not consider the records to be "official" or, therefore, within the scope of the request. Hundreds more records were submitted for review by the court, and the analysis consistently involved the extent to which the burden of defending secrecy could be met; some details withheld to protect privacy relating to family of injured child and family of deceased alleged perpetrator; names of confidential informants withheld, but information they provided made available (see Gould).
Carty v. New York City Police Department, 41 AD3d 150, 837 NYS2d 135 (2007) --
Petition rendered moot by certification that search made and records not located; amended request for additional records not previously sought properly denied due to failure to exhaust administrative remedies, “a burden not negated by respondent’s purported failure to respond to the amended request” in a timely fashion.
Carty v. NYS Division of Parole, 277 AD2d 633, 716 NYS2d 125 (2000) –
Request for letters of recommendation and other parole records relating to two former inmates who testified against petitioner at trial. Affirmed lower court holding that records could be withheld on grounds that disclosure would endanger the life or safety and constitute an unwarranted invasion of personal privacy.
Casella v. City of Rochester, Supreme Court, Monroe County, March 2, 2010, affirmed 78 AD3d 1597, 910 NYS2d 708 (4th Dept. 2010) --
Although not expressed directly, issue involved access to names and addresses of employees of private entities retained by City. Court appears to have treated those employees in same manner as public employees and held that names and addresses available; that they would not be used for solicitation or fund-raising. See Hopkins and Joint Industry.
v. Bailey, Supreme
Court, New York County, October 15, 2010, Slip Op 32972 --
Request involved, in part, records not maintained by DA, and that portion of suit dismissed; also found that records sought were previously disclosed, and that DA not required to provide duplicate copies, citing Huston v. Turkel; home addresses of victims and witnesses identified in grand jury proceedings properly denied under 87(2)(f).
Catskill Regional Off-Track Betting Corporation v. Racing and Wagering Board, 31 AD3d 540, 818 NYS2d 560 (2006) --
Catskill invoked §89(5) when submitting records to Board and challenged Board’s determination to disclose records claimed by Catskill to fall within “trade secret” exception. Appellate Division reversed lower court and found that Catskill did not meet its burden of proving that records at issue “fell squarely” within the exception.
Cavalier v. McCue, 58 AD2d 729, 396 NYS2d 299 (1977) --
Since Freedom of Information Law states that records must be made available to any person, attorney had standing to challenge a denial even though he represented interests other than the corporation seeking records; a public benefit corporation is an agency subject to the Law; records outside of list of accessible records listed in §88(1) of original Law were deniable. Original Law: §§88(6), 88(1)(i), 87(1)
Cerro v. Town of Kingsbury, 250 AD2d 978, 672 NYS2d 953 (1998) --
FOIL was ancillary to main issues; because proceeding was not filed within four months, it was time barred.
Chambers & Associates v. Bratton, Supreme Court, New York County, NYLJ, September 10, 1996--
Petitioner sought Department's reports generated after personal interviews indicating why randomly selected attorneys were issued permits to carry concealed weapons; court held that matter essentially rendered moot by disclosure of Department rules, but found that Department could withhold portions of records as unwarranted invasion of personal privacy and because disclosure could endanger safety. NOTE: rendered after amendment to §400.00 of Penal Law; see also, Kwitny
Charters v. Vegliante, 2 AD3d 730, 768 NYS2d 616 (2003) --
Appeal by mayor dismissed following denial of his motion to dismiss petition regarding request for names, salaries, etc. of employees of village.
Chatham Towers, Inc. v. New York City Dept. Of Transportation, Supreme Court, New York County, August 15, 2007, 2007 NY Slip Opinion 32513 (v) --
Claim that records deniable under §87(2)(g) “does not obviate the requirement that the objecting agency present a specific reason supporting the decision to withhold the requested documents; ordered in camera inspection.
Chaves v. NYCPD, Supreme Court, New York County, May 29, 2009, Slip OP 31229 --
Request involved records concerning investigation of 1983 homicide and armed robbery for which the petitioner was convicted. Department contended that it could not locate records after having made diligent search. Court found that Department did not do so, for despite its contention, records were discovered following the initiation of the suit, some of which were illegible, and ordered that it conduct "a full and proper search." Department prepared copies of records and explained their content to the extent possible to petitioner. Although the court considered a finding of contempt, it chose not to do so due to Department's belated efforts to comply.
Chebere v. Johnson, 3 AD3d 365, 770 NYS2d 357 (2004) --
Reversed lower court’s denial of request, which involved prosecutor’s interview notes containing witness’s statements made prior to giving testimony during trial. Held that agency failed to show how disclosure would “additionally endanger the witness, whose identity was known at all times by petitioner”, and remanded for in camera inspection and determination as to propriety of denial.
Chen v. City of New York, Supreme Court, New York County, NYLJ, August 26, 1996--
Applicant sought various records through action in discovery; court distinguished discovery from FOIL, but held that public's interest in keeping records of ongoing state and federal criminal investigations confidential outweighs the individual's right to obtain records in wrongful death action, cited CPLR §3101(g). See Schwartz, Farbman
Children’s Rights v. NYS Office of Children and Family Services, 6 Misc.3d 1026, 800 NYS2d 344 (2005) --
Records sought involve investigations of child abuse, and court held that records are exempt from disclosure by statute under ?187(2)(a), referring to §422(4)(A) of Social Services Law, which makes reports of suspected child abuse confidential. Also held that petitioner could not “bypass procedures concerning access in §§422 and 422-a by seeking records under FOIL. Court disagreed with holding Ganette Co. v. County of Ontario, and rejected contention that “FOIL creates a presumption in favor of releasing confidential information pursuant to Social Services Law §§422(4)(A)(h) or 422-a.
Chrysler v. Town of Newburgh Police Department, 13 AD3d 368, 785 NYS2d 746 (2004) --
Affirmed lower court holding that records did not exist or were not in possession of Department, or that disclosure would interfere with investigation in which victim’s body had not yet been found, or that disclosure could endanger life or safety of witness.
Cirino v. Board of Education of City of New York, Supreme Court, New York County, NYLJ, July 10, 1980 --
Historian granted access to archival records regarding impact of "Feinberg Act", which was designed to locate alleged communists and subversives in 1950's and was later found unconstitutional by U.S. Supreme Court; no grounds for denial could successfully be asserted, except that identifying details deleted to protect privacy regarding persons' names who had not consented to disclosure. Current Law: §§87(2)(b), 89(2)(b)
City of New York v. New York State Board of Equalization and Assessment, 65 NY2d 656, 491 NYS2d 610 (1985) --
Case remitted to Supreme Court for consideration of City's current claim for partial exemption of lists which contain assessor's notations alleged to be expressions of opinion under §87(2)(g).
Civil Service Employees, Assoc., Inc. v. State of New York Public Employment Relations Board, 14 Misc.3d 199, 823 NYS2d 326 (2006) --
Issue was whether intent of §6527(3) of Education Law requiring that quality assurance records generated pursuant to Mental Hygiene Law, §29.29, should be disclosed based on request made pursuant to Taylor Law. Held that, unlike FOIL, Taylor Law requests “may not be made by nor information disclosed to the general public.”
Clegg v. Bon Temps., Ltd., 452 NYS2d 825 (1982) --
Motion for subpoena for letters sent by a former employer to the NYS Department of Labor was quashed. Labor Law, §537, prohibits disclosure of information acquired from employers and employees for unemployment insurance purposes and falls within §87(2)(a) of the Freedom of Information Law concerning records specifically exempted from disclosure by state statute. Current Law: §87(2)(a)
Clinch v. Town of Hyde Park, 661 NYS2d 786 (1997) --
Court dismissed Police Department’s request for injunction and granted Board’s motion for summary judgment to enable Board to obtain records from police department; held that case did not involve FOIL, but rather “an application by plaintiff (Police Chief) to prevent the Town Board from obtaining the tapes”, and that Board is entitled to tapes “as plaintiff’s employer and supervising authority under various statutory provisions.
Coalition of Landlords, Homeowners and Merchants, Inc. v. County of Suffolk, Supreme Court, Suffolk County, NYLJ, August 28, 2002 -
Court rejected blanket denial of access to certain real property databases requested in certain computer tape format or CD and claim that production of data would involve creation of a new record. Ordered a hearing to determine actual cost of reproduction and whether agency has capacity to retrieve information sought without creating a new record. See NYPIRG v. Cohen
Coalition of Landlords, Homeowners and Merchants v. Town of Brookhaven, Supreme Court, Suffolk County, October 4, 2004 --
Request involved list of names and addresses, and court held Town Code was not a statute that could exempt records from disclosure under §87(20(a), but also found that list would be used for fund-raising purposes and could be withheld under §89(2)(b)(iii) of FOIL.
Cobb v. Sergeant Louis Lombardi, 261 AD2d 172, 690 NYS2d 30 (1999) --
“Petition was properly dismissed as barred by res judicata to the extent that it seeks items to which access was denied in the prior article 78 proceeding between the parties. However, as respondents concede, some of the items now sought were not specifically designated in petitioner’s prior request for records, and, as to those items, there should be a remand for a determination as to which, if any, are not duplicative of the previously requested items.” No need to reconsider result of first decision due to Gould
Cohalan v. Board of Education of Bayport-Bluepoint School District, 74 AD2d 812 (1980) --
Preliminary contract proposals and demands between board of education and teachers' association deniable, for disclosure would "impede" ongoing collective bargaining negotiations. Current Law: §87(2)(c)
COMPS, Inc. v. Town of Huntington, Supreme Court, Suffolk County, October 28, 1998 --
Court held that assessment inventory data could be withheld as an unwarranted invasion of privacy because it was sought for commercial purpose, citing Siegel, Fenchel and Peddy; Court appears to have had no knowledge regarding §501 of the Real Property Tax Law, which specifies that assessment inventory records must be disclosed.
Comps, Inc. v. Town of Islip, 33 AD3d 796, 822 NYS2d 768 (2006) --
Essentially the same holding as in Comps v. Town of Huntington, that assessment inventory available at certain times under §501 of the Real Property Law, which does not require year round disclosure under FOIL. Court upheld denial on that basis and that disclosure would result in an unwarranted invasion of personal privacy.
Concerned Tenants of 823 Park Avenue v. NYS Division of Housing and Community Renewal, 284 AD2d 269, 726 NYSd 850 (2001) --
Lower court dismissed petition to compel DHCR to comply with FOIL request. DHCR appealed, and court held that it is not aggrieved and that it, therefore, is not “a permissible appellant.”
Conforti v. Safir, 269 AD2d 315, 704 NYS2d 463, appeal denied 95 NY2d 756, 712 NYS2d 448 (2000) --
Proceeding was moot before it began, for agency mailed records to petitioner that he requested to his prior address and asserted that it would do so again upon receipt of new address.
Consolidated Edison Company of New York v. Insurance Department, 532 NYS2d 186 (1988) --
Held that Liquidation Bureau of State Insurance Department is not an "agency" subject to Freedom of Information Law, for it functions independently of the state both administratively and financially; license applications filed by insurer with Insurance Department are "records" available under FOIL; confidentiality ended regarding certain documents when insurer became insolvent.
Correction Officers Benevolent Association, Inc. v. Hanley, Supreme Court, New York County, NYLJ, March 24, 1994 --
Request involved records related to union contracts, including wage and benefit information and "the underlying costing sheet assumptions and formulas for wages and benefits." Court held that disclosure would not impair collective bargaining and that the data consisted of statistical and factual information.
Corvetti v. Town of Lake Pleasant, 227 AD2d 821, 657 NYS2d 536 (1997) --
Court found that records sought had been disclosed and that matter was moot; rejected request for attorney fees because petitioner did not substantially prevail. Stated that “Facing a request pursuant to FOIL, the responding entity may either (1) provide the requested information, (2) deny the request and invoke an appropriate exception..., or (3) certify that it does not have the requested information and that it cannot be found.”
Cosgrove v. Klingler, 58 AD2d 910, 396 NYS2d 498 (1977) --
Plaintiff must exhaust administrative remedies prior to judicial challenge; case dismissed for failure to initiate proceeding within four month statute of limitations. Original Law: §86 et seq.
Couch and Howard, P.C. v. Gridley, Supreme Court, Otsego County, January 25, 1985 --
Court rejected claim that petitioner had failed to exhaust administrative remedies. Request was initially directed to City Manager. As such, the Court held that "It may be presumed that he is the head of the City of Elmira, and therefore no administrative appeal need be taken from his actual or constructive denial of the request." Following in camera inspection, court granted access to most of the records, withheld some as "intra-agency materials". Current Law: §§89(4)(a), 87(2)(g)
Covington v. Cirincione, 307 AD2d 554, 762 NYS2d 295 (2003) –
Motion to dismiss as moot was granted, for records sought were made available; to the extent that petitioner sought records not requested in his original application, he failed to exhaust administrative remedies.
Covington v. Dennison, 39 AD3d 974, 833 NYS2d 310 (2007) --
Held that Board of Parole adequately responded to FOIL requests.
v. Russo, Supreme
Court, New York County, 2010 Slip Op 31277 --
Inmate requested records sought three times before, and records had been disclosed in response to those requests. Agency"adequately certified that it has no other documents responsive to petitioner's request," and court dismissed.
Covington v. Sultana, 59 AD3d 163, 872 NYS2d 119 (1st Dept 2009) --
Court determined that agency complied by making available copies of "the actual memo books and notes" of certain police department personnel, for redaction of portions of the "original" records was warranted.
Crisci v. Butler, Supreme Court, Westchester County, December 7, 1998 –
City of Mount Vernon submitted incomplete set of papers involving stipulation of settlement of disciplinary action, one of the terms of which was an agreement of confidentiality. City’s agent violated those terms through oral statements, and court found that stipulation could be vacated. Note: stipulation would apparently have been available if requested under FOIL, rather than being disclosed orally on the initiative of City employee. See also Paul Smith’s College; Hansen
Crisci v. New York City Police Department, 293 AD2d 321, 739 NYS2d 820 (2002) --
Petitioner failed to exhaust administrative remedies, and agency properly certified as to its diligent search.
Cromwell v. Ward, 183 AD2d 459, 584 NYS2d 295 (1992) --
Petitioner, convicted in 1983, requested 27 documents from New York City Police Department pertaining to homicide investigation, identified police officers, certain reports and officer's memo book entries; Department sought additional information to process the request, which was provided; Department made arrest report available, but denied all other records "without specificity or particularization", stating that "If the Police Department maintains such records", they would be denied under §87(2)(b) and (e), also denied memo books because they are not agency records; Court held that request reasonably described the records, that some records were located after proceeding was initiated, and agency failed to justify the denial and remanded, holding stating that the basis of any denial "must be stated with particulanty and specificity".
Cuadrado v. Morgenthau, 267 AD2d 46, 699 NYS2d 367 (1999) --
Agency did not demonstrate its burden of showing that there was diligent search for records, nor did it "specifically deny the existence of or otherwise justify his refusal to disclose records sought..." Court directed agency to determine whether records exist, and then either disclose them or indicate why they are exempt. See Key
Cuevas v. Popolizio, Supreme Court, New York County, July 23, 1991 (edited version published in NYLJ, July 30, 1991) --
One of many issues involved requests for interview notes prepared in relation to application for public housing. Court held that mere claim that records were "predecisional" was inadequate, that §87(2)(g) exempts "only opinions and recommendations, not factual data or tabulations", even though those portions may be "intertwined" with other material and even though no final determination of the application had been made, and that agency did not meet burden of justifying a denial. See also Ingram, Xerox
Cullum v. Goord, 45 AD3d 1212 (2007) --
Agency failed to inform petitioner of right to appeal denial of access, and App. Div. remitted matter to Supreme Court. See Barrett; Pennington
Curro v. Capasso, 209 AD2d 346 (1994) --
Brief decision affirmed lower court, confirming that FOIL does not require an agency to create a record.
Daily News v. Bratton, Supreme Court, Kings County, NYLJ, December 21, 1994 --
Newspaper sought investigative files relating to a rape. Columnist wrote several articles regarding the matter, and the victim, "Jane Doe", brought a libel action. Agency opposed disclosure, citing §50-b of the Civil Rights Law. Petitioner claimed that good cause for disclosure under §50-b was demonstrated due to its need for the records in defense civil litigation, while respondents claimed that records could be withheld currently under §87(2)(e). Court held that disclosure currently could prejudice the rights of the suspect and the eventual defendant, or interfere with the investigation and that records could be withheld. However, the Court left the door open for future disclosure in accordance with FOIL.
Dallio v. Annucci, 15 AD3d 806, 790 NYS2d 894 (2005) --
Inmate granted access to videotapes but not allowed to use equipment to view them based on “administrative determination involving security and other considerations.” Agency contended that matter is moot because petitioner saw the tapes; he says he was not allowed to view them in their entirety. Decision was withheld and matter remitted to Supreme Court.
Darnowski v. City of Albany, Supreme Court, Albany County, March 15, 2007 --
Even though equivalent information was disclosed in the past, and despite advisory opinion by the Committee on Open Government, held that “location address” of police officers could, if disclosed, endanger safety of police officers and that agency” need only demonstrate ‘a possibility of endangerment’.” See Ruberti
Davidoff & Malito v. Fiocca, Supreme Court, New York County, NYLJ, July 5, 1995 --
Law firm requested records from Department of Housing, Preservation and Development on February 2, and acknowledgment of the receipt of the request indicated on February 8 that a decision would be reached within ten days. A month passed without a response and petitioner appealed. Appeal person did not explain failure to disclose in writing as required by §89(4)(a). Court granted the request and found that agency's failure to respond violated FOIL. In addition, court awarded attorney's fees.
Davidson v. Police Department of City of New York, 197 AD2d 466, 602 NYS2d 855 (1993) --
Request found to be moot because records were made available during pendency of litigation; agency met burden of proof regarding redaction of identities of witnesses involved in investigation based on §87(2)(f).
Davis v. Scott, Supreme Court, New York County, NYLJ, January 19, 1999 --
Agency offered merely conclusory memoranda that a search for records was made and that the records could not be found. Citing Key and Thomas, held court must make a factual determination as to whether respondents’ agents did in fact conduct a diligent search and “must examine an affidavit from the agency employee who conducted the search, before determining that the agency has fulfilled its statutory duty.”
Deane v. Annucci, 248 AD2d 766, 669 NYS2d 696 (1998) --
Upheld denial of access to records sought by inmate pertaining to his "former paramour" on the ground that disclosure would constitute an unwarranted invasion of privacy.
Decker v. Ardler & Greenville Township Fire Dept., Inc., Supreme Court, Orange County, August 31, 1982 --
Financial records of the Greenville Fire Department are subject to inspection under the Freedom of Information Law. See also Westchester Rockland Newspapers v. Kimball
De Fabritis v. McMahon, 301 AD2d 892, 754 NYS2d 117 (2003) –
Petitioner contended that records withheld and made available for in camera inspection did not represent all of the records requested; held that agency failed to “certify that it had no other applicable documents in its possession” and remitted to lower court to determine whether there may be records responsive to request are in possession of agency.
Delaney v. DelBello, 62 AD2d 281, 405 NYS2d 276 (1978) --
Budget recommendations submitted to county executive prior to adoption of budget held to be advisory and therefore deniable under original Freedom of Information Law, recommendation drafted in statistical form does not alter its nature; see also Dunlea, supra. Original Law: §88(1)(b), (d)
DeLuca v. New York City Police Department, 261 AD2d 140, 689 NYS2d 487 (1999) --
Any information that would be provided by a police officer who was shot while off duty that could provide a basis for further investigation into an area of inquiry not yet pursued would be exempt from disclosure under §87(2)(e)(i) following request by officer’s parents until either investigation was closed or police department offered sworn statement that officer’s interview furnished new information that is being “actively followed up.”
DeMaria v. City of Albany, Supreme Court, Albany County, March 15, 1988--
Request involved crime report relating to a certain incident and a certification that police department did not maintain any photograph of petitioner, other than those taken at time of arrest. Single document submitted for in camera review was a report of an incident in a case determined to be inactive. Because investigation was "not ongoing", court ordered disclosure after redaction of witness's identity and directed that department issue certification regarding photographs pursuant to §89(3) as requested; court rejected request for attorneys' fees, for agency had reasonable basis for withholding identity of witness.
Dewey v. Town of Colonie, 54 AD3d 1142 (2008) --
Issue involved filing late notice of claim, which was due to lateness of response to FOIL request. Record indicates that petitioners were unaware of respondents liability until they had chance to review materials made available pursuant to FOIL - two days after time to file notice of claim. Held: "in view of petitioners' initial difficulty in determining respondents' possible connection to the matter...we cannot say that petitioners' delay was unreasonable." See also Brusco for opposite conclusion.
S Dicarlo, Inc. v. Boyle, Supreme Court, Albany County, May 25, 2007 --
FOIL a minor element; FOIL claim dismissed due to failure to appeal or, therefore, exhaust administrative remedies.
DiChiara v. Chesworth, 139 AD2d 647, 527 NYS2d 284 (1988) --
Court upheld lower court dismissal on the ground that petitioner served notice improperly and failed to obtain personal jurisdiction over the respondent.
Dickman v. Trietley, 268 AD 914, 702 NYS2d 449 (2000) --
Held that agency's failure to advise petitioner of the need to appeal under its regulations "does not preclude dismissal of his FOIL-related claims under Matter of Barrett v. Morgenthau.
D’Imperio v. Putnam Lake Fire Department, Inc., 262 AD2d 410, 691 NYS2d 135, appeal dismissed 706 NYS2d 76, 94 NY2d 889 (1999) –
Department offered sufficient proof that records sought were either not in its possession or did not exist.
DiRose v. City of Binghamton Police Department, 225 AD2d 959, 639 NYS2d 580 (1996)--
Following in camera inspection of certain arrest reports, complaints, information and police blotter entries regarding two individuals, court ordered that certain items be disclosed. Petitioner moved for reconsideration on ground that agency did not provide all the information in its possession to the supreme court. That court rejected the motion and Appellate Division affirmed.
DiRose v. Moody, 224 AD2d 847 (1997) --
Petitioner lost a tape of disciplinary proceeding, was denied access to second copy. Court dismissed as moot after second copy made available.
DiRose v. NYS Department of Correctional Services, 216 AD2d 691, 627 NYS2d 850 (1995) --
Petitioner sought statewide alphabetical listing of all inmates in the Department's custody, including facility and DIN numbers. Agency said that record did not exist. Court held that although facilities each maintain an "alpha cell book" that lists every inmate, the Department is under no obligation to "compile the requested data from such a record." See Guerrier.
DiRose v. NYS Department of Correctional Services, 223 AD2d 878, 636 NYS2d 223 (1996)--
Court upheld denial of request for "unredacted copies of [petitioner's] transfer forms, citing Rowland D.
DiRose v. NYS Department of Correctional Services, 226 AD2d 846, 640 NYS2d 353 (1996)--
Names and identification numbers of inmates who file grievances may be withheld as unwarranted invasion of privacy and because disclosure could endanger life or safety.
Doe v. Riback, 788 NYS2d 590 (2005) --
Defendant made motion for judicial subpoena ordering police officers to disclose file relating to a criminal case and contended that records should be disclosed under FOIL. Court rejected argument, for the “predicate administrative proceeding to obtain the documents pursuant to FOIL was never commenced or maintained.” Further, “judicial review of a FOIL determination is obtained through the commencement of a CPLR Article 78 proceeding, not a motion in a pending action.”
J.I. and John Doe v. Tioga County Legislature, 2 Misc.3d 230, 766 NYS2d 754 (2003) --
Request involved records prepared in an investigation in 1985 regarding allegations that priest abused boys in his parish. No criminal charges were brought, and the request was denied as an unwarranted invasion of personal privacy and §50-b of the Civil Rights Law. Following in camera inspection, court found that the priest was informed of his Miranda rights and spoke voluntarily to investigators, knew he was a suspect, and “[g]iven the entirety of the circumstances, he could not have had any reasonable expectation that the contents of his statements would remain private or confidential.” Court was not persuaded that disclosure would constitute an unwarranted invasion of personal privacy, ordered disclosure following deletion of identifying details regarding victims and others, stating that “This will also avoid any potential breach of the cited provision of the Civil Rights Law. Note: somewhat odd decision since there was never an arrest or charge, but only unproven allegations; 50-b arguably not at issue because there was no finding of commission of a sex offense. See Brown v. New York City Police Department.
Dos-Santos v. New York City Police Department, 255 AD2d 205, 697 NYS2d 819 (1998) --
Proceeding properly dismissed due to petitioner’s failure “to articulate a demonstrable factual basis for believing that the documents she requested exist” , after records access officer certified that her complaints did not generate an investigation and that a diligent search “located no documents pertaining to any such investigation.”
Dowling v. State, 49 AD2d 982, 374 NYS2d 148 (1975) --
The only records available from Parole Board under the circumstances were final determinations of the Board; all other records sought determined to be confidential; see also Zuckerman, supra. Original Law: §§85 et seq., 88(1)(h)
Dramadri v. New York Inst. of Technology, Supreme Court, New York County, NYLJ, January 26, 1988 --
No legal justification could be found for withholding a student's transcript from the student, even though tuition had not apparently been paid.
Duban v. State Board of Law Examiners, 157 AD2d 946, 550 NYS2d 207 (1990) --
Attorney's request for his bar exam results was rendered moot because exam was destroyed; no showing that respondents acted in bad faith.
Dunnigan v. Waverly Police Department, 279 AD2d 833, 719 NYS 2d 399 (2001) --
Request involved disciplinary records relating to police officer that were denied under §50-a of the Civil Rights Law. Court held that police officer was a “necessary party” to this proceeding and that petitioner failed to show how records were relevant to his claims of improprieties. Access denied.
Dupont v. Kings County Attorney’s Office, 15 AD3d 480, 790 NYS2d 505 (2005) --
Held that petitioner was not entitled to additional copies of records already made available to him or his attorney, and failing to recognize Newsday v. Empire State Development Corporation, that subpoenas in possession of DA were court records not subject to FOIL. See Moore, Walsh
Durio v. MacKechnie, 202 AD2d 667, 610 NYS2d 844 (2nd Dept 1994) --
Appellate Division reversed lower court dismissal of the proceeding and held that although §3101(d) of the CPLR may in appropriate circumstances authorize the agency to withhold, those circumstances were not present; also held that, subject to in camera review, some of the records might be withheld under §§87(2)(b) and (e)(iv).
Eberhart v. Crozier, 50 AD3d 686, 854 NYS2d 747 (2008) --
Request for 1993 property clerk voucher and bullet. Portion, but not all of voucher, was made available. Because there was no claim that remainder of the document was missing, court directed that complete copy be made available. >
Edwards v. New York State Police, 44 AD3d 1216, 843 NYS2d 729 (3d Dept 2007) --
Convicted murderer sought photographs of crime scene and victim’s “bloodied, partially clothed body.” Citing NY Times v. NYC Fire Dept., held that disclosure would constitute an unwarranted invasion of personal privacy relative to victim’s family.
Elentuck v. Green, Supreme Court, Kings County, June 29, 1989 --
Request involved a variety of records including NYC Board of Education Chancellor's reports, unsatisfactory rating reports and Education Law §3020-a reports. Many of the records sought did not exist. Chancellor's reports were found to be "predecisional information" that are not binding and therefore exempt as intra-agency material; unsatisfactory rating reports also found to be deniable as intra-agency material as an unwarranted invasion of personal privacy; also held that §3020-a reports are available "where an employee has been found guilty..."
