Suhr v. N.Y.S. Dep't of Civil Serv.

• Decision Date: 18 February 2021
• Docket Number: 531696
• Citation: 142 N.Y.S.3d 616,193 A.D.3d 129
• Parties: In the Matter of Daniel R. SUHR, Respondent, v. NEW YORK STATE DEPARTMENT OF CIVIL SERVICE, Appellant.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 129

142 N.Y.S.3d 616

In the Matter of Daniel R. SUHR, Respondent,

v.NEW YORK STATE DEPARTMENT OF CIVIL SERVICE, Appellant.

531696

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

Calendar Date: January 7, 2021

Decided and Entered: February 18, 2021

Letitia James, Attorney General, Albany (Laura Etlinger of counsel), for appellant.

Glennon Law Firm, Rochester (Craig Peterson of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Reynolds Fitzgerald, JJ.

OPINION AND ORDER

Garry, P.J.

Appeal from that part of a judgment of the Supreme Court (Koweek, J.), entered May 6, 2020 in Albany County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent partially denying petitioner's Freedom of Information Law request.

Pursuant to the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]), petitioner requested records from respondent, specifically a document containing the (1) full name, (2) home zip code, (3) hire date, (4) labor organization, (5) bargaining unit and (6) payroll deduction type of all state employees in classified service. After petitioner certified that the responsive data would not be used for solicitation or fundraising purposes, respondent sent him all the requested data except employees’ home zip codes and payroll deduction type. The FOIL officer's letter indicated that respondent does not maintain data concerning payroll deduction type and that respondent withheld home zip codes pursuant to Public Officers Law §§ 87(2)(b) and 89(7) and Executive Order (Cuomo) No. 183 ( 9 NYCRR 8.183 ). Following an unsuccessful appeal to respondent's FOIL appeals officer, petitioner commenced this CPLR article 78 proceeding challenging the partial denial of his FOIL request and seeking to obtain disclosure of the requested zip codes. Supreme Court, among other things, concluded that neither the Public Officers Law nor Executive Order No. 183 barred release of the zip codes, and granted so much of the petition as requested such data. Respondent appeals.

"FOIL generally requires government agencies to make available for public inspection and copying all records subject to a number of exemptions" ( 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] [internal quotation marks and citations omitted]; see Matter of Abdur–Rashid v. New York City Police Dept., 31 N.Y.3d 217, 224–225, 76 N.Y.S.3d 460, 100 N.E.3d 799 [2018] ; Matter of Laveck v. Village Bd. of Trustees of the Vil. of Lansing, 145 A.D.3d 1168, 1169, 42 N.Y.S.3d 460 [2016] ). "The exemptions set forth in the statute are interpreted narrowly in order to effect the purpose of the statutory scheme" ( Matter of Madeiros v. New York State Educ. Dept., 30 N.Y.3d at 73, 64 N.Y.S.3d 635, 86 N.E.3d 527 [citation omitted]; see Matter of Abdur–Rashid v. New York City Police Dept., 31 N.Y.3d at 225, 76 N.Y.S.3d 460, 100 N.E.3d 799 ; Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665 [1986] ).

Through FOIL, the Legislature created a three-step process.

"An agency that initially denies a request is not required to specify a reason for the denial (see Public Officers Law § 89[3][a] ). Upon the second step, the administrative appeal, the agency is required to ‘fully explain in writing ... the reasons for further denial’ ( Public Officers Law § 89[4][a] ). The third step is a CPLR article 78 proceeding, in which the agency ‘shall have the burden of proving that such record falls within the provisions of’ a statutory exception ( Public Officers Law § 89[4][b] ; see Public Officers Law § 87[2] )," by articulating a particularized and specific reason for denying access to the record ( Matter of Competitive Enter. Inst. v. Attorney Gen. of N.Y., 161 A.D.3d 1283, 1285, 76 N.Y.S.3d 640 [2018] ; see Matter of Bass Pro, Inc. v. Megna, 69 A.D.3d 1040, 1041, 892 N.Y.S.2d 642 [2010] ; see also Matter of Madeiros v. New York State Educ. Dept., 30 N.Y.3d at 74, 64 N.Y.S.3d 635, 86 N.E.3d 527 ).

Respondent satisfied its statutory obligation to fully explain its determination in the administrative appeal by stating that disclosure of name and zip code pairings would invade employee privacy to an unwarranted degree, citing statutes that protect personal identifying information of the public generally and state workers in particular (see Matter of Bass Pro, Inc. v. Megna, 69 A.D.3d at 1041, 892 N.Y.S.2d 642 ; see also Public Officers Law § 89[4][a] ). Respondent's burden to articulate a particularized and specific justification did not arise until petitioner commenced this CPLR article 78 proceeding (see Matter of Bass Pro, Inc. v. Megna, 69 A.D.3d at 1041, 892 N.Y.S.2d 642 ).¹ To meet its burden, respondent asserted two statutory exemptions: one prohibiting release of records protected by a state or federal statute, specifically the statute providing that FOIL does not require the disclosure of, among other things, home addresses of public employees (see Public Officers Law §§ 87[2][a] ; 89[7]); and another that permits agencies to "deny access to records or portions thereof that ... if disclosed would constitute an unwarranted invasion of personal privacy" ( Public Officers Law § 87[2][b] ).

