In processing a Freedom of Information Law request custodian of the records may redact any personally identifiable information contained in those records

Under New York State's Freedom of Information Law all government records are presumed open for public inspection and copying unless they fall within a statutory exemption and the government agency electing to not to provide such material bears the burden of demonstrating that the material requested falls squarely within the ambit of one or more such exemptions.

Further, if certain requested records contain material which may be exempted pursuant to Public Officers Law §87(2)(a), (e) (i), or (f), the Appellate Division opined the appropriate remedy is disclosure of all nonexempt material, appropriately redacting the material which may be exempted consistent with law. 

The text of the Appellate Division's decision set out below:

Matter of Aron Law PLLC v Rochester City Sch. Dist.

2025 NY Slip Op 01519

Decided on March 14, 2025

Appellate Division, Fourth 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 March 14, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., CURRAN, OGDEN, NOWAK, AND KEANE, JJ.

665 CA 23-01893

[*1]IN THE MATTER OF ARON LAW PLLC, PETITIONER-APPELLANT-RESPONDENT,

v

ROCHESTER CITY SCHOOL DISTRICT, RESPONDENT-RESPONDENT-APPELLANT.

ARON LAW, PLLC, BROOKLYN (JOSEPH H. ARON OF COUNSEL), FOR PETITIONER-APPELLANT-RESPONDENT.

BOND, SCHOENECK & KING, PLLC, ROCHESTER (JEREMY M. SHER OF COUNSEL), FOR RESPONDENT-RESPONDENT-APPELLANT.

Appeal and cross-appeal from a judgment (denominated order and judgment) of the Supreme Court, Monroe County (Sam L. Valleriani, J.), dated October 23, 2023, in a proceeding pursuant to CPLR article 78. The judgment granted in part and denied in part the petition and denied the motion of respondent to dismiss the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reinstating the petition insofar as it seeks disclosure of communications, subject to redaction pursuant to particularized and specific justification under Public Officers Law § 87 (2) and granting the petition to that extent, and by reinstating the petition insofar as it seeks an award of attorney's fees and costs pursuant to Public Officers Law § 89 (4) (c), and as modified the judgment is affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to compel respondent to disclose records pursuant to the Freedom of Information Law ([FOIL] Public Officers Law § 84 et seq.)—including video footage, police reports, and certain communications—concerning a shooting that took place at or near Franklin High School in the City of Rochester. Petitioner also sought an award of attorney's fees. Petitioner appeals and respondent cross-appeals from a judgment that granted the petition only to the extent that it sought to compel disclosure of the requested video footage and police reports, subject to redaction.

Under FOIL, "[a]ll government records are . . . presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87 (2)" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274-275 [1996]; see Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 225 [2018], rearg denied 31 NY3d 1125 [2018]). The exemptions are to be

" 'narrowly construed' " (Gould, 89 NY2d at 275; see Matter of Hawley v Village of Penn Yan, 35 AD3d 1270, 1271 [4th Dept 2006], amended on rearg 38 AD3d 1371 [4th Dept 2007]), and the government agency bears the burden of demonstrating that " 'the material requested falls squarely within the ambit of one of [the] . . . exemptions' " (Abdur-Rashid, 31 NY3d at 225; see Matter of National Lawyers Guild, Buffalo Ch. v Erie County Sheriff's Off., 196 AD3d 1195, 1196 [4th Dept 2021]). To invoke one of the exemptions, the government agency "must articulate 'particularized and specific justification' for not disclosing requested documents" (Gould, 89 NY2d at 275; see Matter of Nix v New York State Div. of Criminal Justice Servs., 167 AD3d 1524, 1525 [4th Dept 2018], lv denied 33 NY3d 908 [2019]).

