Seeking public documents and records pursuant to New York State's Freedom of Information Law

The basic concept underlying New York State's Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute, are available to the public.* Although the custodian of the records or documents requested may, as a matter of an exercise of discretion, elect to deny access to  documents and records that are within the ambit of the several exceptions to disclosure authorized by FOIL, as the Court of Appeals noted in Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, FOIL "is based on a presumption of access in accordance with the underlying premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government."

Petitioner's union had submitted a FOIL request seeking "complete copies of any communications" between a named respondent or the New York Police Department [herein after jointly "NYPD"] and the Mayor or the Mayor's Office related to an incident in which the Petitioner was involved. The union also sought "complete copies of any documents" related to a NYPD task force convened to review NYPD's emotionally disturbed person [EDP] policy and to make recommendations for changes thereto. NYPD denied the union's request in its entirety, claiming an exemption to avoid interference with a law enforcement investigation or judicial proceeding at the both the NYPD FOIL Unit's level and at the NYPD's Records Access Appeals Officer's level. Petitioner then initiated this proceeding.

The Appellate Division, noting that a second NYPD decision involving the same administrative appeal produced over 3,200 pages of responsive documents, with numerous redactions, but  462 pages were withheld under color of exemption as inter- and intra-agency material, said that NYPD, with respect to the redactions, relied on "exemptions for nonroutine criminal investigation techniques and preserving the integrity of agency information technology assets."

NYPD also advanced claims of "protection of individuals' privacy and safety, and the attorney-client privilege," which Petitioner did not challenge. 

Petitioner, however, did challenge challenged NYPD's reliance on the law enforcement exemption which it had not earlier raised. After Petitioner filed an amended petition challenging NYPD's reliance on exemptions not previously raised, NYPD cross-moved to dismiss Petitioner's action, asserting that the proceeding was moot and contended that the proceeding was in the nature of mandamus. 

Although Supreme Court had granted  NYPD's cross motion, the Appellate Division reversed the lower court's ruling.

Initially addressing NYPD's challenge to Petitioner's standing to maintain this action, the Appellate Division, citing Matter of Fleisher v New York State Liq. Auth., 103 AD3d 581, leave to appeal denied 21 NY3d 856, rejected NYPD's argument, explaining that Petitioner's union had filed the FOIL request on Petitioner's behalf and NYPD specifically referenced Petitioner in their administrative appeal determinations.

The Appellate Division then ruled that "This proceeding is not in the nature of mandamus to compel the disclosure of documents under the Freedom of Information Law [FOIL]."** Thus, said the court, the standard of review is whether the denial of the FOIL request was "affected by an error of law." Accordingly, said the court citing Matter of Madeiros v New York City Educ. Dept., 30 NY3d 67, its judicial review was limited to the grounds for denial of the documents and materials demanded invoked by NYPD in its administrative determinations.

As NYPD had abandoned the exemption raised in its initial decision, the Appellate Division concluded that it cannot meet its burden to "establish that the ... documents [qualify] for the exemption," nor did NYPD "make any contemporaneous claim that the requested materials" fit its newly claimed exemptions. In the words of the court, "to allow [it] to do so now would be contrary to [Court of Appeals] precedent, as well as to the spirit and purpose of FOIL."

Rejecting NYPD's contention to the contrary, the Appellate Division held that the disclosure of certain documents did not moot this proceeding as the agency had still withheld many of the documents and materials sought by Petitioner and Petitioner had challenged the bases for both [1] NYPD's failure to produce such documents and materials and [2] the redactions made by NYPD to the documents NYPD did disclosed.

The Appellate Division, however, held that Petitioner's demand for the metadata*** of documents disclosed must be denied as an agency is only required to produce "a record reasonably described" and a FOIL request for "complete copies" of communications and documents cannot fairly be read to have implicitly requested metadata associated with those records.

Further, said the court, Plaintiff's reliance on a Fourth Department case, Matter of Irwin v Onondaga County Resource Recovery Agency, 72 AD3d 314, in which that court held that a request for "all computer records that are associated with published [photographs]" should be produced was misplaced as Petitioner's request in the instant matter is distinguishable from the request considered by the court in Irwin and the Fourth Department's "decision is limited to the facts of [the Irwin] case."

Noting that Petitioner had "substantially prevailed"**** even prior to this appeal as NYPD made "no disclosures, redacted or otherwise, prior to Petitioner's commencement of this ... proceeding," and Petitioner "ultimately succeeded in obtaining substantial ... post-commencement disclosure responsive to [Petitioner's] FOIL request," the Appellate Division remanded the matter to Supreme Court for it:

1. To determine if there are any necessary redactions in all documents disclosed, both before entry of judgment and as a result of this decision, pursuant to the exemptions based upon invasions of personal privacy, preserving the safety of persons, and the attorney-client privilege, as well as the Supreme Court's consideration of Petitioner's request for attorneys' fees and litigation costs; and

2. To determine whether there was a reasonable basis for the NYPD to deny access based on the claimed law enforcement exemption, and if not, to "assess" fees and costs" consistent with the provisions of Public Officers Law §89[4][c][ii]."

* Release of certain public records are limited by statute such as the prohibitions set out in  Education Law §1127 - Confidentiality of records; §33.13 of the Mental Hygiene Law - Confidentiality of clinical records; and Civil Rights Law §50-b(1) prohibiting public inspection of material "in the custody or possession of any public officer or employee" identifying a victim of a sex offense as defined by Penal Law Article 130.

** The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman , 53 NY2d 12.

*** Metadata is data that in most information technology usages means "an underlying definition or description."

**** The Appellate Division noted that Petitioner "ultimately succeeded in obtaining substantial ... post-commencement disclosure responsive to [Petitioner's] FOIL request."

The decision is posted on the Internet at:   http://www.nycourts.gov/reporter/3dseries/2020/2020_04007.htm