| Matter of Brown v Goord |
| 2007 NY Slip Op 08147 [45 AD3d 930] |
| November 1, 2007 |
| Appellate Division, Third Department |
| In the Matter of Isaiah Brown, Respondent-Appellant, v Glenn S.Goord, as Commissioner of Correctional Services,Appellant-Respondent. |
—[*1] Isaiah Brown, Wallkill, respondent-appellant pro se.
Mercure, J. Cross appeals from an order of the Supreme Court (Lamont, J.), entered June 13,2006 in Albany County, which, among other things, granted petitioner's application, in aproceeding pursuant to CPLR article 78, to annul a determination of respondent requiringpetitioner to pay a copying fee prior to inspecting certain redacted documents under the Freedomof Information Law.
Petitioner, while an inmate at Otisville Correctional Facility in Orange County, madenumerous requests—two of which are at issue here—that respondent providevarious records to him for inspection and, if necessary, copying, pursuant to the Freedom ofInformation Law (see Public Officers Law art 6) (hereinafter FOIL). Respondentprovided access to some of the requested records but denied access to others on the ground thatthey contained information that was exempt from disclosure. Respondent informed petitioner thatinformation contained in the denied records would have to be redacted prior to any inspection bypetitioner, and directed him to pay a copying fee of $15.50 for the requests. In addition,respondent denied petitioner's administrative appeals of the fee requirement, concluding that itwas entitled to charge a copying fee if the requested records contain material that is exempt fromdisclosure such that a photocopy [*2]is needed in order to providea redacted record for inspection.
Petitioner then commenced this proceeding pursuant to CPLR article 78, seeking a judgmentdeclaring, among other things, that he is entitled to inspect the requested records without payingthe copying fee. Supreme Court, in an interim order, determined that respondent's policy ofcharging a fee to create a redacted copy of requested records is arbitrary, capricious and contraryto law. Respondent appeals, asserting that it is entitled to charge a fee to create a copy if arequested record contains exempt material that must be redacted prior to inspection. Petitionercross-appeals, asserting that respondent failed to establish that any exemptions to FOILdisclosure are applicable such that redaction is required in the first instance. We now modify byreversing so much of Supreme Court's order as concluded that respondent's policy of charging afee is arbitrary, capricious and contrary to law.[FN*]
As respondent concedes, FOIL "imposes a broad duty on government to make its recordsavailable to the public [and] . . . [a]ll government records are thus presumptivelyopen for public inspection and copying unless they fall within one of the enumerated exemptionsof Public Officers Law § 87 (2)" (Matter of Gould v New York City Police Dept.,89 NY2d 267, 274-275 [1996]; see Public Officers Law § 84). Moreover, " 'FOILis to be liberally construed and its exemptions narrowly interpreted so that the public is grantedmaximum access to the records of government' " (Matter of Newsday, Inc. v Sise, 71NY2d 146, 150 [1987], cert denied 486 US 1056 [1988] [1987], quoting Matter ofCapital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987]; seeMatter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 492 [1994]). Consistentwith the statute's purpose of promoting open government, it is also well settled that an agency'sexpenses in fulfilling its FOIL obligations cannot be passed on to the public and that requestscannot be rejected simply due to their breadth or burdensomeness (see Matter of Konigsbergv Coughlin, 68 NY2d 245, 249-250 [1986]; Matter of Doolan v Board of Coop. Educ.Servs., 2d Supervisory Dist. of Suffolk County, 48 NY2d 341, 347 [1979]). Nevertheless,agencies are not required to assume all costs associated with the provision of records; indeed, asis particularly relevant here, we note that the statute expressly permits an agency to charge aphotocopying fee of 25 cents per page for copies of records (see Public Officers Law§ 87 [1] [b] [iii]; 7 NYCRR 5.35, 5.36; see also Gandin, Schotsky & Rappaport vSuffolk County, 226 AD2d 339, 339-340 [1996]).
In that regard, the Committee on Open Government (hereinafter COG) has issued advisoryopinions concluding that when a portion of the requested record is exempt from disclosure, "anagency could prepare a photocopy from which deletions could be made, and . . .charge its established fee for photocopying" (NY Dept of State Comm on Open Government,Advisory Op 8240A [May 11, 1994]). COG has explained that while any person may inspect a[*3]record at no charge if the record in its entirety is subject todisclosure under FOIL, when a portion of the record is exempt from disclosure, there is simplyno right to inspect the unredacted record (see Public Officers Law § 87 [2][providing that agencies may deny the public "access to records or portions thereof" that areexempt from disclosure]; NY Dept of State Comm on Open Government, Advisory Op 11638[Aug. 18, 1999]; NY Dept of State Comm on Open Government, Advisory Op 11355 [Mar. 2,1999]; NY Dept of State Comm on Open Government, Advisory Op 8391 [Aug. 1, 1994]). Thus,"[w]hen accessible and deniable information must, of necessity, appear on the same page, thepractice [of] preparing a redacted copy and charging the established fee . . . is fullyjustifiable" (NY Dept of State Comm on Open Government, Advisory Op 8391 [Aug. 1, 1994]).
Notably, COG's interpretation is consistent with that of the agency administering the recordsat issue and, thus, that interpretation is entitled to deference so long as it is not irrational orunreasonable (see Matter of Sheehan v City of Binghamton, 59 AD2d 808, 809 [1977];see also Matter of John P. v Whalen, 54 NY2d 89, 96 n 3 [1981]; cf. Buffalo News vBuffalo Enter. Dev. Corp., 84 NY2d at 493). In our view, inasmuch as a petitioner has noright to inspect exempted portions of a requested record and an agency is therefore permitted tomake a redacted record by first making a photocopy of the original record, it is not irrational forthe agency to impose the statutory copying fee prior to providing the redacted record forinspection, just as it is permitted to do anytime that photocopies are requested. Accordingly, wereverse that portion of Supreme Court's order determining that respondent's policy of charging afee to create a redacted copy of a document for inspection is arbitrary and capricious and contraryto law.
With respect to petitioner's cross appeal, we note that he failed to previously raise, eitherbefore Supreme Court or on administrative appeal, his argument that respondent did notdemonstrate an exemption requiring the redaction of any portion of the records that he requestedon October 27, 2005. Thus, any such challenge in that respect is not properly before us (seeMatter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001]).
Finally, we reject petitioner's challenge to the redaction of the identity of the recipients ofother inmates' correspondence in connection with his August 1, 2005 request. It is well settledthat an agency may delete "identifying details" to prevent unwarranted invasion of personalprivacy (Public Officers Law § 89 [2]; see Matter of New York Times Co. v New YorkState Dept. of Health, 243 AD2d 157, 159 [1998]).
Cardona, P.J., Peters, Spain andCarpinello, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversingso much thereof as granted petitioner's application and annulled that part of a determination ofrespondent requiring petitioner to pay a copying fee prior to inspecting certain redacteddocuments under the Freedom of Information Law; petition dismissed to that extent; and, as somodified, affirmed.
Footnote *: Although the order issued bySupreme Court is concededly nonfinal and, thus, not appealable as of right (see CPLR5701 [b] [1]; [c]), we exercise our authority to grant permission to appeal given the importanceof the issue (see Matter of Elcor Health Servs. v Novello, 295 AD2d 772, 773 n 2 [2002],affd 100 NY2d 273 [2003]; Matter of Gane v Ambach, 135 AD2d 1013,1013-1014 [1987]).