Does a promise of "confidentiality" authorize a New York state or municipal entity to refuse to disclose a record requested pursuant to New York State's Freedom of Information Law?

Petitioner and the Respondent had entered into a non-prosecution agreement resolving an investigation into certain of Petitioner's alleged activities in both his public official capacity and his personal capacity. Subsequently Petitioner sought to enjoin the Respondent from disclosing a certain record sought in a request made pursuant to Article 6 of the Public Officers Law, the New York State Freedom of Information Law [FOIL]. Supreme Court denied the petition and dismissed the proceeding. Petitioner appealed the Supreme Court's action.

Citing Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, the Appellate Division held that Supreme Court properly determined that any promise of confidentiality made to the Petitioner did not afford a protection against disclosure of the non-prosecution agreement pursuant to FOIL and that the agreement requested should be released. The court explained that in Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, the Court of Appeals held "FOIL imposes a broad duty on government agencies to make their records available to the public" and the exemption to disclosure pursuant to Public Officers Law §87(2)(a)* relied on by Petitioner was not applicable.

The Court of Appeals also noted that, as originally enacted, FOIL contained an exemption for records "confidentially disclosed to an agency and compiled and maintained for the regulation of commercial enterprise, including trade secrets." This "confidentially disclosed" provision was deleted when the statute was amended. 

In Washington Post v. Ins Dept, 61 N.Y.2d 557  the Court of Appeals opined "Thus,  respondent had no authority to use its label of confidentiality to prevent disclosure of the [requested document]. "(T)o allow the government to make documents exempt by the simple means of promising confidentiality would subvert FOIA's disclosure mandate" [cf. Washington Post Co. v United States Dept. of Health Human Servs., 690 F.2d 252, 263]."

* Public Officers Law §87(2)(a), in pertinent part, provides "except that such agency may deny access to records or portions thereof that:

             "(a) are specifically exempted from disclosure by state or federal statute; [In New York State the release of some public records are limited by statute. See, for example, Education Law, §1127 - Confidentiality of records; §33.13; Mental Hygiene Law - Clinical records; confidentiality.]

             "(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;

              "(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;

              "(d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise; and records, among other things,

               "(e) are compiled for law enforcement purposes only to the extent that disclosure would: 

                    "i. interfere with law enforcement investigations or judicial proceedings, provided however, that any agency, which is not conducting the investigation that the requested records relate to, that is considering denying access pursuant to this subparagraph shall receive confirmation from the law enforcement or investigating agency conducting the investigation that disclosure of such records will interfere with an ongoing investigation;" 

Click HERE to access the Appellate Divisions decision posted on the Internet.

 

Attorney's citing a non-existent state court decision acquired using "a generative artificial intelligence tool" without reading or otherwise confirming the validity of the citation was the genesis of a referral to the Circuit Court of Appeals' Grievance Panel

In this action the United Court of Appeals, Second Circuit said it would "separately address the fact that Plaintiff's attorney [Counsel] admitted citing a non-existent state court decision in her reply brief to this Court." 

Counsel told the Circuit Court that she relied on a generative artificial intelligence tool, ChatGPT, to identify precedent that might support her arguments and did not read or otherwise confirm the validity of the (non-existent) decision she cited. The Circuit Court said "Because this conduct falls well below the basic obligations of counsel, we refer [Counsel's name] to the Court’s Grievance Panel, and further [order Counsel] to furnish a copy of this decision to her client."

The Circuit Court noted a District Judge of the Second Circuit recently held when presented with non-existent precedent generated by ChatGPT, “A fake opinion is not ‘existing law’ and citation to a fake opinion does not provide a non-frivolous ground for extending, modifying, or reversing existing law, or for establishing new law. An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system.”*

In the words of the Circuit Court, "[Counsel’s] submission of a brief relying on non-existent authority reveals that she failed to determine that the argument she made was 'legally tenable.' Cooter & Gell, 496 U.S. at 393. The brief presents a false statement of law to this Court, and it appears that [Counsel] made no inquiry, much less the reasonable inquiry required by Rule 11 and long-standing precedent, into the validity of the arguments she presented."

The Circuit Court opined "If a lawyer chooses to employ technology in representing a client, the lawyer continues to be bound by the requirements of Federal Rule of Civil Procedure 11, Local Rule AT-3, and all other applicable standards of practice and must review and verify any computer-generated content to ensure that it complies with all such standards.”

* See Mata v. Avianca, Inc., No. 22CV01461(PKC), 2023 WL 4114965 at 12 (S.D.N.Y. June 22, 2023).

Click HERE to access the Circuit Court's opinion posted on the Internet.

 

Administrative adjudications must be supported by substantial evidence to survive a judicial challenge

A correction officer [Petitioner] initiated this proceeding pursuant to CPLR Article 78 to challenge to a determination of the County of Rockland Sheriff's Office [Rockland] denying Petitioner's application for benefits pursuant to General Municipal Law §207-c.

Petitioner had applied for benefits after allegedly sustaining an injury to his lower back during a "defensive tactics training session". His application for benefits was denied "due to a lack of medical documentation". Petitioner appealed and subsequently underwent "an independent medical examination" [IME] and the examiner issued a report and thereafter an addendum to the report. 

