In this Freedom of Information Law action the Appellate Division said "in order to promote open government and public accountability, FOIL imposes a broader duty on government to make its records available to the public"

Petitioner's Freedom of Information Law [FOIL} request sought copies of the public calendars of the County Executive for the period January 1, 2022 through and including June 30, 2023.  The County denied Petitioner's request pursuant to Public Officers Law §87(2)(f), determining that "disclosure of this information would endanger the life or safety of individuals, notably the County Executive." Petitioner administratively appealed the denial, but the County did not respond.

Petitioner then commenced the instant CPLR Article 78 against the County and the FOIL Appeals Officer for the County (County) in Supreme Court seeking a court order compelling the production of the requested records - public calendars of the County Executive for the period of January 1, 2022, through June 30, 2023 - and for an award of attorneys' fees and litigation costs pursuant to Public Officers Law §89(4)(c). 

With respect to Petitioner's request for the production of certain cybersecurity contracts, Petitioner argued, among other things, that the County had failed to provide a "valid reason why every bit of the requested contracts," including the name of the vendors and the duration and cost of the contracts, "should be shielded from public disclosure."

Concerning Plaintiff's request for the County Executive's past public calendars, Petitioner contended that the County had failed to demonstrate "that the release of the calendar[s] would jeopardize the County Executive's safety, especially given that [the Petitioner] sought only the calendar[s] reflecting events that occurred in the past."

Supreme Court denied the petition and, in effect, dismissed the proceeding. 

Petitioner appealed the Supreme Court's ruling. Set out below is Appellate Division's decision addressing Petitioner's appeal.

In the Matter of Newsday, LLC, appellant,

v

County of Nassau, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-10010, (Index No. 619618/23)

Mark C. Dillon, J.P.

Valerie Brathwaite Nelson

Lillian Wan

Phillip Hom, JJ.

Ballard Spahr LLP, New York, NY (Alia L. Smith and Sasha Dudding of counsel), for appellant.

Rosenberg Calica Birney Liebman & Ross LLP, Garden City, NY (Joshua M. Liebman and Peter J. Clines of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and for an award of attorneys' fees and litigation costs, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Ellen Tobin, J.), entered July 11, 2024. The judgment denied the petition and, in effect, dismissed the proceeding.

ORDERED that the judgment is modified, on the law, (1) by deleting the provision thereof denying that branch of the petition which was to compel the production of all of the cybersecurity contracts of the respondent County of Nassau "in effect for the last 5 years" and, in effect, dismissing that portion of the proceeding, and substituting therefor a provision granting that branch of the petition to the extent that the respondent County of Nassau is directed to produce the records requested in an unredacted form for an in camera inspection by the Supreme Court, Nassau County, in accordance with this decision and order, (2) by deleting the provision thereof denying that branch of the petition which was to compel the production of the public calendars of the Nassau County Executive for the period of January 1, 2022, through June 30, 2023, and, in effect, dismissing that portion of the proceeding, and substituting therefor a provision granting that branch of the petition to the extent that the respondent County of Nassau is directed to produce the records requested in an unredacted form for an in camera inspection by the Supreme Court, Nassau County, and (3) by deleting the provision thereof denying that branch of the petition which was for an award of attorneys' fees and litigation costs and, in effect, dismissing that portion of the proceeding; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of those branches of the petition which were to compel the production of all of the cybersecurity contracts of the respondent County of Nassau "in effect for the last 5 years" and the public calendars of the Nassau County Executive for the period of January 1, 2022, through June 30, 2023, and for an award of attorneys' fees and litigation costs related to the petitioner's Freedom of Information Law requests based upon the in camera inspection.

In April 2023, pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art 6), the petitioner requested from the respondent County of Nassau all cybersecurity contracts "in effect for the last 5 years." The County denied the request on the ground that the requested records were exempt from disclosure under Public Officers Law § 87(2)(i). The petitioner administratively appealed. The County denied the appeal, determining that disclosing the requested records might allow a person or entity to implement an attack against its information technology assets and jeopardize the security of those assets. The County emphasized that this was "particularly so in light of unanimous agreement by our security and information technology experts that disclosure may jeopardize our technology assets."

