New York Law Review

Tag: FOIL exemption

  • New York State United Teachers v. Brighter Choice Charter School, 18 N.Y.3d 560 (2012): FOIL Exemption for Lists Used for Fundraising

    New York State United Teachers v. Brighter Choice Charter School, 18 N.Y.3d 560 (2012)

    Under New York’s Freedom of Information Law (FOIL), an agency may deny access to records, including lists of names, if disclosure would constitute an unwarranted invasion of personal privacy, such as when the list would be used for fundraising purposes.

    Summary

    New York State United Teachers (NYSUT) sought payroll records, including teacher names, from several charter schools via FOIL. The charter schools refused to disclose the teachers’ names, arguing it would be an unwarranted invasion of privacy because NYSUT would use the list for fundraising (i.e., soliciting membership). The New York Court of Appeals held that disclosing the names was not required under FOIL because NYSUT’s intended use of the list to solicit members constituted fundraising, triggering a FOIL exemption. The Court reasoned that the purpose for which the information is sought, not the public or private status of the individuals, determines whether the exemption applies.

    Facts

    NYSUT requested payroll records from six charter schools, including teacher names, titles, salaries, and home addresses. The charter schools partially denied the request, withholding teacher names and home addresses. NYSUT administratively appealed without success and then commenced legal action. NYSUT sought the teacher’s names, titles, and salaries. The Charter Schools agreed to provide titles and salaries but continued to withhold the names.

    Procedural History

    NYSUT commenced a hybrid CPLR article 78/declaratory judgment action in Supreme Court, seeking disclosure of the teacher’s names. Supreme Court ordered disclosure. The Appellate Division affirmed, reasoning that NYSUT dropped its request for home addresses and that the Charter Schools were required to keep basic employee information pursuant to Public Officers Law § 87 (3)(b). The New York Court of Appeals reversed the Appellate Division’s order.

    Issue(s)

    Whether charter schools must disclose the names of their teachers pursuant to FOIL when the requesting party intends to use the names for membership solicitation, which the charter schools argue constitutes fundraising, thus triggering an exemption to disclosure.

    Holding

    No, because NYSUT’s intent in requesting the teacher names is to expand its membership and, by extension, obtain membership dues; thus the request falls within the fund-raising exemption of Public Officers Law § 89 (2)(b)(iii).

    Court’s Reasoning

    The Court of Appeals reasoned that while charter schools are subject to FOIL and must maintain a record of employee names, titles, and salaries under Public Officers Law § 87 (3)(b), there’s an exception. Under Public Officers Law § 89 (2), an agency may deny access to records if disclosure would constitute an unwarranted invasion of personal privacy, including the “sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes.” The court relied on Matter of Federation of N.Y. State Rifle & Pistol Clubs v New York City Police Dept., 73 NY2d 92 (1989), stating that it is the purpose of the solicitation that matters, not what it is called. Giving the term “fund-raising” its “natural and most obvious meaning” (Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 251 [1987]), NYSUT’s intent to expand its membership and obtain dues qualifies as fundraising. The court also noted that ordering disclosure of the names would not further the policies of FOIL, which are to assist the public in making informed choices about governmental activities. The court emphasized that the purpose for which the information is sought drives the analysis. The fact that NYSUT dropped its request for addresses is irrelevant; the fundraising exemption is implicated even when only names are sought, as they can be linked to addresses through other means. The court stated, “it is precisely because no governmental purpose is served by public disclosure’ of this information that section 87 (2) (b)’s privacy exemption falls squarely within FOIL’S statutory scheme”.

  • West Harlem Bus. Group v. Empire State Dev. Corp., 13 N.Y.3d 882 (2009): Freedom of Information Law & Specificity of Exemption Claims

    13 N.Y.3d 882 (2009)

    Under New York’s Freedom of Information Law (FOIL), an agency denying access to records must provide a particularized and specific justification for withholding the documents, demonstrating how a specific exemption applies; generalized claims are insufficient.

    Summary

    West Harlem Business Group (WHBG) sought documents from Empire State Development Corporation (ESDC) related to Columbia University’s campus construction under FOIL. ESDC initially denied access based on a broad exemption, later changing its justification during litigation. The court ordered disclosure, finding ESDC failed to provide a sufficiently detailed explanation of why specific exemptions applied. The Court of Appeals affirmed, emphasizing that agencies must articulate specific reasons for withholding documents under FOIL, rather than relying on blanket assertions of exemptions. This case highlights the importance of agency transparency and accountability in responding to FOIL requests.

