Opinion
500748/2020
09-24-2020
Anthony L. MEOLA, an individual, Plaintiff, v. John DOE 1, an unknown individual, Putnam County, and The Putnam County Department of Health, Defendants.
Anthony L. Meola, Esq., Schmeiser, Olsen & Watts, LLLP, 3 Manhattanville Road, Suite 105, Purchase, New York 10577, Plaintiff pro se Dina M. DiBlasi, Esq., Putnam County Department of Law, 48 Gleneida Avenue, Carmel, New York 10512
Anthony L. Meola, Esq., Schmeiser, Olsen & Watts, LLLP, 3 Manhattanville Road, Suite 105, Purchase, New York 10577, Plaintiff pro se
Dina M. DiBlasi, Esq., Putnam County Department of Law, 48 Gleneida Avenue, Carmel, New York 10512
Victor G. Grossman, J.
Plaintiff's Order to Show Cause, dated July 30, 2020, seeking disclosure of certain documents from the Putnam County Department of Health. In this defamation action, Plaintiff alleges that Defendant John Doe 1 made false and defamatory statements in Complaint No. 177-20-23-CV, in which John Doe 1 alleged that Plaintiff and his family were not quarantining upon their return from Georgia. Plaintiff is also suing Putnam County and the Putnam County Department of Health to compel them to release the name and contact information of Defendant John Doe.
On July 16, 2020, Plaintiff filed a Freedom of Information Request ("FOIL") with Defendants Putnam County ("County") and Putnam County Department of Health ("DOH") "in order to ascertain the files, records and notes in connection with complaint no. 177-20-23-CV" (Affirmation in Support at ¶5).
On July 21, 2020, Defendants granted in part and denied in part Plaintiff's FOIL request, and served Plaintiff with records related to the FOIL, but redacted the name and contact information of the complainant — John Doe 1 (Affirmation in Support at ¶¶6-7; Exhs. 2-3). It is that name and contact information that Plaintiff is seeking.
Plaintiff appealed this denial to County Executive Mary Ellen Odell. In that appeal letter, Plaintiff argued that needed this information "so that I can pursue my legal claim" (Reply Affirmation; Exh. C). Plaintiff continued to argue that "[w]ithout this information my legally viable claim for defamation per se will be irrevocably prejudiced. Hence the public policy behind the exemption pursuant to N.Y.S. Public Officers Law (the Freedom of Information Law) Section 87(2)(b) and 89(2)(b) is outweighed by my need for such information" (Reply Affirmation; Exh. C).
In upholding the denial, Ms. Odell stated, inter alia , that Plaintiff's standing as a litigant did not outweigh the public policy behind the privacy interests protected by the Freedom of Information Law (Reply Affirmation; Exh. D). More specifically, Ms. Odell stated (Reply Affirmation; Exh. D):
As I understand your appeal, you primarily argue that you should have been granted access to all of the requested information because of your status as a litigant in a lawsuit that you commenced this month, which is grounded in a defamation action to recover damages you allegedly sustained by way of the statements made against you by the unidentified complainant (See Appeal Letter, Paragraph 4). You argue that the Health Department's decision to deny access to information within the responsive records that would have identified the complainant "irrevocably prejudice[s]" your ability to prosecute your defamation cause of action against such complainant. (Id.) You further suggest that a balancing of your rights to pursue your action as a litigant outweighs the public policy behind the privacy protections afforded in certain circumstances under the Freedom of Information Law.
As explained herein, these arguments do not support a basis to reverse the Health Department's partial denial and otherwise provide access to the redacted information.
* * *
Subsection (b) of Section 87 (2) of the Freedom of Information Law specifically allows an agency to deny access to records or portions thereof when the disclosure would result in an unwarranted invasion of personal privacy. See NYS Public Officers Law § 87 (2) (b).
Your main argument for reversal is based on your need to access information that would reveal the identity of the complainant so that you can prosecute your defamation claim in your pending lawsuit. (See Appeal Letter, Paragraph 4). You claim your standing as a litigant strengthens your rights to access the redacted information and outweighs public policy behind the privacy interests protected by the Freedom of Information Law. (Id.) The Committee on Open Government has rendered opinions addressing this precise argument * * *.
* * *
The Committee ultimately concluded the pendency of litigation does not affect the public's right to access information maintained by an agency through a request made under the Freedom of Information Law. Rather, the purpose of the Freedom on Information Law is to provide access to public to see the decision-making process of a government agency. Along these lines, the has issued opinions that specifically opine the identity of a complainant is not relevant to the workings of a government agency, and the materials and records maintained by such agency that would capture its workings * * *.