In September 2023, the petitioner requested copies of the public calendars of the Nassau County Executive for the period of January 1, 2022, through June 30, 2023. The County denied the request pursuant to Public Officers Law § 87(2)(f), determining that "disclosure of this information would endanger the life or safety of individuals, notably the County Executive." On November 15, 2023, the petitioner administratively appealed the denial, but the County did not respond.

The petitioner then commenced this proceeding pursuant to CPLR article 78 against the County and Gregory Kalnitsky, in his official capacity as FOIL Appeals Officer for the County (hereinafter together the County), to compel production of the requested records and for an award of attorneys' fees and litigation costs pursuant to Public Officers Law § 89(4)(c). Concerning its request for the production of certain cybersecurity contracts, the petitioner argued, among other things, that the County had failed to provide a "valid reason why every bit of the requested contracts," including the name of the vendors and the duration and cost of the contracts, "should be shielded from public disclosure." Concerning its request for the County Executive's past public calendars, the petitioner argued that the County had failed to demonstrate "that the release of the calendar[s] would jeopardize the County Executive's safety, especially given that [the petitioner] sought only the calendar[s] reflecting events that occurred in the past."

In a judgment entered July 11, 2024, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.

"In order to promote open government and public accountability, FOIL imposes a broader duty on government to make its records available to the public" (Matter of Lane v County of Suffolk, 236 AD3d 791, 792 [internal quotation marks omitted]; see Matter of Sarkodie v Kings County Dist. Attorney, 226 AD3d 12, 15). "To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted" (Matter of Lockwood v County of Suffolk, 219 AD3d 728, 729 [internal quotation marks omitted]; see Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d 630, 631). An agency asserting an exemption to FOIL bears the burden of establishing that the documents qualify for that exemption and, "to meet that burden, the agency must articulate particularized and specific justification for denying disclosure" (Matter of Roth & Roth, LLP v Queens County Dist. Attorney's Off., 239 AD3d 657, 658 [internal quotation marks omitted]; see Matter of New York Civ. Liberties Union v Village of Freeport, 229 AD3d 629, 630). "If the agency fails to prove that a statutory exemption applies, FOIL compels disclosure, not concealment" (Matter of Lane v Port Wash. Police Dist., 221 AD3d 698, 700 [internal quotation marks omitted]). "The standard of review in a CPLR article 78 proceeding challenging an agency's denial of a FOIL request is much more stringent than the lenient standard generally applicable to CPLR article 78 review of agency actions" (id. at 700-701 [internal quotation marks omitted]). "A court is to presume that all records are open and it must construe the statutory exemptions narrowly" (id.). "If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 275).

On appeal and consistent with the CPLR article 78 petition, the petitioner states that it is only seeking access to "certain limited information about the County's cybersecurity contracts," namely, "the vendors' names, the cost, [and] the duration." "Public Officers Law § 87(2)(i) exempts material that, if disclosed, would jeopardize the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures" (Matter of TJS of N.Y., Inc. v New York State Dept. of Taxation & Fin., 89 AD3d 239, 243 [internal quotation marks omitted]).

Here, the County produced affidavits of four employees, each of whom summarily concluded that releasing any portion of the subject cybersecurity contracts would jeopardize the County's capacity to guarantee the security of its information technology assets. However, none of the affidavits explained how disclosure of the requested information, which consisted of "the vendors' names, the cost, [and] the duration" of the subject contracts, would jeopardize the County's capacity to guarantee the security of its information technology assets (cf. Matter of Freedom Found. v New York City Dept. of Citywide Admin. Servs., 230 AD3d 999, 1005; Matter of Miller v New York State Div. of Human Rights, 122 AD3d 431, 432). Accordingly, the Supreme Court should have granted that branch of the petition which sought the disclosure of all cybersecurity contracts "in effect for the last 5 years" to the extent that the petitioner sought the vendors' names, the cost, and the duration of those contracts. However, since the subject documents are not part of the record on appeal, we remit the matter to the Supreme Court, Nassau County, to conduct an in camera inspection of all representative documents to determine whether any of the material in those records falls within the asserted FOIL exemption, and whether that material should be redacted.

