Seeking the production of certain governmental agency records pursuant to a New York States "Freedom of Information Law" request

New York State's Freedom of Information Law [FOIL] is applicable to a governmental  "agency" but FOIL's definition of "agency" expressly excludes the records of the "judiciary" and thus such records are not within the ambit of FOIL.

In Lockwood v County of Suffolk the Appellate Division addressed whether certain Suffolk County agency records that were sought pursuant to a FOIL request were exempt from disclosure under color of being "judicial records".

Finding that Supreme Court had not determine whether those "certain records" were "judicial records", Suffolk County was directed to produce those records for an in camera inspection by Supreme Court and the matter was remitted to Supreme Court for a new determination of that branch of Lockwood's petition based upon the results Supreme Court's in camera inspection.

The full text of the Appellate Division's decision in Lockwood is set out below.

 

Matter of Lockwood v County of Suffolk

2023 NY Slip Op 04316

Decided on August 16, 2023

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

 

Decided on August 16, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
CHERYL E. CHAMBERS
DEBORAH A. DOWLING
HELEN VOUTSINAS, JJ.

2021-02862
(Index No. 607383/20)  

[*1]In the Matter of Scott Lockwood, appellant,

v

County of Suffolk, et al., respondents.

Scott Lockwood, Deer Park, NY, appellant pro se.

Dennis Brown, Acting County Attorney, Hauppauge, NY (Lisa Azzato of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6), the petitioner appeals from a judgment of the Supreme Court, Suffolk County (David T. Reilly, J.), dated March 22, 2021. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof denying that branch of the petition which was to compel the production of records pertaining to the training of clerks of the Suffolk County Traffic and Parking Violations Agency, and substituting therefor a provision granting that branch of the petition to the extent that the respondents are directed to produce those records for an in camera inspection by the Supreme Court, Suffolk County; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a new determination of that branch of the petition based upon the in camera inspection.

The petitioner submitted a request to the Suffolk County Traffic and Parking Violations Agency (hereinafter the TPVA) pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL) for the production of two categories of records held by the TPVA: materials pertaining to determinations by the Clerk of the TPVA to reject or accept motions submitted to the agency; and training materials for TPVA clerks. The TPVA denied the request, stating that it did not possess any materials pertaining to the first category of records sought, and that with respect to the second category, its training materials for clerks fell within Public Officers Law § 87(2)(g), exempting certain intra-agency materials from disclosure. After his request was denied, the petitioner pursued an administrative appeal. The appeals officer declined to order the production of records held by the TPVA on the ground that the TPVA is part of the judiciary and, thus, its records are not the records of an "agency" as defined in Public Officers Law § 86(3). Alternatively, the appeals officer concluded that the TPVA did not possess responsive records. The petitioner then commenced this proceeding pursuant to CPLR article 78 to compel the production of the requested records. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.

"In order to promote open government and public accountability, FOIL imposes a broad duty on government to make its records available to the public" (Matter of Tuckahoe Common Sch. Dist. v Town of Southampton, 179 AD3d 929, 930). "To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted" (Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d 630, 631; see Public Officers Law § 87[2]). Exemptions are construed "narrowly, and an agency has the burden of demonstrating that an exemption applies 'by articulating a particularized and specific justification for denying access'" (Matter of Kosmider v Whitney, 34 NY3d 48, 54, quoting Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566; see Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 225).

FOIL is applicable to "agency" records, but its definition of "agency" expressly excludes the "judiciary" (Public Officers Law § 86[3]). "The TPVA is a 'hybrid agency that exercises both prosecutorial and adjudicatory responsibilities,' and [ ] the prosecutorial function is 'distinct from the adjudicatory function'" (Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d at 632, quoting Matter of Dolce v Nassau County Traffic & Parking Violations Agency, 7 NY3d 492, 498). "Accordingly, to the extent that a TPVA record concerns the nonadjudicatory responsibilities of the TPVA, it is not exempt from disclosure under the definition of 'agency' in Public Officers Law § 86(3)" (Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d at 632).

Here, the Supreme Court properly determined that the first category of records sought related to the TPVA's adjudicatory responsibilities. In any event, the TPVA established that it possessed no such materials (see Matter of Jewish Press, Inc. v New York City Dept. of Corr., 200 AD3d 1038, 1039-1040).

However, with respect to the second category, without examination of the records that the petitioner seeks, the Supreme Court could not determine that the training materials requested were exempt from disclosure as records of the "judiciary" (see Matter of Law Offs. of Frank DeSousa v Nassau County, 171 AD3d 925, 926; Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d at 632). Similarly, examination of those records was required to determine whether they were exempt intra-agency materials. To the extent that intra-agency materials contain "instructions to staff that affect the public," they remain subject to disclosure pursuant to FOIL (Public Officers Law § 87[2][g]; see Matter of Gedan v Town of Mamaroneck [N.Y.], 170 AD3d 833, 834-835; see generally Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 133).

