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July 07, 2020

Remedying an inadvertent disclosure of records provided pursuant to a Freedom of Information Law request

In responding to the Center on Privacy and Technology's [Center] request for certain documents pursuant to the Freedom of Information Law [FOIL] the New York City Police Department [Department] sent certain "unredacted" documents to the Center. The Department subsequently asked Supreme Court to prohibit the information inadvertently given to the Center from being disclosed by it. Supreme Court granted the Department's motion and the Center appealed the court's ruling.

The Appellate Division held that Supreme Court's order did not impose an unconstitutional prior restraint by precluding the Center from referring to the source of unredacted documents inadvertently disclosed to it by the Department in responding to the Center's FOIL request. The court said that the unredacted documents at issue constituted but a small portion of the thousands of pages of records the Department had provided the Center in responding to its FOIL request. 

Citing Seattle Times Co. v Rhinehart, 467 US 20, the Appellate Division explained that "an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny." Instead, opined the Appellate Division, a court may restrict a litigant's use of information obtained through litigation as long as the restriction:

[a] "furthers an important or substantial governmental interest unrelated to the suppression of expression"; and

[b] "the limitation of First Amendment freedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved."

Concluding that the Department had a substantial government interest in preventing the inadvertent disclosure of the unredacted records at issue, the court noted that the Supreme Court's protective order was narrowly tailored in expressly allowing the Center to disseminate any information it had gleaned from the materials at issue and requiring the Department to provide the Center "with replacement records bearing redactions that are not challenged on the merits [in] the instant appeal."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_01724.htm

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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