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Wednesday, August 03, 2016

Seeking documents that the custodian of the records contends may be denied pursuant to one or more Freedom of Information Law “exemptions from disclosure”


Seeking documents that the custodian of the records contends may be denied pursuant to one or more Freedom of Information Law “exemptions from disclosure”
Rose v Albany County Dist. Attorney's Off., 2016 NY Slip Op 05536, Appellate Division, Third Department

Nakia Rose was convicted of numerous crimes* People v Rose, 72 AD3d 1341 [2010], lv dismissed 16 NY3d 745 [2011]). He thereafter submitted a Freedom of Information Law (Public Officers Law Article 6 [FOIL]) request to Albany County District Attorney's Office [ODA] seeking the disclosure of "29 categories of documents relating to the criminal investigation that led to his conviction."**

The Office of the District Attorney [ODA] denied the request for the documents, and Rose  initiated this CPLR Article 78 proceeding. Although Rose subsequently received some of the requested documents, Supreme Court sustained OAD's denial of other documents. Rose appealed and the Appellate Division remitted the matter to Supreme Court for an in camera*** inspection of the documents with regard to two groups of documents that Rose had requested consisting of:

[1] "[a]ll notes, memos, teletypes, letters, records, and other communications to/from the State police, Albany police, Albany Dept. of Public Safety, or federal authorities regarding [petitioner] and/or the investigation underlying the charges against him;" and

[2] "[a]ll letters or communications written by any employee of [the ODA], or on its behalf, to any governmental agency or private entity concerning any prosecution witness, including but not limited to letters and communications to the Division of Parole, Probation Department, Human Resources Administration, NYC Housing Authority, Department of Homeland Security, and Immigration."

Supreme Court then conducted an in camera inspection of all 257 documents in the two groups provided by the ODA. Providing a detailed description of each document and the basis for the disclosure or nondisclosure of each of the 257 documents, the court concluded that 32 of the documents were subject to disclosure in redacted form and dismissed Rose’s petition with regard to the remaining documents. Supreme Court also denied Rose's request for attorney fees.

Responding to Rose’s appeal of this ruling by Supreme Court, the Appellate Division rejected Rose’s contention that he was entitled to disclosure of all of the documents as the result of “an alleged failure by Supreme Court to provide sufficient factual explanation for its determination as to each document.” The court explained that it was well established that Rose’s entitlement to the documents depends upon whether ODA did or did not meet its burden of establishing that the documents fall within an exemption to a FOIL disclosure and Rose’s “entitlement” to any of the documents was not dependent on the specificity of a “trial court's written findings.”

The Appellate Division also held that Supreme Court had properly limited its scope of review in accordance with its earlier “unambiguous directive that the scope of remittal was limited to addressing whether or not documents responsive to [Rose’s] request … were exempt from disclosure.”

In addition, the Public Officers Law §87(2)(g) exempts inter-agency or intra-agency materials from FOIL disclosure to the extent that such materials do not contain "(i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; [or] (iii) final agency policy or determinations." This exemption for inter-agency or intra-agency materials, said the Appellate Division, "applies to 'opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making,’" agreeing with Supreme Court that the ODA met its burden of establishing that documents at issue were exempted inter-agency or intra-agency materials.

However, said the Appellate Division, Supreme Court should have directed the disclosure of documents which were not sought to be exempted by the ODA and it should not have relied on a justification for withholding documents that was not advanced by the ODA.

As to the "safety exemption" set out in Public Officers Law §87[2][f] the Appellate Division indicated rather than withholding certain of the documents entirely, they could be disclosed subject to appropriate redactions.

As NYPPL has noted in earlier summaries of court and administrative decisions involving FOIL requests, 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, submitting a formal FOIL request is not a condition precedent to obtaining public records where access is not barred by statute. 

Submitting a formal FOIL request is necessary only in the event the custodian of the public record[s] sought declines to simply provide the information or record requested. In such cases the individual or organization must file a formal FOIL request in order 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 statutory exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded. Further, in some instances, however, a statutory exception may have “sublimated” as the Appellate Division observed in DeFreitas v New York State Police Crime Lab., 2016 NY Slip Op 05676, quoting Matter of Lesher v Hynes, 19 NY3d 57, “the exception in Public Officers Law §87(2)(e)(i) [interfere with law enforcement investigations or judicial proceedings] no longer applies because petitioner's criminal proceedings and judicial review have concluded.”


** The facts of that case are more fully discussed in a previous decision by the Appellate Division, Ross v Albany County Dist. Attorney’s Office, 111 AD3d 1123, Leave to appeal dismissed, 16 NY3d 745, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07796.htm .

*** A review of the document by the court “in private.”

The decision in Rose v Albany County Dist. Attorney's Off., 2016 NY Slip Op 05536, is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_05536.htm

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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