| Matter of Lesher v Hynes |
| 2011 NY Slip Op 00225 [80 AD3d 611] |
| January 11, 2011 |
| Appellate Division, Second Department |
| In the Matter of Michael Lesher, Respondent, v Charles J.Hynes, as District Attorney of Kings County, New York, et al.,Appellants. |
—[*1] Michael Lesher, Passaic, New Jersey, respondent pro se.
In a proceeding pursuant to CPLR article 78, inter alia, to review determinations of Charles J.Hynes, as District Attorney, Kings County, and Morgan Dennehy, FOIL Appeals Officer, datedDecember 23, 2008, and January 29, 2009, respectively, denying, without a hearing, the petitioner'srequest for disclosure pursuant to the Freedom of Information Law (Public Officers Law § 84et seq.), and denying an administrative appeal, the appeal is from so much of a judgment of theSupreme Court, Kings County (Vaughan, J.), dated November 23, 2009, as granted those branches ofthe petition which were to direct the appellants to provide the petitioner with all correspondence,memoranda, and other documents exchanged between the office of the District Attorney, KingsCounty, and agencies and departments of the United States government regarding the extradition ofAvrohom Mondrowitz from Israel.
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, thosebranches of the petition which were to direct the appellants to provide the petitioner with allcorrespondence, memoranda, and other documents exchanged between the office of the DistrictAttorney, Kings County, and agencies and departments of the United States government regarding theextradition of Avrohom Mondrowitz from Israel is denied, and that portion of the proceeding isdismissed.
"The Freedom of Information Law requires state and municipal agencies to 'make available forpublic inspection and copying all records,' subject to certain exemptions" (Matter of Verizon N.Y., Inc. v Mills, 60AD3d 958, 959 [2009], quoting Public Officers Law § 87 [2]; see Matter of Data Tree, LLC v Romaine, 9NY3d 454, 462 [2007]; Matter of NewYork Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 483 [2005]). "The exemptions,however, 'are to be narrowly interpreted so that the public is granted maximum access to the records ofgovernment' " (Matter of Verizon N.Y., Inc. v Mills, 60 AD3d at 959, quoting Matter ofData Tree, LLC v Romaine, 9 NY3d at 462; see Matter of Markowitz v Serio, 11 NY3d 43 [2008]; Matter ofCapital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987]). "Further, theentity claiming an exemption must show that the requested material 'falls squarely within the ambit ofone of the statutory exemptions' " (Matter of Verizon N.Y., Inc. v Mills, 60 AD3d at 959,quoting Matter of Verizon N.Y., Inc. vBradbury, 40 AD3d 1113, 1114 [2007]; see Matter of Markowitz v Serio, 11NY3d at 51; Matter of Bahnken v NewYork City Fire Dept., 17 AD3d 228, 230 [2005]), "and must articulate a 'particularized andspecific justification for denying access' " (Matter of Verizon N.Y., Inc. v Mills, 60 AD3d at959, quoting Matter of Verizon N.Y., Inc. v Bradbury, 40 AD3d at 1114; see Matter ofBahnken v New York City Fire Dept., 17 AD3d at 230).[*2]
Here, contrary to the Supreme Court's determination, theappellants established that the materials sought by the petitioner in his request pursuant to the Freedomof Information Law (Public Officers Law § 84 et seq.) were exempt from disclosure.First, the appellants established that disclosure of the materials sought would interfere with lawenforcement investigations or judicial proceedings (see Public Officers Law § 87 [2] [e][i]). Contrary to the petitioner's contention, the appellants were not required to detail the manner inwhich each document sought would cause such interference. Rather, under the circumstances here, theassertion that disclosure would interfere with an ongoing law enforcement investigation was a sufficientlyparticularized justification for the denial of access to those records under Public Officers Law §87 (2) (e) (i) (see Matter of Legal Aid Socy. v New York City Police Dept., 274 AD2d 207[2000]; Matter of Pittari v Pirro, 258 AD2d 202 [1999]; see generally Matter of Gould vNew York City Police Dept., 89 NY2d 267 [1996]).
Furthermore, the appellants established that the materials sought were "specifically exempted fromdisclosure by state or federal statute" (Public Officers Law § 87 [2] [a]). Specifically, thematerials were exempted from disclosure pursuant to Civil Rights Law § 50-b, which, withexceptions not relevant here, prevents any public officer from disclosing documents which wouldidentify the victim of a sex offense. Moreover, contrary to the petitioner's contention, "insofar as therequested records are exempt from disclosure pursuant to State statute (Public Officers Law §87 [2]; Civil Rights Law § 50-b [1]), the [appellants] are not obligated to provide the recordseven though redaction might remove all details which 'tend to identify the victim[s]' (see, CivilRights Law § 50-b [1]; see also, Matter of Short v Board of Mgrs. of Nassau County Med.Ctr., 57 NY2d 399)" (Matter of Karlin v McMahon, 96 NY2d 842, 843 [2001]).
The petitioner's remaining contentions are without merit. Covello, J.P., Angiolillo, Dickerson andBelen, JJ., concur.