* * *
When the reasoning adopted by the Committee on Open Government is applied to your appeal it is apparent that the request for the complainant identity is exempt from access. This information is considered irrelevant to the substance of the complaint and how such complaint was processed by the County's Health Department. As I understand, the responsive records you received satisfy your inquiry as to how the Health Department responded to such complaint and what actions were taken, if any. Using the Committee's reasoned opinions as guidance, that you may need the identity of the complainant to pursue your defamation lawsuit is not a compelling reason to undo the Health Department's proper denial and does not warrant access under the Freedom of Information Law.
Plaintiff now moves for an Order: 1. Pursuant to CPLR § 2307, granting Plaintiff's motion for the issuance of a Judicial Subpoena Duces Tecum directed to the Putnam County Department of Health (the "DOH") directing the production of: (a) all documents in original and unredacted form relating to Putnam County Department of Health complaint no. 177-20-23-CV but not limited to, all emails, text, records and notes; and (b) all correspondence and documents (including, but not limited to, emails and text messages) reflecting or evidencing communications between the complainant for complaint no. 177-20-23-CV and employees or agents of Putnam County and/or the DOH; and
2. For such other and further relief as the Court deems just and proper.
Plaintiff asserts that he "has no other way to obtain contact information for Defendant John Doe 1," and he "has diligently sought the production of this information in order to pursue his legally viable claim; however, Putnam County and the DOH refuse to provide such information without a Court Order" (Affirmation in Support at ¶9).
Defendants argue that Plaintiff is using both the Freedom of Information Law and the CPLR to seek out the identity of the complainant. With respect to the FOIL request, Defendants maintain that the County properly denied the disclosure of the complainant's identity. Defendants assert that the issue "operates differently and separately from disclosure requests made by a litigant for CPLR discovery from such agency, which must be analyzed within the purview of the Civil Practice Law and Rules and invites a balancing of relevancy principles" (Affirmation in Response at ¶14). "The County maintains that it has acted in good faith and exercised its obligations appropriately with respect to both laws," and "[p]utting aside and operating within the avenue of the Civil Practice Law and Rules in the instant action, the County Health Department takes no position so as to avoid an unnecessary duplication of judicial resources with respect to Plaintiff's subpoena application and his underlying defamation action" (Affirmation in Response at ¶¶15-16). Defendants state it will comply if ordered to so which will resolve the second cause of action in the Amended Complaint.
" ‘FOIL imposes a broad duty of disclosure on government agencies’ and ‘[a]ll agency records are presumptively available for public inspection and copying’ unless one of the statutory exemptions applies, permitting the agency to withhold the records" ( Matter of Hepps v. New York State Department of Health , 183 A.D.3d 283, 287, 122 N.Y.S.3d 446 [3d Dept. 2020], quoting Matter of Hanig v. State of NY Dept. of Motor Vehs. , 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 [1992] [citations omitted], citing Public Officers Law §§ 84, 87[2] ). "The exemptions are ‘narrowly construed,’ with the burden on respondent to demonstrate that an exemption applies" ( Matter of Hepps v. New York State Department of Health , 183 A.D.3d at 287, 122 N.Y.S.3d 446, quoting Matter of Hanig v. State of NY Dept. of Motor Vehs. , 79 N.Y.2d at 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 ). " ‘[T]o invoke one of the exemptions of [Public Officers Law §] 87(2), the agency must articulate particularized and specific justification for not disclosing requested documents’ " ( Matter of Hepps v. New York State Department of Health , 183 A.D.3d at 287, 122 N.Y.S.3d 446, quoting Gould v. New York City Police Dept. , 89 N.Y.2d 267, 275, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996] [internal quotation marks and citation omitted] ).
Furthermore, "an agency may decline disclosure of records which, ‘if disclosed[,] would constitute an unwarranted invasion of personal privacy’ " ( Matter of Hepps v. New York State Department of Health , 183 A.D.3d at 287, 122 N.Y.S.3d 446, quoting Public Officers Law § 87[2][b] ). " ‘Th[is] personal privacy exemption incorporates a nonexhaustive list of categories of information that [the Legislature has determined] would statutorily constitute unwarranted invasions of personal privacy if disclosed, such as employment histories,’ and medical or credit histories" ( Matter of Hepps v. New York State Department of Health , 183 A.D.3d at 287, 122 N.Y.S.3d 446, quoting Matter of Police Benevolent Assn. of NY State, Inc. v. State of New York , 165 A.D.3d 1434, 1435, 86 N.Y.S.3d 246 [3d Dept. 2018] ), as well as "information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it," and "information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency" ( Public Officers Law § 87[2][b][iv], [v] ).
