| Matter of Carnevale v City of Albany |
| 2009 NY Slip Op 09112 [68 AD3d 1290] |
| December 10, 2009 |
| Appellate Division, Third Department |
| In the Matter of John T. Carnevale, Individually and asAdministrator of the Estate of Harrison Carnevale, Deceased, et al., Respondents-Appellants, vCity of Albany, Appellant-Respondent. |
—[*1] Luibrand Law Firm, P.L.L.C., Latham (Kevin A. Luibrand of counsel), forrespondents-appellants.
Kane, J. Appeals from two judgments of the Supreme Court (Lynch, J.), entered November26, 2008 and May 21, 2009 in Albany County, which, among other things, partially grantedpetitioners' application, in a proceeding pursuant to CPLR article 78, to annul a determination ofrespondent denying petitioners' Freedom of Information Law request.
Petitioners' son was fatally injured after being hit by a vehicle that was involved in a policechase. In July 2007, petitioners made a request pursuant to the Freedom of Information Law(see Public Officers Law art 6 [hereinafter FOIL]) for various information gathered byrespondent during and after the incident. Respondent initially sent a letter denying the request,but then provided some documents and remained in contact with petitioners and their counselregarding the request. In June 2008, petitioners filed an administrative appeal of the denial oftheir FOIL request. After respondent failed to respond, petitioners commenced this CPLR article[*2]78 proceeding challenging the denial.
Supreme Court found that the petition was timely filed. On the merits, the court requiredrespondent to disclose unredacted statements of two witnesses, including the witnesses' namesand addresses, and withheld judgment regarding statements by police officers pending in camerareview. After reviewing those statements, which were given during an internal investigation intothe incident, the court determined that they were exempt from disclosure. The court also deniedpetitioners' request for counsel fees. Respondent and petitioners appeal.
Petitioners timely commenced this proceeding. Initially, as respondent never informedpetitioner of the availability of or process for an administrative appeal, respondent cannot nowargue that petitioners failed to exhaust their administrative remedies by filing such an appeal atan earlier date (see 21 NYCRR 1401.7 [b]; Matter of Cullum v Goord, 45 AD3d 1212, 1212 [2007];Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648, 649 [2000]).Although respondent sent an initial denial letter, respondent continued to provide documents andcommunicate with petitioners, including assuring them that respondent was working to provide afurther response and informing them that more documents may become available once the lawenforcement investigation was concluded. Under the circumstances, petitioners reasonablyconcluded that respondent's earlier letters did not constitute final and binding determinations oftheir FOIL request (see Matter of Orange County Publs. v Kiryas Joel Union Free SchoolDist., 282 AD2d 604, 606 [2001]). Thus, the statute of limitations did not begin to run whenthose letters were sent, and petitioners timely commenced this proceeding (see CPLR217 [1]).
Petitioners were entitled to the names and addresses of the witnesses who providedstatements to the police. Under FOIL, government records are presumptively available to thepublic for inspection unless subject to an exemption (see 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 prevent disclosure bearing the burden of demonstrating that therequested material falls squarely within an exemption by articulating a particularized andspecific justification for denying access (see id.; Matter of Humane Socy. of U.S. v Brennan, 53 AD3d 909,910-911 [2008], lv denied 11 NY3d 711 [2008]; see also Public Officers Law§ 89 [4] [b]). Respondent has not met that burden with regard to the two witnessstatements.
Conclusory statements are insufficient to deny access, as are categorical assertions that alllaw enforcement investigations will be harmed if witnesses' names are available through a FOILrequest in this situation (see Matter of New York Times Co. v New York State Dept. ofHealth, 243 AD2d 157, 160 [1998]; Matter of Buffalo Broadcasting Co. v New YorkState Dept. of Correctional Servs., 155 AD2d 106, 110-111 [1990]; cf. PublicOfficers Law § 87 [2] [e] [i]; compare Matter of John H. v Goord, 27 AD3d 798, 799-800[2006]). Respondent has not asserted that the witnesses were confidential informants or that theyrequested or were promised anonymity (see Cornell Univ. v City of N.Y. Police Dept.,153 AD2d 515, 517 [1989], lv denied 75 NY2d 707 [1990]; cf. Public OfficersLaw § 87 [2] [e] [iii]; compare Matter of Dobranski v Houper, 154 AD2d 736,738-739 [1989]). Similarly, respondent provided no proof that these witnesses' lives or safetywould be endangered by releasing their names or addresses (cf. Public Officers Law§ 87 [2] [f]). While disclosing a person's home address may implicate heightened privacyconcerns (see Matter of New York StateUnited Teachers v Brighter Choice Charter School, 64 AD3d 1130, 1132 [2009], lvgranted 13 NY3d 712 [2009]), respondent provided no proof that disclosing this informationhere would constitute an unwarranted invasion of personal privacy, such as causing economic orpersonal hardship (see Matter of Buffalo [*3]BroadcastingCo. v New York State Dept. of Correctional Servs., 155 AD2d at 112; cf. PublicOfficers Law § 87 [2] [b]; § 89 [2] [b] [iv]). As respondent did not demonstrate theapplicability of any exemption, Supreme Court correctly determined that petitioners wereentitled to unredacted copies of the statements given by the two witnesses.
Respondent appropriately refused to provide statements that its police officers gave to itsoffice of professional standards. As a review of the taped interviews discloses, that internalinvestigative body gathered the statements through mandatory interviews that were conducted todetermine whether discipline against any officers was warranted. The officers were informed thattheir statements could result in employment action as severe as dismissal. The statementsconcerning possible misconduct could reasonably be used to evaluate the officers' performance,and have the substantial potential to be used in litigation to degrade, harass, embarrass orimpeach the officers' integrity. Thus, the statements qualify as personnel records of a lawenforcement agency that are exempt from disclosure (see Public Officers Law § 87[2] [a]; Civil Rights Law § 50-a; Matter of Daily Gazette Co. v City ofSchenectady, 93 NY2d 145, 152, 157-159 [1999]; Matter of Capital Newspapers Div. of Hearst Corp. v City of Albany,63 AD3d 1336, 1338-1339 [2009], lv granted 13 NY3d 707 [2009]).
While courts may award counsel fees to litigants who substantially prevail in a FOILproceeding (see Public Officers Law § 89 [4] [c]), the decision whether to awardsuch fees is discretionary even when the statutory prerequisites have been established (see Matter of Maddux v New York StatePolice, 64 AD3d 1069, 1070 [2009], lv denied 13 NY3d 712 [2009]; Matterof Capital Newspapers Div. of Hearst Corp. v City of Albany, 63 AD3d at 1339). We cannotsay that Supreme Court abused its discretion in denying petitioners' request for counsel fees here.
Cardona, P.J., Peters, Lahtinen and Stein, JJ., concur. Ordered that the judgments areaffirmed, without costs.