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Tuesday, July 19, 2016

Seeking public records the custodian contends are exempt from disclosure within the meaning of the Freedom of Information Law


Seeking public records the custodian contends are exempt from disclosure within the meaning of the Freedom of Information Law
Spring v County of Monroe, 2016 NY Slip Op 05465, Appellate Division, Fourth Department

Todd Spring initiated an Article 78 proceeding seeking disclosure of approximately 200 documents, emails, memoranda, and reports pursuant to the Freedom of Information Law (FOIL). The Monroe County [County] custodian of the documents and records had declined to provide the material demanded, which were characterized as being “confidential records” and thus could be “exempted” under one or more of the exceptions permitted by the Freedom of Information Law.*

After conducting an in camera review of the records at issue, Supreme Court directed the County to provide Todd with several of the documents it claimed were “exempt” and County appealed the court’s decision.

The Appellate Division, notwithstanding its holding that Supreme Court erred in applying the “arbitrary and capricious standard of review” and instead should have determined whether the Records Appeal Officer's determination "was affected by an error of law,” elected to conduct a de novo review of the documents at issue.

Applying the appropriate standard with respect to the disputed documents in the “confidential record,” the Appellate Division concluded that:

1. E-mail correspondence between Spring and the "in-house" counsel for the County found in the confidential record at certain pages were exempt from FOIL disclosure as "counsel for the County represented Spring only in Spring's capacity as a County employee." Accordingly, only the County could waive the attorney-client privilege protecting the correspondence. The fact that Spring believed that he was the client was, said the court, “of no moment;”

2. E-mail correspondence found in the confidential record at certain pages between a County employee and counsel employed by the County were protected by attorney-client privilege;

3. A “draft informal dispute resolution [IDR]” request found in the confidential record at certain pages was exempt from FOIL disclosure inasmuch as it was protected by attorney-client privilege, by attorney work product privilege, and as inter-agency material pursuant to Public Officers Law §87(2)(g). The Appellate Division noted that draft IDR request "does not contain statistical or factual tabulations or data … or final agency policies or determinations but rather consisted “solely of . . . evaluations, recommendations and other subjective material and was therefore exempt from disclosure;"

4. Documents found in the confidential record at certain pages representing a "chronological explanation" of a County Human Resources investigation were exempt from disclosure by attorney-client privilege and under Public Officers Law §87(2)(g);

5. Documents found in the confidential record at certain pages were exempt from disclosure under Public Officers Law §87(2)(g) as those documents contained "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making;" and

6. The hearing transcript found in the confidential record at certain pages constituted pre-decisional intra-agency material and was exempt from FOIL disclosure.

With respect to the remaining materials at issue, the Appellate Division said that it concluded that the County failed to show that the Freedom of Information Law permitted their exemption 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 a FOIL request is not required as a condition precedent to obtaining public documents or 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 desired information or records. It should also be noted that other than such disclosure being prohibited by law, there is no bar to providing information pursuant to a FOIL request, or otherwise, that could otherwise be denied pursuant to one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part.

The decision is posted on the Internet at:


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