Elentuck v. Mills, Supreme Court, Albany County, February 8, 2002 --
Petitioner essentially asked in a variety of ways that the Court direct the State Education Department to comply with FOIL and the Committee’s regulations and requested certain records. Held that some of the information sought did not exist and need not be compiled, that records were predecisional and exempt from disclosure; dismissed the petition.
Center for New York State Policy v. New York City Pension Fund, Supreme Court, New York County,
December 6, 2010 --
Section 89(7) states that the name and address of a beneficiary for purposes of a public employees' retirement system need not be disclosed. Court held that the retiree is the beneficiary and that names of those persons need not be disclosed, citing both 87(2)(b) concerning privacy and (f) regarding endangering life or safety. Decision appears to be wrong and has been appealed.
Empire Realty Corp. V. NYS Division of the Lottery, 241 AD2d 617, 660 NYS2d 73 (1997) --
Involved procedural issue by finding that lower court “erred in addressing the merits of petitioners’ claim and dismissing the petition before respondents had the opportunity to serve an answer.”
Ennis v. Slade, 179 AD2d 558, 579 NYS2d 59 (1992) --
Agency could not locate records after diligent search, but court said that if such records existed, those involving investigation of narcotics "buy operation", they could be withheld under §87(2)(e)(iii), (iv) and (g).
Erie Boulevard Hydropower, L.P. v. Town of Moreau, Supreme Court, Saratoga County, June 3, 2003 –
Records withheld on based on assertion of attorney/client privilege, attorney work product, or as material prepared in anticipation of litigation. Court could not determine propriety of claims, ordered in camera inspection and production of “a log containing the description of each document withheld, the purpose for which each document was prepared, the category of privilege claimed by respondents for each document, the specific justification for not disclosing the requested documents....”
Ervin v. Southern Tier Economic Development, Inc, 26 AD3d 633, 809 NYS2d 268 (2006) --
Appellate Division affirmed finding that entity in question, a not-for-profit corporation, is not an “agency” subject to FOIL. Distinguished Buffalo News v. Buffalo Enterprise Development Corp., stating that entity here was created by private business persons, that 6 of 9 members of governing board are private individuals, and that government “does not control or oversee the management of...respondent” and “does not hold itself out as an agent of” of a government agency.
Estrada v. New York City, Civil Court, New York County, NYLJ, October 22, 1999 –
Plaintiff in action for damages sought to strike defendant’s answer on the ground that the Civilian Complaint Review Board (CCRB) failed to produce certain records relating to a complaint filed by the plaintiff against defendant police officer. Defendant contended that the records are exempt from disclosure under §50-a of the Civil Rights Law and, therefore, §87(2)(a) of FOIL. Found that neither statute protects against disclosure of statements made by police officer; purpose of §50-a “is not implicated where, as here the party seeks disclosure not of unsubstantiated third party complaints about irrelevant, separate incidents, but rather, of the officers’ own statements about the very incident which is the basis for the action.” No showing was made that disclosure of the records “is barred by the FOIL exemptions independent of Civil Right Act §50-a.”
Farina v. Merchant s Ins. Co. of New Hampshire, Inc., Supreme Court, Nassau County, NYLJ, August 10, 2005 --
Motion for subpoena granted using FOIL standards as basis for disclosure; Court confused FOIL and subpoenas.
Farms First v. County of Saratoga, Supreme Court, Saratoga County, July 21, 1994 --
Contract between County and consulting engineering firm specified that work products completed by the firm belong to the County; accordingly, it was held that the records are subject to FOIL even though in physical possession of engineering firm; found to be intra-agency materials and that statistical or factual portions must be disclosed; denied request for attorney's fees.
Farms First v. County of Saratoga, Supreme Court, Saratoga County, March 31, 1995 --
Case is part of a lengthy battle in which it was held in separate case that records prepared for the County by engineering firm were subject to FOIL. Instant case involved a request for contempt citation based upon a contention that records were unjustifiably withheld by the firm; court rejected the request.
Farms First v. Saratoga Economic Development Corporation, Supreme Court, Saratoga County, September 30, 1994 --
SEDC was found to be a not-for-profit entity separate from government since its creation, and court held that it is not subject to FOIL. See also Legal Aid (1), Buffalo News (4)
Faulkner v. DelGiacco, 529 NYS2d 255 (1988) --
Inmates' request for records reflective of investigation of prison disturbance held to be deniable under §87(2)(g); court granted access to inmate statements, which could not be characterized as intra-agency materials, nor could they be withheld under §§87(2)(e) or 89(2) as an unwarranted invasion of personal privacy. Although some records were disclosed, petitioners did not substantially prevail, and request for attorney's fees was denied.
Faulkner v. LeFevre, 532 NYS2d 337 (1988) --
Inmate was denied access to names of other Muslim inmates who filed grievances on the ground that disclosure would result in an unwarranted invasion of personal privacy; substance of the grievances had previously been disclosed. See Bensing
Faxton Hospital v. Plumey, Supreme Court, Oneida County, May 30, 1984 --
Petitioner requested from county industrial development agency documents submitted at a public hearing by an applicant for industrial development revenue bonds; held that burden of proof could not be met by agency, that disclosure would not constitute an unwarranted invasion of personal privacy.
Feebe v. City of New York, Appellate Division, First Department, NYLJ, June 9, 1983 --
Following completion of criminal proceeding, records were apparently made available under the Freedom of Information Law, even though they were sought by means of discovery under CPLR, §3120; dissenting opinion called for in camera inspection to determine the extent to which a protective order should have been granted.
Feerick v. Safir, 297 AD2d 212, 745 NYS2d 538 (2002) --
Petitioners are police officers seeking investigative files involving internal investigation of their activities. Held that they could not invade their own privacy, that their request itself results in the agency’s inability to assert section 50-a of the Civil Rights Law, which prohibits disclosure unless the officer has given “express written consent.”
Ferrara v. Superintendent, NYS Police, 235 AD2d 874, 652 NYS2d 432 (1997) --
Held that same records were the subject of two requests and that instant proceeding was “barred by res judicata”; also found that records of disciplinary action taken against members of the State Police were exempted from disclosure under §50-a of the Civil Rights Law.
Fields v. Giuliani, Supreme Court, New York County, NYLJ, October 5, 2001 --
Primary question involved right of Borough President to obtain records relating to the RFP process under the New York City Charter. Court held that, under the Charter, the records sought could be withheld until submission of contract to City Comptroller for registration. Although the records were not requested under FOIL, court held that they could be withheld as intra-agency material under that statute, for they involve an agency’s “deliberative and evaluative process”, rather than the items available under subparagraphs (i) through (iv) of section 87(2)(g).
First Executive Corporation v. Cooper, Supreme Court, New York County, August 8, 1990 --
Petitioner attempted to preclude state agency from disclosing records in conjunction with claim of trade secret protection; Court found that there was no valid reason to disagree with agency's conclusion that records were not exempt as trade secrets or to delay disclosure.
Flores v. City of New York, 207 AD2d 302, 615 NYS2d 400 (1994) --
Appellate Division reversed Supreme Court order to have Police Department Internal Affairs Division produce records for in camera inspection of records relating to a police officer involved in a shooting. FOIL referenced tangentially in that records sought were "predecisional intra-agency materials" deniable under §87(2)(g). See also Svaysin, Scaccia
Flowers v. Sullivan, 149 AD2d 287 (1989) --
One aspect of the decision involved requests by inmates for "specifications and other data relating to the electrical and security transmission systems of Sing Sing Correctional Facility." Held that disclosure "might impair the effectiveness of these systems and compromise the safe and successful operation of the prison" and upheld denial due to endangerment of life or safety.
Foley, Matter of v. Wilson, Supreme Court, Wayne County, November 23, 1982 --
Breathalyzer tests, even though allegedly erroneous or false and created by unauthorized persons, are records subject to rights of access under the Freedom of Information Law, and were found to be available due to prior publicity and notwithstanding possible falsification. Records related to pending investigation and criminal action directed to be made available after the conclusion of such proceedings, and after applicability of §87(2)(e)(i) and (ii).
Fournier v. Fish, 83 AD2d 979, 442 NYS2d 823 (1981) --
Records indicating location in a correctional facility where records were kept were denied on the basis that disclosure would jeopardize security. Current Law: §87
Fox v. DeFrancesco, Supreme Court, Orange County, Jan. 8, 1990 --
Request involved publications, curriculum and training material used by State Police in administration of "roadside field sobriety tests". Held that such materials are "certainly compiled for law enforcement purposes and their discovery might well interfere with law enforcement investigations and reveal criminal investigative techniques and procedures"; rejected claim that techniques and procedures were "routine".
Franklin v. Miner, Records Access Officer, 21 AD3d 276, 799 NYS2d 417 (2005) --
Granted access, thereby reversing lower court, stating that plea minutes available, for agency did not demonstrate that the material “falls within a statutory exemption.”
Franklin v. Schwartz, 57 AD3d 338, 870 NYS2d 248 (1st Dept 2008) --
Clear that agency made diligent search for records involving a 1982 proceeding without success. Court affirmed lower court's denial of motion to hold records access officer in contempt.
Frick v. Hennessy, Supreme Court, Sullivan County, July 25, 1979 --
Records of Department of Transportation relative to an oil spill found to be "compiled for law enforcement proceedings"; since Department was required to enforce provisions of the Navigation Law by reporting violations to the Attorney General for collection of penalties, disclosure could result in possible interference with a law enforcement investigation or judicial proceeding under §87(2)(e)(i).
Friedland v. Maloney, 148 AD2d 814 (1989) --
Petitioner requested records, did not receive a response, and appealed. Appeal was not answered and proceeding commenced. Soon after, the records were released and petitioner requested attorney's fees. Court found that the award of attorney's fees is discretionary, that evidence indicates that the Department, acting in good faith, began to work on a complex request on the day it was received and that the Department did not release the records because of the commencement of litigation. As such, request for attorney's fees was denied.
Friedlander v. The NYS Urban Development Corporation, Supreme Court, New York County, April 13, 1988 --
Request for numerous documents was denied as being subject to the attorney-client privilege, as attorney work produce, as inter or intra-agency materials and on the ground that disclosure would impair present or imminent contract awards. The court held that those bases for denial was sufficient due to the agency's preparation of an "Index of Undisclosed Documents", which adequately described the nature of the records and the justification for withholding.
Frigerio v. Town Clerk of Town of Greenburgh, Supreme Court, Westchester County, November 26, 1985 --
Town Law requires that towns in Westchester County file tentative budgets by October 31, the date on which petitioner submitted her request. The records were made available on November 7. Petitioner argued that the documents should have been made available prior to election day to enable the electorate to be better informed. Since the Town complied within five business days, the Court found no violation of law. However, it was suggested that a legislative solution should be enacted to ensure timely access. Current Law: §89(3)
Fusco v. City of Albany, 509 NYS2d 763 (1986) --
Case involved an action to recover for personal injuries incurred when plaintiff fell on a city sidewalk, and in which "Corporation Counsel accused plaintiff's attorney of unethical conduct in contacting City employees while pursuing a Freedom of Information request, without first clearing the request with the Corporation Counsel." Court held that anyone may request records under the Freedom of Information Law, notwithstanding the pendency of litigation or the filing of a statement of readiness; also held that the Code of Professional Responsibility does not prohibit an attorney for a litigant from seeking records under the Freedom of Information Law. See also, Farbman
Gabriel v. Turner, 50 AD2d 889 (1975) --
Minutes and records of deliberations in executive session regarding tenure and competence of teachers deniable.
NOTE: Rendered under original Freedom of Information Law and prior to passage of Open Meetings Law. Original Law: §85 et seq.
Gabriels v. Curiale, 216 AD2d 850, 628 NYS2d 882 (1995) --
Petitioner sought a computer report containing specific kinds of information. Department denied access on the ground that it did not maintain the information in the form that was sought. Held that an agency is not required to develop a program to accomplish this task. See also Guerrier.
Gannett Rochester Newspapers v. NYS Department of Motor Vehicles, Supreme Court, Albany County, August 25, 1997 --
Based on affidavit that information sought “is not contained in the database and DMV does not have an existing program which compiles the information requested by petitioner that does exist in the data base”; found that new program would have to be written and that agency is not required to do so under §89(3).
Gannett Co. Inc, v. Riley, 613 NYS2d 559 (1994) --
Internal investigation report and other records relating to investigation of disturbance at county jail found to be exempt from disclosure pursuant to §50-a of the Civil Rights Law. See Prisoners' Legal Services, Gannett v. James, Capital Newspapers v. Burns
Gannett Satellite Information Network v. City of Elmira, Supreme Court, Chemung County, August 26, 1994 --
Court held that revaluation figures or property value estimates prepared by firm for City "are the professional opinions of...appraisers" and are deniable under §87(2)(g), even though "expressed in numerical form"; factual inventory data found to be available. Insofar as decision upholds denial, it may be in conflict with David and Dunlea.
Gannett Suburban Newspapers v. City of Yonkers, Supreme Court, Westchester County, April 3, 2003 –
Parties agreed that personal information unrelated to the duties of City employees could be redacted from financial disclosure statements filed pursuant to General Municipal Law, §813. However, City claimed that petitioner was required to request statements “on an individual basis, i.e., record by record, according to the individual public official involved.” Citing Ruberti and Konigsberg, court held that there is no basis for imposing such a restriction and found tacitly that the request reasonably described the records.
Garcia v. Division of State Police, 754 NYS2d 913, 302 AD2d 755 (2003) --
Held that petitioner sought same records as those considered in previous request that had been fully processed; since request was belated attempt to seek judicial review of earlier denial, court dismissed proceeding as time barred.
Gates v. Dyson, 389 NYS2d 154, 55 AD2d 705 (1976) --
Ballots of referendum on extension of daily promotion order and cooperative milk producer lists held to be available. Original Law: §§88(3), (7)
Geames v. Henry, 173 AD2d 825 (1991) --
Original decision dismissed the petition because record of conviction could not be found; however, record was found following appeal and directed to be made available, for disclosure would not result in unwarranted invasion of personal privacy. See also Thompson v. Weinstein
Gebman v. Pataki, 681 NYS2d 701, 256 AD2d 854 (1998) –
Appellate Division affirmed lower court’s denial of motion for injunctive relief, for it was necessary “to determine whether the essential motion of the claim is the recovery of monetary damages or whether monetary relief is simply incidental to the primary claim”, which involved access to information in agency’s computer systems and programs.
George v. New York Newsday, Supreme Court, New York County, NYLJ, October 4, 1994 --
In case regarding libel and invasion of privacy, court referred to Personal Privacy Protection Law and merely stated that the plaintiff made no claim under that statute.
Georges v. NYS Department of Environmental Conservation, Supreme Court, Albany County, September 14, 1989 --
Following in camera review, court held that disclosure of certain documents might interfere with investigations or judicial proceedings or could be withheld under §87(2)(g); however, court required that portions of documents consisting of statistical or factual tabulations or data that would not interfere with investigations or judicial proceedings must be disclosed.
Geostow v. NYS Department of Environmental Conservation, Supreme Court, Ulster County, July 13, 1988 --
Petitioners failed to meet their burden of proof in demonstrating that the records to be disclosed by agency constituted trade secrets; no evidentiary support for claim of harm to competitive position was advanced. Current Law: §89(5)
Gerace v. Mandel, 267 AD2d 386, 700 NYS2d 739 (1999) --
Citing Woods and Bennett, held that criminal history records are exempt from disclosure. Also held (I disagree) that extensive redaction of rapsheets would require agency to "prepare" a record,
Gerbe v. Franklin Hospital Medical Center, Supreme Court, Nassau County, NYLJ, September 6, 1991 --
Defendants in a malpractice action moved to prevent disclosure of police department records prepared in connection with a related homicide investigation. Police Department claimed confidentiality under §87(2)(e)(ii) and (iii), but court found that investigation was closed, that there were no promised of confidentiality and that file should be disclosed, except counseling sheet exempted under Public Health Law, §2805-m. See also Cornell and Hawkins
Gerrara v. New York City Police Department and Department of Correction, Supreme Court, New York County, September 28, 2010 --
Inmate requested records in 2007 and 2008, received some, others could not be found. Court found portion of action to be moot based on agency certification that diligent search was made; other records found and required to submitted for in camera inspection.
Records previously disclosed
Gibson v. Grady, 566 NYS2d 829 (1991), affirmed 597 AD2d 84 (1993) --
Affirmed lower court decision and held that grand jury minutes are court records, not agency records, and are "exempt from the ambit" of the FOIL.
Glantz v. Lupkin, 419 NYS2d 34 (1979) --
Records of character investigation of petitioner by New York City Department of Investigation available, but Organized Crime Control Bureau report held deniable to the extent that disclosure would interfere with criminal investigations of organized crime. Current Law: §87(2)(e)
Global Tel*Link v. NY Dept. of Correctional Services, 68 AD3d 1599, 892 NYS2d 604 (2009) --
Records relating to bids withheld based on several exceptions in FOIL, as well as section 163 of State Finance Law. Held that judicial precedent had been rendered with respect to FOIL grounds, but that reliance on 163 was "novel." However, section 163 was amended and no longer in effect and, therefore, issue regarding its application not likely to recur. Issue involving rights of access found to be moot.
Goetschius v. Board of Education, Supreme Court, Westchester County, March 5, 1999 –
Insofar as decision involved FOIL, court held that petitioner could initiate proceeding due to agency’s failure to inform him of right to administrative appeal, citing Barrett; also found that agency must disclose records of its proceedings, “final undertakings and/or agreements.”
Goetschius v. Board of Education, Supreme Court, Westchester County, NYLJ, March 10, 1999 –
As decision pertained to FOIL, court again found that agency failed to inform petitioner of right to appeal; also held that fees were consistent with FOIL, that there was no violation of that statute because “payment has not been tendered”, and that agency is not required to “prepare” records.
Goldin v. Board of Education, 306 AD2d 410, 761 NYS2d 282 (2nd Dept 2003) --
Court held that there was no merit to claim that Board violated FOIL.
Goldstein v. State, 188 Misc.2d 524, 728 NYS2d 891 (2001) --
Case involved challenge to a denial of access to “complete and unredacted Occupational Injury Logs” and Department of Labor’s interpretation of the Public Employee Safety and Health Act (PESH) and state and federal regulations. Held that access to the records in question must “be provided in a manner similar to the federal standards” and that, therefore, they must be disclosed. Also held that the records “did not reach the level of medical records” and that disclosure would not constitute an unwarranted invasion of personal privacy.”
Goldstein v. NYS Industrial Board of Appeals, 292 AD2d 706, 740 NYS2d 463 (2002) --
Agency could not redact portions of “occupational injury logs” kept pursuant to Public Employee Safety and Health Act (PESHA) based on FOIL exceptions because regulation “provides for disclosure of the log without any exceptions.
Golubski v. Quinones, Supreme Court, Kings County, May 29, 1985 --
Statistical information maintained by NYC Board of Education concerning incidents occurring at schools found to be available.
Goodstein v. Shaw, 463 NYS2d 162 (1983) --
Petitioner requested complaints filed with the State Division of Human Rights including the first names and addresses of each complainant; court found that the list containing the information was sought for commercial purposes and therefore denied as an unwarranted invasion of personal privacy. Current Law: §§87(2)(b), 89(2)(b)(iii)
Goodstein & West v. O'Rourke, 201 AD2d 731, 608 NYS2d 306 (1994) --
Investigative report regarding allegations of discrimination made by a corrections officer found to be predecisional and reflective of opinions and recommendations exempt under §87(2)(g); in camera inspection made and court found no statistical or factual information. See also Xerox.
Gorenitsyn v. NYC Dept. of Citywide Services, Supreme Court, New York County, February 2, 2009, NY Slip Op 30440(U) --
Following NYC agencies' denial of petitioner's applications for master plumber and master fire suppression contractor licenses, his requests for records of interviews of prior employers were denied under §87(2)(e)(i). However, when criminal investigation ended, that exception ended as well, and agency asserted that all records sought were made available to petitioner's attorney. Held that denial was proper while investigation was ongoing.
Gorski v. Mullins, Supreme Court, Albany County, July 1, 2003 –
Case involved challenge to denial of request under Personal Privacy Protection Law (PPPL) based on exceptions appearing in §87(2) of FOIL. Found that the records sought were deliberative in nature and were intra-agency materials that could be withheld under §87(2)(g) of FOIL, that most of the records sought were not within PPPL definition of “record” and fell beyond coverage of that statute, and that most of those did fall within PPPL consisted of material prepared for litigation in administrative proceeding and were exempt under §95(6)(d). Note: Unclear whether court understood relationship between FOIL and PPPL.
Goyer v. NYS Department of Environmental Conservation, Supreme Court, Albany County, November 29, 2005 --
Assembly request for database of licensed deer hunters who applied for “deer management permits” had been granted for several years, but denied here. Court sustained denial due to “threat of identity theft.” Note: Decision seems to be inconsistent with statute stating that names and addresses of firearms licensees must be disclosed.
Grace and Hettig v. Chenango County, Supreme Court, Chenango County, August 27, 1997 --
Agency could not sustain burden of proof in attempt to withhold real property surveys; held that surveys were not attorney work product, for to be so, they “must be uniquely the product of a lawyer’s learning and professional skills”; held that attorney’s fees would not be awarded because surveys were not “clearly significant to the general public.”
Graham v. Hynes, Supreme Court, Kings County, NYLJ, November 10, 1998 --
"Petitioner's status as a criminal defendant does not enhance his FOIL rights to documents that the public cannot obtain." Held that pre-sentence report, attorney work product, grand jury records, medical records pertaining to a person other than the applicant and other personal information are outside rights conferred by FOIL.
Grajales v. Lungen, 15 AD3d 789, 790 NYS2d 268 (2005) --
Upheld denial of access to videotapes “depicting confidential and undercover police sources” pursuant to §87(2)(e)(iii) and (f).
Grasso v. Megna, Supreme Court, Albany County, January 2, 2009, NY Slip Op 30004(U) --
Petitioner and wife were subject of tax audit and sought records relating to the audit. Were given approximately 3,000 pages of material, but portions withheld or redacted. Court reviewed material and found that some pages properly redacted, others consisting of factual information should be disclosed, citing Gould. Some materials also found to be confidential based on attorney-client privilege, §1418 of Tax Law, and 26 USC §6103(a), which prohibits state agencies from disclosing any federal return information.
Gray v. State University of New York at Albany, Supreme Court, Albany County, June 5, 2003 –
Although petitioner was given the opportunity to inspect the budget and budget related documentation, he disputed that he has seen entire budget based on belief that “certain line items in the budget that represent certain allocations are not broken down in further detail.” Court found that contention was based on unsupported speculation and dismissed as moot.
Greco v. Supp, 654 NYS2d 560 (1997) --
Request involved records indicating amount paid in settlements following eminent domain proceedings, as well as appraisal; citing Farbman, held that fact that requester is involved in litigation is irrelevant; appraisal was not “adopted” by agency and therefore would apparently be exempt under §87(2)(g), but court ordered in camera inspection nevertheless; held that amounts paid in settlement must be disclosed, even though settlements regarding all parcels had not yet been reached and rejected §87 (2)(c) as basis for withholding.
Green v. Safir, Supreme Court, New York County, NYLJ, October 17, 1997 --
In a case ancillary to FOIL, court held that Public Advocate of New York City had statutory authority to bring suit under FOIL to acquire records of the NYC Police Department.
Greene v. Boggess, Supreme Court, Albany County, October 19, 2005 --
Involved request for time and attendance records of an employee of the State Senate. Held that records sought do not relate to records “otherwise available for public inspection” under §88(2)(e) and, therefore, need not be disclosed. Note: Disclosure requirements applicable to State Legislature differ from those applicable to agencies generally; same records maintained by agency would clearly be available.
Greene v. Hynes, Supreme Court, Kings County, NYLJ, May 14, 2004 --
Citing Gould, confirmed that CPL has no impact or relevance to request made under FOIL. Held that statements of non-testifying witnesses deniable under §§87(2)(e)(iii) and 240.45(1)(a) of CPL; that records pertaining to grand jury proceeding are confidential under CPL, §190.25; that names on blood analysis and fingerprint reports could not be withheld as unwarranted invasion of personal privacy. Court refused to award attorney’s fees.
Grigger v. NYS Division of Parole, 11 AD3d 850, 783 NYS2d 689 (2004) --
Request involved statement written by DA to Parole Board, and Appellate Division found that it consisted of “predecisional, nonfinal recommendations” that could be withheld under section 87(2)(g). See Ramalho, Xerox, Mingo
Grossman v.McMahon, 261 AD2d 54, 699 NYS2d 582 (1999) --
Petitioner was rejected in his effort to be reinstated following an injury and requested his “background investigation file”. Found that the requested material “consists entirely of evaluative documents” that may be withheld under section 87(2)(g). NOTE: this holding and that in Feerick may be inconsistent.
Grossman v. Schwartz, 125 FRD 376 (1989) --
Federal court action unrelated to the FOIL included contentions by defendant NYC that certain documents requested by plaintiff were privileged. In the course of its discussion, the court found that the "FOIL creates no statutory 'privilege' from discovery in a civil action" and that, "Authorization for barring discovery of defendants' 'predecisional' documents must be found elsewhere."
Grune v. NYS Department of Correctional Services, 166 AD2d 834, 562 NYS2d 826 (1991) --
Supreme Court dismissed petition in which applicant sought records relating to his transfer from one facility to another, despite request for in camera inspection. Appellate Division held that lower court improperly dismissed without making in camera review; conclusory allegation that records were "predecisional" or "evaluative" was insufficient. See also Rowland D.
Gumbs v. NYS Police, Supreme Court, Albany County, March 20, 2008 --
Request involved complaints, and agency sought to withhold records in their entirety. Following in camera inspection, court held that records must be disclosed following redaction of personally identifying details.
Gumo v. Incorporated Village of Malverne, 260 AD2d 577, 686 NYS2d 733 (1999) --
Affirmed lower court dismissal of proceeding as academic and, therefore, properly denied award of attorney’s fees.
People v. Gutterson, 403 NYS2d 998 (1979) --
Case involved challenge of a speeding violation and a request for personnel records that "would bear on the officer's ability to estimate the speeds of moving vehicles"; Court held that such records were available under Freedom of Information Law and, after giving an opportunity to be heard, under §50-a of the Civil Rights Law.
John H. v. Goord, 27 AD3d 798, 809 NYS2d 682 (2006) --
Inmate sought records relating to his allegation that he was sexually assaulted by a correction officer. Following in camera review, court rejected contentions that witnesses were “confidential sources” and that records could be withheld as non-routine criminal investigative techniques or procedures; however, sustained denial based on conclusion that disclosure could endanger life or safety, for “exposing the identity of an inmate or employee who cooperated in an investigation could expose that individual to a significant risk of retribution...”
Hall v. Bongiorno, 305 AD2d 508, 761 NYS2d 63 (2003) –
Held that grand jury records are court records, not agency records and are confidential under CPL, §190.25(4).
