Niagara Environmental Action by Raymond v. City of Niagara Falls
| Decision Date | 06 March 1984 |
| Citation | 473 N.Y.S.2d 653,100 A.D.2d 742 |
| Parties | In the Matter of NIAGARA ENVIRONMENTAL ACTION by its President, Kenneth RAYMOND, Respondent, v. The CITY OF NIAGARA FALLS, New York, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Gellman, Brydges, Schroff & Schweitzer by Richard Schroff, Niagara Falls, for appellant.
Lewis Steele, and John A. Galeziowski, Niagara Falls, for respondent.
Before DOERR, J.P., and BOOMER, GREEN, O'DONNELL and SCHNEPP, JJ.
Respondent has not met its burden of proving that the requested materials are exempt under section 87 (subd. 2, par. [a] ) of the Public Officers Law, and, therefore, Special Term properly granted petitioner access to said materials. An agency has the burden of proving that any materials requested under the Freedom of Information Law are exempt from disclosure pursuant to section 87 (subd. 2) (). In the instant case, the only proof respondent submitted concerning the requested material's exemption from discovery was conclusory allegations of respondent's counsel. There is no indication in the record that any of the parties requested the trial court to conduct an in camera inspection. An attorney's affidavit containing conclusory assertions does not meet the agency's burden of proof under the Public Officers Law (Church of Scientology of N.Y. v. State of New York, 46 N.Y.2d 906, 414 N.Y.S.2d 900, 387 N.E.2d 1216; Matter of Miracle Mile Assoc. v. Yudelson, 68 A.D.2d 176, 417 N.Y.S.2d 142).
However, Special Term erred in awarding petitioner attorneys' fees. Respondent had a reasonable basis in the law for withholding the requested materials (Public Officers Law, § 89, subd. 4, par. [c] ).
Judgment unanimously modified and as modified affirmed without costs.
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