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August 07, 2024

Not-for-profit organization's Freedom of Information [FOIL] request denied under color of the statutory privacy exception set out in FOIL

Petitioner, a not-for-profit corporation, made a request pursuant to the Freedom of Information Law ([FOIL (Public Officers Law Article 6)] seeking "information for each Jefferson County employee who is currently employed in a position covered by a collective bargaining agreement with CSEA/AFSCME Local 1000" including the employee's name, gender, public office address and certain other employment information. The County Administrator denied the request pursuant to Public Officers Law §§87(2)(b) and 89(2)(b)(iii) as "an unwarranted invasion of personal privacy," because the "requested information [was] not relevant to the employees' performance of their official duties and would be used for fund[-]raising or solicitation purposes." The Plaintiff appealed the Administrator's decision. Supreme Court granted Plaintiff's petition.

The Appellate Division opined that although "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government," the exemptions contained within FOIL must "be given their natural and obvious meaning where such interpretation is consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL ... When presented with a question of statutory interpretation, a court's primary consideration is to ascertain and give effect to the intention of the [l]egislature".

Noting that the term "solicitation" is not defined in the Public Officers Law, the Appellate Division agreed with the County Administrator that, under the circumstances,  Petitioner's FOIL request was for solicitation purposes within the meaning of Public Officers Law §89(2)(b)(iii).

"Solicitation" is a word of "ordinary import," and thus it should be given its "usual and commonly understood meaning" (see Nadkos, Inc., 34 NY3d at 7). Black's Law Dictionary defines "solicitation" as "[t]he act or an instance of requesting or seeking to obtain something; a request or petition," and also defines the term as "[a]n attempt or effort to gain business" (Black's Law Dictionary [12th ed 2024], solicitation). Merriam-Webster defines "solicit" as, inter alia, "to make petition to," "to approach with a request or plea," or "to urge" (Merriam-Webster.com Dictionary, solicit).

The Appellate Division, noting that Plaintiff' states in its brief on appeal that it "contacts public employees for the purposes of its educational mission through a project that it calls Opt-Out [from membership in an employee organization] Today". Finding no indication that Plaintiff "intends to use the names to, for example, expose governmental abuses or evaluate governmental activities" and "[if] anything, it is precisely because no governmental purpose is served by public disclosure of this information that section 87(2)(b)'s privacy exemption falls squarely within FOIL's statutory scheme".

Accordingly, the Appellate Division held that Supreme Court "erred in concluding that the statutory privacy exemption under Public Officers Law §89(2)(b)(iii) does not apply" and concluded that Supreme Court should have dismissed the petition on that basis and modified Supreme Court's judgment.

Click HERE to access the Appellate Division's decision posted on the Internet.


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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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