New York State's Freedom of Information Law personal privacy exemption

Plaintiff in this CPLR Article 78 action had asked the City of New York Office of the Mayor [City] to provide redacted copies of "all Uniform Judicial Questionnaires for applicants ... under review by the Mayor's Advisory Committee on the Judiciary" submitted after a specified date pursuant to New York State's Freedom of Information Law [FOIL]. 

City declined to provide the redacted copies, contending that to do would "constitute an unwarranted invasion of personal privacy". Plaintiff appealed the City's rejection of the FOIL demand.

Supreme Court disagreed with the City's decision and, granting Plaintiff's petition, directing the City to provide Plaintiff with redacted copies of the records demanded. The City  appealed Supreme Court's order and the Appellate Division unanimously reversed the lower court's ruling, on the law, and dismissed Plaintiff's CPLR Article 78 petition, without costs.

After addressing a number of procedural issues, the Appellate Division said that City had properly applied the personal privacy exemption* in denying Plaintiff's FOIL request. 

The court opined that the City had sustained its burden of establishing that disclosure of the records sought by Petitioners in this case would "constitute an unwarranted invasion of personal privacy", in particular noting that the questionnaire had the word "CONFIDENTIAL" in upper-case letters and boldface near the top of its first page. 

The Appellate Division opined that to provide the documents demanded by Plaintiff "would undermine the assurances of confidentiality provided to candidates for judicial office", citing Matter of Harbatkin v New York City Dept. of Records & Info. Servs., 19 NY3d 373, cert denied 568 US 1157. In the words of the Appellate Division, "disclosure would create a chilling effect, thus potentially diminishing the candor of applicants and causing others to decide against applying for judicial positions" as the questionnaire contains numerous questions touching on sensitive personal matters.** 

In addition to the thrust and extent of the questionnaires, the Appellate Division observed that disclosure of the questionnaires could result in harm to certain applicants by revealing that they sought to leave their current employment or that they were ultimately unsuccessful in their efforts seeking a judicial position, citing Matter of Asian Am. Legal Defense & Educ. Fund v New York City Police Dept., 125 AD3d 531, leave to appeal denied 26 NY3d 919.

* Public Officer's Law §89[2][a].

** The information sought included personal relationships, reasons for leaving jobs, reasons for periods of unemployment, substance abuse, arrests, criminal convictions, testifying as a witness in criminal cases, as well as "a catch-all question at the end of the questionnaire" asking for any other information, specifically including unfavorable information, that could bear on the evaluation of the judicial candidate.

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

 

Where statements in an affidavit are contradicted by official records concerning an event, the official records trump the statements in the affidavit

The Board of Trustees [Board] denied a Plaintiff's application for accidental disability retirement [ADR] benefits pursuant to the World Trade Center [WTC] Disability Law, Administrative Code of City of NY §13-252.1 based on its finding that the official New York Police Department [NYPD] records showed that Petitioner was not working at a WTC-qualifying site during the first 48 hours after the November 11, 2001, attack on the World Trade Center or for 40 hours any time during the qualifying time period.

Plaintiff appealed the Board's decision. Supreme Court, however, dismissed Plaintiff's CPLR Article 78 proceeding seeking to annul the Board's determination. The Supreme Court's ruling was unanimously affirmed by the Appellate Division.

The Appellate Division's decision notes that official NYPD records showed that Plaintiff worked at various nonqualifying locations in New York City during the relevant time period. The court explained that the Board "was entitled to discount [Plaintiff's] affidavit concerning his presence at WTC-qualifying locations, since the averments in that affidavit were contradicted by NYPD records, including roll call records that [Plaintiff] signed."  

In addition, the Appellate Division's decision indicates:

[1] Plaintiff's "affidavit was at odds with the WTC Notice of Participation form that [Plaintiff] completed with respect to his activities on 9/11; and

[2] "The Board was entitled to reject affidavits from [Plaintiff's] family and friends on the grounds that they were conclusory, insufficiently specific, or not based on the affiants' personal knowledge."

