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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 9, 2021

Judical review of rejections of Freedom of Information requests for public records

The petitioner [Plaintiff] in this first CPLR Article 78 of two Freedom of Information Law [FOIL] actions sought a court order to compel the agency to produce certain public records Plaintiff had demanded. Supreme dismissed the proceeding and Plaintiff appealed.

The Appellate Division vacated the dismissal of the action by Supreme Court in part and remanded the matter "to a different judge" for further proceedings "consistent with [the Appellant Division's] order".

Citing Matter of Lesher v Hynes, 19 NY3d 57, the court explained that the agency "failed to meet its burden of establishing that disclosure of any records responsive to [Plaintiff's] FOIL request would "interfere with law enforcement investigations or judicial proceedings," and, in any event, that the exemption no longer applies "after enforcement investigations and any ensuing judicial proceedings have run their course".

The Appellate Division also noted that it rejected the agency's "broad arguments for withholding all of the responsive records" as to honor such a contention "would amount to a blanket exemption that would seemingly apply to virtually any records of any investigation conducted by [the agency]".

In the words of the court, "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government." Click HERE to access this decision by Appellate Division.

The Appellate Division, however, dismissed a second appeal of Article 78 action involving anther FOIL application brought by the same Plaintiff seeking certain other public records.

In this second case Plaintiff sought a court order to compel the agency to disclose records for "all requests for religious accommodations (such as, dress, shifts etc.) by employees and the result thereof ... includ[ing] ... the job title and date," during a specified three-year period.

The court opined that Plaintiff "failed to describe the documents sought with sufficient specificity as to permit [the agency] to identify and locate them," citing Matter of Lebron v Smith, 40 AD3d 515, leave to appeal denied, 9 NY3d 810.

In addition, the agency had submitted an affidavit executed by its Director of Human Resources explaining that "such information [was] not stored in any centralized manner, and that the only way to attempt a complete response to the [Plaintiff's] FOIL request would be to have the agency's thousands of employees search through their paper and electronic records." 

Thus, said the court, the agency had established "a valid basis for denying the [Plaintiff's] FOIL request" by showing that any responsive records "are not indexed in a manner that would enable the identification and location of documents" in the agency's possession. Click HERE to access this second ruling by the Appellate Division.

 

 


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