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Are FOIL Request Rejections Frustrating You?

By Scott D. Storm, Esq.

Although the particular documents requested in this case are not necessarily relevant to our investigations, examining the case is very useful as the decision demonstrates that such denials may be challenged and it summarizes the applicable standards involved. The agency has the burden to demonstrate that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access, otherwise disclosure is compelled. Conclusory assertions are insufficient to deny access. Alternatives must also be considered, such as providing summaries of factual data or the records with the challenged information redacted.Attorney Scott Storm

In The Matter of Aron Law, PLLC v. N.Y. City Fire Dept.

Appellate Division of the Supreme Court of N.Y., Second Department  

FOIL request – Article 78 proceeding to compel production. The agency has the burden to demonstrate that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access, otherwise disclosure is compelled. Conclusory assertions are insufficient to deny access.

This is a proceeding pursuant to CPLR Article 78 to compel the production of records from the New York City Fire Department pursuant to the Freedom of Information Law (Public Officers Law art 6). The Supreme Court, Kings County denied a petition to compel the production of the records under FOIL. The Appellate Division reversed. 

The FDNY responded to the FOIL request, providing certain records and withholding others which sought records concerning requests for religious accommodations. The FDNY withheld those records on the grounds that releasing them would be an unwarranted invasion of personal privacy under Public Officers Law § 87(2)(b) and the records were inter-agency materials exempt by Public Officers Law § 87(2)(g). The FDNY provided a summary report of the factual data, but withheld the specific records requested. 

The Court recognized that FOIL provides the public with broad access to the records of the government, referring to Public Officers Law § 84. An agency must make available for public inspection and copying all records unless it can claim a specific exemption to disclosure. Public Officers Law § 87(2) and (3). The exemptions are to be narrowly interpreted so that the public is granted maximum access to the records of government. FOIL is based on a presumption of access to the records. The agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access. Public Officers Law § 89(4)(b). If the agency fails to prove that a statutory exemption applies, FOIL compels disclosure, not concealment. 

As relevant in this case, an agency may deny access to records to prevent unwarranted invasions of personal privacy. Public Officers Law § 89(2)(a) and (b). This includes "disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency" (Public Officers Law § 89[2][b][v]). It also provides, however, that disclosure shall not be construed to constitute an unwarranted invasion of personal privacy "when identifying details are deleted" (Public Officers Law § 89[2][c][i]).

Here, the FDNY failed to sustain its burden of proving that the personal privacy exemption applied to the records sought, since it did not establish that the identifying details could not be redacted so as to not constitute an unwarranted invasion of personal privacy. Its conclusory assertions that the records fall within the exemption were insufficient to meet its burden of proving that the statutory exemption applies. The FDNY should have produced the requested records, redacting whatever portions are necessary to safeguard the identities of the individuals who sought the accommodation, leaving nonidentifying information intact. 


Do you need records from a municipality and it has denied your FOIL request? Our Insurance Coverage team is here to help. Give us a call at (716) 220-1478 or contact us via email.

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