Addressing first the cross-appeal, we reject respondent's contention that Supreme Court [*2]erred in granting the petition insofar as it sought to compel disclosure of the requested video footage and police reports, and we conclude that the court properly determined that redaction of certain portions of those materials may be appropriate. To the extent that the video footage constitutes an education record that is specifically exempted from disclosure by federal statute (see Public Officers Law § 87 [2] [a]), here the Federal Educational Rights and Privacy Act, respondent should redact any personally identifiable information contained in those records (see 20 USC § 1232g [b] [2]; 34 CFR 99.31 [b] [1]; Easton Area Sch. Dist. v Miller, 659 Pa 606, 627-632, 232 A3d 716, 728-731 [2020]; Matter of Jewish Press, Inc. v Kingsborough Community Coll., 201 AD3d 547, 549 [1st Dept 2022]) and submit the redacted records to the court to conduct an in camera comparison of the redacted and original records. Although respondent contends that the video footage and police reports are exempt from disclosure under Public Officers Law

§ 87 (2) (e) (i) and (f), we conclude that respondent's broad allegation "is insufficient to overcome the presumption that the records are open for inspection . . . and categorically deny petitioner all access to the requested material" (Matter of Konigsberg v Coughlin, 68 NY2d 245, 251 [1986]). Respondent may, however, submit the video footage and police reports to the court for an in camera comparison of the redacted records to the originals if it believes certain material is contained within them is exempt from disclosure under Public Officers Law § 87 (2) (e) (i) and (f). If respondent establishes that the requested records contain material exempt under Public Officers Law § 87 (2) (a), (e) (i), or (f), "the appropriate remedy is . . . 'disclosure of all nonexempt, appropriately redacted material' " (Matter of Pflaum v Grattan, 116 AD3d 1103, 1105 [3d Dept 2014], quoting Gould, 89 NY2d at 275).

We agree with petitioner on its appeal that the court erred in denying the petition insofar as it sought to compel respondent to provide petitioner with access to the requested communications, and we therefore modify the judgment accordingly. In response to petitioner's FOIL request, respondent failed to demonstrate that the requested material qualifies for an exemption inasmuch as it did not articulate a " 'particularized and specific justification' for not disclosing" the requested communications (Gould, 89 NY2d at 275). Respondent now asserts for the first time that the requested communications were not reasonably described. Our review of the administrative determination, however, is limited to the grounds invoked by the agency in denying the FOIL request (see Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 74-75 [2017]; Matter of Barry v O'Neill, 185 AD3d 503, 505 [1st Dept 2020]). Respondent therefore must provide the requested communications to petitioner "subject to any redactions or exemptions pursuant to a particularized and specific justification" for exempting any portion thereof (Matter of New York Civ. Liberties Union v City of Syracuse, 210 AD3d 1401, 1407 [4th Dept 2022]).

In light of our determination, we agree with petitioner that the court erred in denying that part of the petition seeking attorney's fees and costs pursuant to Public Officers Law § 89 (4) (c), and we therefore further modify the judgment by reinstating the petition to that extent. Nevertheless, we further conclude that petitioner's contention that the court erred in failing to grant that part of the petition seeking attorney's fees and costs pursuant to Public Officers Law § 89 (4) (c) is premature (see Matter of Lane v Port Wash. Police Dist., 221 AD3d 698, 708 [2d Dept 2023]; see also Matter of Forsyth v City of Rochester [appeal No. 1], 185 AD3d 1499, 1500-1501 [4th Dept 2020]).

Entered: March 14, 2025

Ann Dillon Flynn

Clerk of the Court

Divesting a public retirement plan of fossil-fuel based investments in order to allocate more to "green" investments, is speculative and "insufficient to trigger judicial intervention"

Recipients of a defined benefit to be provided by a New York State public retirement plan were entitled to receive a "fixed payment each month" that did "not fluctuate with the value of the plan or because of the plan fiduciaries' good or bad investment decisions". 

Plaintiffs in this action contended the Retirement Systems breached its fiduciary duties as plan trustees by divesting the plan of fossil-fuel based investments in order to allocate more to "green" investments.

Under New York law, a plaintiff must demonstrate that they suffered an "injury in fact" in order prevail. The Appellate Division found that documentary evidence and the absence of any support for the allegation that the plans might be unable to cover their obligations to retirees, or that the City will be unable to cover any shortfall, plaintiffs' arguments are speculative.

