| Matter of MacKenzie v Seiden |
| 2013 NY Slip Op 03134 [106 AD3d 1140] |
| May 2, 2013 |
| Appellate Division, Third Department |
| In the Matter of Edward MacKenzie,Appellant, v Melinda B. Seiden, as Records Access Officer, Albany CountyDistrict Attorney's Office, Respondent. |
—[*1] Craig A. Denning, County Attorney, Albany (Tracy Murphy of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme County (McNamara, J.), enteredJune 22, 2011 in Albany County, which dismissed petitioner's application, in aproceeding pursuant to CPLR article 78, to review a determination of the Albany CountyDistrict Attorney's Office denying petitioner's Freedom of Information Law request.
Petitioner submitted a request to the Albany County District Attorney's Office underthe Freedom of Information Law (see Public Officers Law art 6 [hereinafterFOIL]) seeking disclosure of certain documents pertaining to a criminal proceeding thathad been brought against a fellow inmate, which resulted in that inmate's conviction ofnumerous sex crimes (seePeople v Clevenstine, 68 AD3d 1448 [2009], lv denied 14 NY3d 799[2010]). Specifically, petitioner requested copies of a computer disc containing theinmate's MySpace chat log, which includes the electronic communications between himand the victims, all computer printouts taken from the victims' computer, a copy of theMySpace index relevant to communications between the inmate and the victims, as wellas copies of all records and other documentation related to the inmate's MySpace chat logcomputer disc and the printouts taken from the victims' computer. The Albany CountyDistrict Attorney's Office denied petitioner's request on the ground that disclosure wouldconstitute an unwarranted invasion of personal privacy, particularly since [*2]victim information was contained throughout thedocuments making redaction impossible (see Public Officers Law § 87 [2][b]). The denial was upheld on administrative appeal. Petitioner then commenced thisCPLR article 78 proceeding challenging that determination. Respondent served ananswer, raising the affirmative defense that the proceeding was barred by the statute oflimitations and an objection in point of law that disclosure of the requested documentswas prohibited by Civil Rights Law § 50-b (1). Supreme Court dismissed thepetition. Petitioner now appeals.
Initially, we do not find that the proceeding is barred by the statute of limitations.Public Officers Law § 89 (5) (d) provides that a party seeking to challenge adetermination denying a FOIL request has 15 days from the date of "service of thewritten notice containing the adverse determination" within which to do so. Here,however, there is no proof in the record of the date that such determination was mailed topetitioner or when he received it. Absent such proof, it cannot be concluded that theproceeding was untimely.
Turning to the merits, we note that under FOIL, government records arepresumptively entitled to inspection unless subject to a statutory exemption (seeMatter of Fappiano v New York City Police Dept., 95 NY2d 738, 746 [2001];Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566[1986]). "Exemptions are narrowly construed, with the agency that seeks to preventdisclosure bearing the burden of demonstrating that the requested material falls squarelywithin an exemption by articulating a particularized and specific justification for denyingaccess" (Matter of Carnevale vCity of Albany, 68 AD3d 1290, 1292 [2009] [citations omitted]; see Matterof Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; Matter of Schenectady CountySocy. for the Prevention of Cruelty to Animals, Inc. v Mills, 74 AD3d 1417,1418 [2010], affd 18 NY3d 42 [2011]).
The Albany County District Attorney's Office relied upon Public Officers Law§ 87 (2) (b) in denying the requested disclosure. This provision states that access togovernmental records or portions thereof may be denied if disclosure "would constitutean unwarranted invasion of personal privacy under [Public Officers Law § 89(2)]." Public Officers Law § 89 (2) (b) lists several types of information that wouldbe considered an unwarranted invasion of personal privacy if disclosed, but does notencompass the information sought in petitioner's FOIL request. This list, however, is notexclusive (see Matter of Schenectady County Socy. for the Prevention of Cruelty toAnimals, Inc. v Mills, 74 AD3d at 1418), and a determination of whether disclosureof the information at issue would amount to an unwarranted invasion of personalproperty requires balancing the private interests at stake against the public interest inaccess to such information (seeMatter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 485[2005]; Matter of Edwards vNew York State Police, 44 AD3d 1216, 1216 [2007]).
