Friday, May 29, 2015

Seeking information pursuant to a Freedom of Information [FOIL] request

Seeking information pursuant to a Freedom of Information [FOIL] request
2015 NY Slip Op 04237, Appellate Division, First Department

The basic concept underlying the Freedom of Information Law  [FOIL], Article  6 of the Public Officers Law, is that all government documents and records, other than those having access specifically limited by statute,* are available to the public. However, the custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL.

Accordingly, 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. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. 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.

In this action Supreme Court denied a petition seeking to compel the disclosure of certain documents pursuant to FOIL. The materials sought related to the investigation of two complaints filed with the Office of the Special Commissioner of Investigation for the New York City School District (SCI) concerning whether a speech that was given by an employee of the New York State Department of Education (DOE) at a public high school and later reproduced on DOE's website violated Chancellor's Regulations D-130(I)(B)(2), (I)(B)(8), and (I)(C)(1).**

The Appellate Division reversed the Supreme Court’s decision commenting that Supreme Court had “improperly suggested” that the individual filing the FOIL request [Petitioner] had the burden to establish that SCI’s denial of the FOIL request was "arbitrary and capricious," "an abuse of discretion," "irrational," or "unlawful."

The appropriate standard of review, said the Appellate Division, is whether SCI's determination "was affected by an error of law," citing Mulgrew v Board of Education of the City School District of New York, 87 AD3d 506. Rather than requiring the petitioner to show the denial the request was arbitrary or an abuse of discretion, the Appellate Division said that the burden is on the custodian of the records that are the target of the FOIL request to establish "that the material requested falls squarely within the ambit of one of the 'statutory exemptions' from disclosure" [and the custodian elected to apply the exemption in this instance].

The Appellate Division concluded that under the circumstances in this case, the application of an improper legal standard is reversible error since it resulted in substantial prejudice to Petitioner.

As the burdens placed on the custodian of the records demanded, the court said the custodian failed to establish that disclosure of the materials at issue would "constitute an unwarranted invasion of personal privacy” within the meaning of Public Officers Law §87[2][b]) nor did the custodian claim that any personal privacy category enumerated in § 89(2) is applicable in this instance [see, also, Public Officers Law Article 6-A, the so-called  Personal Privacy Protection Law].

As to the merits of the request, the Appellate Division explained that a court must first determine whether any invasion of personal privacy would be unwarranted "by balancing the privacy interests at stake against the public interest in disclosure of the information."

The Appellate Division said that the speech at issue “excoriated unspecified candidates in the 2013 mayoral election who had taken certain positions on education policy.” Although the speech did not name any individual candidate or political party, the complaints to SCI raised serious questions about the propriety of the speech and its publication on DOE's website.

Finding that there is a "significant public interest" in the requested materials, which may shed light on whether this matter was adequately investigated, the court indicated that SCI:

1. Failed to establish that the claimed privacy interests outweigh this public interest;*** and

2. Failed to demonstrate the applicability of the inter- or intra-agency exemption, since some or all of the materials may constitute "factual tabulations or data" or "final agency ... determinations," which do not fall within this exemption.

The Appellate Division directed SCI to “produce the requested information to the extent it constitutes factual data or final agency determinations” redacting “personal identifying information such as names, home addresses, dates of birth and social security numbers.” All other requested materials were to be given to the court for an in camera inspection [i.e., a review by the court “in chambers” in the course of an otherwise open trial].

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].

** These regulations govern the use of school buildings by political candidates, officials and organizations and the conduct of school employees and officers with respect to political campaigns and elections.

*** Although SCI had asserted that the materials contain personally identifying information such as home addresses, dates of birth, and Social Security numbers, the Appellate Division said such information could be redacted and thus did not provide a basis for withholding entire documents.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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