  

The Appellate Division's decision, indicating the Plaintiffs' arguments in the instant matter were "speculative and insufficient to trigger judicial intervention" dismissed th Plaintiffs' cause of action.

The Appellate Division's decision is set out below:

 

Wong v New York City Empls.' Retirement Sys.

2025 NY Slip Op 01332

Decided on March 11, 2025

Appellate Division, First 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 and Entered: March 11, 2025
Before: Webber, J.P., Kapnick, González, Scarpulla, Michael, JJ.

Index No. 652297/23|Appeal No. 3864, M-596|Case No. 2024-05062|

[*1]Wayne Wong, et al., Plaintiffs-Appellants,

v

New York City Employees' Retirement System, et al., Defendants-Respondents. Empire Center for Public Policy, Inc., and Government Justice Center, Inc., Amici Curiae.

Gibson, Dunn & Crutcher LLP, New York (Akiva Shapiro of counsel), for appellants.

Muriel Goode-Trufant, Corporation Counsel, New York (Elina Druker of counsel), for respondents.

Government Justice Center, Inc., Albany (Cameron J. Macdonald of counsel), for Amici Curiae.

Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about July 3, 2024, which granted the motion of defendants the New York City Employees' Retirement System, Teachers' Retirement System of the City of New York, and Board of Education Retirement System of the City of New York to dismiss the complaint, unanimously affirmed, without costs.

On this pre-answer motion to dismiss, plaintiffs have failed to establish standing (see Deutsche Bank Natl. Trust Co. v Umeh, 145 AD3d 497, 497 [1st Dept 2016]), because as recipients of a defined benefit retirement plan, plaintiffs were entitled to receive a "fixed payment each month" that did "not fluctuate with the value of the plan or because of the plan fiduciaries' good or bad investment decisions" (Thole v U.S. Bank N.A., 590 US 538, 540 [2020]). Moreover, absent an injury, there was "little to be gained from an abstract challenge to alleged fiduciary misconduct at the cost of the plan and those participants who did not bring (and may not approve of) the suit" (David v Alphin, 704 F3d 327, 336 [4th Cir 2013]). Although this Court is "not bound to adhere to federal standing requirements" (US Bank N.A. v Nelson, 36 NY3d 998, 1003 n 4 [2020] [Wilson, J., concurring]), under New York law, plaintiffs must nevertheless demonstrate that they suffered an "injury in fact" (Matter of Mental Hygiene Legal Serv. v Daniels, 33 NY3d 44, 50 [2019] [internal quotation marks omitted]). Plaintiffs' reliance on the common law of trusts is unavailing, as defined benefit plans are "more in the nature of a contract," whereby the benefits under such plans "are fixed and will not change, regardless of how well or poorly the plan is managed. The benefits paid to the participants in a defined-benefit plan are not tied to the value of the plan" (Thole, 590 US at 542-543).

The crux of plaintiffs' claim, that defendants breached their fiduciary duties as plan trustees by divesting the plan of fossil-fuel based investments in order to allocate more to "green" investments, is speculative and "insufficient to trigger judicial intervention" (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 214 [2004] [internal quotation marks omitted]; see Matter of Bolofsky v City of N.Y., 205 AD3d 515, 516 [1st Dept 2022] [finding no standing to bring claims where risk of "harm is entirely conjectural"]). Discretion to make investment decisions for public retirement systems is vested in politically accountable trustees, and their exercise of that authority cannot be encroached upon by the Legislature or the courts (see Sgaglione v Levitt, 37 NY2d 507, 512-513 [1975]). Here, particularly based on the documentary evidence and the absence of any support for the allegation that the plans might be unable to cover their obligations to retirees, or that the City will be unable to cover any shortfall, plaintiffs' arguments are speculative.

We have considered plaintiffs' remaining contentions and find them unavailing.

M-596[*2]— Wong et al. v New York City Employees' Retirement Sys. et al.

Motion for leave to file an amicus brief, granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 11, 2025

 

Legal victory in U.S. District Court

New York State's Attorney General Letitia James and other state attorney generals won a significant legal victory as a U.S. District Court ordered the Trump administration to reinstate thousands of probationary federal employees who were terminated. The ruling directs such reinstatement by March 17, 2025. More HERE.

