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November 17, 2014

Some limitations to obtaining information pursuant to New York State's Freedom of Information Law


Some limitations to obtaining information pursuant to New York State's Freedom of Information Law
Miller v New York State Div. of Human Rights, 2014 NY Slip Op 07742, Appellate Division, First Department

The Appellate Division sustained a Supreme Court ruling that the New York State Division of Human Rights did not violate the State’s Freedom of Information Law [FOIL] when it denied Jerald Miller’sFOIL request for certain documents.

Initially addressing a procedural issue, the Appellate Division said that although Supreme Court reviewed the Division’s determination using the "arbitrary and capricious" standard instead of determining whether the denial "was affected by an error of law", the matter need not be remanded since Division correctly determined that FOIL did not require disclosure of the materials sought by Miller.*

As to the merits of Miller’s appeal, the Appellate Division explained that the Division properly withheld the four legal opinions he had requested pursuant to the "intra-agency materials" exemption set out in Public Officers Law § 89[2][g] as these documents were essentially "predecisional memoranda” prepared to assist the Division in its decision-making process and were not final agency determinations or policy. Rejecting Miller’s argument to the contrary, the court said that the opinions neither fell under the exceptions to this exemption set out in Public Officers Law §89[2][g][i]), which is applicable with respect to “statistical or factual tabulations or data” nor Public Officers Law § 89[2][g][ii], which is applicable with respect to “instructions to staff that affect the public."

Citing Short v Board of Mgrs. of Nassau County Med. Ctr., 57 NY2d 399, the Appellate Division said that three of the four opinions are "specifically exempted from disclosure by state . . . statute" whereby Executive Law §297(8) prohibits the Division from making public information contained in reports obtained by it with respect to a particular person without that individual's consent.

As to Miller’s request for the Division’s "Case Management System Legal Resources Notebook," the court ruled that this was not a record within the meaning of FOIL. The “Notebook,” said the Appellate Division, is not "information" but rather a software application providing the means of accessing information in the Division’s electronic file system. Further, said the court, the Division also properly withheld the user's manual for that application as its disclosure "would jeopardize [the Division’s] capacity . . . to guarantee the security of its . . . electronic information systems."

Finally, the Appellate Division ruled that as Miller “has not substantially prevailed, he is not entitled to attorney's fees and costs pursuant to Public Officers Law §89(4)(c).”

* Where an administrative body renders a determination without holding a hearing, the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis.See CPLR 7803[3]

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_07742.htm
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