Agencies Must Detail Disclosure Denials, Judge Rules

, New York Law Journal

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A government agency cannot avoid its public disclosure obligations under the state's Freedom of Information Law by merely citing statutory exemptions, and must explain how it can justify withholding information, a judge in Nassau County has held.

Yet while generally agreeing with Newsday that the Nassau County Police Department violated FOIL, Supreme Court Justice Daniel Palmieri (See Profile) denied the newspaper's request for mandamus and declaratory relief, saying he could not order the agency to certify annually that it is meeting its disclosure requirements.

Newsday v. Nassau County Police Department, 8172/13, arose from the newspaper's repeated requests for information and the law enforcement agency's repeated refusal to provide it. Records show that the police department, in denying Newsday's requests, generally cited statutory exemptions without providing details.

For instance, in denying Newsday's request for "arrest reports, police reports, case reports and any other publicly releasable documents" related to four criminal cases, the police department cited a provision which exempts records which, if disclosed, would result in an "unwarranted invasion of personal privacy."

But Palmieri said it's not good enough to simply "restate the statutory language."

He said FOIL "places the burden on a resisting agency or department to explain how a given request for records fits under one of the statutory exemptions." Here, Palmieri said, "it is apparent to this Court that the denial of access to the records requested was not adequately supported by [the police department]."

Palmieri said the department's assertion that release of certain information would endanger someone's life is insufficient, because the department never explained how or why disclosure would jeopardize anyone's safety. He said the department's claim that other information, if released, would resulted in an "unwarranted invasion of privacy" is, "without more … patently inadequate."

"Although respondent correctly cites authority to the effect that even the possibility that safety could be compromised can be a sufficient grounds for withholding records, there still must be a showing of such possibility, and here there is nothing but conclusory statements," Palmieri wrote.

Palmieri awarded Newsday an unspecified amount of legal fees and expenses.

Newsday had also asked the court to find that the police department engaged in a pattern of FOIL abuses and to issue a judgment directing the agency to fulfill its disclosure requirements in the future. Additionally, the newspaper asked Palmieri to force the police department to certify annually that it is complying with FOIL.

The judge refused.

"Petitioner is asking the Court either to engraft new forms of relief onto the existing statutory scheme, which is a legislative task, or, in effect, to recognize a new cause of action," Palmieri wrote. "[T]he Court instead declares that the existing statute provides all the relief currently available to petitioner."

Newsday was represented by David Schulz and Alia Smith of Levine Sullivan Koch & Schulz.

Nassau County Attorney Carnell Foskey and Deputy County Attorney Jeremy Zenilman represented the police department.

Robert Freeman, executive director of the state Committee on Open Government, said the ruling is significant in its "insistence that the government agency … meet the burden of defending secrecy."

"It is clear that the court found that the agency's mere parroting of the language of exceptions to rights of access, without explaining how and why disclosure would cause interference, harm or jeopardy, was insufficient to deny access," Freeman said. "I believe, too, that the award of attorney's fees is important, for it should serve as intended, as a deterrent to unreasonable denials of access to records."

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