Hall v. Brandon, 408 NYS2d 1006 (1978) --
Predecisional materials related to escape from correctional facility and recapture found to be intra-agency and deniable. Current Law: §§87(2)(g), 89(4)(a) and (b)
Halpern v. NYC Economic Development Corp., Supreme Court, New York County, NYLJ, December 26, 2002 –
Agency initially denied access, citing both §§87(2)(c) and (g), but on appeal cited only the latter. Court held that agency was restricted to defending its denial only on the basis of (g) and that burden of proof could not be met, ordered that records withheld under (c) had to be disclosed and that those withheld under (g) would be reviewed in camera. Request for attorney’s fees rejected based on finding that records were not of clearly significant interest to the public.
Hameed v. Coughlin, Supreme Court, Chemung County, June 23, 1989 --
Inmate requested records pertinent to his transfer from one correctional facility to another. Agency assertion that "Clearly such documents would be inter-agency documents" exempt under §87(2)(g) was found to be inadequate and failed to meet the burden of proof. Court ordered in camera review with a "particularized analysis concerning specific documents or portions thereof." In final decision and judgement rendered on August 23, 1989, following in camera inspection, court upheld the denial, finding that the records are "pre-decisional materials and non-final recommendations".
Hanft v. Crosson, Supreme Court, New York County, January 25, 1991 --
Petitioner sought various records from Chief Administrators of the Courts. Court found that, prior to initiation of suit, petitioner was informed of the method for obtaining the records, which he chose not to follow, that his request was part of a "continuing campaign to harass and intimidate members of the Judicial Branch", that the Appellate Division recently sanctioned him for frivolous litigation, and dismissed the proceeding.
Hanft v. NYS Law Revision Commission, Supreme Court, Albany County, July 7, 1993 --
Court found that records sought had been disclosed, that petitioner was no longer aggrieved and that proceeding was moot.
Harrison v. Alago, 199 AD2d 562, 680 NYS2d 118 (1993), appeal denied 83 NY2d 831, 612 NYS2d 104 --
Brief decision in which it was held that petitioner did not demonstrate that he was entitled to the records; court cited Wood v. Ellison.
Haudenosaunee Resource Center v. Crotty, Supreme Court, Albany County, October 27, 2004 --
Following in camera inspection, court determined that certain documents constituted policy of the agency and must be disclosed, that incident reports are “in essence factual data” accessible, but that names should be deleted to protect against unwarranted invasion of personal privacy.
Hawley v. Village of Penn Yan, Supreme Court, Yates County, November 30, 2004 --
Bills pertaining to mayor’s use of village cell phone were disclosed after deletion of all phone numbers. Court held that agency could not meet burden of proving that disclosure of numbers called would constitute an unwarranted invasion of privacy, citing opinion of Committee.
Hearst Corporation v. City of Albany, Supreme Court, Albany County, May 19, 2010 --
Request involved copies of parking tickets "voided, dismissed, deleted, or excused" by city employees during certain period, was denied on ground that records were sealed pursuant to section 160.50 of Criminal Procedure and FOIL privacy exception. Nevertheless, after suit commenced and fully briefed, City provided access and contend that matter is moot and that award of attorney's fees is not warranted. While court held that applicability of exceptions cited by City is novel and, therefore, not moot, also held that Hearst failed to demonstrate that the issue is "a phenomenon typically evading review." Also held that dismissal warranted on the ground that persons whose tickets were dismissed are "necessary parties" (why???). Denied request for attorney's fees, improperly provision no longer in effect. Note: section 160.50 relates to criminal actions, and that issuance of parking tickets does not involve criminal action.
Town of Hempstead v. Commissioner, Office of Mental Retardation and Developmental Disabilities, 119 AD2d 582 (1986) --
Town request was denied in part, but apparently not appealed. Court dismissed because petitioner failed to exhaust administrative remedies. Current Law: §§89(4)(a), (b)
Hendrick Hudson Central School District v. Falinski, 15 AD2d 438, 626 NYS2d 255 (2nd Dept 1995) (and see line of cases) --
Falinski was the subject of charges brought under §3020-a of the Education Law; other defendants were her attorney and 2 members of the public; District sought to enjoin them from distributing charges; court held that statutes that could restrict disclosure are not applicable to private citizens and denied injunctive relief in toto with respect to them; found that deletion of students' names from the charges would adequately serve to protect privacy as required by FERPA; names were not disclosed, and court enjoined Falinski and her attorney solely with respect to disclosure of names of students or families to the public and press.
Henner v. Coughlin, Supreme Court, Albany County, January 4, 1988 --
Court held that materials compiled while interviewing employees and inmates in conjunction with disciplinary proceedings, including recommendations, could be withheld; however, court ordered disclosure of "any records which actually reflect disciplinary action against employees who are investigated for misconduct, and to any final written report which may exist concerning the Inspector General's findings or action taken by the Commissioner of the Department of Correctional Services."
Hickmann v. Board of Education, Elwood School District, Supreme Court, Suffolk County, August 5, 1987 --
Following in camera inspection, court found that letter of resignation of former employee "is in a non-exempt category" and is ,therefore, available.
Hightower v. Dillon, Supreme Court, Nassau County, November 23, 1993 --
Court held that petitioner failed to exhaust administrative remedies and that, in any case, grand jury minutes are confidential; also found that petitioner did not deny that records sought had been made available at trial and presumably remain in his possession; citing Moore, held that denial of those records was proper.
Hillard v. Clark and Luchey v. Clark, 174 Misc.2d 282, 664 NYS2d 424, affirmed 255 AD2d 797, 679 NYS2d 857 (1998) --
District Attorney contended that §§79 and 79-a of Civil Rights Law precludes inmates from asserting rights under FOIL; court disagreed, stating that those statutes do not prohibit an inmate from using FOIL; cited Farbman
Hodges v. Demchuk, 866 F.Supp. 730 (SDNY 1994)--
Federal element of plaintiff's state claims pertaining to alleged unlawful disclosures of psychiatric and medical records was substantial and, therefore, federal court possessed federal question jurisdiction.
Hodges v. Russo, Supreme Court, New York County, June 26, 2007, 2007 Slip Opinion 31867 (v) --
2004 request denied on basis of §50-b of Civil Rights Law, but petitioner never appealed. Made second request; appealed, but failed to initiate suit within four months; held that statute of limitations expired.
Thomas G. Hopkins v. William C. Hennessy, et al., Supreme Court, Erie County, December 23, 1980 --
Name, address and payroll records of employees of a government contractor held to be available; records pertaining to dues and social security numbers denied as unwarranted invasion of personal privacy. Current Law: §87(2)(b)
Humane Society of US v. Brennan, 53 AD3d 909, 861 NYS2d 234 (3d Dept 2008) --
Challenge to denial of access to certain records as intra-agency material relating to production of foie gras. After in camera inspection, found that portions consisting of factual information, such as layout of buildings and activities conducted in them, locations in which samples tested positive for avian flu, procedure for disposal of manure, manner in which ducks are moved, must be disclosed. Recommendations and opinions could be withheld, and held that disclosure of telephone numbers of farm employees could be redacted as unwarranted invasion of personal privacy.
Humane Society v. Fanslau, 54 AD3d 537, 863 NYS2d 518 (2008) --
Request for District Attorney's financial disclosure statement granted after certain deletions based on claim of unwarranted invasion of personal privacy. Disclosure made matter essentially moot, but lower court judge clearly erred, finding Personal Privacy Protection Law to apply, even though that statute clearly excludes local government from its coverage (see Seelig). Also referred to County resolution involving ability to inspect, but not to copy records. Appellate Division found that disclosure of "general information regarding income and investments" of DA's family members "outweighs any personal privacy interest." Those items are submitted to county ethics board and are "clearly relevant to the Board's role of investigating ethical code violations" of public officials. With respect to issue of copying, held to be moot since copy made available. See also Archdeacon
Inner City Press/Community on The Move v. NYC Dept. of Housing Preservation and Development, Supreme Court, New York County, January 26, 1993 --
Request involved variety of records submitted in response to Request for Proposals (RFP). Following in camera inspection, held that denial of asset statements was "over-stating the extent" of the exception regarding unwarranted invasions of personal privacy and "credit histories", and found that statements are listings of properties owned that must be disclosed; financial information submitted by developers redacted from various records.
Onondaga County Resource Recovery Agency, Supreme Court, Onondaga County, August 18, 2008 --
Agency's "email blast" included photo of petitioner dumping leaves at agency's site. Petitioner requested records related to his appearance in the email, photos for use in agency publications, any authorizations for use of photos and email addresses of recipients of email with his photo or indication of number of recipients. Request granted, with the exception of photos, and there were no records of authorization. Held that request did not reasonably describe the records; that metadata is not a record, but rather Ainformation about how the record was created, and that disclosure of photographs would constitute an unwarranted invasion of privacy, thereby "subjecting an individual to identity theft." Note: Has been appealed.
Irwin v. Onondaga County Resource Recovery Agency, Supreme Court, Onondaga County, September 5, 2008 --
Issue involved photographs of persons present at public compost site, and court held (without foundation) that disclosure of physical attributes of persons photographed could subject them to identity theft and could be withheld as unwarranted invasion of personal privacy.
Islip, Town v. Machlin, Supreme Court, Suffolk County, October 20, 1982 --
Department of Environmental Conservation permitted petitioner to engage in visual inspection of records but refused to provide copies when requested. Court held that copies required to be made; respondents could not demonstrate that inter-agency and intra-agency materials were other than factual.
Jackson v. Wing, Supreme Court, Albany County, June 13, 1996 --
Petitioner made repeated requests and initiated numerous proceedings, and court found that his conduct "has been utterly vexatious, and at times, abusive" and therefore enjoined him from entering the premises of the Department of Law and from commencing any further actions under FOIL in any jurisdiction against the state or Albany County without permission of the court.
Jacobs v. Biamonte, 15 Misc.3d 223, 828 NYS2d 804 (2007) --
Held that governing statute concerning access to absentee ballot applications is not FOIL, but rather Election Law, §8-402. That statute requires disclosure of names of recipients of absentee ballots, but not the applications themselves.
Jacoby & Myers v. Board of Education of the City of New York, Supreme Court, New York County, July 9, 1985 --
Petitioner requested certain documents which were granted, with the exception of "employee file numbers" that were withheld as an unwarranted invasion of personal privacy; petitioner appealed, and on November 19, 1985, the appeals officer affirmed the denial, citing §87(2)(b) and informing the applicant that review of the determination could be heard in an Article 78 proceeding. In a letter of December 26, petitioner requested clarification of the reason for denial. In a response of January 7, the reasons for the denial stated on November 19 were reiterated. Court held that the letter of November 19 "put the petitioner on notice that the respondent had denied his request and that the only recourse remaining was review in an Article 78 proceeding" and that the "request for clarification was not a reconsideration by respondent and does not enlarge the time in which petitioner may bring the proper proceeding." As such, the proceeding was dismissed as untimely.
James v. Sciarrotta, Supreme Court, Nassau County, Jan. 27, 1993 --
Pre-sentence report held to be confidential under Criminal Procedure Law, §390.50, unless authorized by court. Court chose not to do so, particularly since subject of report had not been notified.
Jamison v. Tesler, 300 AD2d 194, 750 NYS2d 860 (2002) --
Court upheld dismissal of petition based on petitioner’s failure to appeal or, therefore, exhaust administrative remedies.
Jefferson v. Soares, Supreme Court, Albany County, March 16, 2006 --
Agency failed to respond to first request, and in second request petitioner indicated that he construed failure to respond to first as a denial. Late response to second request failed to inform petitioner of right to appeal. Court rejected agency’s motion to dismiss, stating that its failure to inform petitioner of right to appeal “abrogates the argument that petitioner failed to exhaust an available administrative remedy.” Also found that denial of access “appears to be based on a misconception that petitioner...was requesting records related to his own prosecution” that had previously been made available; directed disclosure. See Barrett
Johnson v. Hynes, 264 AD2d 777, 695 NYS2d 380 (1999) –
Statements of “nontestifying witnesses” may be withheld under §87(2)(e)(iii). Moore, Spencer
Johnson v. Morgenthau, 214 AD2d 348, 625 NYS2d 21 (1995) --
Request inadvertently mishandled, agency failed to respond, and petitioner appealed; records access officer later acknowledged receipt of request; agency denied request after Article 78 initiated on ground that records were previously disclosed to petitioner's attorney; held that response made matter moot and dismissed. See Moore.
Johnson Newspaper v. Melino, 77 NY2d 1 (1990) --
FOIL was ancillary to decision holding that professional disciplinary hearings may be closed. Referred to authority to withhold predecisional materials under §87(2)(g).
Jones v. Board of Education, Supreme Court, Chenango County (1977) --
Contracts for photographic services provided to high school yearbook staff held to be accessible. Original Law: §§88(1), (2)
Jones v. Commissioner of NYC Police Department, Supreme Court, New York County, October 5, 2004 --
Beginning of decision involved requests for property clerk’s invoice that was denied twice by office of NY County District Attorney and not appealed. Held that petitioner failed to exhaust administrative remedies. DA also contended that record previously made available, and citing Lebron, confirmed that petitioner has the “burden of establishing by admissible evidence that the documents requested have not been provided to the attorney who had represented him at his criminal trial, or that the documents were no longer available to him.” End involved proceeding dismissed due to failure to initiate within four month statute of limitations.
Jones v. State, 58 AD2d 736, 395 NYS2d 862 (1977) --
Records of State Commission that investigated the Attica uprising were deniable under discovery provisions and the Freedom of Information Law based upon assertion of the governmental privilege. Despite Freedom of Information Law (original), the "public interest privilege" was determined to prevail.
Jordan v. Hammock, 86 AD2d 725 (1982) --
Petitioner sought records of Parole Board indicating correspondence with the Board on the part of persons opposed to his release; court upheld the denial based upon regulations granting the capacity to withhold records, indicating that sources were given a promise of confidentiality based upon possible harm due to disclosure; in dissent, it was suggested that Parole Board offered "merely conclusory statements unsupported by any factual basis". Current Law: §87(2)(a); see also Zuckerman v. NYS Board of Parole and Morris v. Martin
Joseph v. New York City Police Department, 22 AD3d 322, 802 NYS2d 424 (2005) --
Reversed lower court dismissal. Request made in October, and receipt acknowledged in November. No further response and petitioner appealed in April, received some documents in May and told that others could not be found. Subsequent letters denied access to certain records. Both responses informed petitioner of right to appeal, and he did so on May 30. Held that petitioner’s appeal was proper and that he exhausted administrative remedies.
News v Town of Carmel,
Supreme Court, Putnam County, April 9, 2009 --
Request involved "telephone records of Carmel Town Board members that are funded with Taxpayer dollars", including bills and receipts relating to Town-owned cell phones and pagers. Itemized call pages in bills were "redacted and/or removed due to privacy issues, privileges issues and FOIL exemption." Although court referred to opinion prepared by Committee Executive Director (and misspelled his name), stating that the opinion supported the Town's position, opinion was prepared at request of Journal News and in reality supported its position. Court agreed with that opinion, which advised that redactions should be minimal, relating to known unlisted and home phone numbers, as well as personal calls. i.e, those to family members, physicians, etc.
Journal Publishing Co. v. Office of the Special Prosector, 500 NYS2d 919 (1986) --
Petitioner requested tape recordings made in the course of a criminal investigation for use in defense of a libel action. One category of tapes was sealed pursuant to § 160.50 of the Criminal Procedure Law, following a trial in which defendants were acquitted. The Court found that those tapes were exempted from disclosure by statute. The second category of tapes were published during the trial and were released. The third category represented tapes "of which no parts were used" during trials. In adopting a balancing test concerning privacy, the Court found that public policy favors access and disclosed "to be used only insofar as the are relevant to the libel action pending against petitioner". To ensure protection of privacy, tapes were sent to New Mexico court "to be utilized under supervision of the judge presiding a the libel trial."
Calvin K. of Oakknoll v. DeFrancesco, 200 AD2d 619 (1994) --
Court upheld dismissal of proceeding because documents sought either were previously disclosed from another source or the remainder was not maintained by the agency.
Kashti v. New York City Police Department, 227 AD2d 313, 643 N.Y.S.2d 337 (1st Dept 1996) --
Appellate Division agreed with lower court that agency failed to meet its burden of proof, but modified by remanding for in camera inspection.
Kassebaum v. Morgenthau, Supreme Court, New York County, June 24, 1998 –
“Respondents’ untimely reply to petitioner’s initial request, as well as their failure to furnish any response to petitioner’s request for appellate review of the matter, is at odds with the spirit of the FOIL provisions...Petitioner is thereby entitled to judicial relief pursuant to Article 78", citing Floyd.
Kassebaum v. Morgenthau, 270 AD2d 71, 704 NYS2d 61, appeal denied 95 NY2d 756, 712 NYS2d 448 (2000)--
Denial of access to witness statements was upheld.
Katz v. Scott, 236 AD2d 259, 653 NYS2d 346 (1997) --
Serology reports sought by wife of murder victim, who is also sister of murderer, exempt under §557g of City Charter; court confirmed that conclusory denial based on §87(2)(e)(i) was properly rejected by lower court.
Kelly v. Village of Asharoken, Supreme Court, Suffolk County, January 1, 2010, WL1416047, Slip Op 305881 --
Request for subpoenas issued by DA to Village, "the service of which was disclosed during a conference with the court." Exempt from disclosure because they are the subject of an ongoing investigation under section 87(2)(e)(i).
Kelly v. NYC Police Department, 286 AD2d 581, 730 NYS2d 84 (2001) --
Denial of access in 1997 was final agency determination. Second request for same records in 1999 was made and denied, and petitioner brought suit. Held that suit was time barred, that four month statute of limitations expired.
Khatibi v. Weill, 8 AD3d 485, 778 NYS2d 511 (2004) --
Records sought were obtained from a different agency, and agency was not obliged to disclose records already obtained by petitioner’s attorney.
Kiesel v. Goord, 21 AD3d 1189, 800 NYS2d 860 (2005) --
Petitioner, after demonstrating proof of his identity, was granted access to the records sought, and court dismissed the petition.
Kilgallon v. City Council, City of Troy, 382 NYS2d 271 (1976) --
City Council resolution granting access to police files to standing committee on public safety held to be proper and not unduly broad. Original Law: § 88(3)
City of Kingston v. Surles, 180 AD2d 69, 582 NYS2d 844 (1992) --
In an issue tangential to the proceeding, court held that although advised of right to do so, petitioner failed to appeal denial, resulting in failure to preserve right to judicial review of denial.
Kirshtein v. David, Supreme Court, New York County, April 19, 2010 --
Confusing decision involving time for response by agency, exhaustion of administrative remedies, etc. Court seemed to have relied upon FOIL as it existed prior to 2008 amendments relating to time for responding to requests, for it indicated that “the statutory provision does not provide for a specific time within which an agency must grant access to records.
Klein v. Henry, Sup. Ct., Suffolk County, June 7, 1979 --
Although petitioner had not apparently exhausted his administrative remedies and respondent failed to answer requests, the court granted access to various records in possession of a district attorney under the Freedom of Information Law. Current Law: §89 (4); see also Cosgrove . Klinger.
William J. Kline and Son v. Fallows, 478 NYS2d 524 (1984) --
Petitioner, a newspaper, challenged agency's determination denying access to records concerning private companies' receipt of economic development funds; agency released the records after the proceeding was initiated; held that the suit was moot, that petitioner, therefore, did not "substantially prevail" and would not be entitled to attorney fees. Current Law: § 89(4) (c)
Knight v. Gold, 53 AD2d 694, 385 NYS 123 (1976) --
District attorney's trial sheet and attorney's statement obtained in preparation of criminal case for trial were denied as investigatory files complied for law enforcement purposes nd were subject to governmental privilege. Original Law: §88 (7) (d); "Public interest privilege" also deemed to apply.
Kotler v. Suffolk County Police Department, Supreme Court, Suffolk County, April 7, 1983 --
Petitioner requested "copies of two photographs of fingerprints, and a list of the questions asked during his polygraph examination', in the order on which they were asked; court granted access, holding that disclosure would not interfere with investigation or judicial proceeding, that fingerprinting and polygraph questions are the "product of routine procedures", and that exception for intra-agency materials could not be asserted' also held that "the doctrine of res judicata does not preclude the petitioner from obtaining relief to which he may be entitled under Freedom of Information Law". Current Law: §87 (2) (e)
Kurland v. McLaughlin, 122 AD2d 947 (1987) --
Issue involved appointment to a position as a public employee and a request for records. Court held that petitioner did not exhaust administrative remedies and suggested that he submit further requests and appeals, if requests are denied, prior to initiation of suit. Current Law: § 89 (4) (a); see also Madonna.
Kwoczka v. Cawley, 425 NYS2d 247 (1980) --
Testimony, audio and videotapes regarding undercover police investigation, "Operation Fence", denied for disclosure would identify informants, endanger cooperative information and undercover agents and publicize "secret tricks and techniques".
Coalition of Landlords, Homeowners & Merchants, Inc., v. Town of Brookhaven, 33 AD3d 914, 824 NYS 2d 304 (2006) --
Sustained denial of access to list of names and addresses sought for fund-raising purpose.
Laporte v. Morgenthau, 11 AD3d 410, 783 NYS2d 571 (2004) --
Affirmed order requiring disclosure of audiotapes, following redaction of witnesses’ identities pursuant to §87(2)(f).
Latta v. Morgenthau, Supreme Court, New York County, June 18, 2010, NY Slip Op 31682 --
DA denied request on ground that criminal proceeding was pending and that disclosure would interfere with judicial proceeding. Citing Legal Aid and Moreno, court agreed.
Lawler, Mutsky and Skully Engineers, Matter of, Supreme Court, New York County, NYLJ, October 26, 1981 --
Petitioners, an engineering consulting firm, sought injunction to prevent respondent, Attorney General, from releasing particular records under the Freedom of Information Law to the intervenor, the federal Environmental Protection Agency; records had originally been removed from petitioner's office without authorization by an employee; court rejected petitioner's arguments that the records constituted confidential communications between attorney and client that were removed from its office in violation of constitutional rights; records sought could not be shown to fall within any categories of deniable records; court did not impose CPLR disclosure limitations on records accessible under the Freedom of Information Law; see also Burke v. Yudelson, Westchester Rockland Newspapers v. Mosczydlowski. Current Law: § 87(2)
Lebron v. Morales, 271 AD2d 241, 706 NYS2d 329 (2000), appeal denied 95 NY2d 760, 714 NYS2d 710 –
Petition dismissed on the ground that applicant did not meet his burden of establishing that requested records were not previously made available to his attorney or that they were no longer available to him. See Key, Brightley.
Lebron v. Smith, 17 AD3d 195, 792 NYS2d 329 (2005) --
Petitioner failed to demonstrate that alleged FOIL request and appeal were made to appropriate officials; could not rebut MTA’s contention that records sought are duplicative of those already made available.
Levine v. Nassau County Board of Supervisors, Supreme Court, Nassau County, December 12, 1991 --
Petitioner sought back up papers, reports, recommendations and other records used by County Board of supervisor prior to vote on proposed ordinance. Court upheld denial based upon finding that records were predecisional intra-agency materials; cited Committee and relied upon committee opinion: see also, McAulay v. Board of Education
Levine v. Board of Education of City of New York, 186 AD2d 743, 589 NYS2d 181 (1992) --
In tangential issue, court held that disclosure of personnel records to unit within agency did not constitute violation of "privacy rights", for disclosure was necessary to internal functioning of agency, citing PPPL, §96(1)(b); Note; PPPL only applies to state agencies.
Levy v. Town of Islip, Supreme Court, Suffolk County, March 19, 2003 –
Request involved list of real property owners with veterans tax exemptions and alternate veterans exemptions, which was denied as unwarranted invasion of personal privacy. Held that assessment roll, which includes items sought, is available under §516 of Real Property Tax Law and cited Committee opinion as persuasive.
Lewis v. Hynes, 208 AD2d 731, 617 NYS2d 369 (1994) --
Affirmed lower court decision, because agency "produced or addressed all of the requested documents which he had in his possession."
Leyton v. CUNY, Supreme Court, New York County, October 8, 2009 --
In camera review resulted in upholding denial under §87(2)(g), with exception of document reflective of policy; others found to be subject to attorney client privilege. Petitioners requested records in electronic form, but court held that "Given the quantity of documents requested and the fact that many of them required partial redaction, it cannot be said that manual production of the documents was unreasonable or that electronic production would have been more efficient." Held that production of "hard copies" was reasonable.
Lipsman, Matter of, Supreme Court, New York County, NYLJ, October 1, 1981 --
Access to sixty-five graduate school transcripts of students enrolled in particular degree program withheld due to limited number of students and uniqueness of program; disclosure would result in an unwarranted invasion of personal privacy. Current Law: §87(2)(b)
Lipsman v. NYC Board of Education, 133 AD2d 812 (1987) --
Following denial of temporary per diem teaching certificate, petitioner requested medical records and reports used to evaluate his fitness for the certificate. After supreme Court granted access, Board argued that disclosure would be contrary to policy and by-laws of the Board of Examiners, which was consistent with Public Health Law, §17. Nevertheless, the Appellate Division ordered disclosure, citing a new provision, Public Health Law, §18, and stating that the Board of Examiners' position was "unreasonable".
Livingston v. Hynes, 72 AD3d 968 (2010) --
Agency satisfied obligation by certifying that documents could not be found after diligent search.
Location Services Group, Ltd., v. Suffolk County Comptroller, 40 AD3d 760, 836 NYS2d 223 (2007) --
Agency not required to create record or develop a program to accommodate applicant.
Lochner v. Surles, 564 NYS2d 673 (1990) --
Subject of an investigation at a mental health facility sought records relating to the investigation under the Personal Privacy Protection Law. Court held that one document could be withheld because it was compiled for law enforcement purposes and disclosure would interfere with investigation under §95(5)(a); other document summarizing proposed course of action to be taken against employees was considered to be material prepared for litigation and upheld denial under §95(6)(d).
Lockwood v. Suffolk County Police Dept., 42 AD3d 538, 839 NYS2d 808 (2007) --
Held that “operating manual” relating to alcohol detection machine available for inspection but not copying. Note: Seems to be erroneous
Lowry v. Bureau of Labor Services, Supreme Court, New York County, March 9, 1984 --
Access to records of Bureau are available to a litigant seeking discovery, just as they are available to any person under the Freedom of Information Law. Records are not inter-agency or intra-agency under §87(2)(g) since correspondence between public agency and a private organization it regulates does not qualify as inter-agency material.
Lucas v. Pastor, 117 AD2d 736 (1986) --
Court held that petitioner's status as a litigant was irrelevant, that appellants failed to show that records sought were previously produced and that, therefore, possible claim order to disclose. See also, Farbman.
Lugo v. Galperin, 703 NYS2d 182, 269 AD2d 338 (2000) --
Assistant DA affirmed that he conducted a diligent search of files and could not find requested records, and court held that his statement "suffices to satisfy respondent's FOIL obligations". See Swinton, Key
Lugo v. Scenic Hudson, Inc., Appellate Division, Second Dept. March 2, 1999 –
Not-for-profit corporation is not, in this instance an “agency” and therefore is not subject to FOIL; Appellate Division reversed lower court award of costs and sanctions and found that the challenge was not “frivolous”, for “there is no per se rule that a not-for-profit corporation cannot be deemed an ‘agency’”, citing Buffalo News v. Buffalo Enterprise Development Corp.