We must narrowly interpret the exemption in Public Officers Law § 87(2)(a), which here incorporates the protections of Public Officers Law § 89(7) (see Matter of Mantica v. New York State Dept. of Health, 94 N.Y.2d 58, 61, 699 N.Y.S.2d 1, 721 N.E.2d 17 [1999] ).² "While FOIL exemptions are to be narrowly read, they must of course be given their natural and obvious meaning where such interpretation is consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL" ( Matter of Abdur–Rashid v. New York City Police Dept., 31 N.Y.3d at 225, 76 N.Y.S.3d 460, 100 N.E.3d 799 [internal quotation marks and citations omitted]; see Matter of Federation of N.Y. State Rifle & Pistol Clubs v. New York City Police Dept., 73 N.Y.2d 92, 96, 538 N.Y.S.2d 226, 535 N.E.2d 279 [1989] ). Keeping this in mind, we recognize that some courts, in the context of addressing service of process by mail, have held that a zip code is but one component of a home address and, standing alone, is not functionally the same as a home address (see e.g. Karlsson & Ng v. Cirincione, 186 Misc.2d 359, 361, 718 N.Y.S.2d 783 [Civ. Ct., New York County 2000] [noting that "the zip code is part of a mailing address"]; New York City Hous. Auth. v. Fountain, 172 Misc.2d 784, 786, 660 N.Y.S.2d 247 [Civ. Ct., Bronx County 1997] [setting forth the elements of an address]; cf. Ludmer v. Hasan, 33 A.D.3d 594, 594, 821 N.Y.S.2d 661 [2006] [approving of service where envelope contained proper street address and town but failed to specify a zip code]). The Committee on Open Government has also accepted the premise that "there is a distinction between" providing zip codes and home addresses (Comm on Open Govt FOIL–AO–18959 [2012]).

However, other courts have referred to an address and zip code in the disjunctive, implying that they are separate items (see People v. King, 234 A.D.2d 923, 924, 653 N.Y.S.2d 464 [1996], lv denied 89 N.Y.2d 1012, 658 N.Y.S.2d 251, 680 N.E.2d 625 [1997] ; Matter of Contessa v. McCarthy, 54 A.D.2d 781, 781, 387 N.Y.S.2d 308 [1976], affd 40 N.Y.2d 890, 389 N.Y.S.2d 349, 357 N.E.2d 1004 [1976] ). And, in at least one context, the Legislature has stated that a zip code is a person's "approximate address" ( Correction Law § 168 –1[6][a] [permitting disclosure of a level one sex offender's "approximate address based on (his or her) zip code"]; People v. S.L., 70 Misc.3d 663, ––––, 137 N.Y.S.3d 659, 2020 N.Y. Slip Op. 20320, *3 [Sup. Ct., Suffolk County 2020]; People v. Sumpter, 177 Misc.2d 492, 495, 676 N.Y.S.2d 825 [Crim. Ct., Queens County 1998] ; compare Correction Law § 168 –1[6][b], [c] [permitting disclosure of a person's "exact address" where the person is designated a level two or level three sex offender]). Hence, a zip code alone may be considered a person's address for some purposes.

Moreover, we are cognizant of the growing access to information arising from recent – and tremendous – technological advances in our society. In our current, highly technological environment, using a zip code or other partial address information directly matched with an individual's name could readily facilitate access to that person's complete home address.³ Thus, accepting petitioner's argument would eviscerate this statutory exemption, rendering it without any practical effect (see e.g. Matter of Hassig v. New York State Dept. of Health, 294 A.D.2d 781, 783, 742 N.Y.S.2d 442 [2002], lv denied 99 N.Y.2d 502, 752 N.Y.S.2d 589, 782 N.E.2d 567 [2002] ). FOIL exemptions should not be read in a way that would defeat their purpose (see Matter of Kosmider v. Whitney, 34 N.Y.3d 48, 62, 108 N.Y.S.3d 399, 132 N.E.3d 592 [2019] [stating that "(t)he FOIL rule that we interpret exemptions from disclosure narrowly does not require that we disregard (the) commonsense understanding of legislative intent"]). Accordingly, although we recognize the somewhat novel nature of our determination – that a zip code is the functional equivalent of an address for FOIL purposes – we find this exemption applicable.

Nonetheless, we further consider the additional exemption asserted by respondent. Pursuant to the alternate grounds, the question is whether disclosing a home zip code paired with an employee's name would constitute "an unwarranted invasion of personal privacy under the provisions of [ Public Officers Law § 89(2) ]" ( Public Officers Law § 87[2][b] ). This privacy exception includes eight categories that are per se unwarranted invasions of privacy, but the circumstances constituting an unwarranted invasion of personal privacy "shall not be limited to" those listed ( ...