Accordingly, we modify the judgment so as to grant that branch of the petition which was to compel the production of records pertaining to the training of TPVA clerks to the extent of directing the TPVA to produce those records for an in camera inspection by the Supreme Court, Suffolk County, and remit the matter to the Supreme Court, Suffolk County, for a new determination of that branch of the petition based upon the in camera inspection.

IANNACCI, J.P., CHAMBERS, DOWLING and VOUTSINAS, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court

A judicial finding that a rational jury could find employer failed to provide a reasonable workplace accommodation of employee's disability bars granting employer's motion for summary judgment

Plaintiff was employed by Defendant from 2008 until her employment was terminated in 2015. Alleging Defendant discriminated against her based on her disability and retaliated against her for seeking an accommodation for that disability, Plaintiff initiated litigation alleging Defendant had violated provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., the New York State Human Rights Law, N.Y. Exec. Law §296, and 42 U.S.C. §1983.   

Plaintiff claimed the Defendant failed to reasonably accommodate her request not to be assigned archiving tasks provided the Defendant with medical documentation describing her physical limitations.*

Federal District Court granted Defendant's motion for summary judgment on her reasonable accommodation and retaliation claims. Plaintiff appealed the federal district court's ruling. 

The Second Circuit Court of Appeals, finding that "archiving was not an essential function" of Plaintiff's position, opined:

[1] Viewing the evidence most favorably to Plaintiff, a rational jury could find Defendants failed to provide a reasonable workplace accommodation for her disability; and

[2] Disputed "issues of material fact" precluded the federal district court's granting summary judgment to Defendant with respect to Plaintiff's retaliation claim."

Addressing Plaintiff's §1983 claim, the Second Circuit said that because Plaintiff had not presented any arguments on appeal challenging the federal district court’s decision with respect to her §1983 claim, it deemed that Plaintiff had abandoned that claim.

Vacating the federal district court’s decision with respect to the Plaintiff's reasonable accommodation and retaliation allegations, the Circuit Court, Judge Sullivan concurring in part and dissenting in part in a second opinion, remanded the matter to the district court for "further proceedings consistent with this opinion."

* Plaintiff also contended that Defendants retaliated against her for making the accommodation request by forcing her to go on medical leave, which ultimately led to her termination. 

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

 

 

New York State Public Personnel Law e-books

The Discipline Book - Click HERE for information

A Reasonable Disciplinary Penalty - Click HERE for information

The Layoff, Preferred List and Reinstatement Manual - Click HERE for information

Disability Leave for fire, police and other public sector personnel - Click HERE for information

Appeal to the Commissioner of Education challenging a Board of Education suspending school district employee held untimely

Claiming that she witnessed a district staff member abuse a minor child, Petitioner reported the alleged incident to her supervisor and several other district employees.  Noting that the parties’ versions of events vary, the Commissioner of Education said "it appears that an altercation ensued between [Petitioner] and the principal ... resulted in [Petitioner] being placed on paid leave."* 

Ultimately, the Board of Education [Board] suspended Petitioner's employment by the school district.

Petitioner challenged the Board's action and in her appeal asked the Commissioner to direct the Board "impose a fine, request a written apology, and/or impose discipline upon all district employees to whom the alleged abuse was reported." Additionally Plaintiff asks that the Board be directed to notify the family of the minor child of the alleged abuse.

The Board contended that Petitioner's appeal should be dismissed as [1] untimely and [2] for lack of jurisdiction over the district respondents named by Petitioner. 

On the merits, the Board contends, among other things, that Petitioner has failed to state a claim for which relief may be granted.

The Commissioner first addressed a preliminary matter: Petitioner’s reply to the Board's answer to contains new information and claims that were not raised in the petition.  The Commissioner said the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer and is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition.

Turning to procedural issues, the Commissioner said the Petitioner's appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown. Further, the Commissioner noted that "[except] in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal."

In addition, Petitioner raised general assertions of alleged neglect on the part of her attorney in processing her appeal to the Commissioner. The Commissioner opined that this claim concerns an issue of professional responsibility that is outside the scope of an appeal to the Commissioner of Education.

* The district contended that Petitioner had put her hands on the principal and submitted photographic evidence in support of this allegation.

Click HERE to access the text of the Commissioner's decision posted on the Internet.

The New York State Department of Civil Service invites attorneys to consider a career in public service with the State of New York

For information describing current employment opportunities click HERE.