Luvin Construction Corp. v. Locust Valley Fire District, Supreme Court, Nassau County, August 4, 2004 --
FOIL aspect of case arose in relation to claim of breach of contract. Original FOIL request was never answered, and in response to second, fire district’s attorney “called for a security of $25,000.00 to copy any documents.” Plaintiff objected, but renewed FOIL request months later, and initiated suit two months later after having received no records. Plaintiff alleged that demand of money for security constituted “active concealment of the fraudulent conduct by the defendants.” Court held that “when a plaintiff was induced by fraud, misrepresentation, or deception to refrain from filing a timely action, a defendant may be estopped from pleading an affirmative defense of the Statute of Limitations” and that “[b]y ignoring plaintiff’s first FOIL request, then making excessive demands of $25,000.00 for copies of documents in response to the second request, defendants were actively concealing information. Nevertheless, the established rule does not apply to the present plaintiff, as it was not prevented from filing this action as a result of defendants’ deception, as demonstrated by the fact that the plaintiff initiated this action without ever having received the requested information. Therefore, defendant here is not estopped from pleading the Statute of Limitations defense.”
Lyon v. Dunne, 180 AD2d 922, 580 NYS2d 803 (1992), appeal denied 79 NY2d 758 --
Agency not required to certify that was not legal custodian of records absent request for certification; records used to evaluate performance of police officers exempt from disclosure under §50-a of Civil Rights Law; autopsy reports exempted from disclosure by County Law, §677; certain laboratory analysis & scientific evidence withheld under §87(2)(e)(iii) as non-routine criminal investigative techniques or procedures; inventory list of evidence retrieved at homicide scene available, absent more than conclusory assertion that disclosure would reveal non-routine investigative techniques or procedures.
MacHacek v. Harris, 431 NYS2d 927 (1980) --
Complaint available, except to the extent that disclosure of identity of complainant would result in unwarranted invasion of personal privacy; interest of applicant of no relevance in determining invasion of privacy, "reasonable man" standard to be employed; court cited "two-tiered" standard regarding privacy in §89(2)(b)(iv); identity of complainant would be protected if promise of confidentiality given; cited opinion of Committee.
MacRae v. Dolce, 130 AD2d 577 (1987) --
Joint study by two city agencies to aid in planning of placement of fire stations fell within "inter-agency or intra-agency materials" exception, "as it is a predecisional draft", however, portions of the draft indicating fire department response times constitute "statistical or factual tabulations or data" required to be disclosed.
Maddox, Matter of, 201 AD2d 24 (1994) --
Court rejected request for various records of attorney grievance committee, among other issues.
Maddux v. NY State Police, 64 AD3d 1069 (2009) --
Petitioner requested copies of incident reports, logbook entries and other records prepared in relation to his complaints regarding neighbor's trespass. Police made redacted copies available, and lower court dismissed and denied request for counsel fees, concluding that agency"had a reasonable basis" for denying the FOIL request. Affirmed by Appellate Division.
Madrassa Community Coalition v. New York City Department of Education, 20 Misc.3d 1116(A), 867 NYS2d 20 (Table) (2008) --
Key issue concerning voluminous request, delays, and substantial disclosure involved award of attorney's fees, and the court (inexplicably) applied standards in FOIL that were no longer in effect. Found, in any case, that petitioners did not substantially prevail; also, citing Rattley, found no requirement to "provide a detailed description of the search conducted for responsive documents nor a personal statement from the person who actually conducted the search to satisfy the certification requirement..."
Malerba v. Kelly, 211 AD2d 479, 621 NYS2d 318 (1995)--
Lower court decision to dismiss proceeding as moot modified to enable petitioner to perfect an administrative appeal in accordance with §89(4)(a).
Malinowski v. Herandes-Cuebas, Supreme Court, Chemung County, August 16, 1989 --
Inmate submitted a request to review certain records at correctional facility. Records Access Officer responded by stating that he could not review records, but could obtain photocopies at a cost of twenty-five cents per page. Petitioner appealed, stated that he did not receive a timely reply, and , thereafter, initiated suit. Agency asserted that it never received the appeal and contended that petitioner failed to exhaust administrative remedies. However, since respondents contended that the records access officer's response "was appropriate and fully authorized," court held that "an appeal would have been futile," rendering inapplicable "the usual bar resulting from the doctrine of exhaustion of administrative remedies. "Court also found that the FOIL and regulations of the Committee on Open Government specify that records may be inspected and that petitioner is not required to purchase copies.
Mallet v. Commissioner Kelly, Supreme Court, New York County, November 14, 2008, NY Slip OP 3309(U), --
Petitioner made same request in 2001, was denied access based on §50-a of the Civil Rights Law, brought Article 78 and lost. In 2008, sought access to "nearly identical information. Court dismissed on ground that request was duplicative and doctrine of res judicata.
Malowsky v. LaPook, Supreme Court, Albany County, September 27, 1985 --
Petitioner, an inmate, sought medical records pertaining to his mother, who also had been an inmate and under supervision of various agencies, and who "remained unheard from" since approximately 1953. Petitioner sought the information to learn of his genetic hereditary background. Under the circumstances, Court determined that disclosure would not result in unwarranted invasion of personal privacy. Court analogize to § 373-a of Social Services Law which "gives a foster child absolute right to such medical histories upon release to his or her care". Current Law: § 87 (2) (b)
Marino v. Bodner, Supreme Court, New York County, August 10, 2005 --
Statute of limitations had not expired because of application for poor person’s relief; held that subject matter list provided by City Comptroller was a list of departments within agency, not a list by subject matter of the records in the agency’s possession; remitted to provide a subject matter list consistent with law. See Marino v. Morgenthau
Marino v. New York City Police Department, 16 AD3d 193, 790 NYS2d 388 (2005) --
Certification that diligent search was made and that all responsive documents were disclosed was adequate to comply with law. See Rattley
Marino v. Pataki, 55 AD3d 1171, 867 NYS2d 219 (2008) --
Records sought not within control of agency; other records, handwritten notes, found to be predecisional, deliberative material that could properly be withheld.
Marino v. Rosa, 55 AD3d 1173, 867 NYS2d 221 (2008) --
Records sought in possession of Governor's office, not the agency in receipt of the request.
Marrone v. Fesh, Supreme Court, Chemung County, Dec. 21, 1984 --
In camera review of records is appropriate where the agency sufficiently demonstrates the dangerous consequences of disclosure. The agency, however, must specifically justify and explain the applicability of any Freedom of Information Law exemption.
Marshall v. New York State Police, 391 NYS2d 953 (1977) --
Federal inmate was denied access to all records pertaining to him in possession of State Police on the ground that information was part of investigatory files compiled for law enforcement purposes. Note: decision might be modified under amended Freedom of Information Law: § 88 (7) (d)
Marshall v. State Board for Professional Medical Conduct, 73 AD2d 798 (1979), appeal denied 49 NY2d 709 --
A physician, the subject of charges, was denied access to records of Board for Professional Medical Conduct, including statements of complaining witness, identities of witnesses (both lay and expert), report of Committee that led to charges etc. Current Law: § 87 (2) (a) and (b); also Public Health Law, § 230 (9) through (11)
Marten v. Eden Park Health Services, 250 AD2d 44, 680 NYS2d 750 (1998) –
Records that are exempt from disclosure under FOIL pursuant to §2803-d(6)(e) of the Public Health Law are not immune from discovery in litigation.
Martin v. Travis, Supreme Court, Franklin County, August 26, 2004 --
Request for copy of letter submitted to Division of Parole by Westchester County District Attorney’s office. Same request made in 2001, litigation was commenced and was found to be time barred. Held that “this proceeding challenging the denial of an identical 2003 FOIL request represents a belated attempt to obtain judicial review of the denial of petitioner’s 2001 request” and, therefore, was dismissed. Held that petition would have been dismissed on the merits as well, citing Ramalho.
Martinez. v. Libous, 378 NYS2d 917 (1975) --
Apartment resident granted access to records of building code enforcement bureau concerning her apartment building under Freedom of Information Law and § 308 of Multiple Residence Law. Original Law: § 88 (7), § 88 (7) (d), § 88 (10)
Mastroianni v. County of Suffolk, 696 NYS2d 395 (1999) --
Court referred to FOIL even though matter involved production under CPLR. Held, however, that even if an Internal Affairs Bureau file constitutes a personnel record pertaining to a police officer subject to §50-a of the Civil Rights Law, it remains subject to in camera review to determine the extent to which it is discoverable.
McAllan v. Scopetta, Supreme Court, New York County, January 19, 2007 --
Petitioner made same request to three New York City agencies and claimed that each constructively denied his request. Court held that the three could properly be joined because requests were the same concerning questions of law and fact. Held with respect to two agencies that receipt of requests was properly acknowledged and that appeals were premature. With respect to third agency, hundreds of documents were disclosed and the remainder were properly withheld under §87(2)(a) relating to the attorney-client privilege and §87(2)(g).
McAndrew v. Board of Education for the City School District of the City of Port Jervis, Supreme Court, Orange County, March 8, 1985, 120 AD2d 591 (1986) --
Supreme Court ordered Board to prepare and provide petitioner with a reasonable detailed current subject matter list of all records in their possession as required by § 87 (3) (c) of the Public Officers law within thirty days of entry of order. Appellate Division held that lower court did not abuse its discretion relative to the award or absence of award of attorney's fees. Current Law: § 89 (4) (c)
McBride v. Franklin, 288 AD2d 130, 733 NYS2d 174 (2001) --
Private investigator hired by petitioner’s 18-B attorney is not an agency subject to FOIL.
McClane v. Cahill, Supreme Court, Albany County, January 11, 1999 –
Petitioner is former DEC employee who dismissed and requested records from DEC and the Dept. of Civil Service. Agencies made available records they could locate, but petitioner claimed that other records were withheld. In earlier opinion of June 4, 1998, court conditionally granted petitioner’s request to annul determinations based on failure to offer affidavits by individuals with personal knowledge of the facts. Upon review, court found, with one exception, that agency made good faith effort to locate records. Held that “agency is obliged to provide an electronic copy of a document if it exists in that form”; “...since duplication of a diskette might be far less expensive...the agency must do so if it is available.” Also found that “memorandum by in-house council” is exempted from disclosure via CPLR §4503 as attorney-client privilege, citing Steele.
McCray v. Lennon, Supreme Court, New York County, January 31, 1997 --
Inmate failed to reasonably describe record.
McCrory v. Village of Scarsdale, 67 AD3d 684, 886 NYS2d 907 (2nd Dept 2009) --
Proceeding commenced five months after agency final determination and was dismissed as time-barred.
McDermott v. Lippman, Supreme Court, New York County, NYLJ, January 4, 1994 --
Petitioner, a union studying workplace safety at upstate courts, sought a "survey with recommendations" made by Office of Court Security Services; held that survey could be withheld under §87(2)(f) because disclosure could endanger the lives or safety of employees and/or visitors. See also Stronza
McFerrin-Clancy v. Insurance Dept. of the State of NY, Supreme Court, New York County, October 19, 2009, NY Slip Op 52257(U) --
Settlement reached between company providing financial guarantee insurance to insurers of debt and a French investment bank. Records sought by non-settling party were subject to claim of confidentiality under §(89)(5), and Insurance Department denied access. Insurance Law, §1504(c), states that reports of investigation are confidential and must remain so, unless controlled insurer consents to disclosure. Company did not consent to disclosure and, therefore, records are exempted from disclosure by statute via §87(2)(a). That being so, court chose not to address application of §87(2)(d).
McGriff v. Bratton, 293 AD2d 401, 740 NYS2d 342 (2002) --
Petitioner’s initial request was denied as too broad, made second, more detailed request, which was rejected; did not appeal and brought suit. Dismissed due to failure to exhaust administrative remedies.
McKethan v. The New York Branch of the New York/New Jersey Port Authority Police Department, 277 AD2d 15, 716 NYS2d 564 (2000) --
Agency "adequately established the nonexistence" of records sought.
Memory Gardens, Inc. v. Paterson, Supreme Court, Albany County, November 26, 1979 --
Complaints made by person known to petitioner available; disclosure would not interfere with investigation; burden of proof could not be met. Current Law, § 87 (2) (e) compared to Original Law, § 88 (7) (d)
Medina v. Cimino, Supreme Court, Suffolk County, August 21, 2002 –
Inmate requested records, was denied access and appealed. County failed to respond within ten business days as required by law. Held that the statute of limitations “began when the county ‘constructively denied’ petitioner’s appeal” and that he failed to serve petition on respondent within four months of that date; dismissed on that basis.
Mendez v. New York City Police Department, 260 AD2d 262, 688 NYS2d 538 (1999) --
Held that petitioner sought same records as those considered in previous request that had been fully processed; since request was belated attempt to seek judicial review of earlier denial, court dismissed proceeding as time barred.
Mendola, Matter of, Supreme Court, New York County, NYLJ, February 2, 1978 --
Defendant's subject matter list was held to be adequate. Original Law: § 88 (4), (8)
Mendoza v. New York County District Attorney, Supreme Court, New York County, August 6, 2004 --
Request involved agreements between DA and co-defendants, but court determined that request was duplicative of a request made and denied in 1997. He claimed here that his attorney failed to turn over records, but court held that “Belated judicial review of [a previously unappealed FOIL] cannot be based on petitioner’s second request for the same information, albeit more detailed.”. See McGriff
Messinger v. Giuliani, Supreme Court, New York County, September 2, 1997 --
Borough President sought records relating to FOI requests to NYC agencies and responses; Court rejected City’s argument that Borough President could not seek records under FOIL; “capacity to sue is not affected by... political motivations.” See Farbman.
Metts v. MacKechnie, Supreme Court, Kings County, April 13, 1994--
Following in camera inspection and citing Moore v. Santucci, court upheld agency's denial of access.
Michael v. Communications Workers of America, AFL-CIO, 495 NYS2d 569 (1985) --
The question was who could sell municipal agency transcripts, whether stenographers could sell transcripts for personal gain, whether fees would be subject to the Freedom of Information Law, or whether the determination would be reached by means of arbitration; the court found that there was no justiciable controversy and that the matter would be determined by arbitration.
Mid-Boro Medical Group v. New York City Department of Finance, Supreme Court, Bronx County, NYLJ, December 7, 1979 --
Memoranda sent by Department attorney to Assistant Commissioner fell within scope of attorney-client privilege; also deniable as intra-agency material not reflective of policy or determination. Current Law: §87(2)(a) and (g)
Miller v. Clark, Supreme Court, Erie County, June 2, 1997 --
Found that “Pursuant to the mandate of Gould....any witness statement, made by any witness, whether or not that witness testified at trial, should be disclosed to Petitioner per his demand.” Note: Court seems to have misread Gould
Miller v. Village of Freeport, 51 AD2d 765, 379 NYS 517 (1976) --
Members of the news media were granted the ability to inspect and copy Village payroll records. Original Law: § 85, § 88 (1) (g)
Miller v. NYS Department of Transportation, 58 AD3d 981(2009) --
Request involved "over 30 categories of documents" relating to repair of state route 23A in Greene County, and applicant was told that 11,000 could be inspected. During inspections three months after being informed about the 11,000 documents, petitioner was "verbally informed for the first time that DOT was withholding 800 documents under §87(2)(g). OSC also informed him of denial of access under same provision of 22 email communications. Court rejected contention that it "waived its right to claim any FOIL exemptions when DOT informed petitioner that all of the documents were for inspection and copying, without mentioning that any exemptions would be claimed." Indication of "intent to disclose documents did not constitute a waiver of its right to claim that some of those documents were exempt from disclosure." Court also rejected contention that agency "failed to sufficiently identify the documents that were withheld and to justify withholding them." Many documents found to have been properly withheld under §87(2)(g), but others, such as communications with people outside the agency, press releases, etc. should have been disclosed. Portions of records found to be available as statistical or factual information and instructions to staff that affect the public. Court concluded that "respondents had a rational basis for their belief that the majority of the documents withheld were exempt from disclosure."
Mims v. Chichester, 281 AD2d 256, 722 NYS2d 30 (2001) --
Defendant appealed conviction and sought records under FOIL, and DA contended that contact with him would violate “communications privilege” or “anti-contact“ rule of Code of Professional Responsibility. Court rejected contention and reiterated the principle that one who seeks records under the FOIL does so as a member of the public and that his status as a litigant is irrelevant.
Mingo v. New York State Division of Parole, 244 AD2d 781, 666 NYS2d 244 (1997) --
Predecisional records consisting of recommendations found to be intra-agency materials that could properly be withheld. Cited Xerox
Mitchell v. Slade, 173 AD2d 226, 569 NYS2d 437 (1991) --
Request by inmate involved records prepared in investigation leading to his conviction. Following in camera review, court held that agency could not justify denial in its entirety on basis of 87(2)(e) and (g). Also held that burden of reasonably describing records rests on applicant, who "must show by more than speculation that all responsive documents were not produced".
Mitskovski v. Buffalo and Fort Erie Public Bridge Authority , US District Court, Western District of NY, January 22, 2010 --
Public Bridge Authority created by NY State Legislature in 1933 as "a public benefit corporation or municipal corporation or agency of the State of New York"and was authorized to enter into a compact with Canada regarding bridge crossing between NY and Canada after grant of consent to do so by Congress. "Thus, the Public Bridge Authority is 'the product of a compact between New York and Canada, approved by Congress.' " NY Court of Appeals held in 1938 that the Authority is an agency of the State. Notwithstanding that finding, US Dist. Court found that the 1933 legislation "expresses no intent that the Public Bridge Authority would be subject to New York's subsequently enacted FOIL or Open Meetings Law' (how could it have done so???) and that Authority is not subject to those laws.
Mixon v. Gallivan, Supreme Court, Erie County, March 4, 2002 --
Agency contended but failed to show that certain records sought had previously been made available to him or his former attorney, and court ordered that records not previously made available be disclosed. Required that legible photocopies be made available and that “[a]ny colored photographs are to be copied in color, unless Respondents satisfy this Court that the County does not own a color copier.” See Walsh, Moore, Russo v. Fitzgerald
Mixon v. McMahon, 302 AD2d 714, 754 NYS2d 589, appeal denied 100 NY2d 502 (2003) –
Held that petitioner sought same records as those considered in previous request that had been fully processed; since request was belated attempt to seek judicial review of earlier denial, court dismissed proceeding as time barred.
Molloy v. New York City Police Dept., 50 AD3d 98, 851 NYS2d 480 (2008) --
Citing Daily Gazette v. City of Schenectady, court reiterated that §50-a of the Civil Rights Law exempts certain records from "indiscriminate disclosure", and that "where the breadth or good faith of the invocation of the statute is called into doubt, the court should make an in camera inspection of the requested documents", citing City of Newark.
Montalvo v. City of New York, Supreme Court, New York County, NYLJ, October 19, 1995 --
Petitioner sought records from New York City Police Department involving possible improvements in the operation of the Department. Held that records were predecisional and did not reflect final policies or determinations and, therefore, could be withheld under §87(2)(g); petitioner contended that agency waived right to withhold because of news media accounts. However, no proof was given to show that agency released the records sought to the news media, and Court held that comments by agency in press releases do not constitute a waiver.
Monteleione, Matter of, Supreme Court, Westchester County, NYLJ, November 27, 1992 --
Petitioner, an inmate, requested any records State Police had pertaining to him. Although various ground for denial were cited, after in camera inspection, court rejected claim based on §87(2)(g), stating that State Police did not demonstrate that records involved "subjective matters which are 'integral to the agency's deliberative process in formulating policy'"; found that agency failed to identify "what non-routine techniques or procedures they are relying upon" in conjunction with §87(2)(e)(iv); found that exception regarding unwarranted invasion of personal privacy had merit only to extent that records about others had been sealed under §160.50 of Criminal Procedure Law. Ordered disclosure of investigation report, arrest reports, continuation sheets, search warrants and affidavits in support of warrants with names deleted in accordance with §160.50; See also, Johnson Newspaper Corp. v. Stainkamp.
Montes v. State, 406 NYS2d 664 (Court of Claims, 1978 ) --
Complaints made against a parole officer held to be available, for disclosure would not constitute an unwarranted invasion of personal privacy, and were not compiled for law is an issue and disclosure would not impair the necessary confidentiality of a criminal investigation, maximum access must be provided, whether the proceeding is civil or criminal. Current Law: §87(2), §87(2)(b)(i), §87(2)(e)(i), (iii)
Mooney v. State Police, 117 AD2d 445 (1986) --
Petitioner has been employed as a railroad policeman. After finding that he had been wrongfully discharged, Conrail applied to State Police for reissurance of a commission to petitioner as a railroad officer. Superintendent of State Police referred and petitioner was granted "discovery". Superintendent apparently based his denial on the Freedom of Information Law, asserting that denial was "necessary to both protect the confidentiality of investigative sources and encourage prospective witnesses to come forward in the future". Court held that burden of proof could not be met, ordered disclosure, and stated that "For petitioner to have a viable opportunity to challenge the superintendent's determination upon which the determination was based must be available to him".
Moore v. Catus, Supreme Court, Suffolk County, October 17, 1997 --
Petitoner, member of Southold Town Board, requested records from Village of Greenport, involving financial information relating to water systems; Court held that petitioner had standing, citing Messinger, that status or need is irrelevant, citing New York Times; also said that while agency is not required to create a record, “neither can the agency hide behind such an argument and fail to provide documents which are available and contain the information requested”; ordered disclosure of records “reflecting ”certain information. Ordered award of attorneys fees.
People v. Morales, 412 NYS2d 310 (1979) --
Records of Civilian Complaint Review Board deniable as intra-agency materials and pursuant to Civil Rights Law, § 50-a; see also, Pack and Walker, supra. Current Law: §87(2)(g)
Moreno v. New York City Dept. of Correction, 47 AD3d 545, 857 NYS2d 34 (2008) --
Documents not in possession of agency.
Moreno v. New York County District Attorney’s Office, 38 AD3d 358, 832 NYS2d 183 (2007) --
Dismissed due to failure to file timely appeal and, if court had reached the merits, would have sustained denial of access because disclosure would have interfered with pending criminal appeal, and because same records under a protective order.
People v. Morrow, Supreme Court, Queens County, NYLJ, August 25, 1999 –
Opinions and recommendations in presentence report deniable under FOIL; such report available only through CPL §390.50.
Moussa v. State, 91 AD2d 863 (1982) --
The court distinguished rights of access under the Freedom of Information Law and discovery provisions of the CPLR, stating that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public and is neither enhanced nor restricted because he is a litigant or potential litigant..." and that "the standing of one who seeks to discover records under the discovery provisions of Article 31 of CPLR is as a litigant, is neither enhanced nor restricted because he may have access, as a member of the public, to those records under the Freedom of Information Law". See also Farbman v. NYC Health and Hospitals Corp. and John P. v. Whalen.
Mulhall v. Fitzgerald, 249 AD2d 852, 672 NYS2d 480 (1998) --
Held that reasons for denial were adequately stated; witness statements were properly withheld.
Mullgrav v. Santucci, 195 AD2d 786, 600 NYS2d 382 (1993) --
Held that grand jury minutes are court records not subject to Freedom of Information Law and that no need was demonstrated to overcome confidentiality restrictions in CPL 190.25(4).
Munoz v. Tangier LLC, Supreme Court, New York County, August 15, 2005 --
Personal injury action in which defendant sought order pursuant to FOIL and CPLR 3101(a)(4) directing NYPD to disclose records regarding criminal action that was dismissed in favor of the accused. Court held that records were exempt from disclosure under §160.50 of CPL.
Murphy v. NYS Education Department, Office of Professional, Discipline, 148 AD2d 160 (1989) --
Agency received a complaint concerning the moral fitness of a dentist trained abroad, who was later convicted of unauthorized use of a professional title. Thereafter, she applied for a dental license, and the application was opposed by the agency. A hearing was later held on the issue of her moral fitness, and petitioner sought records identifying the complainant in conjunction with a request for a new hearing. The request for records was denied. Petitioner initiated suit, and the court held that the records were confidential under §6510(8) of the Education Law and, therefore, exempted from disclosure under §87(2)(a) of the Freedom of Information Law. Also held that petitioner never requested records in accordance with agency's Freedom of Information Law regulations and dismissed on the ground that she failed to exhaust administrative remedies.
Murray v. Matusiak, 247 AD2d 303, 669 NYS2d 278 (1998) --
Delays in response resulted in constructive denials of access, but it was held that "a proceeding to annul a determination by an administrative agency should not be concluded in the petitioner's favor merely upon the basis of a failure to answer the petition on the return date thereof, unless it appears that such failure to plead was intentional and that the administrative body has no intention to have the controversy determined on the merits" (see Floyd).
Myers v. NYS Low-Level Radioactive Waste Siting Commission, Supreme Court, Allegany County, July 14, 1989 --
Commission selected and disclosed locations that it chose as possible waste sites. In addition, other locations were offered by landowners based upon a promise of confidentiality. Records indicating those localities were withheld. Court held promise of confidentiality is irrelevant to rights of access and ordered disclosed. Court disagreed with opinion of Committee on Open Government, which advised that identities of landowners would result in an unwarranted invasion of personal privacy. Court denied application of attorney's fees, because agency has a reasonable basis for withholding, even though burden of proof could not be met.
Nassau-Suffolk Hospital Council, Inc. v. Whalen, 390 NYS2d 995 (1977) --
Records transmitted to State Health Department under promise of confidentiality held to be deniable. Note: Determination is contrary to numerous other cases in which it was held that a promise of confidentiality is irrelevelant. Original Law: §85 et seq. 88(7)(b)
National Alliance v. NYC Police Department, Supreme Court, New York County, March 10, 1992 --
Newspaper sought police investigation regarding death of two individuals; although §160.50 of Criminal Procedure Law required district attorney to seal records when charges are dismissed in favor of accused, district attorney could not explain failure to do so, and request was made regarding one death before records were sealed; court held that arrestee against whom charges are dismissed has expectation of privacy under §160.50 and that administrative delay or error in filing of sealing order "cannot be a window of opportunity to obtain documents that are sealed by operation of law." Denial of access to records regarding other death was based on claim that an ongoing federal investigation bars disclosure after receipt of request to withhold records by Assistant U.S. Attorney; court held conclusion claim of ongoing investigation is insufficient to defeat disclosure; although agency need not jeopardize investigation by disclosing "revealing details describing the manner in which disclosure will impair that investigation. However, something more than the mere pendency of an ongoing investigation is necessary to bar a FOIL disclosure". Agency made "no claim that the investigation has not been completed".
National Broadcasting Company, Inc. v. City Parks Foundation, Supreme Court, New York County, NYLJ, July 18, 2000 --
City Parks Foundation, a not-for-profit entity, was found to be outside coverage of FOIL; held that opinion of Committee was based on "undisclosed multiple hearsay and undisclosed assumptions" and was of no value. See Stoll
National Resources Defense Council, Inc. v. Whalen, Supreme Court, New York County, NYLJ, February 9, 1989 --
Petitioner sought records regarding soil removed from a particular site due to possible contamination with hazardous waste. Court reviewed the documents in camera and found that they consisted of draft documents, including staff opinions and recommendations that were predecisional. Accordingly, the denial was upheld on the ground that the records were intra-agency materials.
