Hepps v. N.Y. State Dep't of Health, 529148
| Citation | 122 N.Y.S.3d 446,183 A.D.3d 283 |
| Decision Date | 30 April 2020 |
| Docket Number | 529148 |
| Parties | In the Matter of Tammy A. HEPPS et al., Respondents–Appellants, v. NEW YORK STATE DEPARTMENT OF HEALTH, Appellant–Respondent. |
| Court | New York Supreme Court Appellate Division |
183 A.D.3d 283
122 N.Y.S.3d 446
In the Matter of Tammy A. HEPPS et al., Respondents–Appellants,
v.
NEW YORK STATE DEPARTMENT OF HEALTH, Appellant–Respondent.
529148
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: February 21, 2020
Decided and Entered: April 30, 2020
Letitia James, Attorney General, Albany (Robert M. Goldfarb of counsel), for appellant-respondent.
Beldock Levine & Hoffman LLP, New York City (David B. Rankin of counsel), for respondents-appellants.
Before: Egan Jr., J.P., Lynch, Devine, Aarons and Colangelo, JJ.
OPINION AND ORDER
Colangelo, J.
Cross appeals from a judgment of the Supreme Court (McGrath, J.), entered April 1, 2019 in Albany County, which partially granted petitioners' application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent partially denying petitioners' Freedom of Information Law requests.
Petitioner Reclaim the Records is a not-for-profit "genealogical advocacy organization" that seeks to facilitate free access to documents for those interested in genealogy and history. Petitioner Brooke Ganz, Reclaim's president, and petitioner Tammy A. Hepps, its treasurer, filed separate, overlapping Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL] ) requests on behalf of Reclaim. Ganz submitted the initial FOIL request in September 2017, seeking "a copy of the New York State marriage index, from 1881 (or as early as such records are available) through December 31,
2016, inclusive," and clarified that the "request [was] for the basic index only," and she was not requesting marriage certificates or licenses. That request for records "in raw database format" and on a "USB hard drive" made clear that the information would "be scanned and uploaded to the Internet" and made "freely available to the general public but not for commercial purposes. Respondent acknowledged the request and, in February 2018, provided Ganz with responsive documents dating back to 1881 and up through December 31, 1965,1 but excluded records from the most recent 50 years of marriage indices. Ganz's administrative appeal was denied on the basis that, as is pertinent here, the recent indices (after 1965) were properly excluded
from FOIL disclosure under the personal privacy exemption (see Public Officers Law § 87[2][b] ) and under the governing regulations precluding respondent from releasing marital records for 50 years (see 10 NYCRR 35.5 [c][4] ).2
In July 2018, Hepps filed an overlapping FOIL request on Reclaim's behalf again seeking the marriage indices withheld for the years 1967 through 2017 and, receiving no acknowledgement, filed an administrative appeal. Respondent answered two days later in a written letter declining to consider the request as "duplicative" of the first request that had already been administratively addressed.
Petitioners commenced this CPLR article 78 proceeding to annul respondent's determination partially denying their FOIL requests, seeking disclosure of the 1967 through 2017 marriage indices in a searchable database, and requesting counsel fees and costs. Respondent answered, contending, as relevant here, that the indices from the most recent 50 years are exempt from disclosure pursuant to Public Officers Law § 87(2) on several grounds, including that their disclosure would constitute an unwarranted invasion of personal privacy. Supreme Court determined that the most recent 50 years of marriage indices were not generally exempt from disclosure, and directed their disclosure, but ordered the redaction of Social Security numbers and dates of birth prior to disclosure, as such information
would constitute an unwarranted invasion of personal privacy.3 The court denied petitioners' request for counsel fees and costs. Respondent appeals and petitioners cross-appeal.
Respondent's appeal presents the issue of whether the requested personal information regarding the most recent 50 years of marriages in this state, between 1967 and 2017, as indexed and maintained by respondent, is subject to disclosure under FOIL to assist in genealogical research, or is exempt from disclosure, in whole or in part. In our view, respondent has demonstrated that the requested disclosure of this personal information would constitute an "unwarranted invasion of personal privacy" ( Public Officers Law §§ 87[2][b] ; 89[2][b] ) and is, thus, exempt.
By statute, town and city clerks4 empowered to issue marriage licenses are required to keep a book supplied by respondent in which they record and index prescribed information pertaining to marriages, which is kept as part of the "public records" ( Domestic Relations Law § 19[1] ). Further, the affidavits, statements and consents submitted to the clerks as part of the marriage license process must also be recorded and indexed; those documents are "public records" that are "open to public inspection" subject to an important caveat – there must first be a showing that such disclosure is "necessary or required for judicial or other proper purposes" (
Domestic Relations Law § 19[1] ; see Domestic Relations Law § 15[1][a] ). The town and city clerks are required to file with respondent the original "affidavit, statement, consent, [court] order ... license and certificate" ( Domestic Relations Law § 19[1] ) and, upon receipt by respondent of such records, the originals "shall be kept on file and properly indexed by [respondent]" ( Domestic Relations Law § 20 ). Petitioners' FOIL requests indicate their intent to upload the foregoing personal marital information on the Internet and that they anticipate that the records will be converted into a
text-searchable database and made available for free to the public for genealogical and historical research.
"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 Hanig v. State of N.Y. 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] ; see Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 274–275, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996] ; Matter of Police Benevolent Assn. of N.Y State, Inc. v. State of New York, 165 A.D.3d 1434, 1435, 86 N.Y.S.3d 246 [2018] ; Matter of Laveck v. Village Bd. of Trustees of Vil. of Lansing, 145 A.D.3d 1168, 1169, 42 N.Y.S.3d 460 [2016] ). The exemptions are "narrowly construed," with the burden on respondent to demonstrate that an exemption applies ( Matter of Hanig v. State of N.Y. Dept. of Motor Vehs., 79 N.Y.2d at 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 ; see Public Officers Law § 89[4][b] ; Matter of McFadden v. Fonda, 148 A.D.3d 1430, 1432, 50 N.Y.S.3d 605 [2017] ). "[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 Gould v. New York City Police Dept., 89 N.Y.2d at 275, 653 N.Y.S.2d 54, 675 N.E.2d 808 [internal quotation marks and citation omitted]; see Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462–463, 849 N.Y.S.2d 489, 880 N.E.2d 10 [2007] ; Matter of Police Benevolent Assn. of N.Y. State, Inc. v. State of New York, 145 A.D.3d 1391, 1392, 44 N.Y.S.3d 578 [2016] ).
Against that backdrop, an agency may decline disclosure of records which, "if disclosed[,] would constitute an unwarranted invasion of personal privacy" ( 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 Police Benevolent Assn. of State of N.Y., Inc. v. State of New York, 165 A.D.3d at 1435, 86 N.Y.S.3d 246, citing Public Officers Law § 89[2][b] ; see Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d at 462, 849 N.Y.S.2d 489, 880 N.E.2d 10 ; Matter of Hanig v. State of N.Y. Dept. of Motor Vehs., 79 N.Y.2d at 109–110, 580 N.Y.S.2d 715, 588 N.E.2d 750 ). We find that the information requested here does not fall squarely into any of the specifically enumerated categories of exempt personal information (see Matter of Laveck v. Village Bd. of Trustees of Vil. of Lansing, 145 A.D.3d at 1170, 42 N.Y.S.3d 460 ). Accordingly, "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’ " (
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