    Facts

    WHBG, a business association, submitted FOIL requests to ESDC concerning Columbia University’s construction project. One request sought documents related to an agreement between Columbia and ESDC. ESDC denied the request, citing an exemption for impairing contract awards or collective bargaining negotiations. During subsequent litigation, ESDC changed its rationale, claiming exemptions for inter-agency materials and attorney-client privileged communications. ESDC provided documents for in-camera review but failed to specify which exemption applied to each document.

    Procedural History

    WHBG initiated a CPLR article 78 proceeding after ESDC denied its FOIL request. Supreme Court ordered an in-camera review of the withheld documents. Dissatisfied with ESDC’s lack of specificity, the Supreme Court created its own document log and ordered disclosure. The Appellate Division affirmed the Supreme Court’s decision. ESDC appealed to the New York Court of Appeals.

    Issue(s)

    Whether ESDC met its burden under FOIL to justify withholding documents by articulating a particularized and specific justification for claiming that the requested documents were exempt from disclosure under Public Officers Law § 87(2)(a) and (g).

    Holding

    No, because ESDC provided only conclusory characterizations of the records without sufficiently identifying the particular exemption to which the submitted records were subject; therefore, ESDC failed to meet its burden of proof relative to the exemptions, and the Supreme Court properly ordered disclosure of the documents.

    Court’s Reasoning

    The Court of Appeals emphasized that ESDC had a duty to conduct a diligent search for responsive documents and to fully explain in writing the reasons for denying access. The court criticized ESDC for initially relying on a broad exemption and later changing its justification during litigation, characterizing this as a failure to comply with FOIL’s requirements. The Court found that ESDC’s conclusory characterizations of the records were insufficient to meet its burden of establishing that the documents were exempt from disclosure. ESDC failed to articulate a particularized and specific justification for each document, instead providing blanket assertions of exemptions. Quoting Church of Scientology of N.Y. v State of New York, 46 NY2d 906, 907-908 (1979), the Court stated that ESDC provided “conclusory characterizations” of the records sought. Because ESDC failed to meet its burden of proof regarding the exemptions, the Supreme Court properly ordered disclosure of the documents. The court noted that it is not the function of the Supreme Court to apply the exemptions for the agency. This case reinforces the principle that agencies must provide detailed and specific explanations when denying access to records under FOIL.

  • Markowitz v. Serio, 11 N.Y.3d 43 (2008): FOIL Exemption and Competitive Injury in Insurance Regulation

    11 N.Y.3d 43 (2008)

    An insurance regulation mandating that reports be “public record” does not automatically negate an insurer’s right to assert a Freedom of Information Law (FOIL) exemption if disclosure would cause substantial competitive injury, but the burden of proving such injury is a high one requiring specific, persuasive evidence.

    Summary

    Brooklyn Borough President Markowitz sought zip code-level auto insurance data from the NYS Insurance Department under FOIL, arguing it was a public record under insurance regulations aimed at preventing redlining. The Department refused, claiming the data was a trade secret and its release would cause substantial competitive harm to insurers. The Court of Appeals held that while the reports are subject to FOIL, the insurers failed to demonstrate specific competitive injury. The court emphasized the narrow interpretation of FOIL exemptions and the requirement of concrete evidence of harm, reversing the Appellate Division’s decision and ordering disclosure.

    Facts

    Marty Markowitz, Brooklyn Borough President, filed FOIL requests with the NYS Insurance Department for Regulation 90 reports. These reports contain zip code-level data on auto insurance policies, including issuances, renewals, cancellations, and non-renewals, broken down by carrier. Markowitz argued the reports were public records under 11 NYCRR 218.7(d). The Insurance Department provided county-level data but refused to release zip code-specific data, asserting FOIL exemptions for trade secrets and potential competitive harm.

    Procedural History

    After exhausting administrative remedies, Markowitz filed an Article 78 proceeding. Supreme Court granted the petition, ordering disclosure. The Appellate Division reversed, finding the Department’s decision to withhold the reports reasonable, based on evidence of potential competitive harm to insurers. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether 11 NYCRR 218.7(d)’s designation of Regulation 90 reports as “public record” prevents the Insurance Department from withholding the reports under a FOIL exemption.

