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Saturday, December 7, 2013

CAPITAL NEWSPAPERS v. WHALEN and Freedom of Information (FOIL)

69 N.Y.2d 246 (1987)

In the Matter of Capital Newspapers, Division of the Hearst Corporation, Appellant,
Thomas M. Whalen, III, as Mayor of the City of Albany, et al., Respondents.

Court of Appeals of the State of New York.
Argued January 13, 1987.
Decided February 19, 1987.

Peter L. Danziger, Thomas F. Gleason and Mary O. Donohue for appellant.

Vincent J. McArdle, Jr., Corporation Counsel (W. Dennis Duggan of counsel), for respondents.



We hold that under the Freedom of Information Law (FOIL) (Public Officers Law art 6) personal or unofficial documents which are intermingled with official government files and are being "kept" or "held" by a governmental entity are "records" maintained by an "agency" under Public Officers Law § 86 (3), (4). Such records are, therefore, subject to disclosure under FOIL absent a specific statutory exemption.

The term "record" for purposes of FOIL is broadly defined and includes "any information kept, held, filed, produced or reproduced by, with or for an agency * * * in any physical form whatsoever" (Public Officers Law § 86 [4]).1 The definition of "agency" is equally inclusive, encompassing "any * * * public corporation * * * or other governmental entity" (Public Officers Law § 86 [3]).2

At issue in this appeal by petitioner's newspaper is whether two categories of documents in custody of respondent City of Albany should be held to be "records" under FOIL: correspondence of a former Mayor of Albany, the late Erastus Corning, II, concerning matters of a personal nature and correspondence concerning the activities of the Albany County Democratic Committee. The narrow question of statutory construction presented arises from respondents' contention that although these papers are literally within the FOIL definitions as "record[s]" being "kept" or "held" by an "agency" (the City of Albany), they are, nonetheless, outside of the scope of FOIL because of the private nature of their contents. For reasons to be discussed, we disagree with respondents' contention and conclude that there should be a reversal.


Erastus Corning, II, was the Mayor of Albany from 1942 until his death in 1983. During his tenure, Mayor Corning collected and stored more than 900,000 pages of documents (the Corning papers) at his office in City Hall. Included among the documents were letters and documents pertaining to Corning's personal affairs and to his activities as Albany County Democratic Committee Chairman.

Following Mayor Corning's death, some of his personal correspondence was turned over to his family. The rest of the documents were listed by title, given index numbers, packed in over 300 cartons and either stored "at Albany City Hall or transferred to the City and County Hall of Records". On August 27, 1984, a reporter for petitioner's Albany evening newspaper, The Knickerbocker News, was granted access to the Corning papers by respondent Thomas M. Whalen, III, Corning's successor as Mayor of Albany. The reporter copied several documents which became the subject of news stories and in some cases appeared verbatim in The Knickerbocker News. Subsequently, respondents advised petitioner that further access would be denied until they had reviewed the Corning papers and removed the personal documents — which, in their opinion; were not covered by FOIL — and such other documents as were within one of FOIL's specific exemptions. Respondents stated that access to Corning's personal letters and to correspondence relating to his Albany County DemocraticCommittee activities was being denied, not because of any claimed FOIL exemption but solely because those documents were not written or received by Corning in his capacity as Mayor. Access to the remaining Corning papers, respondents advised, would be allowed once the sorting process was completed and the personal letters and the Albany County Democratic Committee papers removed.

After the city's FOIL Appeals Officer denied petitioner's appeal of respondents' partial refusal of access (see, Public Officers Law § 89 [4] [a]), petitioner sought an advisory opinion from the State Committee on Open Government (see, Public Officers Law § 89 [1] [b] [ii]). The Committee's opinion in reply was that all of the Corning papers, unless specifically exempt, were accessible under FOIL because the papers were within FOIL's expansive definition of "record" and were "kept" by the city, an "agency" as defined in the statute.

In this proceeding to obtain its statutory remedy of court-ordered access (Public Officers Law § 89 [4] [b]), commenced by petitioner after receipt of the advisory opinion, it alleges that the Corning papers were "received, prepared, copied or stored * * * by employees of the City or County of Albany", that the "services, materials, equipment and personnel used in receiving, preparing, copying and storing the Corning papers were paid for or provided by the City or County of Albany", and that the papers are currently being stored at Albany City Hall or at the City or County Hall of Records. Petitioner subsequently amended its request for access by limiting it to documents "assembled" from January 1, 1980 until June 1, 1983. Special Term (126 Misc.2d 710, 713) granted petitioner's amended request but provided that respondents could "articulate particularized and specific justifications for withholding" specific documents under FOIL's enumerated exemptions (Public Officers Law § 87 [2]); any records claimed by respondents to be exempt were ordered to be furnished to the court for its in camera inspection.

On appeal to the Appellate Division, that court unanimously modified by striking the requirement of disclosure for papers of a personal nature and those relating to the Albany County Democratic Committee and it remitted the matter to Special Term for further proceedings. The Appellate Division held that the Legislature intended to subject to disclosure only those records which revealed the workings of government and that disclosure of private papers of a public officeholder would not further the purpose of FOIL. Moreover, because the paperswere originally "kept" by Corning in his individual capacity, the court reasoned that they were not being "kept" by an "agency" for purpose of the FOIL request, even though the papers had, in the interim, come under the city's custody. The appeal comes before us on a certified question: whether the Appellate Division erred as a matter of law, in modifying Special Term's judgment with respect to the disclosure of the papers relating solely to Mayor Corning's personal activities and those made or received in his capacity as Chairman of the Albany County Democratic Committee.3 The question should be answered in the affirmative, the order of the Appellate Division reversed, and that of Special Term reinstated.


