New York Continues to Uphold the Public’s “inherent right to know” Through FOIL Requests

A New York court recently recognized the importance of the public’s access to government records. On December 13, 2016, Justice Robert J. Muller granted Petitioners access under the Freedom of Information Law (“FOIL”) to a hearing officer’s report and recommendation that was considered by the City of Glens Falls Common Council (the “Council”) in the termination of a City of Glens Falls (the “City”) employee.

Petitioner’s sought a copy of the hearing officer’s report and recommendation regarding Lauren M. Stack, the City’s assessor, after she pled guilty in August 2016 to, among other things, driving while ability impaired. The City brought disciplinary charges against her and the Council ultimately terminated her employment on the recommendation of the hearing officer.

Petitioner Maury Thompson, a reporter for The Post-Star and Petitioner Kathy Barrans, a television producer at WNYT-TV, submitted separate FOIL requests to the City’s records officer, who denied their requests. This determination was upheld on administrative appeal by the records appeal officer and an Article 78 proceeding ensued.

In the Article 78 proceeding, Lee Enterprises, Inc. v. The City of Glens Falls, 63270, NYLJ 1202774435247, at *1 (Sup., WARREN, Decided December 1, 2016), Respondents argued that the intra-agency exemption from FOIL requests permitted the City to deny Petitioners’ FOIL requests. The court was unpersuaded by Respondents’ expansive interpretation of the intra-agency exemption, and found that a disciplinary matter addressed in a hearing and cumulating in the termination of a public employee “does not fall within the intra-agency exemption simply because the agency claims to accept only the recommendation of the hearing officer, but not the reasons therefore…”

The decision reiterated that the “FOIL is based on the overriding policy consideration that ‘the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government.” Matter of Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252 (1987), quoting Matter of Fink v. Lefkowitz, 47 NY2d 567, 571 (1979). It continued that “The Court of Appeals has made clear that ‘FOIL be ‘liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.’” Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 18 NY3d 652, 657 (2012), quoting Whalen, supra, at 252.

The decision emphasized that an agency asserting an exemption in support of its denial of a FOIL request has the burden to demonstrate that “‘the material requested falls squarly within the ambit of one of [the] statutory exemptions.’” Matter of Newsday, Inc. v. Empire State Dev. Corp., 98 NY2d 359, 362 (2002), quoting Lefkowitz, supra, at 571. In this case, the Respondents fell far short from meeting this burden.

The court ordered the entire report and recommendation be released to Petitioners pursuant to FOIL, solidifying the New York Appellate Division, Fourth Department’s proposition that “[d]isciplinary files containing disciplinary charges, the agency determination of those charges, and the penalties imposed … are not exempt from disclosure under FOIL.” Matter of Obiajulu v. City of Rochester, 123 AD2d 1055, 1055 (1995) (emphasis added).

This decision demonstrates New York’s continued protection of public access to government records.


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