Application of Kyle PRALL, Petitioner, For a Judgment Pursuant to CPLR Article 78
NEW YORK CITY DEPARTMENT OF CORRECTIONS, Dr. Dora Schriro, Commissioner, Nadene M. Pinnock, Records Appeal Officer, and Rosa Lugo, Records Access Officer, Respondents.
[971 N.Y.S.2d 822]
Tilem & Campbell, P.C., White Plains (John Campbell of counsel), for
Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth Edmonds of counsel), for respondents.
DARRELL L. GAVRIN, J.
Petitioner is the founder of Citizens Information Associates which operates a website called " Busted!" " Busted!" is a commercial website that generates revenue by posting arrest records of inmates, including their names, addresses, dates of birth, and photographs, and then charging a $68.00 fee to remove this personal information fro the website.
On September 7, 2011, petitioner sent a letter to respondents requesting the following information pursuant to FOIL:
[B]ooking photos/mugshots on every individual arrested by and/or booked into all of the New York City Department of Corrections' jails, prisons, detention and/or correctional facilities from August 1, 2011 to August 31, 2011, and I would like the information to be prepared in their original electronic format, although we can accept virtually any [971 N.Y.S.2d 823] electronic format. I would like to request the jail/arrest log for the same time period.
On December 8, 2011, respondents supplied petitioner, with the name, admission date, age, sex, race, place of birth, and offense for each inmate whose records had not been sealed. Pursuant to Public Officers Law §§ 87(2)(b) and 87(2)(f), respondents refused to provide the address, date of birth, photograph, and bond information of inmates averring that disclosure of such information " would constitute an unwarranted invasion of personal privacy and could endanger the life or safety of any person."
On December 13, 2011, petitioner filed an administrative appeal. On January 4, 2012, respondents upheld their December 8, 2011 determination of petitioner's FOIL request. Thus, petitioner exhausted his administrative remedies and on May 3, 2012, he commenced this Article 78 proceeding, seeking disclosure of the requested dates of birth, home addresses and photographs of inmates. Petitioner contends that the decision of respondents to withhold such information was arbitrary and capricious, and an abuse of discretion.
FOIL was enacted to promote open government and public accountability by imposing upon governmental agencies a broad duty to make their records available to the public (Public Officers Law § 84; Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v. Mills, 74 A.D.3d 1417, 904 N.Y.S.2d 512 [3d Dept. 2010] ). FOIL provides that government records are presumptively available for public inspection unless a statutory exemption applies. Courts must narrowly construe FOIL exemptions, and the agency that seeks to prevent disclosure bears the burden of demonstrating that the requested material falls squarely within an exemption " by articulating a particularized and specific justification for denying access." ( Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 505 N.Y.S.2d 576, 496 N.E.2d 665 .)
Pursuant to CPLR 7803(3), the court's review is limited to whether the decision by the agency was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious or an abuse of discretion. The court's function is not to substitute its judgment for that of the agency being reviewed, but merely to determine whether proper procedures have been followed ( Matter of Nawaz v. State Univ. of N.Y. Univ. at Buffalo School of Dental Medicine, 295 A.D.2d 944, 744 N.Y.S.2d 590 [4th Dept. 2002]; Matter of Shepotkin v. Kordonsky, 14 Misc.3d 1216[A], 836 N.Y.S.2d 489 [Sup.Ct., Kings County 2007] ).
In the case at bar, respondents contends that the dates of birth, home addresses and photographs of inmates are exempt from production under Public Officers Law § 89(2)(b); the disclosure of the requested information would amount to an unwarranted invasion of a person's privacy, resulting in economic and/or personal hardship to inmates; and the information is not relevant to the work of the agency maintaining it.
Pursuant to Public Officers Law § 87(2)(b), an agency may deny a FOIL request for records that, if disclosed, would amount to an unwarranted invasion of personal privacy under the provisions of Public Officers Law § 89(2).
Public Officers Law § 89(2)(b) provides that an unwarranted invasion of personal privacy includes, but shall not be limited to:
[971 N.Y.S.2d 824] i. disclosure of employment, medical or credit histories or personal references of ...