Revealing a public employee's home ZIP code held to be an unwarranted invasion of personal privacy for the purposes of New York State's Freedom of Information Law

Petitioner [Plaintiff] filed a Freedom of Information Law [FOIL] request with the New York State Department of Civil Service [DCS] seeking a document containing the (1) full name, (2) home zip code, (3) hire date, (4) labor organization, (5) bargaining unit and (6) payroll deduction type of all state employees in Classified Service.* DCS supplied Plaintiff with all the requested data except employees' home zip codes and payroll deduction type, explaining that DCS:

1. does not maintain data concerning payroll deduction type; and

2. withheld the employee's home zip codes pursuant to Public Officers Law §§87(2)(b) and 89(7) and Governor Cuomo's Executive Order No. 183.** 

Following an unsuccessful appeal to DCS's FOIL appeals officer, Plaintiff initiated a CPLR Article 78 proceeding challenging the partial denial of his FOIL request and seeking a court order requiring DCS to disclose the requested zip codes. Supreme Court, among other things, concluded that neither the Public Officers Law nor Executive Order 8 No. 183 barred release of the zip codes, and granted so much of the petition as requested such data. DCS appealed the Supreme Court's ruling.

The Appellate Division, noting that "FOIL generally requires government agencies to make available for public inspection and copying all records subject to a number of exemptions" and that the "exemptions set forth in the statute are interpreted narrowly in order to effect the purpose of the statutory scheme," then addressed DCS's refusal to disclose the zip codes of the employees requested by Plaintiff.

The Court said the DCS had satisfied its statutory obligation to fully explain its determination in the administrative appeal by stating that the "disclosure of name and zip code pairings would invade employee privacy to an unwarranted degree, citing statutes that protect personal identifying information of the public generally and state workers in particular."  The Appellate Division then observed that DCS's burden was to articulate a "particularized and specific justification" for its denial but this obligation "did not arise until [Plaintiff] commenced this CPLR Article 78 proceeding."

In its effort to meet this burden DCS cited two statutory exemptions: one prohibiting release of records protected by a state or federal statute, specifically the statute providing that FOIL does not require the disclosure of, among other things, home addresses of public employees and a second permitting agencies to "deny access to records or portions thereof that ... if disclosed would constitute an unwarranted invasion of personal privacy."

The court opined that in "our current, highly technological environment, using a zip code or other partial address information directly matched with an individual's name could readily facilitate access to that person's complete home address." Thus, said the Appellate Division, the "FOIL rule that we interpret exemptions from disclosure narrowly" does not require that courts disregard the "commonsense understanding of legislative intent." Conceding "the somewhat novel nature" of its determination - that a zip code is the functional equivalent of an address for FOIL purpose," the Appellate Division said that it found that exemption applicable in the instant situation.

In considering this alternate grounds -- whether disclosing a home zip code paired with an employee's name would constitute "an unwarranted invasion of personal privacy under the provisions of  Public Officers Law §89(2)]", the court explained that this privacy exception includes eight categories that are per se unwarranted invasions of privacy and then noted that unwarranted invasions of privacy "shall not be limited to" those listed (see Public Officers Law § 89[2] [b]).

In the absence of proof establishing the applicability of one of the specifically-enumerated categories, the Appellate Division said courts "evaluate whether disclosure would constitute an unwarranted invasion of personal privacy 'by balancing the privacy interests at stake against the public interest in disclosure of the information'."

On one side of the equation is the public interest in disclosure of government records while the other side of the equation is the interests of state employees in not having their home zip codes, along with their names and job information, released to members of the public.

Citing Massaro v New York State Thruway Authority, 111 AD3d at 1003, the court said "An unwarranted invasion of personal privacy has been characterized as that which would be offensive and objectionable to a reasonable person of ordinary sensibilities" Here DCS "particularly and specifically justified its denial" when it stated that the correlation of names and home zip codes invaded employee privacy, and offered to release a summary or de-identified employee zip codes upon receipt of a new FOIL request. Plaintiff, however, declined to accept this offer tendered by DCS.

Observing the personal privacy exemption "would have little meaning if [individuals or] entities could circumvent [it] by gaining access to only the names [of public employees] and then linking them to a home address, the Appellate Division concluded that the policy concerns underlying the personal privacy exemption are no less implicated under that scenario," noting that it had earlier affirmed a denial of disclosure where the requested "records, when combined with other readily available information, ... could identify or lead to the identification of" information protected under a FOIL exemption," rejecting "(e)ven the partial disclosure of an address" because it could be used, with other information," to identify an individual.

