Tuesday, November 17, 2015

A Freedom of Information request for records concerning law enforcement operations may be denied


A Freedom of Information request for records concerning law enforcement operations may be denied
Madeiros v New York State Educ. Dept., 2015 NY Slip Op 08028, Appellate Division, Third Department

Pamela A. Madeiros submitted a Freedom of Information Law [FOIL] request seeking the audit guidelines issued by the New York State Department of Education [SDE] and any communications that it had with municipalities or school districts "relating to the standards and procedures for, or relating to past, current or future fiscal audits of services or programs."

SDE denied the request in its entirety, stating that the documents were exempt from FOIL as records compiled for law enforcement purposes.* Ultimately SDE provided Madeiros  with 55 pages of redacted documents as a response to her FOIL request, maintaining that the redacted portions were exempt from disclosure pursuant to Public Officers Law §87(2)(e) and (g). 

Supreme Court rejected SDE efforts to invoke Public Officers Law §87(2)(g) with regard to two of the pages, but held that the undisclosed portions of the remaining documents were compiled for law enforcement purposes and were exempt from disclosure under Public Officers Law §87(2)(e)(i).

Madeiros’ appealed of the Supreme Court’s ruling but the Appellate Division, explaining that "FOIL is based on a presumption of access to the records, and an agency . . . carries the burden of demonstrating that the exemption applies to the FOIL request,." sustained the Supreme Court's ruling. In this instance, said the court, DOE had relied upon Public Officers Law §87(2)(e) with respect to providing redacted records a provision that exempts records from disclosure that "are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings."**

Noting that Madeiros had obtained unredacted copies of almost 20 of the produced pages from another source, rendering academic a good portion of the relief she seeks, certain records, including an internal control questionnaire, the Appellate Division said that the redacted portions of the documents demanded by Madeiros to be supplied by DOE would, indeed, reveal to “unscrupulous [providers] the path that an audit is likely to take and alert them to items to which investigators are instructed to pay particular attention,” agreeing with Supreme Court that such documents  constituted "compilations of investigative techniques exempt from disclosure."

* 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]. Otherwise, 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.

** DOE had contended that the redactions were necessary because disclosure of the unredacted documents would reveal auditing techniques that would enable the providers of preschool special education programs to conceal their financial misdeeds more effectively.

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:

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Challenging Adverse Personnel Decisions 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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