Here, the computer disc containing the electronic communications between theinmate and the victims was admitted into evidence at the inmate's criminal trial and thevictims themselves testified about sexual conversations they had with the inmate throughthe MySpace social networking site (see People v Clevenstine, 68 AD3d at1450). Moreover, substantial additional testimony was adduced regarding the sexuallyexplicit conversations between the inmate and victims via the inmate's MySpace account(see id.). In view of this, any privacy interest the victims had in such informationunder this privacy exception has been extinguished. Accordingly, the privacy exceptioncontained in Public Officers Law § 87 (2) (b) is inapplicable.
However, "Civil Rights Law § 50-b (1) provides a statutory exemption fromdisclosure [*3]for documents that tend to identify thevictim of a sex offense" (Matter of Karlin v McMahon, 96 NY2d 842, 843[2001]; see Matter of Fappiano v New York City Police Dept., 95 NY2d at746-748).[FN*] Civil Rights Law § 50-b expressly prohibits the disclosure of informationpertaining to the identity of victims of sex offenses, providing, in relevant part, that "[n]oreport, paper, picture, photograph, court file or other documents, in the custody orpossession of any public officer or employee, which identifies such a victim shall bemade available for public inspection" and that "[n]o such public officer or employee shalldisclose any portion of any police report, court file, or other document, which tends toidentify such a victim" (Civil Rights Law § 50-b [1]). The District Attorney'sOffice must make a "particularized showing that the statutory exemption from disclosurepursuant to Civil Rights Law § 50-b applies to all the records petitioner seeks"(Matter of Karlin v McMahon, 96 NY2d at 843; see Matter of Gould v NewYork City Police Dept., 89 NY2d 267, 273-275 [1996]). As the District Attorney'sOffice made no showing that "each requested document contained identifyinginformation" (Matter of Fappiano v New York City Police Dept., 95 NY2d at748), we must remit to Supreme Court for further proceedings.
Notably, to the extent that the requested records are determined to contain identifyinginformation and are exempt under Civil Rights Law § 50-b (1), they will fall underthe FOIL exemption from disclosure by "state . . . statute" (Public OfficersLaw § 87 [2] [a]). As such, if a document is protected by Civil Rights Law §50-b, a state statute, it would be categorically excluded in its entirety and not subject toredaction or deletion (see Matter of Short v Board of Mgrs. of Nassau County Med.Ctr., 57 NY2d 399, 401, 404-405 [1982]; see also Matter of Karlin vMcMahon, 96 NY2d at 843 [agency not obliged to disclose records exempted byCivil Rights Law § 50-b, "even though redaction might remove all details which'tend to identify the victim' "]).
Supreme Court should conduct an in camera review of the documents that were thesubject of petitioner's FOIL request (see Matter of M. Farbman & Sons v New YorkCity Health & Hosps. Corp., 62 NY2d 75, 83 [1984]; Matter of Edwards v NewYork State Police, 44 AD3d at 1217; Matter of Beyah v Goord, 309 AD2d1049, 1050 [2003]; Matter of Radio City Music Hall Prods. [New York City PoliceDept.], 121 AD2d 230, 231 [1986]) to ascertain if they identify the victims of the sexcrimes and, if they do, whether disclosure should be denied under Public Officers Law§ 87 (2) (a) and Civil Rights Law § 50-b (1). Therefore, the judgment mustbe reversed and the matter remitted to Supreme Court for this purpose.
Mercure, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law, without costs, and matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision.
Footnote *: While judicial review ofan administrative determination is limited to the grounds invoked by the agency (seeMatter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 593 [1982]),this principle of administrative law does not preclude our taking judicial notice of andinvoking a state statute (see CPLR 4511 [a]). The Civil Rights Law explicitlyand unequivocally precludes an order of this Court compelling disclosure of protecteddocuments, and imposes civil liability upon governmental entities that disclose theidentity of a sex crime victim (see Civil Rights Law § 50-c) in violation ofCivil Rights Law § 50-b.