Rockland issued a second denial of benefits on the ground that Petitioner did not sustain a causally related injury based on the IME report and addendum. Petitioner appealed Rockland's determination and requested a hearing. 

A hearing officer was appointed and ultimately the hearing officer issued a determination rejecting Petitioner's application for General Municipal Law §207-c benefits due to a lack substantial evidence. Petitioner appealed Rockland's denial of his application for §207-c benefits.

Appellate Division annulled the hearing officer's determination and granted Petitioner's application for benefits pursuant to General Municipal Law §207-c, opining that the hearing officer's determination was not supported by substantial evidence

Explaining that "Judicial review of the subject determination is limited to whether the determination is supported by substantial evidence" and, citing Matter of Solano v City of Mount Vernon, 108 AD3d 676, the Appellate Division said that "Substantial evidence means more than a 'mere scintilla of evidence,' and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides".

The Appellate Division noted that "the hearing officer relied on the conclusions set out in the IME report and addendum, and determined that they constitute substantial evidence supporting the denial of the petitioner's application for General Municipal Law § 207-c benefits." Although the IME report indicated that the alleged incident exacerbated Petitioner's preexisting lumbar spine condition, the IME examiner opined that the incident did not result in the Petitioner being disabled from work. 

The Appellate Division, however, held that the IME examiner's opinion was conclusory and unsupported by the evidence. The court noted "upon being questioned as to whether [the IME examiner] had an opinion about whether the [Petitioner] experienced a causally related period of disability relative [to the] incident, [the IME examiner] responded that he could not say with certainty."

Accordingly, the Appellate Division held that the denial of Petitioner's application for General Municipal Law §207-c benefits "was not supported by substantial evidence" and granted the petition at issue, annulled the hearing officer's determination and, in effect, approving Petitioner's application for benefits pursuant to General Municipal Law §207-c.

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

 

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Judicial review of an administrative determination denying an application for disability retirement benefits

Petitioner, a teacher's aide responsible for supervising special needs children in various activities for a school district, was involved in an incident in which two students reportedly "collided with her" and she suffered injuries as a result. Petitioner returned to work approximately one year later, without restrictions.

About one month later, students again ran into Petitioner causing her to fall and sustain injuries. 

Petitioner did not return to work and applied for disability retirement benefits pursuant to Retirement and Social Security Law §605. Petitioner alleged she was permanently incapacitated from performing her job duties due to the two incidents and residual problems after back surgery. Petitioner's application was denied by the Retirement System on the it finding that she was not permanently incapacitated from the performance of her job duties following a hearing at which conflicting medical opinions were offered.

The Appellate Division confirm the Comptroller's decision denying Petitioner's application for disability retirement benefits, noting to be entitled to disability retirement benefits, the applicant had the burden of proving the injured party is "physically ... incapacitated for the performance of gainful employment, and that [the applicant] was so incapacitated at the time [the applicant] ceased [performing the duties of the position]" and "ought to be retired for disability"*.

In finding that Petitioner was not permanently incapacitated from performing the duties of the teacher's aide position, the Hearing Officer and Comptroller credited the opinion of the orthopedic surgeon who examined applicant on behalf of the New York State and Local Employees' Retirement System. In contrast, Petitioner treating neurologist concluded that the surgery had been unsuccessful and that Petitioner was permanently incapacitated from performing the duties of the position as a result of the incidents. 

The Comptroller credited the opinion of the Retirement System's orthopedist, which he found to be rational and fact-based, over that of Petitioner's treating neurologist, explaining in detail the reasons for that credibility determination.

Notably, the Appellate Division said the record indicated "Petitioner's treating neurologist conceded that he had not reviewed Petitioner's job description, relying on her account," while the Retirement System's orthopedist took into consideration a detailed description of her job duties, which did not support her testimony that she was required to break up fights, chase students or move furniture.

Further, the Appellate Division's decision notes the Comptroller "properly considered and relied upon" the medical testimony of Petitioner's treatment providers recommending that she have a second lumbar surgery, which was considered reasonably safe, to alleviate the pain in her lower back and left leg and that Petitioner had refused to undergo such surgery, the first surgery having "been difficult".**

Citing DeFazio v DiNapoli, 211 AD3d at 1255, the Appellate Division opined "Where, as here, there is conflicting medical evidence, [the Comptroller] is vested with the exclusive authority to weigh such evidence and credit the opinion of one medical expert over another". 

The court concluded the Comptroller's decision was "based upon physical examinations and review of relevant medical records and test results" and that the Petitioner failed to meet her burden of proof of establishing that she was "permanently incapacitated from her teacher's aide job duties", which determination "was supported by substantial evidence and will not be disturbed".

* See Matter of DeFazio v DiNapoli, 211 AD3d 1254, and Matter of Frederick v New York State Comptroller, 204 AD3d 1292.

** See Matter of Pirrone v Town of Wallkill, 6 AD3d 447, in which the Appellate Division addressed the recommendation of a hearing officer's finding that the individual was required to undergo spinal fusion surgery or forfeit General Municipal Law §207-c disability retirement benefits.

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

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