| Matter of Prall v New York City Dept. of Corr. |
| 2015 NY Slip Op 04653 [129 AD3d 734] |
| June 3, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Kyle Prall, Appellant, v NewYork City Department of Corrections et al., Respondents. |
Hiscock & Barclay, LLP, Buffalo, N.Y. (Karim A. Abdulla of counsel), forappellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow,Dona B. Morris, and Elizabeth Edmonds of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of Nadene M.Pinnock, the Records Appeal Officer of the New York City Department of Correction,dated January 4, 2012, which denied the petitioner's administrative appeal seeking thedisclosure of certain documents under the Freedom of Information Law (Public OfficersLaw § 84 et seq.), the petitioner appeals from a judgment of theSupreme Court, Queens County (Gavrin, J.), dated May 23, 2013, which denied thepetition and, in effect, dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
The petitioner, through his company, Citizens Information Associates, LLC, operatesa website that displays photographs of individuals who have been arrested, and charges a$68 fee in exchange for removing a photograph from the website. In September 2011,the petitioner made a Freedom of Information Law (Public Officers Law§ 84 et seq. [hereinafter FOIL]) request to the New York CityDepartment of Correction, sued herein as the New York City Department of Corrections(hereinafter the DOC), for, inter alia, "Booking Photos/Mugshots on every individualarrested by and/or booked into all of the [DOC's] jails, prisons, detention and/orcorrectional facilities from August 1, 2011 to August 31, 2011," and for informationconcerning those individuals, including dates of birth and home addresses. In December2011, Rosa Lugo, the Records Access Officer for the DOC, denied those portions of thepetitioner's FOIL request based on a determination that the requested records fell withinthe statutory exemptions under Public Officers Law § 87 (2) (b) and (f).The petitioner challenged that determination in an administrative appeal. In adetermination dated January 4, 2012, Nadene M. Pinnock, the Records Appeal Officerfor the DOC, denied the petitioner's administrative appeal, affirming the determination ofthe Records Access Officer.
The petitioner commenced this proceeding pursuant to CPLR article 78 to review thedetermination dated January 4, 2012. In a judgment dated May 23, 2013, the SupremeCourt denied the petition and, in effect, dismissed the proceeding. The petitioner appealsfrom the judgment.
In a proceeding pursuant to CPLR article 78 to compel the production of materialpursuant to FOIL, the agency denying access has the burden of demonstrating that thematerial requested falls within a statutory exemption, which exemptions are to benarrowly construed (see Public Officers Law § 89 [5] [e]; Matterof Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 158-159 [1999]; Matter of Baez v Brown, 124AD3d 881 [2015]; Matterof Catskill Regional Off-Track Betting Corp. v State of N.Y. Racing & WageringBd., 31 AD3d 540, 541 [2006]). "Thus, on the issue of whether [*2]a particular document is exempt from disclosure under theFreedom of Information Law, the oft-stated standard of review in CPLR article 78proceedings, i.e., that the agency's determination will not be set aside unless arbitrary orcapricious or without rational basis, is not applicable" (Matter of Capital NewspapersDiv. of Hearst Corp. v Burns, 109 AD2d 92, 94 [1985], affd 67 NY2d 562[1986]; see Matter of New YorkComm. for Occupational Safety & Health v Bloomberg, 72 AD3d 153, 158[2010]). Thus, in this proceeding, the Supreme Court erred in applying the "arbitrary andcapricious" standard. Nevertheless, reversal is not warranted on this ground where, ashere, the Supreme Court, in effect, correctly determined that the DOC met its burden ofestablishing that the records at issue fell within the statutory exemptions under PublicOfficers Law § 87 (2) (b) and (f) (cf. Matter of New York Comm. forOccupational Safety & Health v Bloomberg, 72 AD3d at 158-159).