Public Officers Law § 87(2)(f) permits an agency to deny access to records that, if disclosed, could endanger the life or safety of any person (see Matter of New York Civ. Liberties Union v Village of Freeport, 229 AD3d at 630; Matter of Burns v Cooke, 189 AD3d 826, 828). "'The agency in question need only demonstrate a possibility of endanger[ment] in order to invoke this exemption'" (Matter of Burns v Cooke, 189 AD3d at 828, quoting Matter of Bellamy v New York City Police Dept., 87 AD3d 874, 875, affd 20 NY3d 1028).

Here, the County submitted an affirmation of Detective Sergeant Fintan McCormac, the Commanding Officer of the Special Investigation Squad (hereinafter SIS) of the Nassau County Police Department, who is "responsible for the safety and security of" Nassau County Executive Bruce Blakeman. McCormac stated that SIS had received "a wide range of threats directed at" the County Executive, including but not limited to "direct threats of physical harm made by individuals while attempting to approach [the County Executive] at public events," and that "there [had] been an increase in the volume of threats directed at [the County Executive] over the past year." McCormac stated that "even a prior calendar or schedule of past events, can be exploited by a potential bad actor to establish patterns of [the County Executive's] movements, which in turn can be used to anticipate his future movements by an individual or individuals seeking to attack or otherwise harm him."

McCormac's affirmation was insufficient to establish that the disclosure of any portion of the County Executive's past public calendars, including but not limited to the County Executive's public appearances, could endanger the County Executive's life or safety (see Matter of Dilworth v Westchester County Dept. of Correction, 93 AD3d 722, 724-725; see also Matter of Journal News v City of White Plains, 39 Misc 3d 1235[A], 2012 NY Slip Op 52487[U], *6-7 [Sup Ct, Westchester County]; cf. Matter of Burns v Cooke, 189 AD3d at 828). Accordingly, the Supreme Court should have granted that branch of the petition which sought to compel the disclosure of the County Executive's past public calendars for the period of January 1, 2022, through June 30, 2023. However, since the subject documents are not part of the record on appeal, we remit the matter to the Supreme Court, Nassau County, to conduct an in camera inspection of all representative documents to determine whether any of the material in those records falls within the asserted FOIL exemption, and whether that material should be redacted.

Under these circumstances, the petitioner's request for an award of attorneys' fees and litigation costs is premature (see Matter of Lane v Port Wash. Police Dist., 221 AD3d at 708).

In light of the foregoing, we need not reach the petitioner's remaining contentions.

DILLON, J.P., BRATHWAITE NELSON, WAN and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Click HERE to access the Appellate Division's decision posted on the Internet.

New York State Comptroller Thomas P. DiNapoli reports State Government Accountability audits posted on the Internet

 new material

On September 21, 2026, New York State Comptroller Thomas P. DiNapoli announced that the following State Government Accountability audits have been released.

          Click on the text highlighted in color to access the audit report described.

State University of New York – Artificial Intelligence Governance (2024-S-33) The State University of New York (SUNY) is the nation’s largest comprehensive system of public higher education, and its governing arm—SUNY System Administration (SUNY Admin)—provides general oversight of operations for State-operated campuses. SUNY campuses have adopted artificial intelligence (AI) to support operations, including transcribing clinical notes during patient visits, reading license plates and identifying parking violations in campus parking lots, monitoring campus data to identify students at risk of dropping out and automatically masking personally identifiable information from video evidence. Auditors found that SUNY Admin does not have an effective AI governance framework, a standard definition of AI, or documented policies and procedures related to the development and use of AI systems. A sample of four SUNY campuses that have used AI showed that AI governance varies significantly across campuses—some have identified key risks and taken steps to address them, while others have not created or updated policies to address risks or taken other steps toward effective AI governance.