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FEDERAL FUNDING UNCERTAINTY JEOPARDIZES IMPACT OF INFLATION REDUCTION ACT FOR NEW YORKERS

A new report by State Comptroller Thomas P. DiNapoli details New York’s financial impact from the 2022 Inflation Reduction Act (IRA), including close to $2 billion in funds for environmental and energy purposes that could help lower costs to consumers during New York’s transition to clean energy. DiNapoli warns there is now significant uncertainty about whether this funding will continue after a new executive order issued by President Trump.

“The possible policy changes in Washington could lead to delays or cuts to the remaining IRA funds and tax credits,” DiNapoli said. “Given the strong interest in improving affordability for consumers, small businesses, farmers, and nonprofits, preserving the IRA’s grant and tax credit programs should be a priority. If the programs are allowed to continue, New York could receive significant additional funding for critical environmental and clean energy projects.”

IRA Grants

Energy, clean air and conservation programs funded through the IRA provide over $142 billion through federal programs managed by several U.S. agencies. New York state agencies and authorities, municipalities, businesses and nonprofit organizations have been awarded nearly $2 billion in grants to date.

New York state agencies and authorities have been awarded grants totaling more than $1.3 billion from IRA programs for a range of specific greenhouse gas reducing activities and funds to support incentive programs; however, only a small amount of this funding has been received. Since the programs these grants support are currently financed almost exclusively through charges on the electric and gas bills of the state’s utility customers, these grants could offset a portion of these charges and help to make the clean energy transition more affordable for consumers.

New York municipalities have been awarded at least $365.8 million for a variety of projects to reduce greenhouse gas emissions and other pollution and build resilience to climate change. For example, New Rochelle, Buffalo, and New York City received a combined $236.4 million in commitments for projects to redress harm to communities from highway projects that physically split up neighborhoods and increased pollution from vehicles.  

New York nonprofit organizations have been awarded at least $125 million in IRA funds, including grants to assist communities in identifying sources of air pollution and engaging with regulators to address them and programs to address local climate change and pollution impacts.

The IRA has awarded at least $155 million in grants to farms and businesses in New York state. This includes funding through the U.S. Department of Agriculture’s Rural Energy for America Program, which supports renewable energy development and efficiency upgrades at farms and rural businesses.   

Tax Credits

There are over 20 new or modified clean energy and clean vehicle tax credits available through the IRA. IRA tax credits cover a variety of activities including manufacturing of advanced biofuels, purchase of clean vehicles, energy efficiency retrofits of homes and commercial buildings, advanced manufacturing investment and production, clean electricity production and investment, carbon capture and storage and other activities that will reduce emissions of pollutants that cause climate change and other air pollution problems. 

The Internal Revenue Service has published information on the number of tax filers who claimed just two of these credits, the IRA Residential Clean Energy (RCEC) and Energy Efficient Home Improvement (EEHI) tax credits, which incentivize purchases of residential clean energy equipment and residential energy efficiency improvements. Out of all states, New York ranked 28^th in the share of tax filers claiming these credits, with 2.2% of filers claiming these credits. If these credits remain in effect through 2032 as currently scheduled, and the share of filers and average tax credit claimed by New York filers remains the same, state residents could benefit from at least $3.4 billion over the life of the program. Additional benefits would accrue over the last two years of the RCEC, which is currently in effect until 2034. Considering that these are just two of the tax credit programs available, the IRA tax credit programs have the potential to provide significant advantages to New Yorkers.

On Jan. 20, President Trump issued an executive order titled “Unleashing American Energy,” which under a section designated “Terminating the Green New Deal,” directs all agencies to pause payments for IRA grant funds. In addition, the repeal of IRA tax credits has been identified as a possible way to pay for reauthorization or expansion of provisions of the 2017 Tax Cuts and Jobs Act, bringing significant uncertainty regarding future funding.

Analysis

Economic Policy and Insights: Impact of the Inflation Reduction Act on New York