The agency's burden of demonstrating that the material requested falls within astatutory exemption "requires the [agency] to 'articulate a "particularized and specificjustification for denying access" ' " (Matter of Baez v Brown, 124 AD3d 881, 883 [2015],quoting Matter of Dilworth vWestchester County Dept. of Correction, 93 AD3d 722, 724 [2012], quotingMatter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566)." 'Conclusory assertions that certain records fall within a statutory exemption arenot sufficient; evidentiary support is needed' " (Matter of Baez v Brown,124 AD3d at 883, quoting Matter of Dilworth v Westchester County Dept. ofCorrection, 93 AD3d at 724).
Pursuant to Public Officers Law § 87 (2) (b), an agency "may denyaccess to records" where disclosure "would constitute an unwarranted invasion ofpersonal privacy under the provisions of [Public Officers Law § 89 (2)(b)]." "[W]here none of the [exemptions under Public Officers Law § 89 (2)(b) are] applicable, a court 'must decide whether any invasion of privacy . . .is "unwarranted" by balancing the privacy interests at stake against the public interest indisclosure of the information' " (Matter of Harbatkin v New York City Dept. of Records & Info.Servs., 19 NY3d 373, 380 [2012], quoting Matter of New York Times Co. v City of N.Y. Fire Dept., 4NY3d 477, 485 [2005]).
Here, the DOC proffered only conclusory assertions that denial of the requestedrecords "would result in economic or personal hardship to the subject party," which wasinsufficient to demonstrate the applicability of Public Officers Law § 89 (2)(b) (iv) (see Matter of Baez vBrown, 124 AD3d 881 [2015]; Matter of Jaronczyk v Mangano, 121 AD3d 995, 996[2014]). The DOC also failed to establish that any individuals received an express orimplied promise of confidentiality from it, as required to demonstrate the applicability ofPublic Officers Law § 89 (2) (b) (v) (see Matter of Johnson v New YorkCity Police Dept., 257 AD2d 343, 348 [1999]).
In view of the DOC's failure to demonstrate the applicability of any exemptionsunder Public Officers Law § 89 (2) (b), this Court must determine whetherdisclosure would constitute an "unwarranted invasion of personal privacy" by" 'balancing the privacy interests at stake against the public interest in disclosureof the information' " (Matter of Harbatkin v New York City Dept. of Records& Info. Servs., 19 NY3d at 380, quoting Matter of New York Times Co. vCity of N.Y. Fire Dept., 4 NY3d at 485). Here, the petitioner has not set forth anydirect public interest in disclosure of the records at issue, which were sought for the solepurpose of posting personal information and photographs of individuals currently orformerly in the custody of the DOC on a website that collects payment in exchange forremoving the photographs. On the other hand, the record reflects that the privacyinterests of numerous individuals are implicated, including those individuals who wereultimately acquitted of any criminal charges and adolescents between the ages of 16 and18 who are presently or were in the custody of the DOC. Consequently, under theparticular circumstances of this case, a balancing of the privacy interests at stake againstany public interest in disclosure necessitates a determination that disclosure of therecords at issue would constitute an "unwarranted invasion of personal privacy" (PublicOfficers Law § 87 [2] [b]; see Matter of Massaro v New York State Thruway Auth., 111AD3d 1001, 1003 [2013]; Matter of Investigation Tech., LLC v Horn, 4 Misc 3d1023[A], 2004 NY Slip Op 51010[U] [Sup Ct, NY County 2004]).
In any event, contrary to the petitioner's contention, the DOC also demonstrated thatdisclosure of the photographs "could endanger the life or safety of any person" (PublicOfficers Law § 87 [2] [f]) and, thus, that the photographs were exempt fromdisclosure under Public Officers Law § 87 (2) (f) (see Matter of Dilworth vWestchester County Dept. of Correction, 93 AD3d 722 [2012]; Matter of Bellamy v New YorkCity Police Dept., 87 AD3d 874 [2011], affd 20 NY3d 1028[2013]).
[*3] The parties' remainingcontentions either need not be reached in light of our determination, are without merit, orare not properly before this Court.
Accordingly, the Supreme Court properly denied the petition and, in effect,dismissed the proceeding. Rivera, J.P., Roman, Sgroi and Duffy, JJ., concur.