Injury/Accident

Prisoner FOIL Denied - Exemption 87(2)(f) explained


Almost anyone can FOIL, use the Freedom of Information Law, records from a government agency. Prisoners can FOIL records like anyone else. This case involves a pro se, an Alton Hutchinson Malone, who files a FOIL request as inmate in the DOCCS,


Petitioner's FOIL request (there was two in fact) asked for all sorts of records, SHU records, reports by staff, certificates, tier assistance, disciplinary hearings, and so forth. Records were initially denied.


Petitioner filed administrative appeals prior to bringing the FOIL lawsuit, as is required. The FOIL appeals officer issued a written decision on December 5, 2018, affirming the denial of the second FOIL request based upon the exemption in Public Officers Law §§ 87(2)(a) and 95(6)(c).


The Court notes that "As petitioner did not receive a reply to his administrative appeal within 10 days as required (see Public Officers Law § 89[4][a]), petitioner commenced a CPLR article 78 proceeding...The petition...was directed at challenging, the FOIL officer's October 19, 2018 denial of petitioner's second FOIL request."


After receiving a final decision from the FOIL appeals officer, petitioner filed an amended petition challenging the denial by the FOIL appeals officer of his second FOIL request as lacking a rational basis. Respondent submitted an answer to the amended petition. Supreme Court dismissed the petition, finding that the staff evaluations were exempt under Public Officers Law §§ 87(2) and 95(6)(c). The FOIL appeal to the Third Judicial Department ensued.


The Appellate Court notes the oft-cited standard for withholding records under the Public Officers Law, FOIL:

Although "[e]xemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]), exemptions must "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 Federation of N.Y. State Rifle & Pistol Clubs v New York City Police Dept., 73 NY2d 92, 96 [1989]; see Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 225 [2018]).

FOIL is not unlimited therefore. Records can and will be withheld on certain grounds, here the focus of this blog is the FOIL exemption based on endangering life or safety. The Appellate Court here states "Public Officers Law § 87(2)(f) exempts from disclosure materials that, if disclosed[,] could endanger the life or safety of any person" (Matter of Williamson v Fischer, 116 AD3d 1169, 1170 [2014] [internal quotation marks and citations omitted; emphasis added], lv denied24 NY3d 904 [2014]), and DOCCS, "[t]he agency in question[,] need only demonstrate a possibility of endangerment in order to invoke this exemption" (Matter of Bellamy v New York City Police Dept., 87 AD3d 874, 875 [2011] [internal quotation marks, brackets and citations omitted; emphasis added], affd20 NY3d 1028 [2013]; see Matter of Kairis v Fischer, 138 AD3d at 1361). While it may not have been apparent at first, the FOIL Appellate Court notes that the respondents, the agency, offered a detailed basis for why the records at issue fit within the exemption.


The case is MATTER OF HUTCHINSON v. ANNUCCI, 189 A.D.3d 1850, 136 N.Y.S.3d 560 (3rd Dep't. 2020) and the Court notes that "given [the] detailed affidavit documented the nature of the content and use made of the staff evaluations, we find that the requested staff evaluations 'fall entirely within the scope of the asserted exemption' given their endangerment potential and, as such, that an in camera review is unnecessary (Matter of Gould v New York City Police Dept., 89 NY2d 267, 275 [1996]" The lower court is affirmed and the access to records under FOIL is denied.


Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA).


Do you need legal services in obtaining information under the Public Officers Law, FOIL? Call 631-450-2515 or E-Mail info@CoryHMorris.com to arrange for a flat-fee price quote. We work on a sliding scale, depending on the amount of the request and whether the request is in the public interest.

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