Opinion
100079/2016
01-18-2017
The Empire Center for Public Policy, Inc., Petitioner, v. NYC Office of Payroll Administration, Respondent.
For petitioner, Lawrence P. Justice, Esq. 111 Washington Ave. Ste. 260 Albany, NY 12210 (518) 368-7539 For respondent, Zachary W. Carter Corporation Counsel 100 Church Street, Room 2-149 New York, NY 10007 (212) 356-2472
For petitioner, Lawrence P. Justice, Esq. 111 Washington Ave. Ste. 260 Albany, NY 12210 (518) 368-7539 For respondent, Zachary W. Carter Corporation Counsel 100 Church Street, Room 2-149 New York, NY 10007 (212) 356-2472 Kathryn E. Freed, J.
RECITATION, AS REQUIRED BY CPLR 2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS PETITION: PAPERS/NUMBERED NOTICE OF PETITION, PETITION AND EXHIBITS ANNEXED 1,2 (Exs. A-I) MEMO OF LAW IN SUPP OF PETITION 3 VERIFIED ANSWER AND EXHIBITS ANNEXED 4 (Exs. A-B) MEMO OF LAW IN SUPP OF ANSWER 5 REPLY AFF 6 UPON THE FOREGOING CITED PAPERS, THIS DECISION/JUDGMENT ON THE PETITION IS AS FOLLOWS:
In this CPLR article 78 proceeding, petitioner seeks review of a denial of its request, pursuant to the Freedom of Information Law (FOIL) (Public Officers Law § 84 et seq.), for payroll information for undercover officers employed by the New York City Police Department (NYPD). Respondent submits written opposition. After oral argument, and following a review of the papers submitted, as well as the relevant statutes and case law, the petition is granted.
FACTUAL AND PROCEDURAL BACKGROUND
By email dated July 1, 2015, petitioner, through Kyle Ducham, Data and Development Associate, submitted a request to respondent for "an electronic copy of the payrolls for all New York City employees, including employees of the five county district attorneys, the Police Department, and Special Narcotics for fiscal year 2015." (Ex. A to Petition.) The request specified that it was seeking information for "all full- and part-time employees sorted by agency, including: name, title, compensation rate, agency start date, city start date, cumulative years of service, pay basis (annual biweekly, etc), location and total employee compensation (including overtime and other extras, but excluding expense reimbursements." The request also provided that respondent could "redact employee names."
On July 10, 2015, respondent, through Carrie Eicholtz, Agency Attorney/FOIL Officer, responded that several months would be required to compile the data, and the request would be fulfilled by October 2015. (Ex. B to Petition.) On October 6, 2015, Ducham asked via email whether respondent had completed the request. (Ex. C to Petition.) That same day, Eicholtz responded that the data was still being compiled, and more time was required. (Ex. D to Petition.) On November 5, 2015, petitioner requested to know the status of the request. (Ex. E to Petition.) That same day, Eicholtz replied that more time was required to comply with the request. (Ex. F to Petition.)
On November 6, 2016, Tim Hoefer, Executive Director of petitioner, sent what it termed an "Appeal of constructive denial of FOIL request." (Ex. G to Petition.) On November 18, 2016, along with a CD containing records in response to petitioner's request, Eicholtz sent Ducham and Hoefer an email indicating that respondent had satisfied the FOIL request and, as a result, the appeal was rendered moot. (Ex. H to Petition.)
From November 24 to December 4, 2015, Ducham, Hoefer and Eicholtz exchanged emails through which petitioner indicated that it was dissatisfied with the information provided to the extent that payroll information for undercover NYPD employees was not included. Eicholtz indicated that the NYPD completely withheld even information regarding the salaries of undercover employees.
Although Eicholtz's email could be read to imply that respondent was not in possession of the information that petitioner requested, the answer makes plain that the information was withheld because it "would pose a serious security threat, both to individual officers and to NYPD undercover operations." (Answer, ¶ 20.)
POSITIONS OF THE PARTIES
Petitioner argues that the payroll information of undercover officers is in the public interest and is not exempt from disclosure pursuant to FOIL. It also contends that, since respondent constructively denied the entirety of its request, respondent's subsequent compliance with a portion should be construed as a decision on the appeal from which it is aggrieved, rather than an initial decision from which a new appeal had to be taken.
