State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 29, 2016 522496
______________________________________
In the Matter of POLICE
BENEVOLENT ASSOCIATION
OF NEW YORK STATE, INC.,
Appellant,
v
MEMORANDUM AND ORDER
STATE OF NEW YORK et al.,
Respondents.
(And Three Other Related Proceedings.)
______________________________________
Calendar Date: November 17, 2016
Before: Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.
__________
Gleason Dunn Walsh & O'Shea, Albany (Brendan D. Sansivero
of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Robert M.
Goldfarb of counsel), for respondents.
__________
Peters, P.J.
Appeals from four judgments of the Supreme Court
(Melkonian, J.), entered January 8, 2016 in Albany County, which
dismissed petitioner's applications, in four proceedings pursuant
to CPLR article 78, to review determinations of respondents
denying petitioner's Freedom of Information Law requests.
Petitioner filed requests pursuant to the Freedom of
Information Law (see Public Officers Law art 6 [hereinafter
FOIL]) with the four respondent institutions, which are operated
by respondent State University of New York, seeking records
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related to the hiring of certain individuals for high-ranking
positions within the schools' respective police departments.
According to petitioner, these records were requested to assess
respondents' compliance with Retirement and Social Security Law
§ 211, which sets forth the limited circumstances under which a
retired public employee may receive compensation for
postretirement public employment without diminution of his or her
pension benefits. Although respondents partially granted the
requests and disclosed various documents regarding the incumbents
in the relevant positions, each denied petitioner's request for
"[a]ll resume(s), application(s), and/or correspondence submitted
or sent by other persons" who were not hired for the positions on
the ground that disclosure of such information would constitute
an unwarranted invasion of personal privacy (see Public Officers
Law §§ 87 [2] [b]; 89 [2]). Following an unsuccessful
administrative appeal of each of the denials, petitioner
commenced these CPLR article 78 proceedings. Supreme Court
dismissed the petitions, and these appeals ensued.
"Under FOIL, agency records are presumptively available for
public inspection, without regard to the need or purpose of the
applicant, unless the requested documents fall within one of the
exemptions set forth in Public Officers Law § 87 (2)" (Matter of
Aurigemma v New York State Dept. of Taxation & Fin., 128 AD3d
1235, 1236-1237 [2015] [internal quotation marks and citations
omitted]; see Matter of Fappiano v New York City Police Dept., 95
NY2d 738, 746 [2001]; Matter of Johnson v Annucci, 138 AD3d 1361,
1362 [2016], lv denied 27 NY3d 911 [2016]). "Exemptions are to
be narrowly construed to provide maximum access, and the agency
seeking to prevent disclosure carries the burden of demonstrating
that the requested material falls squarely within a FOIL
exemption" (Matter of Capital Newspapers Div. of Hearst Corp. v
Burns, 67 NY2d 562, 566 [1986] [citations omitted]; see Matter of
Town of Waterford v New York State Dept. of Envtl. Conservation,
18 NY3d 652, 657 [2012]; Matter of MacKenzie v Seiden, 106 AD3d
1140, 1141 [2013]). Notably, "blanket exemptions for particular
types of documents are inimical to FOIL's policy of open
government" (Matter of Gould v New York City Police Dept., 89
NY2d 267, 275 [1996]; accord Matter of Thomas v New York City
Dept. of Educ., 103 AD3d 495, 498 [2013]; Matter of New York
State Defenders Assn. v New York State Police, 87 AD3d 193, 196
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[2011]), and the agency must "articulat[e] a particularized and
specific justification for denying access" to the requested
documents (Matter of Capital Newspapers Div. of Hearst Corp. v
Burns, 67 NY2d at 566; accord Matter of West Harlem Bus. Group v
Empire State Dev. Corp., 13 NY3d 882, 885 [2009]; Matter of
Moody's Corp. & Subsidiaries v New York State Dept. of Taxation
and Fin., 141 AD3d 997, 999 [2016]).
Public Officers Law § 87 (2) (b) permits an agency to deny
access to records, or portions thereof, if disclosure "would
constitute an unwarranted invasion of personal privacy." The
statute does not, however, categorically exempt such documents
from disclosure. To the contrary, Public Officers Law § 89
expressly permits an agency to delete "identifying details" from
records that it makes available to the public (Public Officers
Law § 89 [2] [a]), and provides that "disclosure shall not be
construed to constitute an unwarranted invasion of personal
privacy . . . when [such] identifying details are deleted"
(Public Officers Law § 89 [2] [c] [i]; see Matter of Scott,
Sardano & Pomeranz v Records Access Officer of City of Syracuse,
65 NY2d 294, 298 [1985]; Matter of New York Times Co. v New York
State Dept. of Health, 243 AD2d 157, 159 [1998]).