As to special protections for state employee records, the Appellate Division concluded that Legislature's enactment of Public Officers Law §89(7) indicates its desire to protect public employees from harassment at home and here the release of home zip codes "would constitute an unwarranted invasion of personal privacy under these circumstances."

Finding that DCS had met its burden of proving that the requested zip codes are exempt from disclosure under FOIL, the Appellate Division ruled that Supreme Court erred in ordering the disclosure of such data and reversed so much the lower court's order that required DCS to disclose the zip code data requested by Plaintiff.

* §40 of the New York State Civil Service Law provides that the Classified Service "shall comprise all offices and positions not included in the unclassified service. The offices and positions in the classified service of the state and of its civil divisions shall be divided into four classes, to be designated as the exempt class, the non-competitive class, the labor class, and the competitive class."

** See 9 NYCRR 8.183, Protecting the Personal Privacy of Public Sector Workers.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2021/2021_01113.htm. 

 

Municipal and school district audits issued during the week ending February 19, 2021

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school district audits were issued during the week ending February 19, 2021.

Click on the text highlighted in color to access the complete audit report

MUNICIPAL AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following local government and school district audits have been issued.

 

Village of Red Hook – Information Technology (Dutchess County) Officials did not adequately secure and protect the village’s information technology (IT) systems against unauthorized use, access and loss. The board also did not adopt required or sufficient IT policies, provide users with IT security awareness training, or develop a disaster recovery plan. Officials were unaware that employees were accessing websites for nonbusiness purposes because they did not routinely monitor employee Internet use. The IT consultant’s responsibilities were not defined and officials did not have a formal contract with the consultant. In addition, sensitive IT control weaknesses were communicated confidentially to officials.

 

Village of Pittsford – Audit Follow-Up Letter (Monroe County) In a previous report issued in July 21, 2017, auditors identified problems with the board’s oversight over the village’s financial operations. When auditors revisited the village in August 2020 to review progress, they found limited corrective actions had occurred. Of the seven audit recommendations, one recommendation was fully implemented, four recommendations were partially implemented and two recommendations were not implemented.

 SCHOOL DISTRICT AUDITS

Honeoye Falls Lima Central School District – Access Controls (Livingston County, Monroe County and Ontario County)   District officials did not ensure user access controls were appropriate and secure. Officials did not adopt key information technology (IT) security policies, resulting in increased risk that data, hardware and software may be lost or damaged by inappropriate use or access. Officials also did not regularly review network user accounts and permissions to determine whether they were appropriate or needed to be disabled.

In addition, sensitive IT control weaknesses were communicated confidentially to officials. Due to the COVID-19 pandemic, with the district‘s increased reliance on a remote learning environment and administrative operations, protecting IT assets is critical.

 

The authority of an administrative agency's to adopt regulations to implement legislation

Regulations of the Office of Victim Services [OVS], as amended in January 2016, limited attorneys' fee awards for crime victim claimants to the costs incurred on applications for administrative reconsideration or appeal and on judicial review.* The question presented to the Court of Appeals [Court] in this appeal was whether these regulations, as amended, were in conflict with the authorizing statute** or were otherwise irrational.  

Citing Consolidated Edison Co. of New York v Department of Environmental Conservation, 71 NY2d 186, the Court said that administrative agencies have "all the powers expressly delegated to [them] by the Legislature" and are "permitted to adopt regulations that go beyond the text of [their] enabling legislation, so long as those regulations are consistent with the statutory language and underlying purpose." 

Although "an administrative agency may not, in the exercise of [its] rule-making authority engage in broad-based public policy determinations ... [t]he cornerstone of administrative law is ... the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation."

Further, the Court said it has long recognized that "where flexibility is required to enable an administrative agency to adapt to changing conditions, it is sufficient if the Legislature confers broad power upon the agency to fulfill the policy goals embodied in the statute, leaving it up to the agency itself to promulgate the necessary regulatory details."

The standard for judicial review of those regulatory details "'is whether the regulation has a rational basis and is not unreasonable, arbitrary or capricious." Where the legislature has left to an agency's discretion the determination of "what specific standards and procedures are most suitable to accomplish the legislative goals," the agency's rule making powers, "[i]f reasonably designed to further the regulatory scheme, ... cannot be disturbed by the courts unless the provision is arbitrary, illegal or runs afoul of the enabling legislation or constitutional limits ... regardless of [the court's] assessment of the 'wisdom' of the agency's approach."