    2. Whether the Insurance Department and the intervening insurers met their burden of proving that disclosure of the Regulation 90 reports would cause substantial competitive injury under Public Officers Law § 87(2)(d).

    Holding

    1. No, because the “public record” designation does not negate the right of insurers to claim a FOIL exemption; the language means the reports are subject to public disclosure unless a FOIL exemption applies.

    2. No, because the Department and insurers failed to present specific, persuasive evidence that disclosure would cause substantial competitive injury; the evidence presented was theoretical at best.

    Court’s Reasoning

    The court reasoned that the “public record” language of 11 NYCRR 218.7(d) does not automatically mandate disclosure, but rather subjects the reports to FOIL provisions, including potential exemptions. The court deferred to the Department’s interpretation of the regulation, finding it reasonable and consistent with FOIL principles. Referencing previous cases, the Court stated that “the FOIL exemptions must be read as having engrafted, as a matter of public policy, certain limitations on the disclosure of otherwise accessible records”. The court emphasized that FOIL exemptions are narrowly construed to promote public access to government records. To justify a FOIL exemption under Public Officers Law § 87(2)(d), the party seeking the exemption must provide specific, persuasive evidence of substantial competitive injury, not merely speculative harm. Here, the insurers’ argument that competitors could exploit their geographic weaknesses was deemed theoretical, as they failed to demonstrate how zip code data alone would necessarily cause competitive disadvantage. The court stated that the party seeking the exemption must “articulating a particularized and specific justification for denying access”. Judge Smith concurred in result only, arguing the regulation made the reports automatically public records, but that if FOIL applied, the insurers had shown a substantial competitive injury. He criticized the majority for dismissing the insurers’ detailed factual submissions. The Court found that the Department and insurers did not meet their burden of justifying the exemption of the reports, and reversed the Appellate Division’s decision, ordering the reports be made available.

  • Daily Gazette Co. v. City of Schenectady, 93 N.Y.2d 145 (1999): Balancing FOIL and Police Officer Privacy

    Daily Gazette Co. v. City of Schenectady, 93 N.Y.2d 145 (1999)

    Civil Rights Law § 50-a protects police officer personnel records from Freedom of Information Law (FOIL) disclosure when there is a substantial and realistic potential for abusive use of the information against the officer, balancing the public’s right to know with the need to prevent harassment.

    Summary

    The Daily Gazette newspaper sought access to Schenectady Police Department records concerning disciplinary actions against 18 officers involved in an off-duty incident. The City denied the request, citing Civil Rights Law § 50-a, which protects police personnel records from disclosure. The Court of Appeals held that while FOIL generally mandates open access to government records, § 50-a provides a specific exemption for police personnel records to prevent their use for harassment or embarrassment. The Court ruled that the City must demonstrate a substantial risk of abusive use to justify withholding the records, balancing FOIL’s goals with the protections afforded by § 50-a.

    Facts

    Following news reports of an incident involving off-duty Schenectady police officers who allegedly threw eggs at a civilian’s car, the Daily Gazette and Capital Newspapers filed FOIL requests for documents related to disciplinary actions taken against the officers.

    The police chief confirmed the incident and that 18 officers admitted involvement, receiving disciplinary sanctions. The newspapers sought the identities of the officers and the specific punishments imposed.

    The City’s records officer denied the FOIL requests, citing Civil Rights Law § 50-a.

    Procedural History

    The newspapers initiated proceedings in Supreme Court to compel disclosure.

    Supreme Court rejected the City’s arguments for nondisclosure, except for the § 50-a exemption, and ruled in favor of the City.

    The Appellate Division reversed, concluding that the disciplinary records were not exempt under § 50-a.

    The City appealed to the Court of Appeals.

    Issue(s)

    Whether Civil Rights Law § 50-a exempts police disciplinary records from disclosure under FOIL, and if so, under what circumstances?

    Holding

    No, not automatically. The Court of Appeals reversed the Appellate Division. The City must demonstrate a substantial and realistic potential for abusive use of the requested material against the officers to justify withholding the records under Civil Rights Law § 50-a, balancing the goals of FOIL with the protections of § 50-a.

    Court’s Reasoning

    The Court rejected the newspapers’ argument that § 50-a only applies in the context of actual or potential litigation, finding that this interpretation conflicted with the statute’s plain wording and legislative history.

