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February 18, 2021

Redaction of portions of a personnel record may be used to avoid an invasion of privacy in responding to a Freedom of Information Law request

In a proceeding pursuant to CPLR Article 78 to compel the production of certain records pursuant to the Freedom of Information Law [FOIL]* the Petitioner [Plaintiff] submitted a FOIL request for certain records to the New York City Fire Department [FDNY].

FDNY had responded to Plaintiff's FOIL request, providing certain records and withholding others. FDNY withheld the records identified in Plaintiff's FOIL request that it contended concerned requests for religious accommodations and the determinations made thereon, and accommodations from the FDNY dress requirements. FDNY had withheld those records on the grounds that:

 [1] Releasing such records would be an unwarranted invasion of personal privacy within the meaning of Public Officers Law §87(2)(b); and 

[2] The records withheld were inter-agency materials exempt by Public Officers Law §87(2)(g).

Supreme Court granted Plaintiff's petition in part and Plaintiff appealed, seeking the FDNY records that FDNY was permitted to withhold pursuant to the court's order.

The Appellate Division, indicating that FOIL provides the public with broad "access to the records of government" explained that "An agency must 'make available for public inspection and copying all records' unless it can claim a specific exemption to disclosure".**  

Further, said the court, the exemptions "are to be narrowly interpreted so that the public is granted maximum access to the records of government" as FOIL is based on a presumption of access to the records*** and the agency seeking to prevent disclosure "carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access," citing Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562.

An agency may deny access to records or portions thereof "to prevent unwarranted invasions of personal privacy" and to this end Public Officers Law Public Officers Law §89[2][b][v] provides a nonexhaustive list of categories of information that would constitute an unwarranted invasion of personal privacy if disclosed, including "disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency." However, "disclosure shall not be construed to constitute an unwarranted invasion of personal privacy "when identifying details are deleted."

In this action, ruled that the Appellate Division, FDNY failed to sustain its burden of proving that the personal privacy exemption applied to the records sought since it failed to establish that the identifying details could not be redacted so as to not constitute an unwarranted invasion of personal privacy. The court found the FDNY's conclusory assertions that the records fall within the exemption were insufficient to meet its burden of proving that the statutory exemption applies.  FDNY, opined the Appellate Division "should have produced the requested records, redacting whatever portions are necessary to safeguard the identities of the individuals who sought the accommodation, and leaving nonidentifying information intact.

The court also held that FDNY also failed to establish that the exemption for inter-agency materials applied, since the agency determinations sought were final on the accommodation requests and therefore not subject to the exemption.

Accordingly, the Appellate Division concluded that Supreme Court should have granted those branches of the petition which sought to compel disclosure of the documents sought in Plaintiff's FOIL requests that were the subject of this appeal.

* New York State Public Officers Law Article 6.

** See Matter of Data Tree, LLC v Romaine, 9 NY3d 454.

*** The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise fall within the ambit of the several exceptions to disclosure permitted by FOIL. Examples of limiting the  release of public records by statute: Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.

Click HERE to access the text of the Appellate Division's decision.