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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+.

April 22, 2021

Elements to be considered in evaluating justifications advanced for rejecting a Freedom of Information Law request filed with a governmental entity subject it provisions

In reviewing an appeal from a Supreme Court decision which denied the petition filed by Plaintiff seeking to compel the New York City Dept. of Investigation [Investigations] to disclose its entire case file and all documents related to a certain investigation under color of the Freedom of Information Law [FOIL],* the Appellate Division vacated the Supreme Court's ruling, in part, and remanded the matter for further proceedings as to the remaining records responsive to the FOIL request before a different Justice, and otherwise affirmed the Supreme Court's ruling, without costs.

In particular, the Appellate Division found:

1. Investigations failed to meet its burden of establishing that "disclosure of any records responsive to Petitioner's FOIL request would 'interfere with law enforcement investigations or judicial proceedings', which exemption 'ceases to apply after enforcement investigations and any ensuing judicial proceedings have run their course.';

2. " Investigations failed to establish that disclosure would 'identify a confidential source or disclose confidential information relating to a criminal investigation ... [and] in the absence of any evidence that [any] person received an express or implied promise of confidentiality'; and

3. Investigations' assertion that "disclosure would reveal nonroutine criminal investigative techniques or procedures is conclusory."

As to certain email messages offered by Plaintiff in support of its Article 78 petition, the Appellate Division, citing Matter of Gould, 89 NY2d at 277, opined that they "are covered by the inter-agency or intra-agency materials exemption " of Public Officers Law §87[2][g] as they amount to "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making".

However, said the Appellate Division, "the applicability of this exemption to any other responsive records cannot be determined on this record in the absence of in camera review.  

The court than remanded the matter to Supreme Court for a de novo determination, after an in camera inspection, of the applicability of the inter-agency or intra-agency materials exemption and any other exemptions properly raised by Investigations.

* Public Officers Law §§84-90

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

 


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