The custodian of public records demanded pursuant to a FOIL request electing to withhold some or all such records has the burden of demonstrating that the information requested falls within a statutory exemption
Jaronczyk v Mangano, 2014 NY Slip Op 07164, Appellate Division, Second Department
Jaronczyk v Mangano, 2014 NY Slip Op 07164, Appellate Division, Second Department
The basic concept underlying the Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute,* are available to the public. Further, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.In contrast, a FOIL request is required in the event the custodian of the public record[s] sought declines to voluntarily provide the information or record requested.
It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.
John Jaronczyk wanted certain overtime records maintained by the Nassau County Sheriff's Department. Nassau initially denied Jaronczyk access, contending that the records contained the signatures of the captains who approved overtime requests but ultimately provided the requested records after redacting the signatures on the records that were provided.
Nassau argued that that redaction was proper pursuant to the "unwarranted invasion of personal privacy" statutory exemption, citing Public Officers Law § 87[2][b], claiming that disclosing the captains' signatures "would result in economic or personal hardship to the subject party" and the signatures were "not relevant to the work of the agency."
The Appellate Division rejected Nassau's argument, stating that because Nassau had failed to “proffer more than conclusory assertions supporting these claims,” Supreme Court had correctly determined that Nassau failed to meet its burden of demonstrating that the information requested fell within this statutory exemption and thus, properly directed disclosure of the records without these redactions.
The court observed that the agency denying access to the records demanded has the burden of demonstrating that the information sought falls within a statutory exemption, "which exemptions are to be narrowly construed." As the Court of Appeals held in Westchester Rockland Newspapers v Kimball, 50 NY2d 575, cited by the Appellate Division in its decision, "FOIL compels disclosure, not concealment." wherever the agency fails to demonstrate that a statutory exemption applies.
The Appellate Division explained that in order to survive a challenge to the custodian of the record's refusal to release the records demanded requires the entity resisting disclosure to "articulate a particularized and specific justification for denying access'" and "conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed."
Noting that a court may award an attorney's fee and costs to a petitioner in conjunction with a FOIL request where the petitioner has substantially prevailed, and “(i) the agency had no reasonable basis for denying access; or (ii) the agency failed to respond to a request or appeal within the statutory time,” the Appellate Division said that, contrary to the Nassau's contention, the fact that Nassau provided access to redacted documents during the pendency of the proceeding does not preclude a determination that Jaronczyk substantially prevailed. Rather it is only one factor to be considered in determining whether an award of an attorney's fee and costs under the circumstances is appropriate.
Finding that Nassau failed to articulate a reasonable basis for redacting the signatures at issue, and because the Jaronczyk prevailed on this issue, the Appellate Division ruled that Supreme Court “did not improvidently exercise its discretion in granting that branch of the petition which was for an award of an attorney's fee and costs.”
* See, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_07164.htm.