Dobranski v. Houper

• Decision Date: 12 October 1989
• Citation: 546 N.Y.S.2d 180,154 A.D.2d 736
• Parties: In the Matter of Bernard J. DOBRANSKI, Appellant, v. Charles D.W. HOUPER, as Chemung County Sheriff and Record Access Officer, City of Elmira, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 180

546 N.Y.S.2d 180

154 A.D.2d 736

In the Matter of Bernard J. DOBRANSKI, Appellant, v. Charles D.W. HOUPER, as Chemung County Sheriff and Record

Access Officer, City of Elmira, Respondent.

Supreme Court, Appellate Division,

Third Department.

Oct. 12, 1989.

Bernard J. Dobranski, Attica, in pro. per.

John F. O'Mara (Kevin M. O'Shea, of counsel) Elmira, for respondent.

Before WEISS, J.P., and MIKOLL, YESAWICH, MERCURE and HARVEY, JJ.

YESAWICH, Justice.

Appeal from a judgment of the Supreme Court (Swartwood, J.), entered March 10, 1988 in Chemung County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to compel respondent to release certain documents requested under the Freedom of Information Law.

Pursuant to the Freedom of Information Law (Public Officers Law art. 6) (hereinafter FOIL), petitioner, a prison inmate, sought copies of all documents located in a file compiled during a criminal investigation which culminated in his conviction in 1980 of attempted murder in the first degree (see, People v. Dobranski, 89 A.D.2d 250, 456 N.Y.S.2d 469). Respondent furnished all but those documents believed to be exempt from disclosure under Public Officers Law § 87(2)(b). After exhausting his administrative remedies, petitioner brought this CPLR article 78 proceeding to compel respondent to provide copies of the remaining documents. Supreme Court conducted an in camera inspection, and then partially granted the petition, prompting petitioner to appeal.

Petitioner seeks disclosure of four categories of documents: identikit papers and notations; the personal reference cards of other inmates who were in a lineup with him; handwritten notations identifying other inmates in his cell block; and a criminal complaint for trespass filed against him in 1978, which was prepared but, insofar as appears from the record, not pursued.

An agency may deny access to records compiled for law enforcement purposes which, if disclosed, would reveal nonroutine criminal investigative techniques or procedures (Public Officers Law § 87[2][e][iv]. Because disclosure of the identikit papers and notations might alert prospective criminals to characteristics important in composite artistry and thus encourage them to tailor their appearance to evade detection (see, Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 573, 419 N.Y.S.2d 467, 393 N.E.2d 463; see also, Matter of De Zimm v. Connelie, 102 A.D.2d 668, 671, 479 N.Y.S.2d 871, affd 64 N.Y.2d 860, 487 N.Y.S.2d 320, 476 N.E.2d 646), these materials are not routine, and accordingly are exempt from disclosure.

Agencies may also deny disclosure where doing so would constitute an unwarranted invasion of personal privacy (Public Officers Law § 87[2][b]. What constitutes an unwarranted invasion of personal privacy is measured by what would be offensive and objectionable to a reasonable man of ordinary sensibilities (see, Annotation, What Constitutes Personal Matters Exempt from Disclosure by Invasion of Privacy Exception Under State Freedom of Information Act, 26 ALR 4th 666, 671). This determination requires balancing the competing interests of public access and individual privacy. On the private end of the scale is the expectation of privacy accruing to the individual furnishing the information and the general need to protect against dissemination of personal information relating to that individual (see, Cornell Univ. v. City of New York Police Dept., (App.Div.) 544 N.Y.S.2d 356, 357). The scale's public end includes the presumption that governmental records are to be available to public scrutiny, the judicial reluctance to broaden the narrow exceptions to disclosure, and concern as to whether the information contained in the document sought to be revealed is a matter of public record (see, Matter of Scott, Sardano & Pomeranz v. Records Access Officer, 65 N.Y.2d 294, 296-297, 491 N.Y.S.2d 289, 480 N.E.2d 1071; Matter of Thompson v. Weinstein, (App.Div.) 542 N.Y.S.2d 33; see also, Matter of Kwitny v. McGuire, 102 Misc.2d 124, 126, 422 N.Y.S.2d 867, affd 77 A.D.2d 839, 432 N.Y.S.2d 149, affd 53 N.Y.2d 968, 441 N.Y.S.2d 659, 424 N.E.2d 546).

Here, petitioner seeks copies of the personal reference cards of other inmates who were in a lineup with him. While most of the information in these cards is personal, much of it is already publicly accessible via arrest and conviction records. Inasmuch as these inmates could have no reasonable expectation that such information would be kept private, FOIL requires that it be released (cf., Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 570, 505 N.Y.S.2d 576, 496 N.E.2d 665; Matter of Thompson v. Weinstein, supra). However, not all of the information contained on these cards need be...