Fink v. Lefkowitz

• Citation: 63 A.D.2d 569,404 N.Y.S.2d 610
• Court: New York Supreme Court Appellate Division
• Decision Date: 04 May 1978
• Parties: In the Matter of Robert S. FINK, Petitioner-Respondent, v. Louis J. LEFKOWITZ, etc., Respondent-Appellant for judgment pursuant to Article 78, CPLR.

Page 610

404 N.Y.S.2d 610

63 A.D.2d 569

In the Matter of Robert S. FINK, Petitioner-Respondent, v. Louis J. LEFKOWITZ, etc., Respondent-Appellant for judgment pursuant to Article 78, CPLR.

Supreme Court, Appellate Division,First Department.

May 4, 1978.

L. R. Rosenblatt, New York City, for petitioner-respondent.

A. G. Weinstein, New York City, for respondent-appellant.

Before LUPIANO, J. P., and SILVERMAN, EVANS, LANE and SANDLER, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County, entered September 23, 1977, granting petition to require delivery to petitioner for copying and inspection of a copy of the Office Manual of the Special State Prosecutor for Nursing Homes, Health and Social Services, unanimously modified on the law, without costs and without disbursements, to the extent of excluding from the Manual to be delivered Chapter 5 and certain parts of Chapter 4, and the equivalent material in the revised Manual, and otherwise affirmed.

Petitioner, an attorney for several nursing homes, applied pursuant to Article 78 for a judgment requiring delivery to him of a photocopy of appellant's Office Manual for inspection and copying. Following an in camera inspection of the document, the court at Special Term granted the petition.

In its opinion, the court described the Manual as divided into five chapters, the first three of which are not in issue on this appeal. The fifth chapter is a comprehensive detailed report of a complete nursing home investigation by the appellant with fictitious names substituted in an apparent effort to conceal the subject of the investigation.

Chapter 4, as accurately described in the opinion at Special Term, "is a guide to auditing and investigation. It charts the sources of information, the table of organization, the procedures to be followed, and the methods to be employed, and what to look for and whom to interview in the audit and investigation of a case to its ultimate disposition. It includes also abstracts of laws, definitions of crimes, instructions as to the use and availability of process, reports and records, decisions of courts of appeals, instructions on trial preparation and procedure including presentation before grand juries."

When the proceeding was decided at Special Term, the New York Freedom of Information Law (Public Officers Law, §§ 85 et seq.) provided that each agency should make available for public inspection and copying, inter alia, "administrative staff manuals and instructions to staff that affect members of the public" ( § 88.1(e)), subject to certain exceptions, one of which was information "part of investigatory files compiled for law enforcement purposes." ( § 88.7(d))

Noting that the New York Freedom of Information Law, in general, and these sections in particular, were patterned on the Federal Freedom of Information Act (5 U.S.C. § 552(a)(2)(C)) as worded prior to certain amendments enacted in 1974, the court appropriately looked to federal appellate interpretations of the comparable language. It was correctly concluded that in the leading federal cases confronting an issue similar to that presented, disclosure had been directed. See Hawkes v. Internal Revenue Service, 6 Cir., 467 F.2d 787, and 6 Cir., 507 F.2d 481; Stokes v. Brennan, 5 Cir., 476 F.2d 699. Finding nothing in the Manual that concerned a particular investigation, and determining that most of that which appeared was a matter of common knowledge to those in any enterprise affected with a public interest, the court at Special Term held that the claimed exemption had not been made out.

Following the decision at Special Term, and while the appeal was pending, there occurred two developments that significantly alter the nature of the issue presented.

First, appellant has voluntarily made available to petitioner all of the Manual in question except for Chapter 5 and portions of Chapter 4. Appellant has also made available all new material in a revised Manual with the exception of two pages.

Second, effective January 1, 1978, the New York Freedom of Information Law was substantially revised, and part of the revision affects the...