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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.

N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

March 3, 2021

The Freedom of Information Law and Collective Bargaining

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 within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded. 

In Uniformed Fire Officers Association et al. v. de Blasio et al., Nos. 20-2789-cv, 20-3177-cv,  the United States Circuit Court of Appeals, Second Circuit, addressed a number of issues arising after the repeal of §50-a of New York State's Civil Rights Law. §50-a had for decades shielded the disciplinary records of sworn law enforcement personnel from public disclosure.

In addition, the Circuit Court noted the following:

1. Citing Matter of M. Farbman & Sons v. N.Y.C. Health and Hosps. Corp., 62 N.Y.2d 75, the Circuit Court noted that with respect to records that must be disclosed under FOIL, a public employer cannot bargain away its FOIL disclosure obligations; and

2. Citing Trump v. Deutsche Bank AG, 943 F.3d 10 627, vacated and remanded on other grounds, 140 S. Ct. 2019, the Circuit Court commented that a federal district court may grant a preliminary injunction where the moving party "demonstrates irreparable harm and meets either of two standards: (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping decidedly in the movant’s favor”. 

* The release of some public records pursuant to a FOIL request may be limited by statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records. 

Click HERE  to access the full text of the decision by the Circuit Court, which opinion, in particular, contains the two observations set out below.