| Matter of Humane Socy. of U.S. v Fanslau |
| 2008 NY Slip Op 06681 [54 AD3d 537] |
| August 28, 2008 |
| Appellate Division, Third Department |
| In the Matter of Humane Society of the United States, Appellant, vDavid Fanslau, as Sullivan County Manager, et al., Respondents. |
—[*1] Samuel S. Yasgur, Sullivan County Attorney, Monticello (Cheryl A. McCausland ofcounsel), for respondents.
Malone Jr., J. Appeal from a judgment of the Supreme Court (Sackett, J.), entered March 1,2007 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent Samuel Yasgur partially denyingpetitioner's Freedom of Information Law request.
Petitioner commenced this CPLR article 78 proceeding challenging a Freedom ofInformation Law (see Public Officers Law art 6 [hereinafter FOIL]) determination ofrespondent Samuel Yasgur, the Sullivan County Attorney, finding that certain financialdisclosure statements of respondent Stephen Lungen, the Sullivan County District Attorney, wereappropriately redacted prior to petitioner's inspection and that petitioner was not entitled tophotocopy such documents. Supreme Court adopted the findings of a Hearing Officer that theredactions were proper and that petitioner was not improperly denied the right to copy therecords, among other things, and dismissed the petition. This appeal ensued.
Pursuant to FOIL, there is a presumption that all government and agency records are open forpublic inspection unless the agency seeking to prevent disclosure demonstrates "that the [*2]requested information 'falls squarely within a FOIL exemption byarticulating a particularized and specific justification for denying access' " (Matter of Data Tree, LLC v Romaine,9 NY3d 454, 462-463 [2007], quoting Matter of Capital Newspapers Div. of HearstCorp. v Burns, 67 NY2d 562, 566 [1986]). Respondents contend, among other things, thatdisclosure of information pertaining to family members' income and/or investments wouldamount to an unwarranted invasion of privacy inasmuch as such information was reported inconfidence and would result in economic or personal hardship (see Public Officers Law§ 89 [2] [b] [iv], [v]). "What constitutes an unwarranted invasion of personal privacy ismeasured by what would be offensive and objectionable to a reasonable [person] of ordinarysensibilities" (Matter of Beyah v Goord, 309 AD2d 1049, 1050 [2003] [internal quotationmarks and citations omitted]).
Balancing the competing interests of public access and personal privacy (see Matter of Pennington v Clark, 16AD3d 1049, 1051 [2005], lv denied 5 NY3d 712 [2005]; Matter of Dobranski vHouper, 154 AD2d 736, 737 [1989]), under the circumstances presented herein, disclosure ofthe general information regarding the income and investments of Lungen's familymembers outweighs any personal privacy interest. Moreover, respondents have not demonstratedthat disclosure of such information amounts to an unwarranted invasion of personal privacy tojustify exemption from FOIL. Here, the financial disclosure statements are required to besubmitted to and maintained by respondent Sullivan County Board of Ethics. Informationpertaining to a family member's financial interests is clearly relevant to the Board's role ofinvestigating ethical code violations in an effort to uncover conflicts of interest involving publicofficials. The financial interests at issue, absent the categories of amounts and values, constitutegeneral information that the public has a right to uncover and the disclosure of such does notamount to an unwarranted invasion of personal privacy (see Matter of Archdeacon v Town of Oyster Bay, 12 Misc 3d 438,446 [2006]; see generally Matter of Data Tree, LLC v Romaine, 9 NY3d at 462-463;Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566;Watkins v New York State Ethics Commn., 147 Misc 2d 350, 359 [1990]). Notably, theannual financial statement specifically states that "[t]he requirements of law relating to thereporting of financial interests are in the public interest."
With respect to petitioner's contention that it was improperly denied the right to photocopythe documents at issue, it is undisputed that petitioner received the requested photocopies whenrespondents filed the record in the instant proceeding. Accordingly, Supreme Court should havedismissed that part of the petition as moot (see e.g. Matter of Taylor v New York City Police Dept. FOIL Unit, 25AD3d 347, 347 [2006], lv denied 7 NY3d 714 [2006]). We are not persuaded bypetitioner's argument that the exception to the mootness doctrine is applicable here (see Orange County Publs., Div. of OttawayNewspapers, Inc. v Metropolitan Transp. Auth., 22 AD3d 290, 291 [2005]).
Finally, although we find that disclosure of the requested information is required under thecircumstances presented here, the initial denial of the request was not so unreasonable as towarrant an award of counsel fees (see Public Officers Law § 89 [4] [c]).
Cardona, P.J., Peters, Carpinello and Rose, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, and petition [*3]granted to theextent that respondents are directed to disclose to petitioner the requested financial informationpertaining to respondent Stephen Lungen's wife.