Navarro Counsel v. O'Meara, Supreme Court, Nassau County, September 1, 2004 --
Petitioner was informed that agency maintained no "Navarro non-acquiescence policy" documents, i.e., a policy designed to deny individuals social security benefits, and that even if such documents existed, they would be attorney work product or subject to attorney-client privilege. Due to petitioner's intent "to persist in making such document request and in bring court proceedings to overturn denials of FOIL requests" on same basis, and considering his "history of litigation", "the application of estoppel here supports an injunction." Decision was affirmed in Robert v. O'Meara, 28 AD3d 567 (2006).
Neale v. Law Guardian Advisory Committee, 62 AD3d 885, 878 NYS2d 633 (2009) --
Neither FOIL nor PPPL applies to Law Guardian Advisory Committee, which was found to be part of judiciary. Not an "agency" subject to those statutes.
People v. Nelson, 427 NYS2d 194 (1980) --
Although request for statistical data regarding the arrest and prosecution of persons for prostitution-related offenses fall outside scope of discovery under Criminal Procedure Law, court found that Freedom of Information Law "would seem to authorize disclosure of such material."
Newman v. Dinallo, 22 Misc.3d 1134(A) (Nassau County 2009) --
Petitioners are insureds under long term care policies issued by Genworth Life Insurance Company, which informed them of 12% increase in premiums and requested "information concerning approval of the increase through multiple communications." Response by Dept. indicated that request did not reasonably records and petitioners were given opportunity to appeal or resubmit request. Petitioners did neither. Did not exhaust administrative remedies regarding that request. Second request "posed interrogatory type questions." Agency treated request as records request made under FOIL, but found no records responsive to certain questions, disclosed existing records. Held that FOIL pertains to existing records, and upheld denial of access to certain existing records under trade secret exception; rejected claim that AG involved in conflict of interest and should be disqualified.
Newsday, Inc. v. County of Nassau, Supreme Court, Nassau County, NYLJ, March 6, 2000 --
Newsday reporters made several requests for records involving the County Correctional Center and were met with continual delays, and it was held that "There was no reasonable basis in law for the foot dragging that took place here." Also found that requests for "the settlements of the legal claims and/or lawsuits filed by inmates of the NCCC against the jail" did not reasonably describe the records.
Newsday, Inc. v. NYS Urban Development Corp., 181 AD2d 436 (1992) --
Statistical or factual material contained in internal audit report available, but "non-statistical, non-factual internal opinions and recommendations" could be withheld.
Newsday v. O'Brien, NYLJ, November 5, 1990 --
Original order reversed and remanded; lower court denied access on basis of §2207 of Nassau County Government Law, which was found to be a statute that exempted records from disclosure; State Legislature repealed §2207 in 1990. See Bartczak
Newsday v. Office of the District Attorney, Supreme Court, Nassau County, NYLJ, July 10, 2001 --
Request involved “electronic copy of the County’s database on criminal convictions” from the County’s mainframe computer. DA indicated that County does not maintain a separate database of cases terminating in conviction, that it is “not possible to simply extract only the non-protected information” falling within the request, and that a program would have to be written and tailored to the request. Issue involved separating information relating to closed cases “from various tables – of which there are dozens – ...sort that information into a comprehensible format, and then analyze all of the extracted data to eliminate the protected information”, i.e., creating a record. Court reserved decision on obligation of DA to disclose public data sought until “further submission be made on the issue of difficulty of writing or compiling this computer program, together with the cost and the impact on the confidentiality and security of the information contained” in the electronic data. See also, NYPIRG v. Cohen
Newton v. Police Department, City of New York, 183 AD2d 621, 585 NYS2d 5 (1992) --
Agency failed to respond to or acknowledge receipt of request as required by §89(3); however, disclosure of certain records during pendency of litigation rendered that aspect of the litigation moot; further, although failure to appeal within thirty days would normally preclude judicial review, agency's "laxity in addressing petitioner's request until legal action had been commenced warrents that he be permitted to appeal...notwithstanding the passage of more than thirty days". Until administrative appeal is perfected, petitioner is not entitled to judicial relief; since agency did not respond to one aspect of request,
Newton v. District Attorney, Bronx County, 183 AD2d 621, 588 NYS2d 269 (1992) --
Hospital records of witnesses against petitioner found to be deniable as unwarranted invasion of personal privacy; grand jury testimony of those witnesses found to be exempted from disclosure by statute, Criminal Procedure Law, §190.25(4). Petitioner was deemed to have exhausted his administrative remedies.
New York Association of Homes & Services for the Aging, Inc. v. Axelrod, Supreme Court, Albany County, August 28, 1985 --
Failure to issue a determination upon appeal within the time limits set in §89(4)(a) of the Freedom of Information Law and 10 NYCRR 50.1.9(c) may be deemed a constructive denial of the appeal. "Patient Review Instruments" are not "medical, personal, social or financial records" made confidential by §§2803-c(3)(f) and 2805-g(3) of the Public Health Law. However, §369(3) of the Social Services Law precludes disclosure of all of the information contained in the Patient Review Instruments which concerns Medicaid patients. There is no invasion of privacy if identifying details are deleted.
New York Association of Homes and Services for the Aging, Inc. v. Novello, 13 AD3d 958, 786 NYS2d 827 (2004) --
Held that agency “did not possess or maintain information within its computer system capable of generating a report responsive” to the FOIL request and that certification regarding diligent search was adequate; however, agency failed to establish that disclosure of information sought “would cause substantial and identifiable harm to the subject which would outweigh the right to access”, citing Mantica
New York Central Mutual Fire Insurance Company v. Town of Cheektowaga, 13 AD3d 1189, 787 NYS2d 582 (2004) --
Held that local law is not a statute and that, therefore, fee of $10 for copy of “computer generated police and accident reports” was invalid.
City of New York v. 330 Continental LLC., Supreme Court, New York County, June 2, 2010, Slip Op 31532 --
FOIL was ancillary to primary issue. Contention that records were inappropriately disclosed in discovery. As Court considered FOIL, cited Committee opinion advising that one agency may disclose to another, even if records deniable under FOIL, so long as no statute prohibits disclosure.
NY Committee for Occupational Safety and Health v. Bloomberg, Supreme Court, NY County, NYLJ February 25, 2008 --
Request for various records sent to Mayor's office concerning claims and injuries sustained by City employees of various agencies, including all information listed in section of NYC Administrative Code. Mayor's office did not maintain the data, and affidavit of director of Workers Comp. Division indicated that "in order to compile the information" sought, the law department would be required to design a new computer program to extract the information from the ten units that store it and then sort, compile and create special reports from electronic and paper sources." Held that FOIL does not require that an agency create records.
New York City Department of Investigation v. NYS Division of Human Rights, Supreme Court, New York County, NYLJ, May 12, 1995 --
City agency sought to quash subpoena duces tecum issued by state agency compelling disclosure of records obtained in the course of investigation. Court used §87(2)(e) of FOIL as one of the grounds for finding that disclosure would be more harmful than the public interest than temporary confidentiality.
Civil Liberties Union v. New York City Police Department, 20 Misc.3d 1108, 866 NYS2d 93
"...by agreeing to provide and providing petitioner with data compiled from the firearms incident reports about the race of persons shot and struck, respondents have waived their right to claim a FOIL exception with respect to information contained in the identical reports about the race of persons shot and not struck."
New York Environmental Law and Justice Project v. City of New York, 286 AD2d 307, 730 NYS2d 285 (2001) --
Agency claimed it made diligent search for records but could not locate them. Petitioner’s speculative claims to the contrary were insufficient to find that other records falling within scope of request were in agency’s possession. Court also held that an agency is not required to provide records that are not in its custody or control.
New York News v. Koch, Supreme Court New York County, NYLJ, May 22, 1987 --
Records pertaining to investigation of Bess Myerson, former NYC Cultural Affairs Commissioner, were denied based upon considerations of privacy of witnesses, the pendency of a law enforcement investigation, and the possibility that disclosure would prejudice the right to a fair trial of those who may be the targets of prosecution.
NOTE: The report was later disclosed and none of the potentially harmful effects described in the decision have apparently arisen.
NYC Off Track Betting v. NYS Racing & Wagering Board, Supreme Court, New York County, August 2, 2000 --
OTB sought copies of contracts from the Racing and Wagering Board entered into between the New York Racing Association (NYRA) and ODS Technologies, and Saratoga Racing and ODS. Held that redaction of economic terms of the contracts was proper, for NYRA and OTB are competitors, and there is "a likelihood that disclosure of the contracts with OTD could cause substantial injury to NYRA's ability to negotiate contracts for selling its simulcast signal." Was also found that that disclosure would also be damaging to OTD and that disclosure to OTB, "which competes in the racing business with ODS, [could] obtain sensitive commercial information not available from any public source at minimal cost." See Encore and NYS Electric and Gas.
New York News, Inc. v. Office of the Special State Prosecutor, 153 AD2d 512, 544 NYS2d 151 (1989) --
Following release of a grand jury report in the Tawana Brawley case in which it was found that there was no basis for indicating anyone, newspaper published an article quoting summaries of evidence, thereby revealing testimony presented to the grand jury. Since §215.70 of the Penal Law prohibits disclosure of such matters, the Attorney General commenced an investigation to determine whether anyone had violated that provision. Petitioner requested records concerning the investigation, specifically, sworn depositions of staff members of the Attorney General's office. Court held that records could be withheld because they were compiled for law enforcement purposes and disclosure would interfere with an investigation, and because they would reveal information provided to the grand jury that is exempted from disclosure by statute.
New York Public Interest Research Group, Inc. v. City of New York, Supreme Court, New York County, NYLJ, September 27, 1982 --
Court upheld New York City real property gains tax regulations which prohibited release of gains tax returns and information contained therein, as a valid promulgation pursuant to statute under §87(2)(a); agency's assertion that disclosure would reveal trade secrets was rejected; records sought could be deniable as unwarranted invasion of personal privacy; see also Morris, Zuckerman. Current Law: §87(2)(a), (b) and (d)
New York Public Interest Research Group, Inc. v. Greenberg, Supreme Court, Albany County, April 27, 1979 --
Office of District Attorney is subject to the provisions of Freedom of Information Law. Agency has the burden of proving that the records sought fall within the exclusionary scope of §87(2); in camera inspection made, records found available since investigation terminated. Current Law: §§87(2)(e), 84, 89(4)(b), 86(3)
New York Racing Association, Inc. v. Division of the Budget and Franchise Oversight Board, Supreme Court, New York County, July 9, 2009, NY Slip Op 31605(U) --
Petitioner sought order vacating decision by DOB and FOB to disclose its operating budget pursuant to FOIL. Agency successfully contended under §§506, 510 and 511 of CPLR that venue should be changed from New York City to Albany. Virtually all events relating to the matter occurred in Albany, and change of venue was ordered.
New York State Association of Realtors, Inc. v. Paterson, Supreme Court Albany County, July 15, 1981 --
Court granted access to name and addresses of all real estate licensees, licensee's status as broker or salesperson and name and address of firm with which licensees are associated.
New York State Electric & Gas Corp. v. NYS Energy Planning Board, 221 AD2d 121, 645 NYS2d 145 (1996) --
Petitioner requested "efficiency data" required to be submitted by a firm, Indeck, to respondent pursuant to regulations; Indeck asked for trade secret protection, which was granted for duration of a contract between petitioner and Indeck and which could be reconsidered thereafter. Court relied on agency's expertise and sustained its determination that disclosure would result in competitive harm.
New York Teachers Pension Associates, Inc. v. Teachers' Retirement System of City of New York, 98 Misc.2d 118, affirmed 71 AD2d 250 (1979) --
Names and home addresses of retired teachers available to not-for-profit corporation; solicitation of membership dues not considered fund-raising; agency could not prove that disclosure would result in un unwarranted invasion of personal privacy. Current Law: §§87(2)(b), 89(2)(b)(iii)
New York Times Company v. City of New York Fire Department, 39 AD3d 414, 835 NYS2d 92 (2007) --
Some tapes of 911 calls made during attack on 911 “include, by repetition, by 911 operators... identifying information provided by the caller.” Court of Appeals in NY Times v. NY Fire Dept., previously held “words” of 911 callers be redacted, and that “redaction of repeated information is consistent with the intent of the Court of Appeals.”
Niagara Mohawk Power Corporation v. NYS Department of Environmental Conservation, Supreme Court, Albany County, January 4, 1988 --
Determination by agency to disclose records characterized as trade secrets was set aside and remanded so that petitioner could be given an opportunity to be heard prior to disclosure.
J.E. Nicholas, Matter of, 117 Misc.2d 630, 458 NYS2d 858 (1983) --
Petitioner sought from sheriff records of income executions, court found that disclosure would result in an unwarranted invasion of personal privacy for "it seems more than likely that a commercial use of those records is intended." Current Law: §87(2)(b) and 89(2)(b)
Nolen v. NYS Insurance Department, Supreme Court, Albany County, August 22, 2002 --
Held that payroll record required to be maintained pursuant to section 87(3)(b) should include reference to name of employees as the names appear on payroll checks, citing opinion of Committee rendered in 1992; remaining contentions of petitioner deemed moot.
Norde v. Morgenthau, 262 AD2d 132, 691 NYS2d 503 (1999) –
Petitioner could not successfully contend that agency’s claim that records sought did not exist was false.
Norden v. Sullivan West Central School District, Supreme Court, Albany County, July 20, 2001 –
Norton v. Town of Islip, 17 AD3d 468, 793 NYS2d 133, appeal denied 6 NY3d 709, 813 NYS2d 45 (2006) --
Issue involved refusal of Town to disclose records until petitioner paid fee of fifteen dollars charged by Town to certify that records to be made available under FOIL were true copies. Court held that Town must render a determination regarding rights of access, notwithstanding petitioner’s refusal to pay the fifteen dollar fee for certification. Request for attorney fees denied because records not of significant interest to general public, but “as the prevailing party within the contemplation of CPLR 8101", petitioner was awarded court costs. On appeal, Appellate Division held that petitioner had standing to sue, even though his attorney requested records on his behalf. Agency did not prevail but had reasonable basis for withholding and, therefore, attorney’s fees not awarded.
Norton v. Town of Islip, 60 AD3d 1069, 876 NYS2d 459 (2009) --
Norton brought previous suit and prevailed. Town was directed to disclose but disclosed some with redactions, and Norton moved to hold Town and Town officers in contempt. Held that redactions in documents did not relate to the subject matter of the FOIL request and, therefore, did not provide a basis for finding respondents in contempt.
Norton v. Town of Islip, 70 AD3d 833, 897 NYS2d 122 (2010) --
Third in series of decisions with same parties (60 AD3d 1069 and 17 AD3d 468) involving Town’s failure to produce records despite order to do so and motion for contempt. Appellate Division remitted matter to Supreme Court for determination regarding whether Town violated judgment by withholding certain records. However, affirmed lower court finding that “the redactions in the documents already provided did not relate to the subject matter of Norton’s request” and that, “consequently, did not provide a basis for finding the Town in civil contempt”.
Town of Northumberland v. Eastman, 493 NYS2d 93 (Saratoga County 1985) --
Where no uniform regulations pursuant to Freedom of Information Law have been promulgated by a town board, resolution requiring the town bookkeeper to keep the town's financial records at the town offices did not comply with the Freedom of Information Law and cannot be used under the guise of the Law to force the bookkeeper to place the records in the Town Hall.
Obiajulu v. City of Rochester, 213 AD2d 1055, 625 NYS2d 779 (1995) --
Performance evaluations of law enforcement personnel were found to be employment histories, but that they were available after identifying details were deleted. Also found that "Disciplinary files containing disciplinary charges, the agency determination of those charges, and the penalties imposed, however, are not exempt from disclosure under FOIL; 'personal and intimate details of an employees's life' are exempt".
O’Connor and Benson v. NYS Office of Mental Health, Supreme Court, Albany County, March 4, 2002 --
PEF request to Office of Mental Health for copies of the Statement of Conditions regarding two psychiatric centers denied under Education Law,§§6527(3) and 87(2)(a) of FOIL; upheld denial citing John P., stating that §6527(3) “shields proceedings and records relating to performance of a medical or quality assurance review function or participation in a medical and dental malpractice prevention program.” “...illogical to permit disclosure...under FOIL when the very same documents are shielded by confidentiality under Education Law section 6527(3).”
O’Donnell v. Bloomberg, 33 AD3d 367, 822 NYS2d 253 (2006) --
Held that there was no reason to reject agency’s contention that records could not be found after diligent search.
O’Donnell v. Donadio, 259 AD2d 251, 688 NYS2d 117 (1999) –
Petitioner not injured by NYC agency’s failure to comply with own rule requiring determination within ten business days of acknowledgement; held that training materials regarding canine could be withheld as non-routine criminal investigative techniques and procedures.
O'Neal v. Coughlin, 162 AD2d 826, 558 NYS2d 644 (1990) --
FOIL was tangential to the major issue, which involved the fairness and the impartiality of a hearing; Court held that inmate filed to establish that certain records disclosed under FOIL were considered by hearing officer without being formally introduced into the record.
Orange and Rockland Utilities, Inc. v. Town of Clarkstown, 408 NYS2d 132 (1978) --
Fact that documents sought are available under Freedom of Information Law is not basis upon which to grant a protective order; intent of law is to supplement discovery, not limit it. Current Law: S 89(5)
Orange County Publications v. Metropolitan Transportation Authority, 22 AD3d 290, 801 NYS2d 742 (2005) --
In a decision in which the facts are unclear, court sustained denial of access to draft contracts that were the subject of pending negotiations, citing Murray, and §87(2)(c), stating that disclosure would “impair present or imminent contract awards.” Appellate Division dismissed as moot, for disputed documents were finally disclosed. Note: As in Beechwood, this is another case of an agency waiting to be sued before disclosing any records.
O'Sullivan v. Pellegrini, Supreme Court, Rockland County, November 1, 1991 --
Court held in a sentence, without analysis, that records of telephone numbers called would if disclosed constitute an unwarranted invasion of personal privacy. See Wilson
Palmer v. Morgenthau, Supreme Court, New York County, April 7, 1999 –
Same holding as Franklin.
Palmer v. NYC Police Department, Supreme Court, New York County, Sept. 3, 1998 –
Case involved time requests made and received and time limits for response.
Paz v. City of New York, 38 AD3d 269, 831 NYS2d 70 (1st Dept 2007) --
“While the City’s responses were belated, and while City failed to provide an affidavit of the search done as directed in this Interim Order, its conduct was not so willful and contumacious as to warrant the extreme sanctions sought” (which were not detailed by the Court).
People v. Pack, Criminal Court, New York Cty., NYLJ, April 27, 1978 --
Records of complaints and proceedings regarding particular police officer before Civilian Complaint Review Board held to be available. Original Law: § 87 (2) (a), § 86 (3), (4)
Paulus v. East Syracuse-Minoa Board of Education, Supreme Court, Onondaga County, April 9, 1997 --
Somewhat confusing decision involving telephone records. Found that "petitioner's motives...do not appear to be that of an interested taxpayer", but motivation has in other contexts been found to be irrelevant [see e.g., Farbman]; inferred that agency's cellular phone numbers could be withheld, but did not so state directly.
Pennington v. Clark, 194 Misc.2d 381, 755 NYS2d 195 (2002) --
Petitioner, the spouse of person convicted of murder, sought autopsy photos and related records for the purpose of pressing review of conviction; held that §677 of the County Law does not specifically exempt the records from disclosure, but rather requires a court to consider release of the records upon application of “any person who is or may be affected in a civil or criminal action by the contents of the record...”, such as petitioner; court rejected claim of privacy by family of the victim, for County Law authorizes court to disclose “without reference to FOIL.”
Pennington v. Clark, 19 AD3d 1185, 796 NYS2d 567 (4th Dept 2005) --
Claim that petitioner failed to exhausted administrative remedies rejected, for agency failed to inform her of right to appeal, citing Barrett and Rivette; held that agency was not required to make “photographic reprints of photographs” and that “photocopies of photographs are ‘in a reasonably accessible form’ and supplying photocopies is sufficient to comply with law. Motions for reargument or, in the alternative, leave to appeal to the Court of Appeals denied.
Pennington v. McMahon, 234 AD2d 624, 605 NYS2d 492 (1996) --
Held that where agency counsel “affirms that a review of the pertinent records failed to disclose any documents of the types requested, the burden shifts to petitioner to come forward with factual proof that the items sought actually exist”, citing Calvin K.; subject matter list is categorical list of agency records, not list of specific items in individual’s case file.
Permis Construction Corp. v. City of New York, 257 AD2d 480, 684 NYS2d 205 appeal denied 93 NY2d 808, 691 NYS2d 2 (1999) --
As case pertained to FOIL, matter found to be moot.
Petix v. Connelie, 416 NYS2d 167 (1987) --
State police internal investigation reports deniable; constituted records compiled for law enforcement purposes, the disclosure of which would interfere with law enforcement informants; disclosure identities of confidential informants; disclosure would also result in an unwarranted invasion of personal privacy. Current Law: §87(2)(e)
Phillips v. Travis, Supreme Court, Albany County, August 21, 2000 –
Pre-sentence report found to be confidential and exempt from disclosure under §390.50 of the Criminal Procedure Law; recommendations made by DA to Division of Parole deniable as intra-agency material. See Ramalho
Phillips, Lytle, Hitchcock, Blaine & Huber v. City of New York, Supreme Court, New York County, NYLJ, December 10, 1997 --
Counsel to a tobacco company sought documents relating to the City's litigation pending in federal court against cigarette manufacturers. City contended that petitioner seeks records to obtain an advantage in litigation. Court recognized that it could not consider that issue in relation to FOIL, citing Farbman and Gould, but expressed a variety of concerns pertaining to "the lack of balance of the Court of Appeals' interpretation..."
Town of Pleasant Valley v. NYS Board of Real Property Services, 253 AD2d 8, 685 NYS2d 74 (1999) --
Case involved discovery in an Article 78 proceeding to review equalization rates imposed on a municipality by State agency. Held that portions of records could be withheld as “intra-agency materials.” Note: Decision appears to ignore Farbman holding that access under the Freedom of Information Law and CPLR discovery provisions are separate and distinct.
Police Benevolent Association v. Helsby, 374 NYS2d 262 (1975) --
Filed petitions relative to a challenge of a bargaining representative held to be deniable on the ground that disclosure would result in an unwarranted invasion of personal privacy. Original Law: §88(3)
Pooler v. Nyquist, 392 NYS2d 948 (1976) --
Records regarding drop-out and placement rates of schools regulated by Education Department held to be available; field inspection reports held to be available, for disclosure would not result in unwarranted invasion of personal privacy. Original Law: §88(3)
Powell v. Bernhardt, 19 AD3d 307, 797 NYS2d 94 ( 2005) --
Court accepted agency claim that it made diligent search for records
Pratt v. Goord, 20 AD3d 827, 799 NYS2d 611 (2005) --
Held that provisions of §18 of the Public Health Law, not FOIL, govern inmate’s request to inspect and copy medical records; upheld Department of Correctional Services policy regarding fees as reasonable.
Property Tax Reduction Consultants, Inc. v. Township of Islip, 21 AD3d 376, 799 NYS2d 576 (2005) --
Property inventory included as part of assessment records denied as unwarranted invasion of personal privacy. NOTE: Decision appears to be contrary to decisions and common practice dating back more than fifty years.
Property Valuation Analysts, Inc, v. Williams, 164 AD2d 131 (1990) ---
Petitioner is a corporation engaged in the business of representing property owners who seek to challenge their assessments; Court upheld denial of information derived from "EA5217" forms, which are confidential under §574(5) of Real Property Tax Law, unless they are requested for purposes of "administrative or judicial review of assessments", for no such proceeding had yet been commenced; also found that property record cards were available.
Public Education Association v. Board of Examiners of the Board of Education of the City of New York, 93 AD2d 838 (1983) ---
It was held that validity studies of job analyses prepared by Board of Examiners could be withheld under §87(2)(g); dissenting opinion indicated that, following an in camera inspection, the materials should be made available; has been appealed. Current Law: §87(2)(g)
Puerto Rican Legal Defense & Education Fund, Inc. v. Board of Examiners, Supreme Court, Kings County, Dec. 12, 1980 --
Held that "content-validity studies made as a part of job analysis" are available; agency failed to meet burden of proof. See Public Education Association, which reached opposite conclusion.
Qayyam v. New York City Police Department, 227 AD2d 188, 642 NYS2d 28 (1996) --
Affirmed lower court finding that the proceeding was time barred and held that "in any event", DD5's are exempt from disclosure. See Scott, Gould
Quartararo v. Guido, Supreme Court, Suffolk County, Suffolk County, NYLJ, March 22, 1991 --
Petitioner requested records from police department concerning murder case as well as autopsy report; police records were transferred to district attorney; to whom request was not made, autopsy report was found to be confidential under County Law, 677, and petition was dismissed.
Radio City Music Hall Productions, Inc. v. New York City Police Department, 121 AD2d 230 (1986) ---
Case apparently involved "discovery" of certain police investigative files, some of which were withheld under "law enforcement purposes" exception. In dissenting opinion, it was suggested that the use of the Freedom of Information Law to determine rights of access was inappropriate, because Freedom of Information Law was not invoked by either party, and that other statues constituted appropriate bases for determining disclosure.
Ragusa v. New York State Department of Law, 578 NYS2d 959 (1991) --
Petitioner was denied access to records relating to a federal antitrust action against an electronics manufacturer; Court rejected claims that records were exempted under §343 of General Business Law; that records disclosed would interfere with judicial proceeding or investigation, for their investigation and proceedings had ended; that the records were trade secret; and that witnesses and entities requested that their names and information they provided be kept confidential, since no promises of confidentiality were made; court also said there was nothing presented in motion papers or oral argument that would merit an in camera inspection. See also, Farbman, Cornell, Hawkins, Church of Scientology.
Rainbow News 12 Company v. Long Island Power Authority, Supreme Court, Nassau County, December 4, 1987 ---
Court held that two volume report prepared by consultant must be reviewed in camera to determine which portions could be withheld. Also held that "mere fact that a lawyer is involved in the preparation of a document does not clothe it with an attorney-client privilege". Agency failed to demonstrate that report contained "confidential legal advice".
Rainbow News 12 Company v. District Attorney of Suffolk County, Supreme Court, Suffolk County, June 30, 1992 --
Unsealed videotaped confessions became public once they were used in open court, stating that "The tapes were placed in the public domain when they were played in open court". See Moore.
Rainey v. Levitt, 525 NYS2d 551 (1988) --
Names of Black and Hispanic persons who took civil service exam and had been placed on "supplementary lists" had been disclosed. Petitioner sought and was granted access to their grades. Court found that there was no "meaningful distinction" between releasing names and grades. Consequently, agency could not prove that disclosure would constitute an unwarranted invasion of person privacy.
Ramalho v. Bruno, 273 AD2d 521, 708 NYS2d 206 (2000) --
Request involved a letter sent by District Attorney to Division of Parole regarding petitioner's upcoming parole hearing. Held that denial proper under §87(2)(g); letter set forth "the factors the writer feels the Division should consider in deciding whether to release petitioner on parole". Letter was "a mere aid in reaching to the Division in reaching a final decision" and "fits squarely within the statutory exemption."
Ramos v. New York City Department of Corrections, Supreme Court, New York County, September 24, 2008, NY Slip Op 3262(U) --
After months of attempts, agency provided petitioner with some records responsive to request during pendency of proceeding, certified adequately that remaining records not maintained or could not be found. Petition dismissed.