    The Court emphasized that the legislative intent behind § 50-a was to prevent the use of personnel records for harassment and reprisals, not just in litigation. Quoting the legislative history, the Court noted, “It has become a matter of harassment of police officers that personnel records be constantly requested, scrutinized, reviewed and commented upon, sometimes publicly.”

    The Court also cited its prior FOIL decisions, noting that “the status or need of the person seeking access is generally of no consequence in construing FOIL and its exemptions.”

    The Court distinguished Matter of Capital Newspapers v. Burns and Matter of Prisoners’ Legal Servs. v. New York State Dept. of Correctional Servs., explaining that the key factor is the potential use of the information, not the specific purpose of the individual requesting access.

    The Court held that while the agency opposing disclosure bears the burden of demonstrating that the requested information falls within the § 50-a exemption, this requires showing a “substantial and realistic potential of the requested material for the abusive use against the officer or firefighter.”

    The Court acknowledged that the status and purpose of the applicant may be relevant in determining the risk of oppressive utilization of the materials sought. Furthermore, disclosure could be tailored through restrictive formulations of the FOIL request or redaction by the agency to preclude use in personal attacks, as exemplified by Matter of Scott, Sardano & Pomeranz v Records Access Officer of City of Syracuse.

    The Court concluded that the comprehensive access to disciplinary records sought by the newspapers presented a risk of use to embarrass or humiliate the officers, and thus Matter of Prisoners’ Legal Servs. was controlling: “documents pertaining to misconduct or rules violations by correction officers…are the very sort of record which, the legislative history reveals, was intended to be kept confidential.”

  • Hanig v. State of New York Department of Motor Vehicles, 79 N.Y.2d 106 (1992): Defining ‘Medical Histories’ Under FOIL Exemption

    Hanig v. State of New York Department of Motor Vehicles, 79 N.Y.2d 106 (1992)

    Responses regarding current treatment for disabilities on a driver’s license application are considered ‘medical histories’ and are exempt from disclosure under New York’s Freedom of Information Law (FOIL) as an unwarranted invasion of personal privacy.

    Summary

    Hanig, an attorney, sought an unredacted copy of a driver’s license application through FOIL, specifically the section asking about disabilities and treatments. The Department of Motor Vehicles (DMV) redacted the applicant’s responses, citing the medical history exemption under FOIL. The court held that the disability information on the application constituted a ‘medical history’ and was therefore exempt from disclosure. The court reasoned that the plain language of the statute and the intent to protect personal privacy supported this interpretation, regardless of whether the information was provided to a healthcare provider.

    Facts

    Pamela Jo Nielson was injured by a driver, Frank Jordan. Nielson’s attorney, Hanig, requested Jordan’s driver’s license application from the DMV. The DMV provided the application but redacted Jordan’s answers to the question about whether he had or was receiving treatment for any disabilities. The application listed specific conditions such as convulsive disorder, heart ailment, and mental disability. The DMV masked the responses citing Section 89 of the Freedom of Information Law deeming the information confidential.

    Procedural History

    Hanig’s request for an unredacted copy was denied by the DMV. The DMV’s Administrative Appeals Board affirmed the denial, citing a policy to mask medical information without the applicant’s consent. Hanig then filed a CPLR Article 78 proceeding. Supreme Court dismissed the petition, finding the redacted portion concerned Jordan’s medical history. The Appellate Division affirmed, reasoning that the information was the type one would expect in a proper medical history. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether responses to questions regarding current treatment for disabilities on a driver’s license application constitute ‘medical histories’ exempt from disclosure under Public Officers Law § 89(2)(b)(i) of FOIL.

    Holding

    Yes, because the plain language, the intent of FOIL, and the protection of personal privacy dictate that such information falls under the ‘medical histories’ exemption, regardless of whether it was provided to a healthcare provider or included in an employment application.

    Court’s Reasoning

    The Court of Appeals affirmed the lower courts’ decisions, holding that the redacted information was properly withheld. The court reasoned that FOIL exemptions, while narrowly construed, must be given their natural and obvious meaning consistent with legislative intent. The court emphasized that Public Officers Law § 89(2)(b)(i) is written in the disjunctive, meaning the ‘medical histories’ exemption applies independently of employment applications. The court stated, “[E]mployment, medical and credit histories or personal references of applicants for employment each enjoy exemption from disclosure.”