The Court explained that the regulations as amended by OVS "are fully consistent with the governing statutory language and purpose," and thus are "within OVS's authority, and rational." Notwithstanding the Petitioners' argument and the dissent's reasoning to the contrary, the Court concluded that the statute, when read as a whole, grants OVS the authority to determine whether attorneys' fees are "reasonable."

Noting that "there may be other valid ways in which OVS could have defined 'reasonable' attorneys' fees," the definition in the amended regulations is rational and the application of those regulations to deny the Petitioners' fee applications "was not arbitrary and capricious."

Finding that the regulations as amended by OVS were consistent with the statutory language and OVS had "appl[ied] its special expertise in a particular field to interpret [that] statutory language," the Court held that OVS' determination was entitled to deference and, reversing the decision of the Appellate Division, reinstated the judgement of the Supreme Court.

* See 9 NYCRR §§525.3, 525.9

** Executive Law Article 22,

The text of the decision of the Court of Appeals is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2021/2021_01091.htm. 

Redaction of portions of a personnel record may be used to avoid an invasion of privacy in responding to a Freedom of Information Law request

In a proceeding pursuant to CPLR Article 78 to compel the production of certain records pursuant to the Freedom of Information Law [FOIL]* the Petitioner [Plaintiff] submitted a FOIL request for certain records to the New York City Fire Department [FDNY].

FDNY had responded to Plaintiff's FOIL request, providing certain records and withholding others. FDNY withheld the records identified in Plaintiff's FOIL request that it contended concerned requests for religious accommodations and the determinations made thereon, and accommodations from the FDNY dress requirements. FDNY had withheld those records on the grounds that:

 [1] Releasing such records would be an unwarranted invasion of personal privacy within the meaning of Public Officers Law §87(2)(b); and 

[2] The records withheld were inter-agency materials exempt by Public Officers Law §87(2)(g).

Supreme Court granted Plaintiff's petition in part and Plaintiff appealed, seeking the FDNY records that FDNY was permitted to withhold pursuant to the court's order.

The Appellate Division, indicating that FOIL provides the public with broad "access to the records of government" explained that "An agency must 'make available for public inspection and copying all records' unless it can claim a specific exemption to disclosure".**  

Further, said the court, the exemptions "are to be narrowly interpreted so that the public is granted maximum access to the records of government" as FOIL is based on a presumption of access to the records*** and the agency seeking to prevent disclosure "carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access," citing Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562.

An agency may deny access to records or portions thereof "to prevent unwarranted invasions of personal privacy" and to this end Public Officers Law Public Officers Law §89[2][b][v] provides a nonexhaustive list of categories of information that would constitute an unwarranted invasion of personal privacy if disclosed, including "disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency." However, "disclosure shall not be construed to constitute an unwarranted invasion of personal privacy "when identifying details are deleted."

In this action, ruled that the Appellate Division, FDNY failed to sustain its burden of proving that the personal privacy exemption applied to the records sought since it failed to establish that the identifying details could not be redacted so as to not constitute an unwarranted invasion of personal privacy. The court found the FDNY's conclusory assertions that the records fall within the exemption were insufficient to meet its burden of proving that the statutory exemption applies.  FDNY, opined the Appellate Division "should have produced the requested records, redacting whatever portions are necessary to safeguard the identities of the individuals who sought the accommodation, and leaving nonidentifying information intact.

The court also held that FDNY also failed to establish that the exemption for inter-agency materials applied, since the agency determinations sought were final on the accommodation requests and therefore not subject to the exemption.

Accordingly, the Appellate Division concluded that Supreme Court should have granted those branches of the petition which sought to compel disclosure of the documents sought in Plaintiff's FOIL requests that were the subject of this appeal.

* New York State Public Officers Law Article 6.

** See Matter of Data Tree, LLC v Romaine, 9 NY3d 454.

*** The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise fall within the ambit of the several exceptions to disclosure permitted by FOIL. Examples of limiting the  release of public records by statute: Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.

Click HEREto access the text of the Appellate Division's decision.

