Redacting certain content in a public record when responding to a Freedom of Information request
Laveck v Village Bd. of Trustees of the Vil. of Lansing, 2016 NY Slip Op 08150, Appellate Division, Third Department
Responding to a Freedom of Information [FOIL] request, the Village of Lansing redacted certain information, including names and addresses of individuals contained in the record, contending that such redaction was necessary "to protect information that would, if disclosed, result in an unwarranted invasion of personal privacy and could, if disclosed, endanger the life and safety of persons."
The Appellate Division, explaining that under FOIL, "[a]ll government records are . . . presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2)," said that these exemptions are construed narrowly and the burden rests on "the public agency to demonstrate that 'the material requested falls squarely within the ambit of one of the statutory exemptions,'" and must provide a “'particularized and specific justification' for not disclosing requested documents."*
As to the personal privacy exemption, the Appellate Division said that the Village “failed to demonstrate that the redacted information fell into any of the categories of information that the Legislature has specifically determined would qualify as an unwarranted invasion of personal privacy if disclosed.” In the absence of such evidence, the court said it was necessary to evaluate whether disclosure would constitute an unwarranted invasion of personal privacy "by balancing the privacy interests at stake against the public interest in disclosure of the information."
Here, said the court, the Village “failed to establish that disclosure of the … names, home addresses or other personal identifying information would constitute an unwarranted invasion of personal privacy.”
Further, said the Appellate Division, the Village did not demonstrate that disclosure of the redacted information "could endanger the lives or safety" of the individuals listed in the documents.
The Village, having failed to establish the applicability of a statutory exemption, was held to have “improperly redacted the names, addresses and other identifying information” in the records and was directed to respond to the FOIL request “with unredacted copies of the requested documents, in electronic form if possible.”
The release of some public records pursuant to a FOIL regquest, however, may be 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 becomes 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 desired record or information.
It should also be noted that there is no bar to the custodian of the public record 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.
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. In DeFreitas the court said “the exception in Public Officers Law §87(2)(e)(i) [interfere with law enforcement investigations or judicial proceedings] no longer applies [after the individual’s] criminal proceedings and judicial review have concluded.”
It should also be noted that there is no bar to the custodian of the public record 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.
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. In DeFreitas the court said “the exception in Public Officers Law §87(2)(e)(i) [interfere with law enforcement investigations or judicial proceedings] no longer applies [after the individual’s] criminal proceedings and judicial review have concluded.”