Duplicative FOIL requests

Duplicative FOIL requests
Badalamenti v Office of Dist. Attorney Nassau County, 2011 NY Slip Op 08588, Appellate Division, Second Department

The Nassau County District Attorney's Office rejected the FOIL request submitted by Anthony Badalamenti seeking the disclosure of certain telephone numbers and recordings of certain telephone calls.

In the proceeding before Supreme Court the District Attorney's Office had established that it had earlier provided Badalamenti with the information or records he sought pursuant to an earlier FOIL request or hat it did not have the records he demanded in its possession.

The Appellate Division held that FOIL does not require the custodian of the public records demanded, here the District Attorney’s Office, to furnish records it does not possess.

The court also ruled that Badalamenti was not entitled to additional copies of those records he sought that had previously be provided to him “unless he can show that the copies are no longer in his or his attorney's possession, a showing he failed to make.”

Access to documents under FOIL limited

Access to documents under FOIL limited

Sinicropi v. Nassau County, 76 AD2d 832

Sinicropi was denied access to certain records related to an administrative disciplinary proceeding.

Citing the McAulay decision (48 NY2d 659), the court refused to order the employer to give the Sinicropi the records he sought, which records the court described as intra-agency memoranda concerning an employee, notes and communications made in preparation of the disciplinary hearing and the transcript of the hearing.

The court viewed this materials as “pre-decisional intra-agency memoranda that are not reflective of final agency policy or determinations” and are therefore exempt from disclosure under the Freedom of Information Law.

Sinicropi had been given a copy of the charges preferred against an employee, the employee's answer to the charges, the "bill of particulars" of the charges and the stipulation of settlement of the disciplinary action. The Court held that further disclosure would be unnecessary and improper.

Human Rights Appeals Board review powers limited

Human Rights Appeals Board review powers limited

CBS v. State Human Rights Appeals Board, 76 AD2d 813

The Division of Human Rights had dismissed the complaint of discrimination filed by a former employee of CBS for lack of probable cause.

On appeal the Human Rights Appeals Board reversed the Division’s determination after making its own findings as to seniority and other matters concerning the complaint.

The Appellate Division held that in so doing the Appeals Board had exceeded its authority, substituting its own factual findings for that of the Division.

The Board’s function, said the court, is to determine whether the Division’s decision was based on substantial evidence or not.

The Appellate Division then reinstated the Division’s determination, stating that “in reversing [the Division] the Board must have been saying either that there was not substantial evidence or else that the ruling was arbitrary and capricious and an unwarranted exercise of discretion. There was no basis for this determination ... the Division’s expertise in evaluating discrimination claims may not be lightly disregarded.”