Opinion
August 23, 1988
Joan S. Faulkner, petitioner pro se, and for Cheryl Maxwell and another, petitioners.
Robert Abrams, Attorney-General (D. Travis Tucker of counsel), for respondents.
At issue herein is whether or not petitioners, two members of Prisoners' Legal Services and an inmate, are entitled under the Freedom of Information Law (Public Officers Law § 84 et seq.) (FOIL) to the names of other Muslim Clinton inmates who have filed grievances based on being pat-frisked by female correction officers.
Respondents allege that they were correct in redacting the name(s) of the "grieving" inmates due to Public Officers Law § 87 (2) (b), the sole ground upon which the inmate records coordinator redacted the names and upon which he was administratively affirmed. It is therefore the only ground before the court (Matter of Jennings v Coughlin, 99 A.D.2d 635; Matter of Lugo v Gaines, 83 A.D.2d 542; Matter of Massop v LeFevre, 127 Misc.2d 910 [Sup Ct 1985]; see also, 8 Weinstein-Korn-Miller, N Y Civ Prac ¶ 7803.04; Matter of Romano v Ward, 96 Misc.2d 937; Hayes v Thompson, 637 F.2d 483 [7th Cir 1980]; Matter of Malik v Coughlin, 133 Misc.2d 245; Davilla v Coughlin, Sup Ct, Clinton County, Mar. 12, 1987, Plumadore, J.; Morris v LeFevre, Sup Ct, Clinton County, Feb. 24, 1987, Intemann, J.; Hobson v Coughlin, Sup Ct, Clinton County, Feb. 18, 1987, Intemann, J.; McClean v LeFevre, Sup Ct, Clinton County, Apr. 27, 1987, Plumadore, J.; Crowley v O'Keefe, Sup Ct, St. Lawrence County, May 12, 1988, Duskas, J.).
As petitioners' reply amply demonstrates (Matter of Morris v Martin, 55 N.Y.2d 1026; Matter of New York Teachers Pension Assn. v Teachers' Retirement Sys., 71 A.D.2d 250; Matter of Pasik v State Bd. of Law Examiners, 114 Misc.2d 397; American Broadcasting Cos. v Siebert, 110 Misc.2d 744; Matter of Gannett Co. v County of Monroe, 59 A.D.2d 309, affd 45 N.Y.2d 954), lists of names of frequently if not routinely found to be available under FOIL, including inmates' names (Matter of Bensing v LeFevre, 133 Misc.2d 198 [Sup Ct, Clinton County, Duskas, J.]; but see, Matter of Newsday, Inc. v Sise, 71 N.Y.2d 146 ).
In Bensing (supra), the ground most seriously asserted by the respondents was unwarranted invasion of the other (special housing) inmates' privacy (Public Officers Law § 87 [b]; § 89 [2]) by disclosure of their identities to a fellow special housing unit resident. The court there found that that situation did not fit squarely within any of the section 89 (2) (b) (i)-(v) specific definitions of privacy nor within any other (i.e., common law or Public Officers Law § 95 [c] — inmate protection) and permitted disclosure. This court narrowly declines to follow that holding on our specific facts.
As properly pointed out by respondents, 7 N.Y.CRR 701 et seq. sets forth the grievance program and procedures and provides that its papers and information shall be confidential ( 7 NYCRR 701.14, 701.9 [a] [5], [6]). It is axiomatic that governmental agencies are bound by their own duly enacted rules. Where, as here, they have created a species of privacy as part of the grievance procedure, they are bound to honor it and may lawfully refuse a request for identifying information after having supplied name-redacted grievance documents (Public Officers Law § 89 [a], [b]).
As noted by respondents, it is not absolutely essential to petitioners to litigate pat-frisks of Muslims by female officers as a class action (Vargas v Coughlin, Sup Ct, Clinton County, index No. P-37-87, June 18, 1987; People ex rel. Schipski v Flood, 88 A.D.2d 197; Matter of Jones v Berman, 37 N.Y.2d 42). Should they still desire to do so, it would be sufficient accommodation if they wrote to the inmate numbers (which were not redacted), the facility delivered them on that basis alone and the inmate(s) in question could then decide whether or not to join the action without their identity(ies) being revealed. Absent such a voluntary future accommodation by respondents, however, the court is constrained to grant their motion to dismiss. Attorney fees are denied due to petitioners' failure to prevail (Public Officers Law § 89 [c]; see also, Matter of Bensing v LeFevre, supra).