Therefore, the general standard applied in Article 78 proceedings, i.e. whether a determination was "arbitrary and capricious or an abuse of discretion," does not apply. Laureano v Grimes, 179 AD2d 602, 603-04 (1st Dep't 1992).
In this case, it is the Department who has the burden. ( See Matter of Laureano v. Grimes, 179 AD2d 602, 603-604 [1st Dept 1992]; Matter of Bahnken v. New York City Fire Dept., 17 AD3d 228 [1st Dept 2005].) In support of nondisclosure, the Department of Insurance, along with the Insurance Companies, argue that the zip code information qualifies as a trade secret under the Restatement definition and, alternatively, that disclosure would cause substantial competitive injury.
Respondent claims the contracts were provided to it with the understanding that confidentiality would be maintained, anticipating that several of the hospitals would intervene in the proceeding, but there is no indication in the record that any did. After conducting an in camera inspection of the contracts, the motion court decided respondent had a rational basis for making the redactions, and upheld the determination as neither arbitrary nor capricious. A party claiming exemption from disclosure of a particular document requested pursuant to FOIL bears the burden of proving entitlement to the exemption (Public Officers Law § 89 [e]; Matter of Laureano v. Grimes, 179 AD2d 602). Thus, the motion court erred in applying the normal CPLR article 78 "arbitrary and capricious" standard of review.
We adhere to our decision in Matter of Scott v. Chief Med. Examiner of City of N.Y. ( 179 A.D.2d 443, lv denied 79 N.Y.2d 758, cert denied 506 U.S. 891) that DD5 reports and police officer memo books are exempt from FOIL disclosure ( see, also, Matter of Johnson v. New York City Police Dept., 220 A.D.2d 320; Matter of Gould v. New York City Police Dept., 223 A.D.2d 468). We decline to follow Mitchell v. Slade ( 173 A.D.2d 226, lv denied 78 N.Y.2d 863) and Matter of Laureano v. Grimes ( 179 A.D.2d 602) to the contrary. Concur — Murphy, P.J., Sullivan, Rosenberger, Rubin and Nardelli, JJ.
Accordingly, this issue largely is of historical interest only except in those few remaining cases such as this which were commenced prior to the effective date of the 1992 amendments. Nonetheless, following other courts which have had occasion to address this subject, including prior dictum from this court (see, Treadway v. Town Bd., 163 A.D.2d 637), we find that the 60-day extension provided for in CPLR 203 (former [b] [5]) does and should apply to CPLR article 78 proceedings in general (see, Matter of Shumsky v. New York City Loft Bd., 192 A.D.2d 350; Matter of Laureano v. Grimes, 179 A.D.2d 602, 603; Matter of Long Is. Citizens Campaign v. County of Nassau, 165 A.D.2d 52; Matter of Medina v. Perales, 138 Misc.2d 1010). In so doing we note that our prior decision in Matter of Zaretski v. Tutunjian ( 133 A.D.2d 928), because it involved an Election Law proceeding and the brief Statutes of Limitation associated therewith, is factually and legally distinguishable (see, Matter of Long Is. Citizens Campaign v. County of Nassau, supra, at 55).
The primary issue on this appeal is whether, under CPLR former 203 (b) (5), petitioner's filing with the County Clerk, on January 11, 1991, of a notice of petition brought pursuant to CPLR article 78 was sufficient to interpose the claim so as to render petitioner's subsequent service of the petition itself upon respondent within 60 days timely. It is clear that at the time of this proceeding, the 60 day extension provided for in CPLR former 203 (b) (5) applied to article 78 proceedings (Matter of Laureano v Grimes, 179 A.D.2d 602, 603). In this case, we find that the notice of petition, which clearly described the administrative action which was contested, the grounds upon which redress was sought and the requested relief, was, for the purposes herein, the functional equivalent of a petition (see, Matter of Gryska v Chemung County Elmira Sewer Dist., 149 A.D.2d 849, 850, n 1, citing Matter of Marmo v Department of Envtl. Conservation, 134 A.D.2d 260, 260-261). It therefore constituted appropriate process sufficient to satisfy the requirements of CPLR former 203 (b) (5) (cf., Matter of Long Is. Citizens Campaign v County of Nassau, 165 A.D.2d 52). The order dismissing the petition as untimely should therefore be reversed.
This argument is preposterous—it suggests that any work done in a homicide investigation is unavailable pursuant to a FOIL request.Further, to the extent that the documents reference statements made by four witnesses (Ms. Thomas, Ms. Aviles, Mr. Wright and Ms. Castro), those statements are not confidential since those witnesses testified at trial (Matter of Laureano v. Grimes, 179 AD3d 602, 604, 579 N.Y.S.2d 357 [1st Dept 1992] ; see also Porter v. Grenier, 2005 WL 3344828 [ED N.Y.2005] [denying Porter's federal habeas petition and identifying witnesses who testified at Porter's trial] ). If respondent is aware of, for instance, the use of a confidential informant in this matter or express promises that all witness statements would be confidential, then respondent should have provided evidence in support of that argument.Public Officers Law § 87(2)(e)(iv)
This argument is preposterous— it suggests that any work done in a homicide investigation is unavailable pursuant to a FOIL request. Further, to the extent that the documents reference statements made by four witnesses (Ms. Thomas, Ms. Aviles, Mr. Wright and Ms. Castro), those statements are not confidential since those witnesses testified at trial (Matter of Laureano v Grimes, 179 AD3d 602, 604, 579 NYS2d 357 [1st Dept 1992]; see also Porter v Grenier, 2005 WL 3344828 [ED NY 2005] [denying Porter's federal habeas petition and identifying witnesses who testified at Porter's trial]). If respondent is aware of, for instance, the use of a confidential informant in this matter or express promises that all witness statements would be confidential, then respondent should have provided evidence in support of that argument.
The usual standard of review in Article 78 proceedings, i.e., that the agency's determination will not be set aside unless arbitrary or capricious or without rational basis, is not applicable ( New York Committee for Occupational Safety and Health v Bloomberg, 72 AD3d 153, 892 NYS2d 377 [1 st Dept 2010]). Rather, the agency resisting disclosure must prove entitlement to one of the exceptions ( id.; Laureano v Grimes, 179 AD2d 602, 603-04 [1st Dept 1992]). FOIL is based upon the policy that agency records are presumptively available to members of the public, unless the agency establishes that the records fall within the enumerated exemptions of POL § 87 (2) ( Matter of Gould v New York City Police Dept., 89 NY2d 267, 275, 653 NYS2d 54; Pinks v Turnbull, 13 Misc 3d 1204, 824 NYS2d 758 [Sup Ct New York County 2006]).
The usual standard of review in Article 78 proceedings, i.e., that the agency's determination will not be set aside unless arbitrary or capricious or without rational basis, is not applicable. Rather, the agency resisting disclosure must prove entitlement to one of the exceptions ( Laureano v Grimes, 179 AD2d 602, 603-04 [1st Dept 1992]). FOIL is based upon the policy that agency records are presumptively available to members of the public, unless the agency establishes that the records fall within one of the statute's exemptions ( Pinks v Turnbull, 13 Misc 3d 1204, 824 NYS2d 758 [Sup Ct New York County 2006]).