Ramos v. New York City Police Department, Supreme Court, New York County, March 27, 2009, NY Slip Op 30714(U) --
Records that were found relating to petitioner's request denied on basis of §50-b of Civil Rights Law involving victims of sex offenses, but court determined that Department did not meet its burden of demonstrating that §50-b applied; ordered in camera inspection. Other records were previously disclosed to petitioner or his attorney and were not required to be disclosed a second time.
Ramos v. NYS Division of Parole, 2 AD3d 936, 767 NYS2d 711 (2003) --
On appeal, AG advised court that letter in question not exempt “because its content was to clarify the disposition of charges against petitioner rather than a recommendation from the sentencing court regarding petitioner’s parole.” Became moot.
Rankin v. Metropolitan Transportation Authority, Supreme Court, New York County, August 10, 2010, Slip Op 32161 --
Request in March, 2009, for records involving "the location of fare vending machines and attendant booths inside all MTA subway stations..." Response indicated that some records sought did not exist, others available, and that others denied as "safety sensitive documents" in accordance with section 87(2)(f). Officials from several agencies contended that disclosure would jeopardize security; petitioner referred to claims as "fear mongering." Court upheld MTA's denial on due to utility of documents to terrorists and others.
Reade v. Hall, Supreme Court, Suffolk County, December 4, 1992 --
Opinions and recommendations prepared by agency personnel deniable as "predecisional material, prepared to assist an agency decision maker"; court ordered in camera inspection to determine whether report contains statistical or factual information. See also, McAulay v. Board of Education, Rothenberg, Xerox.
Real Estate Data, Inc. v. County of Nassau and Abe Selden, Chairman, Board of Assessors, Supreme Court, Nassau County, September 18, 1981 ---
Petitioner entitled to copy of county assessment roll on computerized tape for actual cost of reproducing the tape. See also Szikszay.
Reale v. Kiepper, 204 AD2d 72, 611 NYS2d 175 (1994) --
Transit Authority Police Department was considering or had decided to publish the results of disciplinary proceedings against Transit Authority police officers in departmental bulletins disseminated within the agency. Appellate Division held that Supreme Court abused its discretion in granting a preliminary injunction delaying implementation of the action to disseminate. Held that §50-a of the Civil Rights Law does not create a right of action on the part of police officers for claimed violations of that statute, and that proposed posting would not violate §50-a, for disclosure would be made "in a nonlitigation context and in furtherance of an official function"; also held that Personal Privacy Protection Law would not bar disclosure, for §96(1)(b) would permit internal agency disclosure.
Reape v. State of New York Metropolitan Transportation Authority, 185 AD2d 275, 586 NY2d 23 (1992) --
Public Authorities Law, §1209-a(4)(f) states that Transit Adjudication Bureau records "relating to all charges and dispositions...shall be deemed exempt from disclosure under the freedom of information law"; court upheld denial.
Reese v. Daines, Supreme Court, Erie County, September 12, 2008 --
Issue under FOIL was whether entities at issue are "agencies" subject to that statute. First entity is Board of Trustees of "unified governance structure" joining Erie County Medical Center (ECMC) and Kaleida Health Systems", named through functions of Berger Commission, aka, the hospital closing commission. The other is Western New York Health System, Inc., a not-for-profit corporation that is the successor of Kaleida. Each entity was "created, in turn, for the purpose of accomplishing the Commission-required merger of EMCCC and Kaleida". Held that because "they have been legislatively and administratively delegated the authority to oversee the continued operations of the public benefit corporation known as ECMCC, the disposition of its assets, the fate of its public employees, and its eventual dissolution as a public benefit corporation, respondents are undoubtedly each a "board" or "other governmental agency performing a governmental function for the State of New York and/or County of Erie, or for the public benefit corporation known as ECMCC." Therefore, they are "agencies" subject to FOIL; their not-for-profit status is not determinative.
Reese v. Williams, Supreme Court, Erie County, May 7, 2009 --
Despite petitioners' contention, financial disclosure statements filed by three candidates for seats on City of Buffalo Board of Education pursuant to Education Law, §1528, were not required to be disclosed instantly; records were made available within statutory time, Same statute does not specifically require that statement be copied, but rather only that they "shall be open to public inspection." Court advised that State Legislature should address that issue "should it so desire." Petition dismissed.
Reubens v. Murray, 194 AD2d 492, 559 NYS2d 580 (1993) --
Applicant did not appeal denial and, therefore, failed to exhaust administrative remedies; also found that agency is not required to compile new "aggregate" data in response to requests. See Guerrier
Reynolds v. Queens County Board of Elections, 24 Misc. 3d 1231(A) (Bronx County 2009) --
Because petitioner requested answers to questions rather than requests for information, it was neither arbitrary nor capricious for it not to provide a response. Response given, however, and Board provided records. Court briefly dealt with requests to other agencies and noted that office of DA contended that request did not reasonably describe the records sought. Petitioner contended that certifications regarding inability to locate records was insufficient. Court disagreed, citing Rattley.
Rhino Assets v. New York City Department for the Aging, Supreme Court, New York County, April 28, 2005; reversed and remanded 31 AD3d 292, 819 NYS2d 247 (2006) --
Lower court upheld denial of access to records identifying 83 specified tenants who applied for rent exemption based on age and income, citing Committee opinion; Appellate Division reversed and remanded due to agency’s failure to respond to request or appeal and inadequately expressed rationale for denial of access.
Rivette v. District Attorney of Rensselaer County, 272 AD2d 648, 709 NYS2d 631 (2000) --
Police Department supplied one record in its possession but indicated by affidavit that no other record in its possession was responsive to request; as such, that agency responded properly, for "an agency is under no obligation to furnish documents which it does not possess" (see Walsh). District Attorney, however, did not respond to request or inform applicant of right to administrative appeal, "thereby negating the argument that petitioner failed to exhaust his administrative remedies"; remitted the matter to Supreme Court. See Barrett.
Robert v. LoCicero, 28 AD3d 566, 813 NYS2d 214 (20060 --
Affirmed Supreme Court’s denial of petition.
Court declined to conduct an in camera inspection based on the agency submission of affidavits that documents either do not exist or were exempt from disclosure. Held that affidavits were sufficient evidence that the agency complied with law.
Robert v. O'Meara, 28 AD3d 567 (2008) -- see Navarro
Roberts v. Fondulis, 40 AD3d 1002, 836 NYS2d 658 (2007) --
Lower court properly dismissed proceeding against petitioner as FOIL officer for Suffolk County on ground that FOIL “was fully complied with.”
Robert v. O’Meara, 28 AD3d 567, 813 NYS2d 736 (2006) --
Based on doctrine of collateral estoppel, court dismissed, for issues had been litigated and determined in prior proceeding.
Robinson Brog Leinwand Greene Genovese & Gluck, P.C. v. Catterson, Supreme Court, Suffolk County, NYLJ, August 13, 1997 --
Request involved records relating to investigation of death of Vitas Gerulaitis from carbon monoxide; issue involve scope of sealing provisions of CPL §160-50. Court held that “Generally investigative and audit reports are not records required to be sealed” by that statute and ordered disclosure.
Robles v. Tracy, 275 AD2d 837, 713 NYS2d 776 (2000), appeal denied 96 NY2d 702, 722 NYS2d 794 (2001) --
Parole release records of two former inmates who testified at petitioner's trial could be withheld as unwarranted invasion of personal privacy.
Rodriguez v. Dillon, 210 AD2d 416, 620 NYS2d 96 (1994) --
Held that district attorney satisfied his obligation when he certified that after a diligent search, he could not locate the records sought. See Calvin K., Swinton, Ahlers, Key.
Rodriguez v. Johnson, 66 AD3d 536, 886 NYS2d 695 (2009) --
Held that DA conducted diligent search, that deletions of identifying characteristics of witnesses properly withheld as unwarranted invasion of privacy.
Rodriguez v. Travis, Supreme Court, Albany County, November 17, 2000 –
Letter from DA to Division of Parole consisting of recommendation deniable as intra-agency material; cited Committee opinion. See Ramalho and Phillips
Rold v. Cuomo, Supreme Court, Albany County, May 31, 1988 ---
Petitioner sought registers concerning application for pardons, clemency and the actions thereon or, alternatively, an order to compel the creation of a register if one has not been maintained. Court held that such a register must be created, and that the identities of inmates be disclosed, attorney's fees awarded.
Rome City School District Disciplinary Proceeding v. Grifasi, 10 Misc.3d 1034, 806 NYS2d 381 (2005) --
Involved disclosure of video tape of altercation among students and finding that tape was not an “education record” for purposes of federal Family Educational Rights and Privacy Act, but rather was a “law enforcement unit” record exempt from confidentiality requirement imposed by Act. Also found that judiclal subpoena duces tecum overrides protections in Act. Not sure whether court read federal regulations….
Rome Sentinel Co. v. City of Rome, 546 NYS2d 304 (1990) ---
City denied records relating to disciplinary action imposed against professional firefighter pursuant to Civil Rights Law, §50-a; Court held that §50-a does not provide a blanket exemption, found that request by newspaper was made in a "non-litigation context"; found that accusations or complaints could be withheld under §87(2)(g), but that a "final determination" concerning a suspension must be disclosed; rejected claim for attorney's fees. See Scaccia, Sinicropi, Buffalo News v. Buffalo Municipal Housing Authority.
Rome Sentinel Co. v. City of Rome, 174 AD2d 1005, 572 NYS2d 165 (1991) ---
Following in camera review, court found that intra-agency materials consisted of advice, opinions, recommendations and was properly withheld §87(2)(g).
Roper v. Carway, Supreme Court, Nassau County, NYLJ, August 18, 2004 --
“As to the original Pre-Sentence report, Criminal Procedure Law Sec. 390.50 is the exclusive procedure concerning access to such reports, as they are confidential and specifically exempted from disclosure pursuant to State and Federal Freedom of Information Laws. Petitioner may not seek them from this court but must make a proper application to the Court which sentenced him.”
Roque v. Kings County District Attorney’s Office, 12 AD3d 374, 784 NYS2d 155 (2004) --
Upheld initial finding that request failed to reasonably describe certain records; also upheld denial of access to transcripts of court proceedings in possession of DA. Note: Court was apparently unaware of Newsday v. Empire State Development Corp. in which it was held by Court of Appeals that court records in possession of agency are agency records subject to FOIL.
Rothenberg v. City University of New York, 191 AD2d 195, 594 NYS2d 219 (1993) --
Petitioner sought records relating to failure to achieve rank of Professor. In upholding denial, court held that records were intra-agency materials prepared by various committees that consisted of recommendation and were purely advisory and predecisional. See also, Kheel, Oyster Bay, McAulay v. Board of Education, Reade.
Court, NY County, October 29, 2010, Slip Op 33136 --
Petition dismissed on ground that disclosure would interfere with pending judicial proceeding and that administrative remedies not exhausted with respect to one of two requests. Cited Legal Aid v. NYPD.
Rushford v. Oneida-Herkimer Solid Waste Authority, 217 AD2d 966, 629 NYS2d 904 (1995) --
Court did not describe the records sought but reversed lower court decision on the ground that the agency failed to provide a "particularized and specific justification for denying access" or a "factual basis" for claiming an exemption.
Russo v. Fitzgerald, 260 AD2d 738, 687 NYS2d 816 (1999) –
FOIL did not entitle petitioner to duplicate photographs of better quality than those made available to him when photos provided were reproduced with usual development techniques and procedures.
City of Rye v. Planning Commission, Village of Port Chester, Supreme Court, Westchester County, NYLJ, November 6, 2000 --
Insofar as records sought had previously been made available to petitioner, agency was not required to disclose same records again, and issues regarding those records were moot; other records sought were exempt from disclosure based on "the attorney-client privilege or the intra-agency privilege." See Moore.
Rye Police Assn., v. City of Rye, 34 AD3d 591, 824 NYS2d 163 (2006) --
After in camera review, Court upheld denial of access on the ground that records fell within scope of attorney-client privilege and, therefore, were exempt from disclosure under §87(2)(a) of FOIL.
Rye Police Association v. City of Rye, Supreme Court, Westchester County, December 13, 2007 --
Court upheld denial of access to purchase orders for "all purchases of video recording equipment, digital recording equipment [and] audio recording equipment", as well as "digital and video records made of the public area outside Police Headquarters on April 18 between 1600 and 1800 hours." Cited Fink, stating that disclosure could "undermine the department's effectiveness and potentially expose it to compromise or sabotage" and that "video recordings in and around police headquarters appear to be made for security purposes and would reveal the identity of undercover police officers, confidential informants, citizens filing internal affairs complaints and a variety of police activities which if disclosed would undermine police operations." Disclosure of purchase orders would indicate "the extent of the department's capabilities in those areas and again undermine the effectiveness of the department.
St. Joseph's Hospital v. Axelrod, 74 AD2d 698 (1980) ---
Uniform financial report required to be available under Public Health Law, §2805-a was not deniable under Freedom of Information Law, unless a later statue expressly repeals an earlier one, there is a presumption that repeal was not intended. Current Law: §89(5)
Sam v. Sanders, 80 AD2d 758 (1981) ---
Access records of foster care governed by Social Services Law, §372; such reports generally confidential and therefore outside the scope of the Freedom of Information Law. Current Law: §87(2)(a)
Sanchez v. Brown, 269 AD2d 455, 702 NYS2d 924 (2000) --
Agency satisfied its burden of demonstrating that records could not be found after diligent search. See also Key, K. of Oaknoll.
Sanchez v. Morgenthau, Supreme Court, New York County, November 6, 2009 --
Court "is not required to 'accord any deference to agency determinations regarding statutory construction' or pure questions of law" and "The issue of whether a party invoking a FOIL exemption has met their burden is one of 'pure legal interpretation' for this court to decide." Therefore, "normal Article 78 'arbitrary and capricious standard of review' " is inapplicable. Petitioner found to have failed to exhaust administrative remedies and that second request dismissed "as a belated attempt to seek judicial review of the first denial", citing Mendez. One request found not to be repetitive, and court ordered disclosure of "the documents constituting petitioner's co-defendant's statements and/or confessions, or if such do not exist, a copy of..." the form indicating that there were no such statements.
Sanders v. Bratton, 278 AD2d 10, 718 NYS2d 19 (2000) --
Court of Appeals in Rattley rejected portion of this decision involving requirements pertaining to certification that records cannot be found. With respect to other aspects of decision, held that agency’s conclusory assertions of grounds for denial were insufficient.
Saratoga Harness Racing, Inc. v. Task Force on the Future of Off-Track Betting, Supreme Court, Albany County, March 9, 2010, Slip Op 30481 --
Involved successful attempt to block disclosure of financial data on agency website based on “trade secret” exception, section 87(2)(d). Found that claim of competitive harm “neither speculative nor conclusory” and identified food and beverage competitors, current and future labor negotiations and potential for outside marketers to enter Saratoga’s market. Agency was enjoined from disclosing.
Sawyer v. Basile, Supreme Court, Tompkins County, December 10, 1999 --
Police Department asserted, "on oath" that it had none of the records sought, and in the absence of any evidence to the contrary, the petition was dismissed.
Scaccia v. NYS Division of State Police, 138 AD2d 50, 520 NYS2d 309 (1988) ---
Records leading to disciplinary action concerning state trooper could be withheld pursuant to §87(2)(e) and (g); however, records indicating final disciplinary action held to be available as a final agency determination; disclosure of determination would not result in unwarranted invasion of personal privacy. Court found that §50-a of Civil Rights Law could not be asserted to deny, because record was not sought in the context of litigation. See Capital Newspapers v. Burns; Prisoners' Legal Services v. NYS Department of Correctional Services.
Schacter v. Quinones, 140 AD2d 505, 528 NYS2d 408 (1988) ---
Petitioner sought to have respondent perform various acts in order to resolve his administrative appeal made under Freedom of Information Law; Court held that a proceeding in mandamus "lies only where there is a legal obligation to perform the act sought to be compelled" and dismissed,
Schlossberg v. New York State Division of Housing & Community Renewal, Supreme Court, New York County, November 29, 2010, Slip Op 3335 --
Case involved challenge to agency’s rent increase for rent-controlled apartments, and FOIL issue was sixth among six causes of action. In short, found that there was a failure to appeal alleged denial of access. Case dismissed all causes of action.
Schreibman v. Kripplebush-Lyonsville Fire Department, Inc., Supreme Court, Ulster County, September 23, 1994 --
Court found respondent guilty of contempt for willfully disobeying judgment directing compliance with FOIL; fined $250 plus costs.
Schumate v. Wilson, 90 AD2d 832 (1982) ---
Court held that minutes, recommendations and similar materials sought regarding a determination concerning temporary release was deniable under § 87(2)(g). Current Law: §87(2)(g); see also Sinicropi v. County of Nassau and McAuley v. Board of Education, City of New York.
Sciascia v. City of New York, 466 NYS 2d 74 (1983) ---
Request for entire investigatory file prepared by fire marshall office was granted on the ground that the City could not demonstrate that the records were deniable under either CPLR, §3101g or §87(2)(g) of the Freedom of Information Law. Current Law: §87(2)(g)
Scolnick v. Starr, NYLJ, November 1, 1975 ---
Records related to a marketing analysis held to be available. Original Law: §85
Scott v. Chief Medical Examiner, City of New York, 179 AD2d 443, 577 NYS2d 861 (1992) --
Court held that certain police records deniable under §87(2)(g), that police officer's memo books were private property of officers, and that reliance on County Law, §677 to withhold autopsy report was misplaced, because that statute does not apply to statutes with New York City. Note: In Cromwell and Laureano the same court found that officers' memo books were subject to rights of access.
Scott v. New York City Police Department, 225 AD2d 338 (1st Dept 1996) --
Police officer's memo book found to be exempt from disclosure. Reversed by Gould.
Serrano v. David, 45 AD3d 270 (2008) --
Petition dismissed as time barred; failed to appeal initial request within 30 days as required by §89(4)(a); second request made, and "Belated judicial review of that denial cannot be based on petitioner's second request for the same records..." See Corbin.
Shaw v. Coughlin, Supreme Court, St. Lawrence County, December 19, 1990 --
Court ordered disclosure of names of correction officers assigned to a mess hall, reports and photographs relating to an incident. Petitioner sought order that Court determine whether disciplinary action had been initiated and to consider any issues of privacy. Held that the proceeding was "an action within the meaning of §8602(a)" of the Civil Practice Law and Rules, but declined to award attorney's fees due to inadequate proof of litigation expenses.
Shaw v. Lerer, 446 NYS2d 885 (1981) --
Rating sheets containing advice prepared by school coaches of petitioner's performance as a hockey referee are inter-agency records under §87(2)(g); disclosure of individual ratings would inhibit candid appraisal and be detrimental to the public interest.
Shaw v. Triborough Bridge and Tunnel Authority, Supreme Court, New York County, NYLJ, June 17, 1980 --
Record related to consummated contractual agreement available, for disclosure would not "impair present or imminent contract awards" or result in an unwarranted invasion of personal privacy. Current Law: §§87(2)(b), (c) and 89(2)
Shedrick v. Coughlin, 176 AD2d 391, 574 AD2d 98 (1991) --
Inmate sought "certain 'Alcoholics Anonymous' information concerning another inmate who apparently testified during petitioner's criminal trial"; Court dismissed on the ground that a federal statute, 42 USC 290dd, directs that such records be withheld; Appellate Division affirmed.
Siani v. Farmingdale College Foundation, Supreme Court, Suffolk County, November 3, 2010, Slip Op 33283 --
Held that Foundation is neither an “agency” for purposes of FOIL or a “public body” subject to the Open Meetings Law; is a not-for-profit corporation that encourages and accepts gifts for College, contacts private individuals and alumni for contributions, receives all funding from private sources, is governed by 26 member board, 23 of whom are from private sector; has independent control over its finances. Holding is contrary to Eisenberg, earlier Siani decision, and Hearst v. Research Foundation.
Sideri v. Office of the District Attorney, 663 NYS2d 206 (1st Dept 1997) --
Held that physical evidence not a “record”, citing Allen; also found that disclosure of trial evidence would interfere with DA’s handling of the appeal, citing §87(2)(e)(i).
Sills v. New York State Division of State Police, 248 AD2d 920, 669 NYS2d 990 (1998) --
Request involved breath test operator's manual used in 1989-1990. Since manual no longer maintained by the agency, controversy was deemed moot. In addition, court rejected contention "that the mere issuance of the manual to its trainees rendered the manual the property of the State police and each trainee an available source from which such records could be requested."
Sklarski and Ceretto v. Niagara Falls Bridge Commission, US District Court, Western District of New York, March 26, 2010 --
Commission created by Joint Resolution of Congress in 1938, which was amended in 1991 to “deem” the Commission “a public agency or authority of the state of New York.” Despite that language, court held that Commission is not a state agency subject to New York FOIL.
Smigel v. Power Authority, 54 AD2d 668, 387 NYS2d 962 (1976) --
Request for list to provide landowners with relevant information concerning the manner in which the use of high voltage transmission lines may affect the use and enjoyment of the property is "endowed with the public interest" and was granted. Original Law: §85 et seq.
Smith v. Capasso, 200 AD2d 502 (1994) --
Police Department produced most of the records sought; claimed that remaining records were not in its possession or were exempt. Held that agency supplied "a sufficiently detailed basis to support these claims of non-possession and exemption to negate the necessity of an in camera review of the documents." See also Key
Smith v. Delago, 2 AD3d 1259, 770 NYS2d 445 (2003) --
Patient brought malpractice action against physician and hospital, and after obtaining results of investigation of complaint by Dept. of Health through request made under FOIL, defendants moved to prohibit use of redacted interviews with staff and DOH’s independent review of medical care provided. Defendants sued to prohibit use of documents obtained under FOIL based on Education Law, §6527(3) and Public Health Law, §2805-m. Held that petitioner entitled to DOH “Statement of Deficiencies” under Public Health Law, §10(2), but that remaining documents were confidential under §2805-m of the Public Health Law concerning quality assurance review. Question: in view of Public Health Law provisions, how did patient obtain anything other than statement of deficiencies under FOIL?
Smokes v. Morgenthau, Supreme Court, New York County, January 14, 1997 --
Request by applicant seeking records relating to his criminal case; citing Corbin, held principle of res judicata applied to determinations on previous requests for same records; upheld denial of grand jury related records, as well as psychiatric records of witnesses as unwarranted invasion of personal privacy; but also held that agency did not properly certify that a diligent search was made and citing Moore v. Santucci, ordered disclosure of records previously made available based on petitioner’s showing that neither he nor his attorney continued to have possession of records.
Snyder v. Third Department Judicial Screening Committee, 18 AD3d 1100, 795 NYS2d 398 (2005) --
Held for purposes of FOIL that records of Judicial Screening Committee not available to public but offered no legal basis or rationale.
Snyder v. Town Board of Town of Charlton, Supreme Court, Schenectady County, May 20, 1992 --
Elected assessor sought certain records in effort to perform his legal duties, was denied, appeal, was denied without written statement explaining reason. Agency contended that he could not sue under Freedom of Information Law in his capacity as town assessor; Court held that appeal determination must include reason for denial, that Assessor, faced in Farbman, could bring suit, and that records should be disclosed. Court referred to Committee opinion advising that records sought available to anyone, including the Assessor.
Sommer v. Dilworth, Supreme Court, Suffolk County June 21, 1983 --
Petitioner sought records of alleged crimes of police brutality against named police officers; court held that records were exempted from disclosure under §50-a of the Civil Rights Law pertaining to police officers' personnel records; cited Committee opinions. Current Law: §87(2)(a)
Sonne v. Nassau County Police Department, Supreme Court, Nassau County, April 11, 2001 --
Department refused to disclose accident report on the ground that petitioner was not an “interested party” under §66-a of Public Officers Law. Citing Scott Sardano & Pomeranz, held that report is accessible.
Town of Southold v. Catus, Supreme Court, Suffolk County, October 17, 1997 --
Court granted petition in conjunction with Moore v. Catres.
Sowell v. New York City Police Department, 292 AD2d 187, 739 NYS2d 142 (2002) --
Petitioner received some of the records sought and protested contention that other records could not be found; additionally, he did not receive 20 pages of material the Department agreed to provide; he paid fee for copies but also brought suit. Affirmed with respect to adequacy of certification that some records could not be found.
S-P Drug Co., Inc. v. Smith, 409 NYS2d 161 (1978) --
Contract under which co-defendant corporation obtained the sole right to distribute list necessary to determine estimated medicaid reimbursements for drugs prescribed to medicaid patients held to be a violation of the Freedom of Information Law for such information is available to any person; state's action in granting private corporation right to copyright public information resulted in bargaining away public property without proper consideration. Current Law: §§85-90, 84
Spencer v. Lombardi, 267 AD2d 13, 699 NYS2d 47 (1999) --
Lower court "properly recognized that [agency's] claim of untimeliness presented an issue of fact, which barred summary resolution", and "[i]nstead of setting the matter down for a hearing to resolve that issue, however, the court undertook a consideration of the merits", which resulted in a denial of access. Appellate court reversed and found that the agency never cited grounds for denial of access. Therefore, burden of proof was not met. See Gould.
Spruils v. New York City Housing Authority Police Department, Supreme Court, New York County, NYLJ, July 28, 1995 --
Although the court found that police officers' memo book was covered by FOIL, court held that content in this instance could be withheld under §§87(2)(e), (g) and (b). See also Amaker, Laureano, Gould.
Stengel v. New York City School Construction Authority and New York City Department of Education, Supreme Court, New York County, July 24, 2009 --
Request involved records relating to certain proposed developments in Brooklyn. Court accepted agencies' contention that records were properly withheld as inter-agency or intra-agency materials; did not require in camera inspection despite likelihood that significant portions of records consisted of statistical or factual information.
Stewart Park and Reserve Coalition v. White, Supreme Court, Albany County, September 4, 1991 --
Held that various intra-agency materials must be disclosed to the extent that they consist of information accessible under 87(2)(g)(i), (ii) or(iii). In camera review was ordered, and Committee opinion was cited.
Stockdale v. Hughes, 173 AD2d 1075, 570 NYS2d 412 (1991) --
FOIL was one among several issues. Request for records was resolved in lower court by stipulation; further, agency granted certain requests and sought clarification regarding others; as such, petitioners did not establish that lower court abused its direction by failing to award attorney's fees under §89(4)(c).
Stone v. Department of Investigation, City of New York, 172 AD2d 165 (1991) --
Affirmed a denial of request for investigatory file based upon §§87(2)(g) and 89(2)(b).
Stuart v. NYS Department of Correctional Services, Supreme Court, Chemung County, August 30, 2001 --
Requests involved “accrual” or “leave statements” of correction officers at certain facility. Despite holding of Court of Appeals in Capital Newspapers v. Burns, held that names of correction officers could be deleted based on §50-a of Civil Rights Law.
Sunter v. David, Supreme Court, New York County, February 6, 2009 --
Request for records from NYC PD ordered to be produced for an in camera inspection - none of the exceptions claimed in the PD’s answer were articulated in its denial of the request.
Surace v. Sinek, Supreme Court, Westchester County, May 19, 2005 --
Records denied by town at request of DA. However, no longer any criminal action or investigation, and complainant’s identity and accusations were known to petitioner. That being so, no exception to rights of access could be asserted.
