Irwin v. Onondaga County Resource Recovery Agency

Gorski, J. (dissenting in part).

We respectfully dissent in part. In our view, respondent Onondaga County Resource Recovery Agency (OCRRA) failed to meet its burden of establishing that disclosure of the unpublished photographs of individuals other than petitioner would constitute an unwarranted invasion of personal privacy (see Public Officers Law § 87 [2] [b]; § 89 [2] [b]; Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 462 [2007]). Disclosure “exemptions are to be narrowly interpreted so that the public is granted maximum access to the records of government” (Data Tree, *323LLC, 9 NY3d at 462). Petitioner requested those photographs “available for use in any OCRRA publications.” The majority concludes that the subjects of those photographs gave only a limited consent to the use of their likeness for the purpose of public education. However, the public education purpose for which the subjects allowed their photographs to be taken was for use in OCRRA’s publications. We therefore conclude that OCRRA failed to establish that “the material requested falls squarely within the ambit of [the personal privacy] statutory exemption[ ]” (Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]; see Public Officers Law § 87 [2] [b]; § 89 [2] [b]), inasmuch as those subjects “understood or reasonably should have understoodt ] that [their likenesses] were destined for public disclosure” (Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 488 [2005]). We therefore would further modify the amended judgment by granting those parts of the petition seeking to compel disclosure of unpublished photographs of individuals other than petitioner and the “system” metadata associated with those photographs, as described by the majority. We would further direct respondent Executive Director of OCRRA to provide to petitioner those photographs and the system metadata associated with them.

Finally, we note that the majority impliedly questions the motives of petitioner in requesting the photographs and metadata at issue, as do we, but we agree with the majority that motive is not a relevant factor in evaluating such a request (see Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 492 [1994]).

Scudder, P.J., and Centra, J., concur with Fahey, J.; Green and Gorski, JJ., dissent in part in a separate opinion by Gorski, J.

It is hereby ordered that the amended judgment so appealed from is modified, on the law, by granting those parts of the petition seeking to compel disclosure of unpublished photographs in the possession of respondent Onondaga County Resource Recovery Agency with the exception of unpublished photographs depicting individuals other than petitioner or relating to active or ongoing law enforcement investigations and seeking to compel disclosure of the system metadata associated with those photographs that have been disclosed or are subject to disclosure and as modified the amended judgment is affirmed, without costs, and respondent Executive Director of Onondaga County Resource Recovery *324Agency is directed to provide to petitioner forthwith those photographs that are subject to disclosure and the system metadata associated with those photographs that have been disclosed or are subject to disclosure.