Metropolitan Transportation Authority – New York City Transit: Risk Assessment and Implementation of Measures to Address Extreme Weather Conditions (Follow-Up) (2025-F-31) Flooding remains a serious issue for New York City and the Metropolitan Transportation Authority’s (MTA) transportation system, including New York City Transit (Transit). In September 2007, the Chair of the MTA appointed a commission to make sustainability-related recommendations to the MTA and its agencies. A prior audit, issued in September 2023, examined whether MTA had identified potential damage to its system and developed plans to mitigate the effect of extreme weather conditions and flooding, and whether the MTA had tested/updated the plans and inspected and maintained the equipment to ensure they can be deployed when needed. The audit found MTA had not implemented one of the most important recommendations—the development of the climate change adaptation master plan.  A review of a sample of capital projects intended to correct or prevent damage found that projects were often incomplete in scope of work, not finished on time or within budget or insufficiently documented. MTA officials made progress in addressing the problems identified in the initial audit report. Of the initial report’s nine audit recommendations, five were implemented, two were partially implemented and two were not implemented.

New York City Office of Technology and Innovation – Artificial Intelligence Governance (Follow-Up) 2025-F-17 New York City’s Office of Technology and Innovation (OTI) was created by the Mayor’s Executive Order 3 in January 2022, with responsibility for the oversight and governance of artificial intelligence (AI). A prior audit, issued in February 2023, examined governance policies for AI use at four agencies: the Administration for Children’s Services, the Department of Education, the New York City Police Department, and the Department of Buildings. The audit found significant shortfalls in oversight and risk assessment of artificial intelligence. OTI officials made some progress in addressing the problems identified in the initial audit report. All three of the initial report’s audit recommendations were partially implemented.

State Education Department (Preschool Special Education Audit Initiative) – Helen Keller Services for the Blind: Compliance With the Reimbursable Cost Manual (2024-S-20) Helen Keller Services for the Blind (Helen Keller) is a New York City-based organization authorized by the State Education Department (SED) to provide Special Class education services to children with disabilities who are between the ages of 3 and 5 years (referred to as the SED preschool cost-based program). For the audit scope, Helen Keller reported approximately $10 million in reimbursable costs for the SED preschool cost-based program. Auditors identified $1,337,765 in reported costs that did not comply with the requirements.

Agriculture and New York State Horse Breeding Development Fund – Security Over Critical Systems (2026-S-2) The Agriculture and New York State Horse Breeding Development Fund (HBDF) is a public benefit corporation responsible for promoting agriculture through the breeding of Standardbred horses and the conduct of equine research within the state. HBDF administers three racing programs and uses the funds from these programs to support the statewide 4-H program and the Harry M. Zweig Memorial Fund for Equine Research to promote equine research at Cornell University. Auditors identified areas where HBDF could improve certain security controls to minimize the risks associated with unauthorized access to its systems and data and communicated the details of these findings in a confidential report to HBDF.

XXXX

 

If an administrative agency reaches contrary results in a particular decision on substantially similar facts, it must provide an explanation

Plaintiff in this CPLR Article 78 proceeding sought to annul a determination of the Nassau County Civil Service Commission affirming its earlier determination disqualifying the Plaintiff to a position as a Nassau County probation officer. Supreme Court denied Plaintiff's petition and, in effect, dismissed the proceeding. Plaintiff appealed the Supreme Court's ruling.

The Appellate Division reversed the Supreme Court's judgment "on the law, with cost's", granted the Plaintiff's petition and remitted the matter to the Nassau County Civil Service Commission for further proceedings in accordance its decision, set out below.

In the Matter of Richard Dopkin, appellant,

v

County of Nassau, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-04836, (Index No. 606358/23)

Hector D. Lasalle, P.J.

Cheryl E. Chambers

Paul Wooten

Helen Voutsinas, JJ.

Law Offices of Louis D. Stober, Jr., LLC, Mineola, NY, for appellant.

Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to annul a determination of the Nassau County Civil Service Commission dated February 6, 2023, affirming its prior determination dated November 28, 2022, disqualifying the petitioner from eligibility for a position as a Nassau County probation officer, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Catherine Rizzo, J.), entered February 16, 2024. The judgment denied the petition and, in effect, dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, the determination dated February 6, 2023, is annulled, and the matter is remitted to the Nassau County Civil Service Commission for further proceedings in accordance herewith.