Svaigsen v. City of New York, 203 AD2d 32, 609 NYS2d 894 (1994) --
Case brought a civil rights action under 42 USC §1983 and involved discovery. Request involved information given to Internal Affairs Unit and interviews of police officers in investigation of shooting death of plaintiff's decedent. Held that interviews consist of "factual accounts of the incident" available under §87(2)(g)(i); remanded to Supreme Court for in camera review to determine whether any "non-factual" information within the records should be redacted.
Tanner v. New York City Police Department, Supreme Court, New York County, May 16, 2007 --
Petitioner failed to appeal and did not exhaust administrative remedies; also, request duplicated previous requests and judicial decision; cannot relitigate based on res judicata; found that earlier clarification of what records could not be found was adequate.
Tate v. DeFrancesco, 217 AD2d 831, 629 NYS2d 529 (1995) --
Records sought pertained to an altercation involving petitioner resulting in the death of another inmate. Court affirmed the denial on the basis of §§87(2)(f) and (g).
Taylor v. New York City Police Department, 806 NYS2d 586, 25 AD3d 347 (2006) --
Petition rendered moot by production of records and certification that others could not be found after diligent search.
Telesford v. Patterson, 27 AD3d 328, 812 NYS2d 52 (2006) --
Decision dealt more with §50-a of the Civil Rights Law concerning police officers’ personnel records than FOIL. Reversed lower court decision to disclose taped interview with police officer relating to allegation of use of excessive force and held that §50-a required notice and opportunity to be heard to be given to interested parties prior to disclosure, and that police officer was a necessary party.
Tellier v. NYC Police Department, 267 AD2d 18, 698 NYS2d 490 (1999) --
Matter found to be moot because records were made available during the pendency of the litigation. See Malerba.
Terminix International Company v. Assistant Commissioner for Hearings and Mediation Services for the New York State Department of Environmental Conservation, 301 AD2d 819, 753 NYS2d 591 (2003) –
Largely involved interpretation of terms of provisions in Environmental Conservation Law and found that agency properly construed those statutes as authorizing disclosure of certain data only in summary form and in a manner that offers the public data in that form “while protecting any proprietary or identifying information enclosed therein.”
Thomas v. Records Access Officer, 205 AD2d 786, 613 NYS2d 929 (1994) --
Referring to Key, court found error to accept wholly conclusory allegations as a substitute for proof that agency was unable to locate records following diligent search; however, in this instance, agency employee who conducted search submitted affidavit that provided adequate basis for concluding that diligent search had been made. See also Smith
People v. Thompson, Supreme Court, Queens County, May 16, 2007 --
Petitioner was convicted of various crimes in 1993, including sex offenses, and requested 33 categories of records more than 11 years later. District Attorney’s office engaged in repeated delays and initially denied in its entirety under Civil Rights Law, §50-b. Records not identifying victims made available on appeal. In petition to court, petitioner requested 48 additional categories of records. Court dismissed that portion of proceeding because there was no appeal.
District Attorney produced more, and court sustained remainder of denial based on §50-b, that portions of request “too vague” and did not reasonably describe the records as required by §89(3), that District Attorney met burden of demonstrating that records could not be found or did not exist.
Timmons v. Green, 57 AD3d 1393, 871 NYS2d 562 (2008) --
Requests sent to DA's office instead of designated records access officer, but court held that agency "is not thereby relieved of its burden of responding to FOIL requests." However, modified lower court's granting of petition without first affording agency the opportunity to serve and file an answer.
Timmons v. Records Access Officer, 271 AD2d 320, 706 NYS2d 640 (2000), appeal denied 713 NYS2d 2, 95 NY2d 758 (2000) --
Applicant failed to meet the burden of reasonably describing the records as required by §89(3). See Mitchell v. Slade
Timoney v. Metropolitan Transportation Authority, Supreme Court, New York County, October 14, 2010, Slip Op 32948 --
Requests involved sale by MTA of Coliseum property in NYC. After series of delays, some records were disclosed, and MTA certified that no others could be found following diligent search. Court accepted propriety of certification and also determined that request was, in part, insufficient for purpose of locating and identifying records and, therefore in those instances failed to “reasonably describe” the records.
Tinker Street Cinema v. Department of Transportation, 254 AD2d 293, 678 NYS2d 124 (1998) --
Portion of the case involving FOIL was dismissed because the applicant did not appeal a denial of access within thirty days and, therefore, did not exhaust administrative remedies.
Todd v. Craig, Supreme Court, Washington County, June 5, 1998 --
Assessor’s worksheets found to consist of factual information that must be disclosed. Court denied award of attorney’s fees based on assessor’s “reasonable belief” that the records could have been withheld. Case has been appealed regarding the issue of attorney’s fees.
Toledo v. New York City Police Department, Supreme Court, New York County, January 29, 1999 –
Petitioner initiated suit while request and appeal still outstanding; six weeks later was told by Department that he must provide additional “pedigree information” to facilitate processing his request. Court ordered that agency determine rights of access within sixty days of receipt of pedigree information.
Trauernicht v. BOCES of Nassau County, 407 NYS2d 398 (1978) --
The cost to agencies of preparation of a report is not alone a sufficient basis to preclude disclosure; nevertheless, a report obtained by school districts on a shared-cost basis that was designed to assist participating districts in collective bargaining was denied on the ground that disclosure would impair collective bargaining negotiations; see also Dolan. Current Law: §87(2)(c)
Travelers Indemnity Company v. County of Westchester, Supreme Court, Westchester County, NYLJ, April 5, 1994 --
FOIL was ancillary to finding that personnel records sought by means of discovery were not material and necessary.
Tri-State Publishing Company v. City of Port Jervis, 523 NYS2d 954 (1988) --
Involved request for death certificate of person suspected to have died of AIDS; held that privacy provisions of Freedom of Information Law do not extend to the deceased, that agency is required to meet burden of defending secrecy under Freedom of Information Law when read in conjunction with §4174 of Public Health Law, and that a request by a newspaper for purpose of reporting constitutes a proper purpose.
Village of Tuckahoe v. Public Service Commission, 150 AD2d 466, appeal denied 74 NY2d 609 (1989) --
In disposing of one among many issues, court upheld denial of certain "predecisional memoranda" under §87(2)(g).
Tuck It Away Associates v. Empire State Development, Supreme Court, New York County, August 23, 2007 --
“Decided in accordance with....Harlem Business Corp.”
Ubaldo v. Morales, Supreme Court, New York County, April 4, 2005 --
Held that petitioner failed to exhaust his administrative remedies, but that office of DA failed to inform him of right to appeal denial of request and directed that he be given 30 days to appeal.
United Policyholders v. Serio, 298 AD2d 286, 748 NYS2d 489 (2002) --
Following in camera review, denial of access to redacted material contained in a memorandum from a staff attorney to Insurance Department employees was upheld in accordance with assertion of attorney-client privilege and as intra-agency material that is “a nonfactual part of the deliberative process and otherwise advisory in nature”.
URAC Corporation v. Public Service Commission, 223 AD2d 906, 636 NYS2d 480 (1996) --
Denial of request for attorneys' fees was not an abuse of discretion, even though criteria for an award appearing in §89(4)(c) were satisfied, particularly in view of evidence and possible misunderstanding involved in agency's efforts to comply.
Urbach v. Farrell, 229 AD2d 275, 656 NYS2d 448 (1997) --
Use of legislative subpoena to obtain agency records upheld; exceptions in FOIL do not apply, even when firm sought trade secret status under §89(5).
U.S. Claims Services, Inc. v. NYS Dept. of Audit and Control, 23 Misc.3d 923, 873 NYS2d 897 (2009) --
Comptroller is required to publish names and addresses of persons with an abandoned property claim of at least $20, and posts same information on website when claim involves at least $50. Request involved claims that fall with a specified range of dollar values, sorted alphabetically. Held that Comptroller's construction of Abandoned Property Law, §1401, "as prohibiting the disclosure of abandoned property claims that fall within a targeted range of amounts is a reasonable method of giving effect to the Legislature's expressed intent of withholding from third parties information concerning the value of abandoned property claims." Decision largely involved statutory construction of Abandoned Property Law, not FOIL.
Vandenburg v. Wagner, 270 AD2d 672, 704 NYS2d 739 (2000) --
Petitioner received portions of records sought and was informed that no other records relevant to his request could be located. Held that response was adequate.
Vann v. Callahan, 16 AD3d 849, 792 NYS2d 205 (2005) --
Request was same as those made in previous occasions, and citing Mixon v. McMahon, held that suit was a “belated attempt to challenge [the] previous responses” and was barred by statute of limitations.
Van Steenburgh v. Thomas, 242 AD2d 802, 661 NYS2d 317 (1997) --
Request involved records relating to petitioner’s arrest that had been previously denied; held, that proceeding “is a belated attempt to appeal [earlier] denial of access to information and is therefore barred by the Statute of Limitations”; also found that failure by agency to respond within ten business days was deemed a denial and that administrative remedies were exhausted, citing DeCorse and Floyd.
Vasquez v. Records Access Officer, Supreme Court, New York County, April 16, 2007 --
Primary issue involved petitioner’s failure to demonstrate that records previously disclosed were unavailable to him.
Vent, Matter of v. Bates, 89 AD2d 567 (1982) --
Where agency did not respond to appeal, petitioner properly commenced proceeding after exhausting administrative remedies, as under §89(4)(a). Court granted petitioner's request for records since the agency's initial denial did not cite any of the categories under §87(2) as a basis for withholding; see also Floyd v. McGuire.
VFV Construction Company v. Kirwan, 51 AD2d 753, 379 NYS2d 166 (1976) --
Report of investigation made by State Police regarding the cause of a fire and the results of certain polygraph tests held to be deniable on the ground that the reports sought constitute part of investigatory files compiled for law enforcement purposes.
NOTE: Decision might be modified under amended Freedom of Information Law. Original Law: §88(7)(d)
Village Times v. Three Village Central School District, Supreme Court, Suffolk County, March 21, 1984 --
Petitioner sought the name of a teacher who is the subject of a stipulation of settlement reached following the initiation of a disciplinary proceeding and issuance of charges; held that the stipulation of settlement is available, but that disclosure of the name of the teacher would result in an unwarranted invasion of personal privacy. Current Law: §87(2)(b); see also Geneva Printing, Sinicropi, Farrell.
Wagstaffe v. David, 26 Misc.3d 1229(A), 907 NYS2d 441 (Table)(2010) --
Held that Records Appeals Officer failed to respond within time limit established in section 89(4)(a), and that summer vacation not a valid excuse. Found that denial based on 87(2)(e)(i) typically relates to pending criminal proceeding, which was not so here, for proceeding concluded years ago, and that “the pro forma denials…..cannot be considered adequate”; also found that petitioner “articulated a ‘demonstrable factual basis to support his contention that the requested documents existed and were with the Police Department’s control.’” Court remitted for reconsideration.
Waldman v. Village of Kiryas Joel, 31 AD3d 569, 819 NYS2d 72 (2006) --
Affirmed decision that County Board of Elections had “exclusive control over the handling and public inspection of election-related documents”, not the Village clerk.
Walker v. City of New York, 64 AD2d 980 (1978) --
Records of complaints and investigations of civil complaints against a particular police officer held to be available; records were relevant to the performance of duties and therefore disclosure would result in permissible as opposed to unwarranted invasion of personal privacy; in camera inspection resulted in a finding that the notes consisted of "factual data". Current Law: §§86(4), 87(2)(g), 89
Richard Walker v. Slaatten, County of Westchester Attorney, Supreme Court, Westchester County, April 25, 1992 --
Motion for contempt denied due to findings that agency did not have possession of records at time of request and took reasonable steps to have District Attorney's office disclose.
Warner v. Crotty, NYLJ, March 17, 1995 --
Petitioner requested and obtained various records from the police department, but department withheld records relating to the training of undercover police officers and the identification of narcotic sellers. Denial was based on §§87(2)(e)(iv) and (f). While court held that the agency could not meet its burden of proof, particularly regarding §87(2)(e)(iv), and directed the submission of the materials for in camera inspection.
Weiner v. People by Abrams, 464 NYS2d 919 (1983) --
Petitioner involved in litigation sought records under Freedom of Information Law; the Attorney General complied in part with the request, but the remaining information was sought by means of a motion rather than pursuant to the administrative procedures found in the Freedom of Information Law; as such, the motion was denied. Current Law: §S89(4) and (b)
Westchester Rockland Newspapers, Inc. v. Fischer, 101 AD2d 840 (2nd Dept 1985) --
Court dismissed appeal from order directing the production of certain records of the White Plains Housing Authority.
Westchester Rockland Newspapers, Inc. v. Vergari, Sup. Ct., Westchester Cty., August 11, 1981, affirmed 85 AD2d 672, appeal dismissed 55 NY2d 1018 (1982) --
Denial of access to affidavits compiled during an investigation by a district attorney's office is sufficient to state a cause of action; issue of access was not before the court.
Westchester Rockland Newspapers v. Vergari, Supreme Court, Westchester County, June 24, 1982 --
Court addressed substantive issue of rights of access not judicially determined in same case, supra, and disagreed with district attorney's denial of the requested affidavits under the law enforcement purposes exception, §§87(2)(e),(iii), and (iv), as the investigation had been closed four years earlier.
Westchester Rockland Newspapers v. Vergari, Supreme Court, Westchester County, NYLJ, April 22, 1988, appeal dismissed, NYLJ, August 31, 1988 --
Records prepared in the ordinary course of business but forwarded to a grand jury for review in an investigation found to be confidential under §190.25 of the Criminal Procedure Law; Appellate Division dismissed the appeal, because the records were later returned and disclosed. Opposite conclusion reached in King v. Dillon.
Westchester Rockland Newspapers v. White Plains Housing Authority, Supreme Court, Westchester County, May 2, 1983, 101 AD2d 840 (1984) --
Agency could meet burden of proof in defending denial. Current Law: §89(4)(b)
West Harlem Business Group v. Empire State Development, Supreme Court, New York County, June 27, 2007
Held that “legal bills” are not privileged and that “fee statements if they do not contain detailed accounts of services rendered” are available; exception regarding inter and intra-agency materials do not apply to communications with “non-agency individuals”; for records prepared by consultant to be intra-agency, consultant must “not represent an interest of its own; or the interest of any other client...” Here consultant represented “potentially rival interests”, the agency later found some records to be intra or inter-agency, but not deliberative” or “predecisional” and therefore must be disclosed.
White v. Regan, 171 AD2d197, 575 NYS2d 375 (1991) --
Requester sought statistics that did not exist, and agency made available files regarding reimbursements made under State Environmental Protection and Spill Compensation Fund; court held that disclosure "mooted petitioner's claims" and specified that agency "not required to compile information or to rearrange its filing system so as to facilitate petitioners' research". See Wattenmaker, Gannett v. County of Monroe.
White v. Tracy, Supreme Court, Albany County, September 23, 2008 --
Evaluative material found to be deniable under §'87(2)(g)
City of White Plains v. NYS Dept. of Labor, Supreme Court, Albany County, March 9, 1992 --
Following in camera inspection, court found that all of the records sought were intra-agency materials and that none contained information available under §87(2)(g)(i)-(iv).
Whitfield v. Bailey, Supreme Court, New York County, February 13, 2009, NY Slip Op 30391(U) --
Inmate sought records containing criminal and security information regarding another inmate who testified against him. Held that disclosure could endanger life or safety and result in unwarranted invasion of personal privacy; also held that 7 NYCRR §270.2(B)(14(xvii) stating that one inmate cannot "solicit, possess or exchange any disciplinary or grievance document pertaining to another inmate" may not be sufficient to exempt records from disclosure; DOCS has "legitimate security interest in preventing inmates from obtaining documents relating to other inmates", denial does not infringe on constitutional right to submit a FOIL request.
Whitfield v. Moriello, 71 AD3d 415, 895 NYS2d 405 (2010) --
Denial of request affirmed on ground that affidavits were prepared stating that diligent search was conducted, and that prior to request, 2,500 boxes of records were destroyed due to flood.
Willson v. Washburn, Supreme Court, Oneida County, November 18, 1993 --
Petitioner sought personnel records pertaining to herself; court granted petition, found that agency's "failure to respond to the repeated requests...was illegal and contrary to law", and that denial must be "specific". Also found that contention that request was not made to the records access officer was irrelevant, for "respondent clearly represented at all times that petitioner was to communicate with the respondent to the exclusion of all others".
Winter v. Cade, Supreme Court, Westchester County, September 19, 2003 –
Request involved fire district’s investigative files and related records concerning the presence at a fire of a certain member of the Board of Fire Commissioners; union had filed grievance regarding commissioner’s conduct at the scene. Court found that the investigation primarily involved a “labor relations matter, involving management policies, and not an enforcement matter or a disciplinary proceeding under the Civil Service Law” and that “[e]lected officials are generally not regarded as public employees” and that, therefore, an elected commissioner “is not a person for whom the legislature envisioned eligibility for the FOIL personal privacy protection”, citing Kerr v. Koch. However, court directed that agency prepare a “Vaughn Index” to enable court to determine validity of “privacy defense”. Note: decision may be appealed.
Wise v. Battistoni, 208 AD2d 755, 617 NYS2d 506 (1994) –
Court upheld initial denial of access for social services records concerning petitioner's daughter, citing §87(2)(a) of the FOIL and §372(3) and (4) of the Social Services Law.
Wood v. Ellison, 196 AD2d 237, 602 NYS2d 237 (1993) --
Due to assertion by agency that all existing records sought had been disclosed, court affirmed dismissal of proceeding, stating that the contention by petitioner "that not all of the responsive documents were produced is based on nothing more than unsupported speculation and his own subjective belief that more records exist."
Woods v. New York City Police Department, Supreme Court, New York County, NYLJ, February 2, 1995 --
In view of lack of consistency in cases dealing with DD5's, the Court held that such records should be reviewed in camera to determine the extent to which they must be disclosed or may be withheld. See also Gould, Scott, Mitchell.
Town of Woodstock v. Goodson-Todman Enterprises, Ltd. v. Town of Woodstock, 505 NYS2d 540 (1986) --
Town moved for declaratory judgment regarding propriety of its denial. Request involved records concerning allegations that constables were sleeping on duty and determinations made concerning constables. Court held that Town's declaratory judgement action was improper, for it would essentially involve the issuance of an advisory opinion , rejected claim that the records were exempt under §50-a of the Civil Rights Law, that the request reasonably described the records sought, and that the reasons for denial offered by the Town were "without merit". See also, Capital Newspapers v. Burns
Wooten v. New York City Police Department, Supreme Court, New York County, September 9, 2008 --
Petitioner requested records relating to a complaint that he filed, including a 911 transcript of a call made by the manager of a store where petitioner was present, and a copy of the police report filed by two named officers. After numerous delays, petitioner was informed that 911 transcript is no longer maintained and was erased before receiving his request and that police report could not be found. Held that agency "failed to provide any statement certifying that the requested documents are not in its possession and control or that the documents could not be located after a thorough and diligent search, which would be sufficient to render petitioner's application moot", citing Rattley. Also held that agency offered no factual basis for claiming privacy exception concerning redactions made from police report and ordered disclosure of unredacted report.
Wunsch, Jr. v. City of Rochester , et al., Action 1 and Wunsch, Jr. v. Bareham Security Agency, Inc., et. al., Action 2, 438 NYS AD 896 (1981) --
Although common-law public interest privilege no longer exists with respect to records available under Freedom of Information Law, it does exist regarding police officers' personnel records, which may be confidential under Civil Rights Law, §50-a
Yarmy v. Krantz, Supreme Court, New York County, May 24, 1999 –
Petitioner requested records from NYPD concerning co-conspirators, identifying them by indictment number; was informed by records access officer that records could not be located on basis of indictment number, but appealed, and later supplied necessary information to locate records, then initiated an Article 78; held that petitioner did not exhaust administrative remedies.
Young v. Smith, Supreme Court, Essex County, January 9, 1987 --
Court granted access to all vouchers approved by village board of trustees for payment of village attorney, despite claim that retrieval of the records would be "burdensome"; Court denied request for attorney's fees.
People v. Zanders, 407 NYS2d 410 (1978) --
Only those portions of personnel files pertaining to New York City transit police officer which related to evaluation towards continued employment or promotion were available for production in response to subpoena duces tecum served on transit authority by district attorney in connection with criminal proceeding pursuant to both the Freedom of Information Law and 50-a of the Civil Rights Law. Current Law: §89(2)(a)
Zanger v. Chinlund, 430 NYS2d 1002 (1980) --
Discusses burden on applicant to request "records reasonably described"; "fishing expedition" not prohibited.
People v. Zavaro, 481 NYS2d 845 (New York County 1984) --
Under amendment to Criminal Procedure Law, §390.50(2), court found that presentence report should be made available to counsel and/or defendant acting pro se, and that agency in possession of the report, a probation department, must disclose upon order of the court for a fee not exceeding twenty-five cents per photocopy.
