August 5, 2020

Charging a fee for the cost of reviewing and redacting requested video footage sought pursuant to New York State's Freedom of Information Law



An individual [Plaintiff] initiated a CPLR Article 78 proceeding seeking to compel a municipality [Respondents] to comply with his request pursuant to the Freedom of Information Law ([FOIL] for certain video footage recorded by certain of Respondent's police officers as part of its Body-Worn Camera (BWC) program.

Ultimately the Appellate Division considered the two appeals that were filed as the result of rulings by Supreme Court.

In one appeal, Appeal 1, Supreme Court concluded that Public Officers Law §87:

[1] Did not permit Respondents to meet their FOIL obligations by providing a "blanket-blurred" video to Petitioner;

[2] Determined that Respondents could charge a fee "directly related to the redaction of electronic records," provided the fee was not onerous; and

[3] Remitted the matter to Respondents for reconsideration, directing Respondents to provide a privilege log to Petitioner detailing which sections of the video must be redacted and the reason for such redaction.

Also with respect to appeal No. 1 the Appellate Division said it agreed with Plaintiff that Respondents may not charge Plaintiff a fee for the costs associated with Respondent's review or redaction of the BWC footage requested by Plaintiff, noting that the Committee on Open Government has specifically opined that "if the document exists in electronic format and the agency has the authority and the ability to redact electronically, we believe it would be reasonable for the agency to provide the requested redacted copy at no charge."*

The court said that although "the advisory opinions issued by the Committee on Open Government are not binding on the courts ..., an agency's interpretation of the statutes it administers generally should be upheld if not unreasonable or irrational," citing Matter of Weslowski v Vanderhoef, 98 AD3d 1123, leave to appeal dismissed, 20 NY3d 995.

The Appellate Division then modified Supreme Court's ruling with respect to Appeal 1 by vacating that part of the judgment permitting Respondents to charge Plaintiff a fee for the cost of reviewing and redacting the requested video footage.

Addressing yet another aspect of Appeal 1, the Appellate Division, citing Konigsberg v Coughlin, 68 NY2d 245, opined that "Contrary to [Plaintiff's] further contention in appeal No. 1, [Supreme Court] did not err in remitting the matter to [Respondents] to reconsider [Plaintiff's] request, provide a privilege log, and ultimately comply with its statutory obligations and thus any decision concerning Plaintiff's entitlement to attorney's fees are premature at this juncture."

Appeal 2 concerned Plaintiff's appeal from an order denying his application, the Appellate Division rejected Plaintiff's Appeal No. 2 challenging Supreme Court's denying that part of Plaintiff's application seeking a finding of contempt based on Respondents' failure to comply with the judgment in appeal No. 1. 

The court explained that "In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the movant's rights [and the] movant has the burden of proving contempt by clear and convincing evidence." 

In this instance the Appellate Division determined that Plaintiff failed to establish that the judgment in Appeal No. 1 expressed an unequivocal mandate "inasmuch as no deadline was contained therein."

* Commission on Open Government FOIL Advisory Opinion 18904.

The decision is posted on the Internet at:  

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