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Irwin v. Onondaga County Resource Recovery Agency

February 11, 2010

IN THE MATTER OF JOHN M. IRWIN, APPELLANT,
v.
ONONDAGA COUNTY RESOURCE RECOVERY AGENCY ET AL., RESPONDENTS. (APPEAL NO. 2.)



The opinion of the court was delivered by: Fahey, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, May 26, 2010

{**72 AD3d at 315}

OPINION OF THE COURT

The primary issue before us on this appeal is whether Supreme Court erred in denying petitioner's request pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art 6) seeking, inter alia, to compel disclosure of all of the electronically stored photographs in the possession of respondent Onondaga County Resource Recovery Agency (OCRRA) that were available for use in any OCRRA publication, with the exception of those photographs depicting only OCRRA staff, and any "associated metadata" with respect to those photographs. We will provide an extensive definition of the term metadata later in this opinion. {**72 AD3d at 316}

We conclude that the court erred in denying the FOIL request with respect to the unpublished photographs in the possession of OCRRA with the exception of unpublished photographs depicting individuals other than petitioner or relating to active or ongoing law enforcement investigations. We also conclude that the court should have ordered OCRRA to disclose the "system" metadata associated with the photographs that OCRRA has already disclosed to petitioner, as well as the photographs that we have deemed subject to disclosure under FOIL. We thus conclude that the amended judgment should be modified accordingly.

I.

On November 28, 2007, OCRRA, a public agency that handles solid waste and recycling for Onondaga County, sent an e-mail to individuals who subscribed to a "news-blasts" list that OCRRA used to publicize its activities. The e-mail contained a newsletter advising subscribers that the compost "season" at two of OCRRA's compost sites would be extended through December 1, 2007, and it was opened by 1,800 of the 2,607 subscribers on the "news-blasts" list. Featured on the newsletter was an image of petitioner engaged in what was, by all accounts, the process of emptying leaves from a bag at an OCRRA compost site. OCRRA's former Public Information Officer (PIO) stated that petitioner actually posed for that photograph, which was taken in the fall of 2005, and gave OCRRA his name at that time. Petitioner was not identified by name in the e-mail.

According to the PIO, on December 12, 2007, petitioner "demanded two free annual compost site access passes in exchange for the use of his picture" and "indicated that the 'problem [would] go away' if OCRRA provided him with free compost site passes for 2008 and 2009." In a subsequent letter to the PIO, petitioner acknowledged having suggested "that a [complimentary] compost pass would be an appropriate [quid pro quo] for the use of [his photograph], without prior notification or authorization, to advertise [OCRRA's] compost site," but he disagreed with the PIO's characterization of the discussions between the PIO and petitioner concerning the subject compost passes. An OCRRA "Compost Season Pass Order & Authorization Form" signed by petitioner indicated that OCRRA sold season passes for $10.{**72 AD3d at 317}

II.

Given its reluctance to begin a practice of paying for the use of images in its newsletter and other educational publications, OCRRA refused to provide petitioner with any complimentary compost passes. On December 17, 2007, petitioner, who taught computer systems engineering courses for 15 years as an adjunct associate professor at Syracuse University, made a FOIL request to OCRRA seeking, inter alia, "[a]ny and all records involving [his] photograph that was used in the . . . e-mail . . . , including the image file itself and any associated metadata," and "[r]ecords of [photographs] in OCRRA's storage system that are available for use in any OCRRA publications, including [Web site] and e-mail activities." With respect to the second aforementioned request, petitioner stated that "[r]ecords are to specifically include [photographs] on the 'Shared Drive,' " and that "[photographs] depicting only OCRRA employees or staff can be excluded." Moreover, petitioner subsequently amended his request for records of photographs to encompass " '[a]ll computer records that are associated with published [photographs] in all OCRRA publications, including [Web site] and e-mail activities, for the years 2005, 2006, and 2007,' " while again excluding " '[photographs] depicting only OCRRA employees or staff.' " At the time of the FOIL request, there were at least 28,900 photographs on OCRRA's computer system.

In response to the FOIL request, OCRRA provided petitioner with digital copies of 1,423 photographs that had already been published, as well as two photographs of petitioner. OCRRA denied petitioner's request with respect to the remaining photographs in OCRRA's files on the grounds that the request was overbroad and constituted an unwarranted invasion of the personal privacy of the individuals depicted in the unpublished photographs. According to petitioner, the photographs that were produced had been reduced in quality and resolution and were bereft of metadata.

Petitioner thereafter commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination of OCRRA denying certain parts of his FOIL request. The court denied the petition with the exception of "the disclosure of photographs taken by Onondaga County Special Deputy Sheriffs assigned to work with OCRRA, which relate to former, closed or inactive ...


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