 

Special Holiday Waiver Memoranda of Understanding for the Security Supervisors Negotiating Unit, the Security Services Negotiating Unit, and the State's Agency Police Services Negotiating Unit

The New York State Department of Civil Service has published an "Attendance and Leave Bulletin" addressing Special Holiday Waiver Memoranda of Understanding for the Security Supervisors Unit (SSpU), the Security Services Unit (SSU), and the Agency Police Services Unit (APSU)

Text of Advisory Memorandum, Memorandum 2021-01 are posted at: https://www.cs.ny.gov/attendance_leave/AdvMemo21-01.cfm

If you wish to print Advisory Memorandum 2021-01 there is a version in PDF  format at:
https://www.cs.ny.gov/attendance_leave/am21-01.pdf

To view earlier Attendance and Leave bulletins issued by the Department, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

 

The job description of the applicant's position may have a significant role in evaluating a claim seeking accidental disability retirement benefits

The Court Officer [Petitioner] bring this CPLR Article 78 action was assigned to a criminal court. In the course of Petitioner's escorting an inmate who had become unruly during his sentencing hearing from the courtroom to a downstairs detention area, the inmate attempted to go back upstairs to the courtroom. Petitioner and two other court officers took action to restrain him. 

Petitioner was injured in the course of his efforts to restrain the inmate. He did not returned to work and applied for accidental disability retirement benefits, citing injuries to his neck, right arm, right wrist and both shoulders. Plaintiff's application was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law [RSSL] §605-a, which decision was subsequently sustained by a Hearing Officer. Ultimately the Comptroller adopted the Hearing Officer's findings and decision and Petitioner filed a CPLR Article 78 proceeding challenging the Comptroller's determination.

The job description for the title "court officer" contains a list of "typical duties" that includes providing security in the courtroom, guarding criminal defendants while they are in the courtroom and escorting them to and from the detention area, removing disruptive individuals from the courtroom and physically restraining unruly individuals. This job description for "court officer" proved to be a key element in the Appellate Division's review of a determination of the New York State Comptroller denying a court officer's [Petitioner] application for accidental disability retirement benefits.

Point out that the applicant for disability retirement benefits bore the burden of establishing that his disability arose from an accident within the meaning of the RSSL, the Appellate Division explained that the Comptroller's determination denying such benefits will be upheld if supported by substantial evidence.* 

Although the reports of the incident submitted to the responsible human resources administrator indicated that Petitioner was injured when he and other officers were restraining an inmate attempting to return to the courtroom, Petitioner testified that he was not attempting to restrain the inmate when he was injured but that, instead, he was "a passive victim of a sudden and unexpected assault."

Here the Comptroller had credited the earlier written accounts of the incident over Petitioner's contradictory testimony at the hearing. The Appellate Division said that it would defer to the Comptroller's "credibility assessment." 

Further, said the court, as there was substantial evidence supporting the Comptroller's finding that Petitioner's injury arose out of a risk that was foreseeable and inherent in the performance of his regular employment duties rather than an accident within the meaning of RSSL, "it will not be disturbed."

* For purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." An injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental"

Click HERE to access the Appellate Division's decision.

 

 

Westchester sisters sentenced for stealing deceased mother's pension after pleading guilty to felony grand larceny

State Comptroller Thomas P. DiNapoli and Westchester County District Attorney Miriam E. Rocah announced the sentencing of Annette Bigelow, 61, and Mary Nash, 59, who hid their mother’s death to pocket nearly $22,000 from the New York State and Local Employees Retirement System, which DiNapoli administers, from 2013 to 2015.

The two daughters pleaded guilty to felony grand larceny in September, 2020. They were sentenced to a three-year conditional discharge and ordered to pay full restitution of $22,000.

“Annette Bigelow and Mary Nash hid their mother’s death and tried to cheat the state retirement system,” DiNapoli said. “Now they have been brought to justice and will have to repay the $22,000 they stole. I thank Westchester County District Attorney Rocah’s office for aggressively pursuing this case.”

“Our office is committed to pursuing wrongdoing in Westchester, whether the victim is a person or an entity like the state retirement system,” Rocah said. “Theft like this from the pension system is ultimately stealing from New York taxpayers, and we are glad to work with the Office of the State Comptroller to help ensure that public funds are safeguarded.”

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State Comptroller DiNapoli is committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be submitted to the Comptroller by calling a toll-free Fraud Hotline at 1-888-672-4555, by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236, or by emailing a complaint to investigations@osc.ny.gov.