N.Y. appeals court rules agency may withhold records after "inadvertent" prior release

A New York mid-level appeals court partially upheld a lower court's decision to deny a records requester documents requested through the state Freedom of Information Law, despite the fact that the agency previously granted the requester access to parts of the documents. In its ruling last week, the New York State Supreme Court, Appellate Division for the Third Department confirmed that some of the documents in question were exempt from disclosure pursuant to exemptions in the FOIL for attorney-client privileged communications, as well as inter- and intra-agency e-mails and memoranda that would reveal the agency's pre-decisional deliberations.

In 2010, Victor Mazzone sought records concerning a construction and bridge replacement project on Route 59 in Clarkstown, N.Y. The state Department of Transportation provided him with some of the documents held in its Albany office — withholding some under certain exemptions found in the FOIL — and informed him that its Poughkeepsie office would also be responding to his request regarding the records kept at that office.

Before issuing a decision regarding whether the documents requested could be released, a records officer in the Poughkeepsie office informed Mazzone that some of the records he wanted were available for viewing, while the rest would be available for inspection at a later date. Mazzone examined the records at the office and requested copies of some of them. When the agency denied him some of the copies he requested — claiming they were exempt from disclosure — he sued, seeking disclosure of the files he had seen, as well as those withheld by the Albany office.

Mazzone contended in part that the agency had waived its right to withhold the documents he inspected, since they had previously been made available to him. The lower court rejected this argument, and, after inspecting the records withheld, affirmed the agency’s decision to withhold their release under exemptions to the FOIL.

The appeals court also affirmed, noting the agency's claim that the prior "disclosure was inadvertent," and that Mazzone "was allowed to inspect these documents before it had issued a determination on his FOIL request.”

Justice E. Michael Kavanagh tersely ruled that in the case of such inadvertent disclosure, the right to deny disclosure is not waived. Further, he explained, he agreed "for the most part" with the lower court's decision after reviewing the withheld materials that they were "in fact exempt from disclosure” as either privileged communications between the agency and its counsel or e-mails and memoranda that would reveal the agency's deliberative process. However, the court ordered the release of one memorandum and an e-mail that it found did not fall within the deliberative process exemption.

Attorney Edward Stein, who represented Mazzone, said he was disappointed in the way the state handled the FOIL appeal.

“This put heavy burden and costs on someone who simply requested information through FOIL, which is his right,” said Stein.

The court also rejected Mazzone's claim for attorney's fees, finding that he had not "substantially prevailed" in his suit and that the agency had a "reasonable basis for denying access." Mazzone also unsuccessfully claimed that the state failed to meet its burden to prove that the documents were exempt from disclosure. He argued that simply submitting the records to the lower court for inspection was insufficient in demonstrating that the sought-after documents could be withheld.

Stein expressed his belief that the state needs to correct the course in which FOIL proceedings are headed.

“According to this and similar cases, in New York, an agency simply has to separate and produce documents for in camera inspection, providing a bare explanation as to why they are exempt under FOIL," said Stein. "FOIL should be patterned on its federal counterpart where a full written explanation is required to withhold any such information.”

The state Office of the Attorney General declined to comment.

Stein said his client has not decided whether to further appeal this case.

Related Reporters Committee resources:

· New York – Open Government Guide: 2. Discussion of each exemption.