    The court found that the legislative intent behind the exemption is to protect against unwarranted invasions of personal privacy, and that disclosure of ongoing treatment for medical conditions threatens personal privacy. It rejected the argument that the exemption only applies to information provided to a health care provider, noting that the inquiry should focus on the nature of the information itself. “[T]he relevant inquiry is as to the nature of the information, not who compiled it, or where it appears, or whether it is a precise technical evaluation.”

    The court found that there was no need to balance interests since the legislature had determined that the release of such information constitutes an unwarranted invasion of personal privacy. The court quoted Matter of Federation of N. Y. State Rifle & Pistol Clubs v New York City Police Dept., 73 NY2d 92, 97 stating that “Once it is determined that the requested material falls within a FOIL exemption, no further policy analysis is required.”

  • Matter of Farbman & Sons v. New York Public Service Comm’n, 49 N.Y.2d 905 (1980): Establishing Factual Basis for FOIL Exemptions

    Matter of Farbman & Sons v. New York Public Service Comm’n, 49 N.Y.2d 905 (1980)

    A state agency denying access to records under the Freedom of Information Law (FOIL) must provide a factual basis for its claim that the records fall within a statutory exemption; conclusory assertions are insufficient.

    Summary

    Farbman & Sons sought disclosure of certain documents from the New York Public Service Commission under the Freedom of Information Law (FOIL). The Commission denied access, claiming the documents fell under statutory exemptions, but failed to provide a factual basis for this claim, relying instead on conclusory characterizations. The Court of Appeals held that the agency’s denial was insufficient, requiring a specific factual foundation to justify withholding information under FOIL exemptions. The Court also clarified the statute of limitations for Article 78 proceedings challenging FOIL denials.

    Facts

    Farbman & Sons requested documents from the New York Public Service Commission pursuant to the Freedom of Information Law.
    The Public Service Commission denied the request, asserting that the materials were exempt from disclosure under FOIL.
    The Commission supported its denial with references to specific sections and subdivisions of the Public Officers Law, along with general statements about the nature of the documents.
    The Commission did not provide specific facts demonstrating how the requested materials fell within any particular statutory exemption.

    Procedural History

    Farbman & Sons initiated an Article 78 proceeding to compel the Public Service Commission to disclose the requested documents.
    The lower court ruled in favor of the Public Service Commission.
    The Appellate Division reversed, ordering disclosure.
    The New York Court of Appeals affirmed the Appellate Division’s decision, compelling the Public Service Commission to disclose the documents absent a sufficient factual showing supporting an exemption.

    Issue(s)

    Whether a state agency can deny access to records requested under the Freedom of Information Law based solely on conclusory characterizations of the records and references to statutory exemptions, without providing a factual basis for the exemption claim.

    Holding

    No, because state officials must tender a factual basis demonstrating that the materials sought fall outside mandated disclosure or within specified exceptions under the Public Officers Law. Conclusory characterizations of the records are insufficient.

    Court’s Reasoning

    The Court of Appeals emphasized that denying access to information under FOIL requires more than simply citing statutory provisions. The agency must provide a factual basis to demonstrate that the requested materials actually fall within the scope of the claimed exemption. The Court stated that “[t]here is no tender of any factual basis on which to determine whether the materials sought either fell outside the scope of mandated disclosure under former section 88 (L 1974, ch 578, § 2; ch 579, § 2; ch 580, § 1, eff Sept. 1, 1974) or come within the exceptions specified in subdivision 2 of present section 87 of the Public Officers Law (L 1977, ch 933, § 1, eff Jan. 1, 1978).”

    The Court also addressed the issue of in camera inspection, noting that the agency had not requested it, and the record lacked a predicate for such a request. This suggests that the burden is on the agency to proactively demonstrate the need for such review. Further, the court addressed the statute of limitations, noting that it runs “from the date on which petitioner received notice of the denial of its appeal under subdivision 4 of section 89 of the Public Officers Law.”

    This case highlights the importance of transparency in government and the requirement that agencies justify withholding information from the public. It underscores the practical need for agencies to meticulously document the reasons for claiming FOIL exemptions, providing specific facts rather than relying on vague assertions. This ensures meaningful judicial review of agency decisions and protects the public’s right to access government information. The holding forces agencies to be proactive in justifying non-disclosure. The lack of dissent suggests a unanimous agreement on the need for factual justification in FOIL cases.