Canty v. Office of Counsel

• Decision Date: 13 December 2010
• Citation: 30 Misc.3d 705,913 N.Y.S.2d 528
• Parties: In the Matter of Moshe Cinque CANTY a/k/a Moshe Cinque Owusu Sankofa Olugbala, Petitioner, v. OFFICE OF COUNSEL, New York State Department of Correctional Services, Respondents.
• Court: New York Supreme Court

913 N.Y.S.2d 528
30 Misc.3d 705

In the Matter of Moshe Cinque CANTY a/k/a Moshe Cinque Owusu Sankofa Olugbala, Petitioner,
v.
OFFICE OF COUNSEL, New York State Department of Correctional Services, Respondents.

Supreme Court, Albany County, New York.

Dec. 13, 2010.

913 N.Y.S.2d 530

Moshe Cinque Canty, Petitioner, Pro Se.

Southport Correctional Facility, Pine City, Andrew M. Cuomo, Attorney General, State of New York, for Respondent.

The Capitol, Albany, (Adam W. Silverman, Assistant Attorney General of Counsel).

DECISION/ORDER/JUDGMENT

GEORGE B. CERESIA, JR., J.

30 Misc.3d 706

The petitioner, an inmate at Southport Correctional Facility, has commenced the instant CPLR Article 78 proceeding to review a determination dated October 29, 2009 which denied his Freedom of Information Law ("FOIL") request for production of the accident reports of certain correction officers who were injured during a riot which occurred on June 14, 2003 in the main yard of Auburn Correctional Facility. Respondent opposes the petition, maintaining that the documents are exempt from disclosure.

As a part of its argument that the accident reports are exempt under Public Officers Law ("POL") 87(2), the respondent cites Civil Rights Law 50-a, which recites, in part, as follows:

"1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in section 1.20 of the criminal procedure law and such personnel records under the control of a sheriff's department or a department of correction of individuals

30 Misc.3d 707

employed as correction officers and such personnel records under the control of a paid fire department or force of individuals employed as firefighters or firefighter/paramedics and such personnel records under the control of the division of parole for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the division of parole except as may be mandated by lawful court order.

" Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review." (emphasis supplied)

By reason of the last sentence in the above-quoted section the Court, in an interim decision-order dated July 29, 2010, found that the correction officers in question should be given notice of the instant application and an opportunity to be heard. In the same decision-order, the Court directed the attorney for the respondent to give notice to the correction officers so

913 N.Y.S.2d 531

that they could submit an affidavit to the Court if they desired to oppose petitioner's application. The attorney for the respondent did so, and has submitted an affidavit demonstrating that this was done. Inasmuch as no opposing affidavits have been received from the correction officers, the Court finds that the matter is now ready for disposition.

Prior to addressing that issue however, the Court must first observe that the petitioner, for the first time in his reply, takes the position that he amended his FOIL request on August 17, 2009 to include additional documents, and that these documents should be included and considered in the instant proceeding.¹ The additional documents are not mentioned in the petition

30 Misc.3d 708

itself.² Nor was a copy of the August 17, 2009 amended FOIL demand annexed thereto. The respondent has submitted an affidavit of Chad Powell, the Administrative Assistant in the Department of Correctional Services ("DOCS") FOIL Unit. Mr. Powell indicates that DOCS never received the August 17, 2009 amended FOIL demand. The Court is thus confronted with a situation where: (1) the respondent has denied receipt of the amended FOIL demand; (2) it was never reviewed at the agency level; and (3) a copy of the amended FOIL demand was never annexed to the instant CPLR Article 78 petition, nor was it mentioned in the body of the petition. Under all of the circumstances, the Court finds that all claims concerning the additional documents referred to in the amended FOIL demand are not properly before the Court and must be dismissed.

As to the claims set forth in the petition, it is settled law that the Freedom of Information Law or "FOIL" ( see Public Officers Law Article 6) is based on the overriding policy consideration that "the public is vested with an inherent right to know, and that official secrecy is anathematic to our form of government" ( Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463 [1979] see also Matter of New York State United Teachers v. Brighter Choice Charter School, 64 A.D.3d 1130, 1131, 883 N.Y.S.2d 383 [2009] ). The Court of Appeals has repeatedly held that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government ( see Capital Newspapers v. Whalen, 69 N.Y.2d 246, 252, 513 N.Y.S.2d 367, 505 N.E.2d 932 [1987]; Matter of Washington Post Co. v. New York State Ins. Dept., 61 N.Y.2d 557, 564, 475 N.Y.S.2d 263, 463 N.E.2d 604 [1984]; Matter of Fink...