Respondent maintains that the disclosure of any information concerning NYPD undercover officers would pose a security threat such that it is exempt from FOIL. Respondent also contends that, after respondent complied with petitioner's request, petitioner should have appealed before commencing this proceeding.
LEGAL CONCLUSIONS
Initially, petitioner properly took respondent's multiple, lengthy delays in excess of the time periods delineated under the statute to constitute a constructive denial of the FOIL request. See Public Officers Law § 89 (3) (a); (4) (a); Matter of South Shore Press, Inc. v Havemeyer, 136 AD3d 929, 930 (2d Dept 2016); Matter of Yang-Hao Lu v Kings County Dist. Attorney's Off., 118 AD3d 815, 815 (2d Dept 2014), lv denied 24 NY3d 904 (2014). Furthermore, since respondent's compliance was in response to petitioner's administrative appeal, which had already brought up for review the entirety of the request, petitioner was not required to initiate a second appeal for respondent to consider the more specific issue currently before this Court.
Turning to the merits, "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government." Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 252 (1987). In keeping with that policy, "FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted." Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 (1986); see Public Officers Law § 87 (2). "[T]he agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access." Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; see Matter of New York State United Teachers v Brighter Choice Charter School, 15 NY3d 560, 567 (2010). Further, "an agency responding to a demand under [FOIL] may not withhold a record solely because some of the information in that record may be exempt from disclosure. Where it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information." Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals v Mills, 18 NY3d 42, 45 (2011).
An agency is not required to disclose "nonroutine" information — that is, information which, if disclosed, "would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel." Matter of Fink v Lefkowitz, 47 NY2d 567, 572 (1979). As Chief Judge Cooke so aptly put it, an agency need not "furnish the safecracker with the combination to the safe." Id. at 573. The NYPD has satisfied this burden by "describing generic risks posed by disclosure, [which legitimately included] identification of sources, disclosure of the size and capabilities of the NYPD undercover program, and disclosure of the tradecraft, policies, modes of operation, and methods used by the NYPD." Asian Am. Legal Defense & Educ. Fund v New York City Police Dept., 41 Misc 3d 471, 476 (Sup Ct, NY County 2013), affd 125 AD3d 531 (1st Dept 2015), lv denied 26 NY3d 919 (2016). Documents held to be exempt from disclosure pursuant to this exemption have been "replete with sensitive information about the unit's methods and operations, which could be publicly disseminated and potentially exploited by terrorists, [and] would create a possibility of endangerment" if disclosed. Asian Am. Legal Defense & Educ. Fund v New York City Police Dept., 125 AD3d at 532 (internal quotation marks and citation omitted).
Here, respondent has failed to sustain its burden that disclosure of the payroll information for undercover police officers, without any accompanying identifying information, would in any way endanger them, impede their work, or give valuable information to those attempting to evade their investigations. Indeed, petitioner has indicated that it would accept the payroll information for undercover officers in the aggregate, rather than individually. Although this information would reveal the size of city law enforcement agencies' undercover program, that is the only information it would provide. Standing alone, it is an insufficient basis on which to implicate this exemption.
Petitioner is entitled to know, at a minimum, the number of undercover officers employed by the NYPD and their salaries in the aggregate. As petitioner has substantially prevailed, the information sought is of significant interest to the general public, and there was no reasonable basis in law to withhold the information, this Court exercises its discretion to award it fees and costs. See Public Officers Law § 89 (4) (c); Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, 441 (2005); Matter of South Shore Press, Inc. v Havemeyer, 136 AD3d at 930-931.
Therefore, in accordance with the foregoing, it is hereby:
ADJUDGED that the petition is granted, with costs as taxed by the clerk upon submission of an appropriate bill of costs, the determination not to disclose any information concerning undercover agents employed by the New York City Police Department is annulled, and respondent is directed comply with the FOIL request in accordance with this decision; and it is further
ORDERED that this matter is referred to a special referee to hear and report on the appropriate amount of attorney's fees to be awarded to petitioner; and it is further
ADJUDGED this constitutes the decision and judgment of the court. ENTER: Dated: January 18, 2017 _________________________ KATHRYN E. FREED, J.S.C.