Whitfield v. Foil Appeals Officer, Dep't of Corr. & Cmty. Supervision

• Docket Number: CV-22-2357
• Decision Date: 22 November 2023
• Citation: 2023 NY Slip Op 06022
• Parties: In the Matter of John Whitfield, Appellant, v. Foil Appeals Officer, Department of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 06022

In the Matter of John Whitfield, Appellant,
v.
Foil Appeals Officer, Department of Corrections and Community Supervision, Respondent.

No. CV-22-2357

Supreme Court of New York, Third Department

November 22, 2023

Calendar Date: October 18, 2023

John Whitfield, Brooklyn, appellant pro se.

Letitia James, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.

Before: Clark, J.P., Aarons, Pritzker, Ceresia and Fisher, JJ.

Ceresia, J.

Appeal from a judgment of the Supreme Court (James P. Gilpatric, J.), entered October 31, 2022 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's Freedom of Information Law request.

In 1989, petitioner was convicted of second-degree murder and a number of gun charges, and sentenced to an aggregate term of 25 years to life in prison. In 2004, after his appeals had been exhausted, petitioner filed an application for executive clemency. The application was denied, and petitioner thereafter continued to serve his sentence until he was released to and ultimately discharged from parole supervision. In 2021, petitioner submitted a request pursuant to the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) to the Department of Corrections and Community Supervision (hereinafter DOCCS), whereby he sought, as relevant here, all records related to his clemency application. Petitioner's request was denied on the ground that the records were exempt from disclosure under a state or federal statute pursuant to Public Officers Law § 87 (2) (a). After his ensuing administrative appeal was rejected by respondent, petitioner commenced this proceeding seeking, among other things, a complete response to his FOIL request and an award of litigation costs.

Prior to answering, DOCCS disclosed to petitioner 755 pages of records responsive to the FOIL request, while withholding or redacting an additional 60 pages. As a result, Supreme Court requested a status update from petitioner, following which he filed an affidavit indicating that he wanted complete disclosure of all withheld or redacted records. DOCCS thereafter answered the petition and sought dismissal on the grounds of mootness and failure to state a claim. DOCCS also submitted the complete unredacted records for in camera review, together with a privilege/redaction log invoking, for the first time, Public Officers Law § 87 (2) (b), (f) and (g) as grounds for withholding or redacting the 60 pages in question. In addition, in its memorandum of law submitted in opposition to the petition, DOCCS continued to argue that Public Officers Law § 87 (2) (a) shielded all of the records from disclosure, notwithstanding the fact that it had already turned over the vast majority of them. Without addressing the mootness argument, Supreme Court performed an in camera review and ultimately dismissed the petition on the basis that the withheld or redacted records fell within the exemptions of Public Officers Law § 87 (2) (b), (f) and (g), such that petitioner had been provided with all of the records to which he was entitled. Petitioner appeals.

"FOIL imposes a broad duty of disclosure on government agencies and all agency records are presumptively available for public inspection and copying unless one of the statutory exemptions applies," in which case the agency may withhold or redact the requested records (Matter of Hepps v New York State Dept. of Health, 183 A.D.3d 283, 287 [3d Dept 2020] [internal quotation marks, brackets and citations omitted], lv dismissed & denied 37 N.Y.3d 1001 [2021]). An agency seeking to prevent disclosure bears the burden of demonstrating "that the requested materials fall squarely within a FOIL exemption by articulating a particularized justification for denying access" (Matter of Tatko v Village of Granville, 207 A.D.3d 975, 977 [3d Dept 2022] [internal quotation marks and citation omitted]).

As a starting point, the sole ground upon which DOCCS relied when initially denying petitioner's FOIL request - Public Officers Law § 87 (2) (a) - is inapplicable. That exception applies to records that are "specifically exempted from disclosure by state or federal statute" (Public Officers Law § 87 [2] [a]). DOCCS contended that the records were shielded by the Guidelines for Review of Executive Clemency Applications, issued by the Executive Chamber, which indicate that material in a clemency file is...