| Matter of Dilworth v Westchester County Dept. of Correction |
| 2012 NY Slip Op 01816 [93 AD3d 722] |
| March 13, 2012 |
| Appellate Division, Second Department |
| In the Matter of Anthony G. Dilworth,Appellant-Respondent, v Westchester County Department of Correction,Respondent-Appellant. |
—[*1] Robert F. Meehan, County Attorney, White Plains, N.Y. (James Castro-Blanco and ThomasG. Gardiner of counsel), respondent pro se and for respondent Westchester County Departmentof Correction.
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of RobertF. Meehan, as County Attorney of Westchester County, dated March 29, 2010, which denied thepetitioner's request pursuant to the Freedom of Information Law (Public Officers Law § 84et seq.) for disclosure of all records of electronic video surveillance of him during hisdetention at the Westchester County Jail, the petitioner appeals, as limited by his brief, from somuch of a judgment of the Supreme Court, Westchester County (Cacace, J.), entered December21, 2010, as denied those branches of his petition which were to direct the Westchester CountyDepartment of Correction and Robert F. Meehan, as County Attorney of Westchester County, toprovide him with certain electronic video surveillance records and, in effect, dismissed thatportion of the proceeding, and the Westchester County Department of Correction and Robert F.Meehan, as County Attorney of Westchester County, cross-appeal, as limited by their brief, fromso much of the same judgment as granted that branch of the petition which was to direct them toprovide the petitioner with a certain record of electronic video surveillance depicting an incidentthat occurred on December 16, 2008.
Ordered that the judgment is affirmed, without costs or disbursements.
The petitioner was a detainee at the Westchester County Jail (hereinafter the Jail) for a periodof approximately one year in 2008 and 2009. On December 16, 2008, several months into thatdetention, he slipped and fell at the Jail, and allegedly sustained injuries. The Jail has anelectronic video surveillance system. In March 2010 the petitioner requested disclosure, pursuantto the Freedom of Information Law (Public Officers Law § 84 et seq. [hereinafterFOIL]), of all records of electronic video surveillance of him during his detention at the Jail. Hisrequest was denied by the Westchester County Department of Correction (hereinafter theWCDOC) on the ground that the surveillance records were exempt from disclosure under PublicOfficers Law § 87 (2) (f). That subsection provides that records are exempt fromdisclosure if their disclosure "could endanger the life or safety of any person" (Public OfficersLaw § 87 [2] [f]). The petitioner's administrative appeal to Robert F. Meehan, the CountyAttorney of Westchester County, was denied [*2]on the sameground.
The petitioner then commenced this proceeding against Meehan, as County Attorney ofWestchester County, and the WCDOC (hereinafter together the Department) to review Meehan'sdetermination and to direct the Department to provide the petitioner with the requestedsurveillance records. The Department submitted, as an exhibit to its answer, an affidavit of aSergeant with the WCDOC, who asserted that release of the records could compromise securityat the Jail by disclosing the perspective and field of view of the cameras and, therefore, any gapsin the surveillance system. The Supreme Court granted that branch of the petition which was todirect the Department to provide the petitioner with the electronic video surveillance recorddepicting the petitioner's slip and fall from the best camera angle that captured it, but otherwisedenied the petition. The petitioner appeals, and the Department cross-appeals, from statedportions of the judgment, and we affirm.
FOIL requires that state and municipal agencies "make available for public inspection andcopying all records," subject to certain exemptions (Public Officers Law § 87 [2]; see Matter of Data Tree, LLC vRomaine, 9 NY3d 454, 462 [2007]; Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d477, 483 [2005]). The exemptions from disclosure "are to be narrowly interpreted so that thepublic is granted maximum access to the records of government" (Matter of Data Tree, LLC vRomaine, 9 NY3d at 462; seeMatter of Markowitz v Serio, 11 NY3d 43, 49-50 [2008]; Matter of CapitalNewspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987]). To further the goalof FOIL, which is to provide access to government records, an agency claiming an exemptionfrom disclosure bears the burden of showing that the requested material "falls squarely within theambit of one of the statutory exemptions" (Matter of Verizon N.Y., Inc. v Bradbury, 40 AD3d 1113, 1114[2007]; see Matter of Markowitz v Serio, 11 NY3d at 50-51; Matter of Bahnken v New York City FireDept., 17 AD3d 228, 230 [2005]). To meet that burden, the agency must articulate a"particularized and specific justification for denying access" (Matter of Capital NewspapersDiv. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]; see Matter of Verizon N.Y.,Inc. v Bradbury, 40 AD3d at 1114; Matter of Bahnken v New York City Fire Dept.,17 AD3d at 230). Conclusory assertions that certain records fall within a statutory exemption arenot sufficient; evidentiary support is needed (see Matter of Washington Post Co. v New YorkState Ins. Dept., 61 NY2d 557, 567 [1984]; Church of Scientology of N.Y. v State ofNew York, 46 NY2d 906, 907-908 [1979]).
Here, the Supreme Court properly determined that the evidence submitted by the Departmentwas insufficient to establish that the disclosure of an electronic video surveillance record fromone camera angle from one particular day could endanger the life or safety of any person byexposing limitations in the surveillance system (see Matter of Buffalo Broadcasting Co. vNew York State Dept. of Correctional Servs., 174 AD2d 212 [1992]; cf. Matter of Mack v Howard, 91AD3d 1315, 1317 [2012]). The Supreme Court also properly determined, however, that theDepartment established, through the Sergeant's affidavit, that disclosure of the remainingelectronic video surveillance records requested by the petitioner could expose such limitationsand, thereby, endanger the life or safety of any person (see Public Officers Law §87 [2] [f]; Matter of Lonski v Kelly, 149 AD2d 977, 978 [1989]). Accordingly, theSupreme Court's judgment must be affirmed. Balkin, J.P., Leventhal, Belen and Roman, JJ.,concur.