Here, petitioner concedes that both the names and the home
addresses of the unsuccessful applicants are not subject to
disclosure under FOIL (see Public Officers Law § 89 [7]), and
reiterates its consent to the redaction of such information, as
well as any other identifying details, from the requested
resumes, applications and cover letters. Nevertheless,
respondents argue – and Supreme Court agreed – that, given the
prominent nature of the positions and the limited number of
applicants, disclosure of the requested documents, even with
appropriate redactions, could lead to the identification of the
unsuccessful applicants. Such speculation, however, "does not
rise to the level of 'a particularized and specific justification
for denying access' to the [entirety of] the records requested"
(Matter of Legal Aid Socy. of Northeastern N.Y. v New York State
Dept. of Social Servs., 195 AD2d 150, 153 [1993], quoting Matter
of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at
566; see Matter of Porco v Fleischer, 100 AD3d 639, 640 [2012];
Matter of New York Times Co. v New York State Dept. of Health,
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243 AD2d at 159; Brown v Town of Amherst, 195 AD2d 979, 979
[1993]). Respondents have failed to demonstrate any factual
basis for their assertion that the requested documents cannot be
redacted in such a manner as to protect the identity of the
individual applicants (see Matter of New York Times Co. v New
York State Dept. of Health, 243 AD2d at 160; Matter of Legal Aid
Socy. of Northeastern N.Y. v New York State Dept. of Social
Servs., 195 AD2d at 153; compare Matter of Comps, Inc. v Town of
Huntington, 269 AD2d 446, 447 [2000], lv denied 95 NY2d 758
[2000]; Matter of Seigel, Fenchel & Peddy v Central Pine Barrens
Joint Planning & Policy Commn., 251 AD2d 670, 671-672 [1998], lv
denied 93 NY2d 804 [1999]). Nor were the documents in question
submitted to Supreme Court for an in camera review so as to
enable the court to make an informed determination on this issue
(see Matter of Gould v New York City Police Dept., 89 NY2d at
275; Matter of M. Farbman & Sons v New York City Health & Hosps.
Corp., 62 NY2d 75, 83 [1984]; Matter of Miller v New York State
Dept. of Transp., 58 AD3d 981, 983 [2009], lv denied 12 NY3d 712
[2009]). Under these circumstances, the matter must be remitted
to Supreme Court for an in camera inspection of the requested
documents to determine the extent to which they contain
information exempt from disclosure and whether such information
can be redacted while still protecting the personal privacy of
those individuals (see Matter of M. Farbman & Sons v New York
City Health & Hosps. Corp., 62 NY2d at 83; Matter of Hearst Corp.
v New York State Police, 132 AD3d 1128, 1130 [2015]; Matter of
Rose v Albany County Dist. Attorney's Off., 111 AD3d 1123, 1126
[2013]; Matter of Thomas v New York City Dept. of Educ., 103 AD3d
at 499; Matter of Obiajulu v City of Rochester, 213 AD2d 1055,
1056 [1995]).
Petitioner's remaining contentions do not require extended
discussion. By failing to raise on administrative appeal its
argument that respondent State University of New York, Purchase
College improperly denied its requests for additional categories
of documents, petitioner failed to preserve the issue for our
review (see Matter of Khan v New York State Dept. of Health, 96
NY2d 879, 880 [2001]; Matter of Matsen v New York State Dept. of
Motor Vehs., 134 AD3d 1283, 1283 n 2 [2015]; Matter of Bass Pro,
Inc. v Megna, 69 AD3d 1040, 1042 [2010]). Although petitioner
did preserve its argument that respondent State University at New
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York, Stony Brook University improperly denied its requests for
three additional categories of documents, the affidavit of Stony
Brook's record access officer establishes that all responsive
documents have been provided for one of the requests (request No.
7) and that Stony Brook is not in possession of any documents
responsive to the other two requests (requests Nos. 16 and 23).
Thus, Stony Brook adequately established the nonexistence of
additional records requested by petitioner (see Matter of Rattley
v New York City Police Dept., 96 NY2d 873, 875 [2001]; Matter of
Gould v New York City Police Dept., 89 NY2d at 279).
Garry, Devine, Mulvey and Aarons, JJ., concur.
ORDERED that the judgments are modified, on the law,
without costs, by reversing so much thereof as found that the
documents sought in request number 15 were exempt from disclosure
pursuant to Public Officers Law § 87 (2) (b); matter remitted to
the Supreme Court for further proceedings not inconsistent with
this Court's decision; and, as so modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court