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

 

Accidental Disability Retirement benefits are awardable only where the individual's disability was the natural and proximate result of a service-related accident

Supreme Court granted the petition brought a New York City firefighter [Firefighter]  pursuant to CPLR Article 78 to annul the determination of Board of Trustees of the New York City Fire Department, Subchapter II Fire Pension Fund [Fund] rejecting a Firefighter's application for accidental disability retirement [ADR] benefits and for attorneys' fees. Fund appealed Supreme Court's ruling and the Appellate Division unanimously reversed the lower court's decision "on the law, without costs," and dismissed the proceeding brought pursuant to CPLR Article 78.

In the words of the Appellate Division, "ADR benefits are awardable only where the individual's disability was the natural and proximate result of a service-related accident, i.e., "a 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'", citing Matter of Brown v Kelly, 100 AD3d 480, quoting Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of NY, Art. II, 57 NY2d 1010, 1012.

The Appellate Division explained "[Firefighter's] injury was the result of an incidental — not accidental — event," referencing Matter of Kelly v DiNapoli, 30 NY3d 674, because Firefighter's injury was sustained while Firefighter was performing routine duties, not as a result of an unexpected event as the dehydration suffered by Firefighter while running in hot weather in heavy gear was a foreseeable risk of the firefighting training exercise.

Further, citing Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, the Appellate Division observed Supreme Court should not have awarded Firefighter attorneys' fees as there was "no basis for the award absent an agreement, statute, or court rule providing for [such] relief".

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

***

Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html

 

Vacating an arbitration award pursuant to CPLR §7511

The Employer sought to terminate an Employee based on his arrest, criminal conviction, and the nature of the charges.

The collective bargaining agreement between the Employer and the Employee's collective bargaining representative [Union], provided arbitration is mandatory when the Employer seeks to discipline or terminate any employee. The Arbitrator was to decide whether the Employer had just cause for disciplining the employee and, if so, whether termination was the appropriate penalty.

The Arbitrator found that the Employer [1] had just cause to discipline Employee; [2] the Employee's actions created "adverse criticism" for the Employer; and [3] based on compelling mitigating factors, the appropriate penalty was a time-served suspension without pay rather than termination.

The Employer moved to vacate the award pursuant to CPLR 7511. The Union opposed the Employer's motion.

Noting that arbitration is highly favored in New York, Supreme Court, citing Falzone v NY Central Mutual Fire Insurance Company, 15 NY3d 530 and Goldfinger v Lisker, 68 NY2d 225, said although "courts seldomly disturb arbitration awards even if the courts would have reached a different conclusion ... [an] arbitration award, however, may be vacated upon a judicial finding that the rights of one of the parties was prejudiced by one of three reasons, the partiality of the arbitrator; or by corruption, fraud, or misconduct on the part of the arbitrator; or by a finding that the arbitrator exceeded her or his powers."

Observing that in Goldfinger the Court of Appeals expressly held that "precisely because arbitration awards are subject to such judicial deference, it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded", Supreme Court opined that although Arbitrator prepared a thorough 14-page Opinion and Award, "the Opinion part lacks neutrality."

In the words of the court, "The Arbitrator crossed the thin and often difficult line between a compassionate neutral and an advocate for one side, the employee. The Arbitrator mistakenly believed that his role was to render a decision that aided and supported the employee's re-integration into the community rather than fairly and objectively decide an employer-employee dispute. In doing so, the Arbitrator prejudiced the [Employer's] right to a fair and impartial arbitration process."

Supreme Court then vacated the award on the ground of partiality pursuant to CPLR 7511(b)1.[ii] and, in compliance with the applicable terms of the collective bargaining agreement, ordered the matter remitted "expeditiously to arbitration with another arbitrator."

* The employee plead guilty to the crime of attempted endangering the welfare of a child.

Click HERE to access the Supreme Court's decision posted on the Internet.

 

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