| Matter of Whitfield v Bailey |
| 2011 NY Slip Op 00004 [80 AD3d 417] |
| January 4, 2011)<> |
| Appellate Division, First Department |
| In the Matter of John Whitfield, Appellant, v Patricia J. Bailey,FOIL Officer of the New York County District Attorney's Office,Respondent. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Richard Nahas of counsel), forrespondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about September15, 2009, which, upon reargument, granted the petition to compel respondent to disclose certaindocuments pursuant to the Freedom of Information Law (FOIL) to the extent of directing thatrespondent submit the available documents to the court for in camera inspection, and order, same courtand Justice, entered on or about November 25, 2009, which, after an in camera review, directedrespondent to provide those documents to petitioner in redacted form, unanimously affirmed, withoutcosts.
In May 2008, petitioner, an inmate serving a 25 year to life sentence for second-degree murder(committed in 1988), made a FOIL request seeking the entire file related to Richard Doyle's 1989arrest for petit larceny. Doyle, who was serving a 25 year sentence for manslaughter (committed in1998), testified against petitioner at the trial that resulted in petitioner's murder conviction. After an incamera review of five documents related to Doyle's petit larceny conviction, the court directed thatrespondent redact the names, addresses and dates of birth of the civil witness and Doyle's codefendant,and Doyle's address and date of birth, "to protect these individuals' privacy and safety."
Petitioner's contention that the court erred in conducting an in camera hearing is unpreservedbecause he did not alert the court to his objection to the procedure. In any event, it is without merit, asis petitioner's contention that there was no basis to deny his FOIL request because Doyle pleaded guiltyin open court and therefore the records connected to his subsequent incarceration are "publicproperty."
Pursuant to FOIL, government records are presumptively available to the public unless they arestatutorily exempted by Public Officers Law § 87 (2) (Matter of Fappiano v New York CityPolice Dept., 95 NY2d 738, 746 [2001]). When a document subject to FOIL falls within anexemption, the agency "may be required to prepare a redacted version with the exempt materialremoved" (Matter of Data Tree, LLC vRomaine, 9 NY3d 454, 464 [2007]; Matter of Scott, Sardano & Pomeranz v RecordsAccess Officer of City of Syracuse, 65 NY2d 294, 298 [1985]).
Pursuant to Public Officers Law § 87 (2), an "agency may deny access to records or [*2]portions thereof that . . . if disclosed[,] would constitute anunwarranted invasion of personal privacy" (subd [2] [b]) or "endanger the life or safety of any person"(subd [2] [f]). While these exemptions are to be narrowly interpreted to effectuate the purpose of FOIL(Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 564 [1984]),respondent articulated a basis to deny disclosure and the court applied the correct procedure when itordered an in camera inspection of the requested documents to determine which material could beappropriately disclosed (see Matter of Gould v New York City Police Dept., 89 NY2d 267,275 [1996]; Matter of Bellamy v New YorkCity Police Dept., 59 AD3d 353 [2009]).
After conducting the in camera review, the court correctly ordered that certain pedigree informationbe redacted from the documents. Although respondent's assertions may have been insufficient towarrant the blanket denial of access to the requested records, there is a sufficient showing in the recordthat disclosure of the redacted personal information to petitioner, who has a history of violence, wouldpose the risk of harm covered by the claimed exemptions (see Matter of Scott, 65 NY2d at298; Matter of Edwards v New York StatePolice, 44 AD3d 1216 [2007]; Matter of Boddie v Goord, 251 AD2d 799 [1998],lv denied 92 NY2d 810 [1998]). Concur—Tom, J.P., Andrias, Sweeny, DeGrasse andRomÁn, JJ.
Motion seeking poor person relief granted. [Prior Case History: 2009 NY Slip Op32125(U).]