As a threshold matter, despite his assertions to the contrary, Plaintiff's standing in his defamation action as one seeking to access records under the Freedom of Information Law "is as a member of the public, and is neither enhanced * * * nor restricted * * * because he is also a litigant or potential litigant" ( Matter of John P. v. Whalen , 54 N.Y.2d 89, 98, 444 N.Y.S.2d 598, 429 N.E.2d 117 [1981] [internal citations omitted]; see generally Matter of Friedman v. Rice , 30 N.Y.3d 461, 473-477, 68 N.Y.S.3d 1, 90 N.E.3d 800 [2017] [status of anyone seeking documents under FOIL is as member of general public] ). As such, Plaintiff is not entitled to this information merely because he claims he needs it to pursue his lawsuit.
Furthermore, Defendants have categorized the result of the disclosure of complainant's name and address as "an unwarranted invasion of personal privacy," as per Public Officers Law § 87(2)(b). This is a general categorization and the Court finds that the specific information desired here does not fit squarely within one of the delineated subsections. Therefore, "the issue of whether there is an unwarranted invasion of privacy is decided by balancing the privacy interests at stake against the public interest in disclosure of the information" ( Matter of Hepps v. New York State Department of Health , 183 A.D.3d at 287-288, 122 N.Y.S.3d 446 [internal quotation marks and citations omitted] ). "Notably, ‘what constitutes an unwarranted invasion of personal privacy is measured by what would be offensive and objectionable to a reasonable person of ordinary sensibilities’ " ( Matter of Hepps v. New York State Department of Health , 183 A.D.3d at 288, 122 N.Y.S.3d 446, quoting Matter of Ruberti, Girvin & Ferlazzo v. New York State Div. of State Police , 218 A.D.2d 494, 498, 641 N.Y.S.2d 411 [3d Dept. 1996] [internal quotation marks, brackets and citation omitted] ).
Plaintiff admits that he needs this information to pursue a lawsuit against the party who allegedly defamed him when falsely reporting him to the Putnam County Department of Health for not complying with a quarantine order pursuant to applicable law (Reply Affirmation; Exh. C). However, "the underlying purpose of FOIL [is] to promote transparency in governmental operations so that the ‘process of governmental decision making’ is on public display and governmental actions can be more readily scrutinized ( Public Officers Law § 84 )" ( Matter of Hepps v. New York State Department of Health , 183 A.D.3d at 288, 122 N.Y.S.3d 446 ), and to the Court, a complainant's name and address are irrelevant as to how Defendant investigated the complaint to determine whether a violation of the law occurred (see generally Comm On Open Gov FOIL-AO-f9673 [1996] [in response to an inquiry as to whether there is a right of access to investigative materials produced by Office of Inspector General during an investigation that has been closed and resulted in no action, the Committee stated it depends on who is requesting, but "do[es] not believe that the subject of the investigation would have rights of access to portions of records identifiable to a complainant or witness, for example, even though they may relate to the subject"]; Comm. On Open Gov FOIL-AO-f10914 [1998] [identities of those involved in sting operation not discoverable despite business owner's desire to face his accuser; identities of those involved in tobacco sting operation are largely irrelevant to enforcement of the law by the county, as what is relevant is whether a violation of the law occurred] ).
In the environment of a global pandemic, where it is expected that members of Putnam County will abide by travel orders and isolate themselves upon their return from traveling out-of-state to certain geographical locations and states as directed by the State of New York, members of the public who report their fellow citizens for purportedly failing to abide by these laws would find it offensive and objectionable as reasonable people of ordinary sensibilities that their concerns for the greater good could find them named by the very agency that they presumably were reporting to in confidence. To the Court, this is similar to a "tip" line utilized by police departments. In fact, the complainant expressed concern that his/her personal information would not remain confidential (OTSC; Exh. 3 at 7). Accordingly, the Court finds that not only did the complainant have every expectation that his/her personal information would remain private, but that it was reasonable for the complainant to believe so (cf. Matter of Empire Realty Corp. v. New York State Div. of Lottery , 230 A.D.2d 270, 657 N.Y.S.2d 504 [3d Dept. 1997] [disclosure under FOIL of lists of names of cities of residence of lottery winners not unwarranted invasion of personal privacy; expectation of lottery participants is tempered by acknowledgment on ticket that they agree to be subject to lottery rules, which include use of winners' names and city of residence to publicize winnings] ).
As such, it is hereby
ORDERED that Plaintiff's motion is denied; and it is further
ORDERED that the parties are to appear for a Skype preliminary conference on Thursday, October 15, 2020 at 10:00 a.m. The Court will send out invitations.
The foregoing constitutes the Decision and Order of the Court.