Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed."Matter of Prall v New York City Dept. of Corr., 129 AD3d 734, 735-736 (2d Dept 2015) (internal citations and quotation marks omitted). Finally, Empire asserts that the "MTA did not offer any evidence to establish that disclosing salary information would endanger MTA police officers," but rather "simply parroted the language of the statute."

e presumptively open to public inspection and copying unless otherwise specifically exempted (see Public Officers Law § 87[2]; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 565; Matter of New York Times Co. v New York State Dept. of Health, 243 AD2d 157, 159). FOIL expressly provides that an agency that has denied disclosure on the basis of an exemption "shall in all proceedings have the burden of proving entitlement" to the exemption (Public Officers Law § 89[5][e]). Thus, the standard of review on a CPLR article 78 proceeding challenging an agency's denial of a FOIL request is much more stringent than the lenient standard generally applicable to CPLR article 78 review of agency actions (see Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d 153, 158). A court is to presume that all records are open, and it must construe the statutory exemptions narrowly (see Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; Matter of Prall v New York City Dept. of Corr., 129 AD3d 734, 735). The agency is required to "articulate a particularized and specific justification for denying access'" (Matter of Dilworth v Westchester County Dept. of Correction, 93 AD3d 722, 724, quoting Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; see Matter of Prall v New York City Dept. of Corr., 129 AD3d at 735-736).

This may or may not be the correct standard. ( see In re Alleged Improper Practice Under Section XI, Paragraph A(d) of the Port Auth. Labor Relations Instruction, 194 N.J. at 331, 944 A.2d at 622; but see Matter of Prall v. New York City Dept. of Corrections, 129 A.D.3d 734, 735, 10 N.Y.S.3d 332 [2d Dept.2015] [arbitrary and capricious standard does not apply to FOIL]; Matter of New York Comm. for Occupational Safety & Health v. Bloomberg, 72 A.D.3d 153, 158, 892 N.Y.S.2d 377 [1st Dept.2010]; see also Matter of New York Times Co. v. City of N.Y. Police Dept., 103 A.D.3d 405, 406, 959 N.Y.S.2d 171 [1st Dept.2013] [“review of a FOIL determination does not provide for mandamus relief”], lv. dismissed21 N.Y.3d 930, 967 N.Y.S.2d 686, 989 N.E.2d 968 [2013] & lv. denied22 N.Y.3d 854, 977 N.Y.S.2d 183, 999 N.E.2d 548 [2013] ). The governing standard need not be determined at this time, however, because, even assuming the petition is governed by the arbitrary and capricious standard, the Port Authority's answer and affirmations submitted in opposition to the petition fail to provide a factual basis allowing this court to conclude that it properly exercised its discretion in denying Weisshaus' records request.

This may or may not be the correct standard. (see In re Alleged Improper Practice Under Section XI, Paragraph A(d) of the Port Auth. Labor Relations Instruction, 194 N.J. at 331, 944 A.2d at 622 ; but see Matter of Prall v. New York City Dept. of Corrections, 129 A.D.3d 734, 735, 10 N.Y.S.3d 332 [2d Dept.2015] [arbitrary and capricious standard does not apply to FOIL]; Matter of New York Comm. for Occupational Safety & Health v. Bloomberg, 72 A.D.3d 153, 158, 892 N.Y.S.2d 377 [1st Dept.2010] ; see also Matter of New York Times Co. v. City of N.Y. Police Dept., 103 A.D.3d 405, 406, 959 N.Y.S.2d 171 [1st Dept.2013] [“review of a FOIL determination does not provide for mandamus relief”], lv. dismissed 21 N.Y.3d 930, 967 N.Y.S.2d 686, 989 N.E.2d 968 [2013] & lv. denied 22 N.Y.3d 854, 977 N.Y.S.2d 183, 999 N.E.2d 548 [2013] ). The governing standard need not be determined at this time, however, because, even assuming the petition is governed by the arbitrary and capricious standard, the Port Authority's answer and affirmations submitted in opposition to the petition fail to provide a factual basis allowing this court to conclude that it properly exercised its discretion in denying Weisshaus' records request.

True, but other states require FOIA-like balancing of public and private interests before disclosing booking photos. See, e.g. , 21 Kan. Op. Atty. Gen. 9, No. 87-25, 1987 WL 290422, at *4 (Feb. 9, 1987) (opining that Kan. Stat. Ann. § 45-221(a)(10)(A) allows nondisclosure of booking photos); Prall v. N.Y.C. Dep't of Corr. , 129 A.D.3d 734, 10 N.Y.S.3d 332, 335 (2015) (balancing public and private interests under N.Y. Pub. Off. Law § 89(2)(b) to determine that booking photos need not be disclosed to mug-shot websites). And several states exempt booking photos from public-record disclosure laws.

