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.

Indirect threats made to another individual may support filing disciplinary charges against an employee making them

New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Tiffany Hamilton recommended a 60-day suspension for a correction officer [CO] who failed to cooperate with and threatened police officers during a traffic stop.

CO was off-duty when she was pulled over for speeding. The ALJ found CO failed to obey the officers’ directives to promptly hand over her driver license and to step out of the vehicle. During the traffic stop, CO was on the phone and made statements such as, “They lucky I don’t have a firearm” and “Just give me the ticket, before I slap one of them.”

Judge Hamilton rejected CO's argument that these statements were not threats because they were not directed at the officers, holding that indirect statements made in the presence of the intended recipient can constitute a threat for the purposes initiating disciplinary action. 

Noting that it is well-established that an agency may discipline an employee for off-duty misconduct, the ALJ explained that "to do so, the agency must first establish a nexus between the alleged off-duty misconduct and the employee’s job duties". Judge Hamilton found "a sufficient nexus between a correction officer’s duties and the CO's failure to cooperate with police instructions" to conclude that the employer proved that the CO violated the employer's "Rules and Regulations" by failing to cooperate with NYPD officers by refusing to promptly present her driver's license or to step out of her vehicle as directed.

Click HERE to access Judge Hamilton's decision and recommendation posted on the Internet.

Imposing multiple penalties on an employee found guilty of disciplinary charges

The Appellate Division unanimously confirmed, without costs, the Appointing Authority's finding the Plaintiff  guilty of a disciplinary charge that he "engaged in misconduct against a female staff member that constituted sexual harassment" and the penalty imposed: a "six-month probationary term and suspension without pay for five days".

Concluding that the Appointing Authority's decision was supported by substantial evidence and that hearsay evidence is admissible in administrative proceedings and "if sufficiently relevant and probative may constitute substantial evidence", the Appellate Division sustained the Appointing Authority's findings and decision, citing People ex rel. Vega v Smith , 66 NY2d 130, and Matter of Gray v Adduci , 73 NY2d 741. 

The court found that the hearsay testimony at the hearing was relevant and probative on the charge that Plaintive engaged in misconduct against a female staff member that constituted sexual harassment. 

Although the decision does not report the relevant statutory authority for the disciplinary action taken against the Plaintiff, it should be noted that a collective bargaining agreement may authorize the imposition of multiple disciplinary penalties in a disciplinary action. With respect to disciplinary actions initiated pursuant to §75 of the New York State Civil Service Law, however, the courts have held that "the imposition of multiple penalties was improper", noting Civil Service Law §75.3 provides for a choice of penalties, thus prohibiting the imposition of more than one of the discrete penalties set out in the statute [see Matteson v City of Oswego, 186 AD2d 1017].

Imposing multiple penalties in a §75 disciplinary action, however, is possible where there are multiple offenses involved and the individual is found guilty of more than one of the charges alleged [see Wilson v Sartori, 70 AD2d 959].

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