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Wednesday, June 10, 2015

The “law enforcement exemption” in POL §87(2) (e) (iv) is not applicable to FOIL requests for documents that might result in administrative disciplinary action



The “law enforcement exemption” in POL §87(2) (e) (iv) is not applicable to FOIL requests for documents that might result in administrative disciplinary action
2015 NY Slip Op 04356, Appellate Division, Third Department

Department of Taxation and Finance [Department] undertook a department-wide audit to identify employees who had overstated their job-related expense deductions on their personal income tax returns. As a result a number of employees [Petitioners] serving in the Department's Criminal Investigation Division, were issued notices advising them to — in accordance with the provisions of their union contract — submit to an official interrogation in order to determine whether disciplinary action was warranted.

Petitioners objected to the interrogation and filed a Freedom of Information Law [FOIL] request seeking "any and all documents, records, memoranda and files . . ., which relate, concern, were precipitated by, or respond to, directly or indirectly, to the . . . proposed interrogation of [Petitioners]."

The Department’s records access officer produced various documents but denied access to, among other things, 68 pages of documents containing proposed interrogation questions — citing the “law enforcement exemption” as justification for withholding those documents. Ultimately Petitioners initiated a CPLR Article 78 proceeding seeking disclosure of the remaining withheld documents. Following an in camera inspection, Supreme Court concluded that the 68 pages of proposed questions did not fall with the “law enforcement exemption” and ordered the release of those pages.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that “Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law §87(2)," citing Williamson v Fischer, 116 AD3d 1169, leave to appeal denied, 24 NY3d 904.

The court said that "[e]xemptions are narrowly construed, with the agency that seeks to prevent disclosure bearing the burden of demonstrating that the requested material falls squarely within an exemption by articulating a particularized and specific justification for denying access." In denying access to the 68 pages of proposed interrogation questions, the Department “relied exclusively upon Public Officers Law §87(2) (e) (iv), which exempts from disclosure "records or portions thereof that . . . reveal criminal investigative techniques or procedures, except routine techniques and procedures."

The statute’s references criminal investigative techniques or procedures, and prevailing case law suggests that this exemption applies only to a FOIL request that, at the very least, has its genesis in an underlying criminal investigation or prosecution. As the records before the Appellate Division “makes no reference to a criminal investigation implicating [Petitioners}, nor does it suggest that state or local law enforcement officials would be involved in the proposed interrogation of them, the court found that the law enforcement exemption embodied in Public Officers Law §87 (2) (e) (iv) was inapplicable to the documents at issue .

Observing that the Department sought to question Petitioners in accordance with the provisions of their union contract for the purpose of gathering information that, in turn, potentially could result in the commencement of administrative disciplinary proceedings, the Appellate Division concluded that the Department’s reliance on the “law enforcement exemption” was misplaced. Further, the Appellate Division said that it was satisfied that “even assuming this exemption otherwise applied here, the questions at issue were routine in nature — the disclosure of which would not reveal detailed or specialized investigative techniques or procedures.”

The court noted two additional grounds advanced by the Department for denying disclosure of the proposed interrogation questions – the exemption of [1] the disclosure of records that "interfere with law enforcement investigations or judicial proceedings,” and the exemption of [2] pre-decisional, inter-agency or intra-agency materials from disclosure. For a number of procedural reasons set out in the opinion, the Appellate Division declined to consider these arguments

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 http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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