The petitioner took and passed the Nassau County Probation Officer Trainee Examination and was placed on a list as an eligible candidate for employment as a probation officer. In November 2022, after conducting a background investigation, the Nassau County Civil Service Commission (hereinafter the Commission) notified the petitioner that he was disqualified from employment on the grounds of "disrespect for the process of law and order as evidenced by [the petitioner's] motor vehicle record." The petitioner appealed the Commission's determination, submitting, inter alia, a list of previous applicants with allegedly similar or more egregious legal records than the petitioner's, whose initial disqualifications from candidacy were reversed upon administrative appeal. In a determination dated February 6, 2023, the Commission affirmed its prior determination. The petitioner then commenced this proceeding pursuant to CPLR article 78 to annul the Commission's February 6, 2023 determination. In a judgment entered February 16, 2024, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.

"An appointing authority has wide discretion in determining the fitness of candidates, and this discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied" (Matter of Dellisanti v Suffolk County Police Dept., 239 AD3d 976, 978 [internal quotation marks omitted]; see Matter of Brown v County of Nassau, 214 AD3d 793, 795). "So long as the administrative determination is not irrational or arbitrary and capricious, this Court will not disturb it" (Matter of Dellisanti v Suffolk County Police Dept., 239 AD3d at 978 [internal quotation marks omitted]; see Matter of Brown v County of Nassau, 214 AD3d at 795). "A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious, and thus, where an agency reaches contrary results on substantially similar facts, it must provide an explanation" (Matter of O'Connor & Son's Home Improvement, LLC v Acevedo, 197 AD3d 1112, 1114 [alteration and internal quotation marks omitted]; see Matter of Mullen v County of Suffolk Police Dept., 307 AD2d 1036, 1037).

Here, the Commission failed to set forth any factual basis to explain why it was reaching a different result than it did with respect to the applications of purportedly similarly situated candidates (see Matter of O'Connor & Son's Home Improvement, LLC v Acevedo, 197 AD3d at 1114; Matter of Klein v Levin, 305 AD2d 316, 317). Thus, the Commission's determination on appeal to affirm its disqualification of the petitioner was arbitrary and capricious (see Matter of O'Connor & Son's Home Improvement, LLC v Acevedo, 197 AD3d at 1114; Matter of Nicolai v McLaughlin, 163 AD3d 572, 574).

In light of our determination, the petitioner's remaining contentions need not be reached.

Accordingly, we grant the petition, annul the determination dated February 6, 2023, and remit the matter to the Commission for a new determination of the petitioner's appeal from the determination dated November 28, 2022, to articulate the reasons, if any, for reaching a different result than it did with respect to the applications of purportedly similarly situated candidates raised by the petitioner.

LASALLE, P.J., CHAMBERS, WOOTEN and VOUTSINAS, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Click HERE to access the Appellate Division's decision posted on the Internet.

Selected items posted on the Internet during the week ending September 17, 2026

New York State's Attorney Letitia James establishes AI whistleblower site The Albany Times Union newspaper reports New York State's Attorney General has created an Internet site on which individuals and organizations may report AI concerns. More

Utah State Sen. Kirk Cullimore has helped put Utah at the forefront of AI Data The focus is privacy and digital identity policy and is designed to be replicated beyond Utah. Read More

Local election officials are welcoming a Supreme Court voting ruling The ruling blocks sweeping changes to mail voting just weeks before the midterms. Months of uncertainty forced officials to prepare contingency plans and created additional work during an already demanding election cycle. Read More

Improving Emergency Response with Modern Cellular Networks This e-book features real-world examples from police, fire, EMS, and 911 agencies that have strengthened connectivity across vehicles, stations, and temporary command sites. DOWNLOAD

Govern AI Before It Governs You Practical templates, scorecards, and worksheets to help your agency govern AI Download the Free Kit

From Threat to Trust: Building Security into Public Workflows Protecting today's public sector means building security into every workflow — not bolting it on afterward. This thought leadership paper explores why embedding security directly into devices and everyday workflows is essential for reducing risk, improving resilience and supporting mission success. Download 

Applied Intelligence: How High-Performance Workstations Are Driving Public Innovation AI innovation starts with the right infrastructure. Learn how high-performance workstations help government agencies process data faster, protect sensitive information and power AI-driven outcomes. Download the paper to discover practical strategies for modernizing your technology foundation. DOWNLOAD