Police Benevolent Ass'n of N.Y.S., Inc. v. State

• Citation: 165 A.D.3d 1434,86 N.Y.S.3d 246
• Decision Date: 18 October 2018
• Docket Number: 525746
• Parties: In the Matter of POLICE BENEVOLENT ASSOCIATION OF NEW YORK STATE, INC., Appellant, v. STATE of New York et al., Respondents. (And Three Other Related Proceedings.)
• Court: New York Supreme Court Appellate Division

165 A.D.3d 1434

86 N.Y.S.3d 246

In the Matter of POLICE BENEVOLENT ASSOCIATION OF NEW YORK STATE, INC., Appellant,

v. STATE of New York et al., Respondents.(And Three Other Related Proceedings.)

525746

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 11, 2018

Decided and Entered: October 18, 2018

Gleason, Dunn, Walsh & O'Shea, Albany (Brendan D. Sansivero of counsel), for appellant.

Barbara D. Underwood, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondents.

Cameron J. Macdonald, Government Justice Center, Inc., Albany, for Empire Center for Public Policy, amicus curiae.

Before: Garry, P.J., Clark, Mulvey, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeals (1) from a judgment of the Supreme Court (Melkonian, J.), entered May 26, 2017 in Albany County, which dismissed petitioner's applications, in four proceedings pursuant to CPLR article 78, to review determinations of respondents denying petitioner's Freedom of Information Law requests, and (2) from an order of said court, entered September 26, 2017 in Albany County, which denied petitioner's motion to renew and reargue.

When this case was previously before this Court, we remitted the matter to Supreme Court for an in camera inspection of records related to the hiring of certain individuals for high-ranking positions within the police departments of the four respondent institutions that are operated by respondent State University of New York (145 A.D.3d 1391, 1393–1394, 44 N.Y.S.3d 578 [2016] ).¹ The matter was remitted with the directive that the court determine the extent to which the requested documents contain information exempt from disclosure and whether such information can be redacted while still protecting the personal privacy of those individuals ( id. at 1393–1394, 44 N.Y.S.3d 578 ). On remittal, Supreme Court reviewed 1,344 pages of resumes, applications and related correspondence sent by applicants for the subject police department positions and, in May 2017, it maintained that redaction was not possible. Thereafter, petitioner moved for leave to renew and reargue, which motion was denied in September 2017. Petitioner now appeals.

"Under [the Freedom of Information Law], agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law § 87(2)" ( Matter of Aurigemma v. New York State Dept. of Taxation & Fin., 128 A.D.3d 1235, 1236–1237, 9 N.Y.S.3d 711 [2015] [internal quotation marks and citations omitted]; see Matter of Madeiros v. New York State Educ. Dept., 30 N.Y.3d 67, 73, 64 N.Y.S.3d 635, 86 N.E.3d 527 [2017] ). As relevant here, an agency may deny access to records or portions thereof that, if disclosed, would cause "an unwarranted invasion of personal privacy" ( Public Officers Law § 87[2][b] ). The personal privacy exemption incorporates a nonexhaustive list of categories of information that would statutorily constitute unwarranted invasions of personal privacy if disclosed, such as the employment histories and personal references of applicants for employment (see Public Officers Law § 89[2][b][i] ), as well as any information of a personal nature when disclosure would result in economic or personal hardship to the subject party where such information is not relevant to the work of the agency requesting or maintaining it (see Public Officers Law § 89[2][b][iv] ). While the information requested here falls squarely within this exemption, the Public Officers Law also instructs that disclosure of such information will not be construed to constitute an unwarranted invasion of personal privacy when identifying details are redacted (see Public Officers Law § 89[2][c][i] ). Because the records being requested here contain information that is specifically exempt, the issue distills to whether such identifying details can be redacted so as not to constitute an unwarranted invasion of personal privacy.

Initially, there is no legitimate dispute that disclosure would warrant redaction of identifying details such as the applicants' names and addresses (see Public Officers Law § 89[7] ). Further, given the narrow pool of applicants for these high-ranking positions, redaction of these identifying details alone would not prevent a reasonable member of the community, including current employers, from identifying certain applicants. Accordingly, it is possible, or even likely, that certain applications, or components thereof, may need to be redacted in their entirety given the distinctiveness of an applicant's education or employment history; however, such circumstances with respect to a single, or even several, applicants cannot justify a blanket denial of the release of 1,344 pages of application information from numerous applicants (see e.g. Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 275, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996] ; 145 A.D.3d at 1392, 44 N.Y.S.3d 578 ; Matter of Thomas v. New York City Dept. of Educ., 103 A.D.3d 495, 498, 962 N.Y.S.2d 29 [2013] ; Matter of New York State Defenders Assn. v. New York State Police, 87 A.D.3d 193, 196–197, 927 N.Y.S.2d 423 [2011] ).

Taking the first application provided in the confidential exhibit as an example, the resume of that applicant could be redacted so...