| Matter of Mack v Howard |
| 2012 NY Slip Op 00584 [91 AD3d 1315] |
| Jnury 31, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Marquez Mack, Appellant, v TimothyHoward, in His Official Capacity as Sheriff of Erie County, et al.,Respondents. |
Appeal from a judgment (denominated order and judgment) of the Supreme Court, ErieCounty (Frederick J. Marshall, J.), entered February 3, 2011 in a proceeding pursuant to CPLRarticle 78. The judgment, inter alia, denied the petition to compel the release of certain videorecords. It is hereby ordered that the judgment so appealed from is unanimously modified on thelaw by granting the petition to the extent of directing respondents forthwith to provide petitionerwith that portion of the videotape entitled "Annex B Prison B 26," depicting his detention inCourt Hold #2, and as modified the judgment is affirmed without costs. Memorandum: Petitioner, an inmate at a correctional facility, commenced this CPLRarticle 78 proceeding seeking to compel respondents to comply with his request pursuant to theFreedom of Information Law ([FOIL] Public Officers Law art 6) for a copy of a videotape takenof Court Hold No. 2 in the Erie County Holding Center on a specified date. The videotapedepicts an altercation between petitioner and several deputy sheriffs in that Court Hold, which isa small cell used to detain inmates temporarily on their way to and from court. We note at theoutset that petitioner has abandoned his request in the petition for disclosure of various othervideotapes from the Holding Center depicting petitioner before he entered Court Hold No. 2 (seeCiesinski v Town of Aurora, 202 AD2d 984 [1994]). We agree with petitioner that Supreme Court erred in denying that part of the petitionwith respect to the videotape from Court Hold No. 2, and we therefore modify the judgmentaccordingly. Contrary to the court's determination, the videotape is not exempt from disclosurepursuant to Public Officers Law 87 (2) (f), inasmuch as respondents failed to meet their burdenof demonstrating that the release of the videotape could "endanger the life or safety of anyperson." Respondents' contention that the videotape demonstrates the manner in which an inmatecan create a disturbance that draws deputies away from their transport duties and thereby ties upmanpower is improperly based solely upon speculation, because it is not apparent from the videothat the three officers involved in the altercation with petitioner were drawn away from otherduties to help quell the disturbance. In addition, the possibility that an inmate disturbance mightresult in a redistribution of correctional manpower is obvious. As in Matter of BuffaloBroadcasting Co. v New York State Dept. of Correctional Servs. (174 AD2d 212, 215 [1992], lvdenied 79 NY2d 759 [1992]), another FOIL case involving video recordings from a correctionalfacility, "the depictions [at issue] were of scenes witnessed by the general prison population and .. . the techniques, weapons and equipment used by correction officers and officials as shown onthe tapes were not only observable by the inmates but completely conventional in nature." Respondents' reliance on Matter of Lonski v Kelly (149 AD2d 977 [1989]) is misplaced.In Lonski, the videotape at issue depicted an inmate's transfer to the special housing unit at acorrectional facility, rather than merely the interior of a single cell in a holding center. Wedetermined that it was exempt from disclosure under Public Officers Law 87 (2) (f) because thevideotape revealed "the geographical layout of [the] special housing unit and disclose[d] theidentities of inmates and officers who occup[ied] that portion of the prison" (id. at 978). Here,because the videotape depicts only the inside of a single cell, the videotape reveals noinformation about the geographical layout of the Holding Center. We thus conclude that respondents must provide petitioner with a copy of the videotapeentitled "Annex B Prison B 26," showing the altercation in Court Hold No. 2. We furtherconclude, however, that petitioner is not entitled to an award of attorney's fees pursuant to PublicOfficers Law 89 (4) (c). Even assuming, arguendo, that respondents had "no reasonable basis"for failing to disclose the videotape ( 89 [4] [c] [i]), it cannot be said that petitioner "substantiallyprevailed" in this proceeding inasmuch as he established his entitlement to only one of thenumerous videotapes requested in the petition ( 89 [4] [c]). Present Smith, J.P., Peradotto,Lindley, Sconiers and Gorski, JJ.