Bloomberg, Canty v. NYS Department of Correctional Services, McAulay (2), McElligott, Scott, Sonne,
Investigation Technologies, Daily News L.P.,
Age/Date of Birth
Age of Records
Alderson, American Society, Buffalo News (2) and (4), Butler v. City of Yonkers, Canandaigua, Citizens for Alternatives, Consolidated Daily News Publishing, Edison, Eisenberg, Ervin, Hayes and Maxam v. Chestertown Volunteer Fire Co., Inc., Hearst Corporation v. Research Foundation of the State of New York, Lugo, McBride, Metropolitan Museum, Mitskovski v. Buffalo and Fort Erie Public Bridge Authority, Neale, New York State United Teachers, Orange County Publications, Passino, Perez, Pitts, Rivette, Rumore, Ryan, Save our Stores, Siani, Sklarski and Ceretto v. Niagara Falls Bridge Commission, Snyder v. Third Dept., Stoll (1) and (2), Stony Brook, VanNess, Wallace, Town of Waterford, Westchester Rockland v. Kimball
Agency, Interstate or International
Alexander, Bowers, Metro ILA, Mitskovski v. Buffalo and Fort Erie Public Bridge Authority,
Almodovar, Barrett, Benedict, Bernstein, Boghosian, Carnevale (2), Chatham Towers, Inc. v. New York City of Management and Budget, Citizens for Alternatives, Concerned Citizens, Couch, Council of Regulated Adult Liquor Licenses, Daily Racing Form, Dickman, Held, Town of Hempstead, Irving, Jacoby, Jefferson, City of Kingston, Moreno, Newton, New York Association, Pennington (2), Purcell, Reese, Robertson, Romero, Taylor, Ubaldo, Vent, Wagstaffe v. David, Wasserman, West Harlem Business Group v. Empire State Development Corporation,
124 Ferry, Gannett Satellite, General Motors, Morgan, Murray (2) , Oyster Bay, Westchester Rockland (4),
Brownstone (2), COMPS(1) and (2) (Major), Gannett Satellite, Hudson, Morris, Property Valuation, Property Tax, Real Estate Data, Simpson, Szikszay, Todd
Buffalo News, Capital Newspapers (1), Chittenden, C.B. Smith (2), Powhida,
Attorney Client Privilege
Austin, General Electric, Grasso, Lawler, Leyton, Mid-Boro, Morgan, Norton (1), Orange County, Rainbow News, City of Rye, Rye Police, Steele, United Policyholders, Town of Waterford, West Harlem, Williams,
Attorney Work Product
General Electric, Grace, James, Hoyer, Newcomer v. State of New York, Office of the Attorney General, Morgan, Orange County, Smith v. NYS Office of the Attorney General, Woods (1) and (2),
Alderson, Bancks, Beechwood, Beyah, Village of Brockport, Browning-Ferris, Canandaigua, Castle House Development Corp. v. City of New York Police Department (2), Catskill Alliance Heritage Alliance, Inc. v. Office of the Governor, Century House, Corvetti, Cross-Sound, Davidoff, Daily News L.P., Fenstermaker, Gannett v. Rochester City Sch. Dist., Glens Falls, Grace, Gray, Hearst Corporation v. Research Foundation of the State of New York, Hopkins, Hudson, Kalish, Kline, Leeds, Maddux, McAndrew, Miller v. NYS DEC, Moore (1), Myers, Newsday v. NYS Dept. of Transportation, Niagara Environmental, Norton (2), Perez, Powhida, Schein, Schuldiner, Shaw (3), C.B. Smith (3) and (4), Simpson, Steele, Todd (Minor & Major), Tri-State (2), URAC, West 41st Street, Wurster
Attorney's Fees under New Provision
Attorneys, Payments to
Minerva, Knapp, Orange County, C.B. Smith, Young (2)
Herald (2), Katz, Lyon, Mitchell (2), Mullady, Pennington (1), Quartararo, Scott (1),
Contracting, Community Board, Professional Standards,
Bi or Multi-state or international agency
Sklarski and Ceretto v. Niagara Falls Bridge Commission,
Blanket Denial of Access
DJL Restaurant, Gould, Johnson (2), City of Newark,
Dunlea, Gannett (2),
Burden of Proof
Abel, Allen Group, Aurelius, Bahnken, Bahnker, Bashford, Beyah, Billups (1), Billups (3), Brown (2) and (3), Brownell, Buffalo Broadcasting (2), Burtis (2), Bly v. City of Yonkers, Carnevale (1), Carnevale (2), Catskill, Catskill Alliance Heritage Alliance, Inc. v. Office of the Governor, Chatham Towers, Inc. v. New York City of Management and Budget, Chebere, Church, Cornell, Collier, Cromwell, Daily News L.P., Darnowski, DJL Restaurant, Faxton, Franklin (2), Geostow, Gannett Newspaper v. Cty. of Monroe, Green (1), Hawley, Hudson, Johnson (3), Laureano, Legal Aid (1) and (3), Mitchell (3), Mooney, Muniz, Nalo, National Alliance, City of Newark, New York Racing Association (2010), NYS Assoc. of Homes, NY Times, Physicians Committee for Responsible Medicine v. Hogan, Powhida, Professional Standards, Ramos v. New York City Police Department, New York Committee for Occupational Safety & Health v. Bloomberg, New York Racing Association, Inc. v. Division of the Budget, and Franchise Oversight Board, Rodriguez, Rushford, Sanchez v. Morgenthau, Saratoga Harness Racing, Inc. v. Task Force on the Future of Off-Track Betting, Sciascia, C.B. Smith (2), Spencer, Stronza, Sunset, Surace, Tobin, Verizon v. Bradbury, West Harlem Business Group v. Empire State Development Corporation,
Boni, Collier, Data Tree, Fisher, Hudson, New York Committee for Occupational Safety & Health v. Bloomberg, Schanbarger, United Federation,
American Society (1), New York State Association,
Alicia, Boomer v. New York State Police, Butler v. City of Yonkers, Carty, Covington v. Russo, DeFabritis, Gerrara v. New York City Police Department and Department of Correction, Gomez v. Fischer, Livingston v. Hynes, Marino v. NYC Police Dept., Norton (2), NYS Assoc. of Homes, Paz, Rattley, Reynolds, Robert, Timoney v. Metropolitan Transportation Authority, Whitfield v. Moriello,
New York State United Teachers,
Children's Rights, Gannett v. County of Ontario, New York News (1), Newsday (6),
Civil Rights Law,§73(8)
Legal Aid (1)
Hearst Corporation v. Research Foundation of the State of New York, Robert,
Collective Bargaining Negotiations
Babigian, Coholan, Doolen, United Federation,
Communication outside of Government
Waterford v. Dept. of Environmental Conservation,
Church, Gannett (1), Humane Society, MacHacek, Memory Gardens, Murphy,
Babigian, Belh (1), Bridgehampton, Brownstone (1), Coalition of Landlords, Data Tree, Gabriels, Gannett Rochester, Guerrier, Hearst, Mcclane, Newsday (4), New York Public Interest, NYS Rifle, Real Estate Data, Reese, Samuel, Szikszay,
Cornell, John H.,
Confidentiality, Established by Regulation
Collins, Morris, NY Times, Zuckerman
Confidentiality, Request for or Assertion of
Bello, Boyce, Village of Brockport, Broughton, Crisci, Dillon, Gannett (3), Geneva Printing (2), Glens Falls, Hansen, Herald Co. v. Feuerstein, Johnson (4), Jordan, Myers, City of Newark, New York Times, Niagara Environmental, Palomino, Washington Post, Paul Smith's College,
Constitutional right to use FOIL
Whitfield v. Bailey,
Construction with other Laws
Beechwood, Goldstein (2), Newsday v. NYS Dept. of Transportation, Turner, Xerox
Austin, Gannett Satellite, Rainbow News (1), Sea Crest, Tuck-It-Away, West Harlem, Xerox,
Contempt for Non Compliance
Davis, Norton v. Town of Islip, Schreibman, C.B. Smith (4)
Contract, Impairment of
Buffalo Evening News (2), CAT ASI, Community Board 7, Contracting, Cross-Sound, Doolan, Empire Golf, Encore (2), Geneva Printing (2), Greco, Laborers' International Union, Murray, Orange County Publications v. MTA, Professional Standards, Shaw (2), Stewart Park v. NYS Dept. of Transportation, United Federation, Verizon v. Bradbury, Waste Stream, West 41st Street,
County of Suffolk v. Experian, Lockwood(1), Lockwood(2), Sagaponack
Court Administration, Office of
Babigian, Daily News Publishing, Quirk
Argentieri, Butler v. City of Yonkers, Daily News Publishing, Dupont, Hall, Newsday (5), People v. Williams,
CPL, Discovery Under, In Relation to FOIL
CPLR, Article 31 (Discovery) v. FOIL
Baez, Buono, Burke, Chen, Farbman, Farina, Fitzpatrick, Grossman, Lawler, Lochner, Lowry, Malman, Marten, Moussa, Orange, Phillips, Tn. of Pleasant Valley, Radio City, Schwartz,
Creation of Records
Asian American Legal Defense Education Fund, Babigian, Chittenden, Coalition of Landlords(1) and (2), Data Tree, DiRose, Encore College (1), Gabriels, Gannett Rochester, Guerrier, Hearst, Kryston, Location Services, Newman, Newsday (4), NY Assoc. of Homes, New York Committee for Occupational Safety & Health v. Bloomberg, New York Public Interest, NYS Rifle, O'Shaughnessy, Reubens, Rold (2), Wattenmaker, White,
Criminal History Records
Bagley, Bennett, Cap. Newspapers (2), Dobranski, Geames, Gerace, Journal, Leibowitz, Munoz, National Alliance, Planned Parenthood, Robinson, Smyth, Thompson, Woods (1) and (2),
Custody of Records
Butler v. City of Yonkers, Clinch, Muniz, New York Environmental Law, Waldman,
Albany Custom Floors, Garvey, Waste Stream,
Almonor (2), Almonor, Bannon, Bellamy (1), Bernard, Gould, Johnson (2), Mitchell, Obiajulu, Qayyam, Scott, Woods (1),
Dewey, Wagstaffe v. David,
Waterford v. Dept. of Environmental Conservation,
Denial, Specificity of
Chatham Towers, Inc. v. New York City of Management and Budget, DJL Restaurant, Legal Aid (1), Mulhall
General Electric, Greene, Halpern, Harvey, Rye Police, Sportsmen's Association,
Destruction of Records
C.B. Smith (4),
Diligent Search for Records
Alicia, Anzalone, Bellamy (1), Boomer v. New York State Police, Chaves, Cuadrado, Davis, Key, Livingston v. Hynes, Lugo, New York Environmental Law & Justice, Norde, Rattley, Sanchez, Thomas (2), West Harlem Business Group v. Empire State Development Corporation,
Buffalo Evening News (1), Buffalo News (2), Daily Gazette, Farrell, Geneva Printing (2), Henner, Herald (4), New York News (1), Powhida, Reale, Rome Sentinel, Santomero, Scaccia, Sinicropi, Western Suffolk,
Discovery v. FOIL
Buono, City of New York v. 330 Continental LLC.,
Corbin, Mendez, Mixon, VanSteenburg,
Duties of Agency
Education Law, §3020-a
Anonymous, Buffalo News (1), Herald (4), LaRocca,
Brownstone, Data Tree, New York Committee for Occupational Safety & Health v. Bloomberg, NYPIRG v. Cohen, Szikszay,
Gannett v. Cty. Of Ontario,
LaRocca, New York 1 News, Obiajulu,
American Broadcasting, American Society, Argentieri, Batten, Belth (2), Beyah, Boddie, Brownstone (3), Buffalo Teachers, Burtis, Carnevale (2), Carty, Chebere, Darnowski, DiRose (3), Goyer, Grajales, Howard, John H., Johnson (2), Joint, Krauss, Laporte, McDermott, New York Teachers, New York Veterans, Pennington v. Calabrese, Physicians Committee for Responsible Medicine v. Hogan, Rankin v. Metropolitan Transportation Authority, Rodriguez, Ruberti, Sagaponack, Tobin, Urban Justice Center v. New York Police Department, Whitfield,
Evidence, Records Submitted into
Moore, News 12, Shulman,
Exhaustion of Administrative Remedies
Almodovar, Argentieri, Benedict, Bernstein, Canandaigua, Carnevale, Carty, CAT ASI, Chambers, Coleman, Couch, Council of Regulated Adult Liquor Licenses, Cosgrove, Covington, Dickman, Doe, Flower, Floyd, Held, Town of Hempstead, Irving, Jacoby, Jamison, Jefferson, Jones v. Commissioner, Joseph, City of Kingston, Klein, Kurland, Kwasnik, Malinowski, McGriff, Mitchell, Murphy, Newton, Orange County Publications, Pennington (2), People v. Thompson, Purcell, Rankin, Reubens, Robertson, Romero, Rourke v. David, Sanchez v. Morgenthau, Schlossberg v. New York State Division of Housing & Community Renewal, Seeley, Tanner, Taylor, Tinker Street, Ubaldo, Van Steenburg, Vent, Yarmy,
Existence of Records, Admission of
Maffeo, New York Environmental Law & Justice Project,
Fairness, Disclosure in interest of
Boomer v. Lynch,
Family Educational Rights and Privacy Act
Board of Education, Dramadri, Hendrick Hudson, Krauss, Kryston, Rome City School District Disciplinary Proceeding v. Grifasi, Samuel,
Federal Civil Rights Act
Federal Law, Record Kept Pursuant to
Newsday v. Dept. of Transportation,
Benyi, Coalition of Landlords, Gancin, Malinowski, Real Estate Data, NY Central, Reese, Sambucci, Schulz, Sheehan (2), Simpson, Szikszay, Whitehead, Zaleski,
Fees Following Deletions
Brown v. Goord, VanNess,
Century House, Miller (3), Miracle Mile, New York 1 News,
Financial Disclosure Statement
Archdeacon, Gannett Suburban,
Format, Choice of
Belth (2), Brownstone v. Dept. of Buildings, McClane, Samuel, Szikszay,
Malowsky (1), Sam, Wise,
Foundation, College or Univ.
Eisenberg, Siani v. Farmingdale College Foundation,
Butler, Doolan, Gannett (3), James (2), Lewis (1), Rodriguez, Wunsch,
Buffalo Broadcasting v. Cty. of Erie, Castillo v. Bailey, Gibson, Greene v. Hynes, Hall, Harvey, Hightower, King, Mullgrav, Newton, New York News (4), Newton (2), C. B. Smith (4), Smokes, Westchester-Rockland (7),
American Broadcasting, American Society, Brownstone (3), Buffalo Teachers, Joint, Krauss, New York Teachers, New York Veterans,
In camera Review
Allen Group,Bannon, Bellamy(1), Bellamy (2), Brodie, Brownell, Chatham, DJL Restaurant, Erie Boulevard, Gannett Newspaper v. Cty. Of Monroe, Hameed, Humane Society, Johnson (3), Marrone, Metts, New York Civil Liberties Union, Ragusa, Rainbow News, Smith v. Capasso, Stengel, Stewart Park,
Batten, Boehm, Capitol Newspapers (4), DeLuca, Grajales, Kovoczka, Laureano, Petix, Scarola
Information Technology Assets
TJS of New York, Inc. v. NYS Department of Taxation and Finance,
Inmate Medical Records
Bensing, Bernier, Brown v. Goord, DiRose (3), Faulkner, Investigation Technologies, Kavanaugh, Shedrick, Whitfield, Wurster,
Inspection of Record
Inspection, Limitation on
Insurance Experience Data
City School District,
Inter & Intra-Agency Materials
Catskill Alliance Heritage Alliance, Inc. v. Office of the Governor, Chatham Towers, Grasso, Humane Society, Leyton, Miller v. NYS Department of Transportation, Stengel, Town of Waterford, Tuck-It-Away, Waterford v. Dept. of Environmental Conservation, West Harlem, White v. Tracy,
Inter & Intra-Agency Materials, Communications or Policy
Leeds, Lowry, Community Board 7,
Inter & Intra-Agency Materials, Final Determination or Policy
Century House, Greco, Lewis (1),
Inter & Intra-Agency Materials, Instructions to Staff
Adirondack Park, Buffalo Broadcasting (1), Geneva Printing (1), Haudenosaunee,
Inter & Intra-Agency Materials, Opinions & Facts Intertwined
Cuevas, Daily Gazette (2010), Ingram, Newsday v. NYS Urban, New York Times (2), Rye Police,
Inter & Intra-Agency Materials, Opinions or Recommendations
Babcock, Bartlett, Rowland, D., David, 124 Ferry, General Electric, General Motors, Henner, Ingram, Kheel, Marino, Mid-Miller (1), New York Times v. NYC Fire Department, Phillips, Rodriguez, United Policyholders,
Inter & Intra-Agency Materials, Predecisional Info
Bass Pro, Inc. v. Megna, Baumgarten, Butler, Capital Newspapers v. NYS DOT, Chittenden, Cuevas, Rowland D., Elentuck, Fields, Gannett Satellite, Gould, Grigger, Grune Hall, Hameed, Herald (4), Johnson (2) and (6), Kaufman, Kheel, Levine (1), MacRoe, McAulay (1), Mingo, Miller, Miracle Mile, Mitzner, Montalvo, Monteleione, National Resources, New York 1 News, Newsday (1), O'Shaughnessy, Reade, Rome Sentinel, Rothenberg, Russo, Scaccia, Sinicropi, Stein, Todd, Village of Tuckahoe,
Inter & Intra-Agency Materials, Statistical or Factual Information
Adirondack Park, Akras, Cuevas, Doolan, Dunlea, General Electric, Golubski, Gould, Ingram, Islip, Johnson (2) and (6), MacRoe, Professional Standards, Santomero, Steele, Stewart Park, Todd, Warder, Xerox,
Interest of Applicant
Brusco, Burke, Corwin, DeCorse, Duncan, Farbman, Federation, Fusco, Gould, Hillard, Hudson, Messinger, Mims, Moore (1), Phillips, Sonne,
Intervene, Right to
New York Times v. NYC Fire Dept.,
New York Times (2),
Investigative Techniques & Procedures
Allen v. Strojnowski, Beyah, Blanche (1), Burtis (1) and (2), Capruso, DeZimmn, Dobranski, Fink, Fox, Kwocaka, Grune (1), Lyon, Monteleione, Muniz, O'Donnell, Spencer, Urban Justice Center v. New York Police Department, Warner,
Gibson, Herald (1), Pasik,
Auburn, Banfield, Bashford, Bassinson, Bello, Brown (2) and (3), Buffalo Broadcasting (2), Burtis (2), Bly v. City of Yonkers, Capital Newspaper (2), Collier, Cornell, Council of Regulated Adult Liquor Licenses, Daily News, Dawkins v. David, Delma(4), DeLuca, DeMaria, DeOliviera, Dobranski, Ennis, Faulkner, Foley, Frick, Gannett (1), Gannett Newspaper v. Cty. of Monroe, Glantz, Gorenitsyn, Grajales, James, Hoyer, Legal Aid (2000), Newcomer v. State of New York, Office of the Attorney General, Kelly v. Village of Asharoken, King, Latta V. Morgenthau, Legal Aid (1), Lesher v. Hynes, Lewis (1), Lockwood (2), Maffeo, Marshall, Monteleione, Moore (2), Muniz, National Alliance, City of New York v. Bus Top, New York News (1) and (3), New York Times (2), Petix, Pittari, Planned Parenthood, Pride, Radio City, Ragusa, Rainbow News (2), Rourke v. David, Scott (1), Sideri, Young (1), Gerbe, Lochner, Spencer, People v. Williams, Winter,
Law Enforcement Manual
Law Enforcement Purposes v. Ordinary Course of Business
Carnevale, Castle House, NY Environmental Law, Sunter (2),
Mitzner, NY News v. Grinker,
American Broadcastin, Consolidated Edison, Kwitny, NYS Rifle,
Litigant, Status of
Burke, Castle House, Farbman, Fusco, Graham, Hudson, Malman, Phillips, Pittari, Seeley,
Local Development Corp.
Canandaigua, Farms First (2), Legal Aid (2), Buffalo News (4),
Corwin, Empire, Herald Company (3),
Material Prepared for Litigation|
Medical Incident Reporting
Carter, Civil Service, Green (1), Feliciano, Katherine F. v. State of New York, 94 NY2d 200 (1999), Marten, Miller v. Dept. of Health, O'Connor, Smith v. Delago,
Beyah, Canty v. NYS Department of Correctional Services, Chittenden, Goldstein, Hanig, Hassig, Hodges, Mantica, Miller (1), Newton (2), New York Environmental Law, New York Times, Pratt, Rockland County, Short, John P, Rold (1), Williams,
Mental Hygiene Records
Hearst, Irwin(1), Irwin v Onondaga County Resource Recovery Agency,
Money Damages under FOIL
Global Tel*Link v. NY Dept. of Correctional Services, Hearst Corporation v. City of Albany,
Motor Vehicle Records
Buffalo News v. BEDC, Canandaigua, Ervin, Farms First, Metropolitan Museum, Save our Stores, Siani v. Farmingdale College Foundation, Westchester-Rockland Newspapers v. Kimball, VanNess,
Buffalo News, Gannett (2), Hopkins, Miller (2), New York State United Teachers, Nolen,
Empire Center for New York State Policy v. New York City Pension Fund
Permissive Aspect of FOIL
Bursac, Buffalo Teachers, Cap. Newspapers (1), City of New York v. 330 Continental LLC., Mulgrew v. Board of Education, Verizon v. Devita, Verizon v. Mills (2),
Personal Privacy Protection Law
Bensing, Building a Bettter New York, George, Gorski, Kavanagh, Kooi, Levine, Lawrence, Lochner, New York Times, O'Shaughnessy, Reale, Seelig, Spargo,
Irwin, Mixon, Pennington (2), Russo v. Fitzgerald,
Allen v. Stojnowski,
Pistol License Information
Chambers, Kwitney, Federation, NYS Rifle, Sportsmen's Association,
Police & Correction Officers Personnel Records
Argentieri, Baez, Beyah, Village of Brockport, Butler, Canty v. NYS Department of Correctional Services, Cap. Newspapers (1), Capital Newspapers v. City of Albany, Daily Gazette, Dunnigan, Estrada, Feerick, Ferrara, Gannett (1), Newsday, Morales, New York Civil Liberties Union, Prisoners' Legal Services, Powhida, Reale, Rome Sentinel, Ruberti, Scaccia, Sommer, Stuart, Woodstock, Wunsch, Zanders,
Police Officers' Memo Books
Almonar, Amaker, Gould, Johnson, Laureano, Scott (1), Scott (2), Spruils,
Police Radio Tapes
Buffalo Broadcasting (1),
Possession of Records
Ahlers, Muniz, Northumberland,
Postage, Payment of
James, Morrow, Phillips, Roper, Thomas, Zavaro,
Prevailing Wage Data
Casella v. City of Rochester,
Prior Disclosure to Requester of Records Sought
Boyce, Hightower, McGraw-Edison, Moore, City of Rye, Tellier,
Belth (2), Bensing, Beyah, Blain, Buffalo Evening News (2), Burtis (2), Capital Newspapers (4), Corwin, Data Tree, Deanne, DeCorse, Empire (1), Feerick, Feinberg, Faulkner, Faxton, Flower, Gannett (3),Goldstein, Goodstein, Goyer, Greene v. Hynes, Hanig, Harris, Haudenosaunee, Hawley, Hopkins, Geames, Inner City (1), Irwin v Onondaga County Resource Recovery Agency, J.I. and John Doe, Johnson (4), Joint Journal, Lipsman (1), Messina, MacHacek, Malowsky (1) and (2), Myers, New York Civil Liberties Union v. New York City Police Department, New York Committee for Occupational Safety & Health v. Bloomberg, New York State United Teachers (1), New York Times (1) and (2), Paulus, Pennington v. Clark (major), Physicians Committee for Responsible Medicine v. Hogan, Planned Parenthood, Rainey, Reese, Robles, Rodriguez, Rold (1), Ruberti, Scott (2), Siegel, Tobin, Thomas v. NYC, Tri-State (2), Westchester Rockland (1), Willson, Newsday (4), VanNess,
American Society (1), Belth (2), Buffalo Evening News (2), Herald (3), Newsday (4), Schenectady County Society for the Prevention of Cruelty to Animals v. Mills, Waste Stream,
Privacy, List of Names and Addresses
Abel, Brooklyn College, Coalition of Landlords(3), COMPS (Major & Minor), DeCorse, Empire (1), Federation, Gannett (3), Golbert, Goodstein, Hudson, Krauss, New York State United Teachers (1), New York State United Teachers (2), New York Teachers, New York Veterans, Nicholas, Person-Wolinsky, Samuel, Schenectady County Society for the Prevention of Cruelty to Animals v. Mills, Scott (2), Siegel, Smigel,
Privacy, Non-governmental Employees
Privacy, Public Employee
Blain, Anonymous, Buffalo Evening News (1), Buffalo News (2), Cap. Newspapers (1), Chittenden, Daily News L.P., Day, Elentuck, Farrell, Gannett (2), Geneva Printing (1) and (2), Hawley (2), Henner, Herald (4), Kerr, Kwasnik, Lewis (1), LaRocca, Minerva, Mothers, Mulgrew v. Board of Education, New York State United Teachers, New York Times (2), New York Veterans, Obiajulu, Pennington v. Calabrese, Seelig, C.B. Smith (2), Steinmetz, Winter, Wool,
Privacy Relating to Deceased
Edwards, NY Times v. NY Fire Dept.,
Albany Custom Floors, American Society (2), Garvey,
Physicians Committee for Responsible Medicine v. Hogan,
Questions, not records
Newman v. Dinallo,
Allen v. Strojnowski, Argentieri, Baynes, Buffalo Broadcasting (2), Cap. Newspapers (4), Citizens for Alternatives, Encore (2), Irwin v Onondaga County Resource Recovery Agency, Kerr, Newsday (5), Rumore, Russo, C.B. Smith, Troy Sand & Gravel, United Food, Warder, Washington Post, Westchester Rockland v. Kimball, Zaleski,
Record, Existence of
Bartczak, Newman v. Dinallo, Norde, Pennington, Sills, Walsh, Whitfield v. Moriello,
Records Access Officer
Daily Racing Form, Romero,Timmons v. Green, West Harlem Business Group v. Empire State Development Corporation, Willson,
Records not Requested
Norton v. Town of Islip,
Records Previously Disclosed
Brightley, Castillo v. Bailey, Corwin, Covington v. Russo, Dupont, Empire (1), Franklin, Huston, Irwin, James, Hoyer, Newcomer v. State of New York, Office of the Attorney General, Jones v. Commissioner, Khatibi, Lebron, Mixon, Moore, Riley-James, Ramos v. New York City Police Department, Romero, Russo, Scarola, Smokes, Walsh,
Records Reasonably Described
Bader, Council of Regulated Adult Liquor Licenses, Cromwell, Gannett Suburban, Johnson (2), Konigsberg, Kwasnik, Mitchell (2), Newman v. Dinallo, Newsday v. County of Nassau, Romero, Roque, Smith v. NYS Office of the Attorney General, Smokes, Stein, Timmons, Timoney v. Metropolitan Transportation Authority, Urban Justice Center v. New York Police Department, Vasquez, Woodstock, Zanger
Redaction, Copying after
Irwin v Onondaga County Resource Recovery Agency,
Resignation, Letter of
Global Tel*Link v. NY Dept. of Correctional Services,
CAT ASI, Cross-Sound, Professional Standards,
Sanctions for Non-compliance/Contempt
Castle House, Chaves, Norton(2),
Acosta, Leibowitz, Lockwood, Williams v 106 Clarkson Realty LLC,
Secret Ballot Voting
Ilion, Perez, Schuldiner, Wallace,
Anonymous, Boyce, Village of Brockport, Buffalo Evening News (1), Crisci, Geneva Printing (2),Glens Falls, Hansen, LaRocca, Malman, Paul Smith's College, Western Suffolk,
Settlement Negotiations (CPLR 4547)
Catskill Alliance Heritage Alliance, Inc. v. Office of the Governor, Smith v. NYS Office of the Attorney General, Town of Waterford,
Brown v. Gourd, Brown v. NYCPD, Doyen, Daily News, Fappiano, J.I. and John Doe, Karlin, People v. Thompson, Ramos v. New York City Police Department,
Social Security Number
TJS of New York, Inc. v. NYS Department of Taxation and Finance,
Standing Community Board
Messinger, Moore, Pooler,
Standing to Sue
Baynes, Moore (1), Mulgrew v. Board of Education, New York Regional, Norton, Verizon v. Mills (1),
Capital Newspapers v. Bruno & Silver, Greene v. Boggess, Urbach, Wasserman, Weston,
Statute of Limitations
Carnevale (1), Carnevale (2), Cerro, Corbin, Garcia, Greene, Hodges, Kelly, Lutvin, Mitchell, McBride, Newton, Orange Cty., Pub. v. Kiryas Joel, Jones. v. Commissioner, Martin, McCrory, Medina, Mendez, Mendoza, Mixon, Norden, City of Oswego, Pennington v. Clark, Pelt, Qayyam, Sanders, Sunter (2), Swinton, Vann,
Acosta, Alliance, Aliano (2), Belth, Belth v. Muhl (2), Bloomberg, Bulgatz, Cap. Newspapers (1) and (3), Clegg, Children's Rights, Coalition of Landlords(3), Collins, Daily Gazette, Green, Fitzpatrick, Gannett (1), Gannett v. Cty. of Ontario, Grasso, Green (1), Herald Co. v. Feuerstein, Hassig, Karlin, Klline (2), Kooi, Laureano, Mantica, McFerrin-Clancy, Miller (1), Morris, Mullady, Murphy, National Alliance, Newsday (3), Newsday (6), Newsday v. NYS Dept. of Transportation, Newton, New York Committee for Occupational Safety & Health v. Bloomberg, New York News (1) and (3), New York Times, John P., Pennington (1), Property Valuation, Rabinowitz, Ragusa, Reape, Robinson, St. Joseph's, Sam, Scott (2), Shedrick, Short, Smith v. Delago, Tartan, U.S. Claims Services, Inc., Wasserman, Williams, Williams v 106 Clarkson Realty LLC, Wise, Zuckerman,
Student Government Association
Stony Brook, Wallace,
Student Records (see FERPA)
Dramadri, Kryston, Krauss, Lipsman (1),
Subject Matter List
D'Alessandro, Marino, Marino v. Bodner, McAndrew, Mendola, Pennington, Wattenmaker,
Blakeslee, Buono, Kelly v. Village of Asharoken, Newsday (5), Urbach,
Hearst Corporation v. Research Foundation of the State of New York, Kelber v. University of the State of New York, Empire State College and Empire State College Foundation
Tax Records, Corporate or Personal
Hawley (1) and (2), Journal News v. Town of Carmel,
Anonymous, Buffalo Evening News (1), Elentuck, Hendrick Hudson, Herald (4), LaRocca,
Time Limit for Responses
Almodovar, Bernstein, Brownell, Brusco, CAT ASI, Coleman, Corvetti, Daily Racing Form, Davidoff, DeCorse, Floyd-Frigerio, Held, Housing Works, Hudson, Inner City (2), Kalish, Kirshtein v. David, Lecker, Legal Aid (1), Linz, McAllan, Mullady, Murray (1), Newsday v. County of Nassau, New York Civil Liberties Union, Newton, New York Association, Murtha, O'Donnell, Taylor, Toledo, Wagstaffe v. David,
Albany Custom Floors, Arrow Electronics, Aurelius, Aurelius Capital Mgt., LP v. Dinallo, Bahnken, Bello, Belth (1) and (2), Belth v. Muhl (2), Catskill, Cross-Sound, Encore (2), First, Garvey, Geostow, Gray, Hearst, Herald Co. v. DEC, James, Hoyer, Newcomer v. State of New York, Office of the Attorney General, Irving, Lockheed Martin, Markowitz, Newman, NYC Off Track Betting, New York Racing (2001), New York Racing (2008), New York Regional, NYS Electric, Niagara Mohawk (1) and (2), City of Oswego, Passino, Physicians Committee for Responsible Medicine v. Hogan, Pooler, Professional Standards, Ragusa, Sagaponack, Saratoga Harness Racing, Inc. v. Task Force on the Future of Off-Track Betting, Schenectady v. O'Keefe, Sunset, Syracuse & Oswego, Troy Sand & Gravel, Urbach, Verizon v. Bradbuy, Verizon v. Devita, Verizon v. Mills (1), Verizon v. Mills (2), Washington Post, Waste Stream,
New York Racing Association, Inc. v. Division of the Budget and Franchise Oversight Board,
Victims, records related to
Blanche (1), DeOliviera,
Buffalo Broadcasting (2), Dallio, Lonski, Rainbow News (2), People v. Williams,
Volunteer Fire or Ambulance Company
Decker, Hayes and Maxam v. Chestertown Volunteer Fire Co., Inc., Pitts, Ryan, Westchester-Rockland (3),
Voting by Agency Members
Schuldiner, Wallace, Willett,
Waiver of Ability to Withhold
McGraw-Edison, Mitzner, Montalvo,
Waiver of Right to Claim Exception
Miller v. NYS Department of Transportation,
Allen v. Strojnowski, Capital Newspapers (4), Carnevale (1), Carnevale (2), Chebere, Cornell, DeLuca, DeMaria, DeOliviera, Faulkner, Fink, Gannett Newspaper v. Cty. of Monroe, Gomez v. Fischer, Greene v. Hynes, Grune (1), Johnson v. Call, Johnson v. Hynes, Joseph, Kassebaum, Kwoczka, Laureano, Miller (1), Pennington v. Clark (major), Rodriguez, Rodriguez v. Johnson, Tobin,