The court's interpretation here is also inconsistent with the Second Department's reading of Public Officers Law § 89 (2) (b) (v), another FOIL confidentiality exemption, which generally protects the "disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such an agency." There, that court construed confidentiality to attach only to information gathered from "individuals [who] received an express or implied promise of confidentiality" (Matter of Prall v New York City Dept. of Corrections, 129 AD3d 734, 736 [2d Dept 2015]). Nevertheless, respondent advocates for a blanket rule that categorically permits the withholding of statements of nontestifying witnesses without regard to the specific facts and circumstances of the subject case.

The Court's interpretation here is also inconsistent with the Second Department's reading of Public Officers Law § 89(2)(b)(v), another FOIL confidentiality exemption, which generally protects the "disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency." There, that Court construed confidentiality to attach only to information gathered from "individuals [who] received an express or implied promise of confidentiality" (Matter of Prall v. New York City Dept. of Corr., 129 A.D.3d 734, 736, 10 N.Y.S.3d 332 [2d Dept.2015] ).Nevertheless, respondent advocates for a blanket rule that categorically permits the withholding of statements of nontestifying witnesses without regard to the specific facts and circumstances of the subject case.

"To meet its burden, the party seeking exemption must present specific, persuasive evidence that the material falls within the exemption" (Matter of New York Civ. Liberties Union v Village of Freeport, 229 A.D.3d at 631 [internal quotation marks omitted]; see Matter of Newsday, LLC v Nassau County Police Dept., 222 A.D.3d at 90; see also Matter of Markowitz v Serio, 11 N.Y.3d 43, 51). "'Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed'" (Matter of New York Civ. Liberties Union v Village of Freeport, 229 A.D.3d at 631, quoting Matter of Prall v New York City Dept. of Corr., 129 A.D.3d 734, 736 [internal quotation marks omitted]). "If the agency fails to prove that a statutory exemption applies, FOIL 'compels disclosure, not concealment'" (Matter of Newsday, LLC v Nassau County Police Dept., 222 A.D.3d at 90, quoting Matter of Westchester Rockland Newspapers v Kimball, 50 N.Y.2d 575, 580).

"'To meet its burden, the party seeking exemption must present specific, persuasive evidence' that the material falls within the exemption" (Matter of Newsday, LLC v Nassau County Police Dept., 222 A.D.3d at 90, quoting Matter of Markowitz v Serio, 11 N.Y.3d 43, 51). "'Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed'" (Matter of Prall v New York City Dept. of Corr., 129 A.D.3d 734, 736, quoting Matter of Baez v Brown, 124 A.D.3d 881, 883 [internal quotation marks omitted]). Here, the respondents failed to demonstrate that the withheld records fell squarely within the personal privacy exemption or the life and safety exemption.

On the question whether a requested record is reasonably described, like the question "whether a particular document is exempt from disclosure under [FOIL], the oft-stated standard of review in CPLR 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 person resisting disclosure must prove" that the requested documents were not reasonably described (Matter ofCapital Newspapers Div. of Hearst Corp. v. Burns, 109 A.D.2d 92, 94, 490 N.Y.S.2d 651 [1985], affd 67 N.Y.2d 562, 505 N.Y.S.2d 576, 496 N.E.2d 665 [1986] ; see Matter ofKonigsberg v. Coughlin, 68 N.Y.2d at 249–250, 508 N.Y.S.2d 393, 501 N.E.2d 1 ; see alsoMatter of Prall v. New York City Dept. of Corr., 129 A.D.3d 734, 735, 10 N.Y.S.3d 332 [2015] ; Matter ofNew York Comm. for Occupational Safety & Health v. Bloomberg, 72 A.D.3d 153, 158, 892 N.Y.S.2d 377 [2010] ). Here, petitioner requested "copies of all correspondence, e-mails, proposals, drafts, notes, agreements, contracts, meetings and calendar entries, phone logs, meeting minutes, budget items, receipts, vendorization forms or data, bids, evaluation materials, [FOIL] records requests and their associated correspondence and any appeals, and any other documentation or communications between [respondent] and Ancestry.com, or such materials within [respondent's possession] about Ancestry.com.