It is fundamental that in interpreting a statute, a court should look first to the particular words in question, being guided by the accepted rule that statutory language is generally given its natural and most obvious meaning (see, Price v Price, 69 N.Y.2d 8, 15-17; McKinney's Cons Laws of NY, Book 1, Statutes § 94, p 232). Here, if the terms "record" and "agency" are given their natural and obvious meanings, the Corning papers would fall within such definitions. The term "record" is defined as "any information kept [or] held * * * by, with or for an agency * * * in any physical form whatsoever" (Public Officers Law § 86 [4]). Unquestionably the Corning papers constitute "information * * * in [some] physical form" stored, "kept [or] held" by the city, a "governmental entity" and, as such, an "agency" for purposes of FOIL (see, Public Officers Law § 86 [3]).4

Although the Corning papers thus come within the definition of "record", respondents maintain that they should, nevertheless, not be held to be within the scope of FOIL. They argue that the Legislature intended that only records dealing with the governmental decision-making process should be subject to disclosure under FOIL not papers outside this category such as private papers of governmental employees. It is quite true, as respondents urge, that we are not bound to accord a literal interpretation to a statutory definition if to do so would lead to an unreasonable result or defeat the general purpose and manifest policy intended to be promoted (see, Matter of Petterson v Daystrom Corp., 17 N.Y.2d 32, 38), and that in the interpretation of statutes the "legislative intent is the great and controlling principle" (People v Ryan, 274 N.Y. 149, 152). Here, however, we find nothing to suggest that the Legislature intended that the definitions of "record" and "agency" should be given anything other than their natural and obvious meanings. On the contrary, respondents' narrow construction would be inimical to the public policy underlying FOIL and would conflict with the legislative intent which is apparent in the language of the statute as a whole and in the detailed procedures established in FOIL for designating documents which should properly be exempt. Moreover, the construction, if given effect, could, as a practical matter, frustrate the very purpose of the legislation.

It is settled that FOIL is based on the overriding policy consideration that "the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government" (Matter of Fink v Lefkowitz, 47 N.Y.2d 567, 571). Indeed, in enacting FOIL the Legislature specifically declared: "that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article." (Public Officers Law § 84.) We have held, therefore, that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government (see, Matter of Washington Post Co. v New York State Ins. Dept., 61 N.Y.2d 557, 564, citingMatter of Fink v Lefkowitz, supra, at p 571). It is evident that the narrow construction respondents urge is contrary to these decisions and antagonistic to the important public policy underlying FOIL.

Nevertheless, respondents seek to read into the definitions of "record" and "agency" a requirement that, for documentsto be within FOIL's scope, their subject matter must evince some governmental purpose. There is, however, no language in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term "record". On the contrary, we held in Matter of Westchester Rockland Newspapers v Kimball (50 N.Y.2d 575, 581) that FOIL's scope is not to be limited based on "the purpose for which the document was produced or the function to which it relates". Such a limitation would be difficult to define, we explained, because of "the expanding boundaries of governmental activity" and because "in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id.).

Moreover, respondents' construction — permitting an agency to engage in a unilateral prescreening of those documents which it deems to be outside the scope of FOIL — would be inconsistent with the process set forth in the statute. In enacting FOIL, the Legislature devised a detailed system to insure that although FOIL's scope is broadly defined to include all governmental records, there is a means by which an agency may properly withhold from disclosure records found to be exempt (see, Public Officers Law § 87 [2]; § 89 [2], [3]). Thus, FOIL provides that a request for access may be denied by an agency in writing pursuant to Public Officers Law § 89 (3) to prevent an unwarranted invasion of privacy (see, Public Officers Law § 89 [2]) or for one of the other enumerated reasons for exemption (see, Public Officers Law § 87 [2]). A party seeking disclosure may challenge the agency's assertion of an exemption by appealing within the agency pursuant to Public Officers Law § 89 (4) (a). In the event that the denial of access is upheld on the internal appeal, the statute specifically authorizes a proceeding to obtain judicial review pursuant to CPLR article 78 (see, Public Officers Law § 89 [4] [b]).5 Respondents' construction, if followed, would allow an agency to bypass this statutory process. An agency could simply remove documents which, in its opinion, were not within the scope of FOIL, thereby obviating the need to articulate a specific exemption and avoiding review of its action. Thus, respondents' construction would render much of the statutory exemptionand review procedure ineffective; to adopt this construction would be contrary to the accepted principle that a statute should be interpreted so as to give effect to all of its provisions (see, McKinney's Cons Laws of NY, Book 1, Statutes § 98).

Finally, as a practical matter, the procedure permitting an unreviewable prescreening of documents — which respondents urge us to engraft on the statute — could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate FOIL request. There would be no way to prevent a custodian of records from removing a public record from FOIL's reach by simply labeling it "purely private". Such a construction, which could thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected (McKinney's Cons Laws of NY, Book 1, Statutes §§ 96, 143, 144, 145).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the question certified answered in the affirmative and the judgment of the Supreme Court reinstated.

Order reversed, etc.

1. "Record" is defined as follows: "any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes" (Public Officers Law § 86 [4]).
2. "Agency" is defined as follows: "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature" (Public Officers Law § 86 [3]).
3. The certified question is: "Did this court err, as a matter of law, in modifying Special Term's judgment by reversing so much thereof as required disclosure of the papers of the late Erastus Corning, II, for the years 1980-1983 relating solely to his personal activities and those made or received in his capacity as Chairman of the Albany County Democratic Committee, remitting the matter to Special Term for further proceedings, and, as so modified, affirming the judgment?"

4. Respondents argue that the Corning papers are not "record[s]" because the papers were kept by ex-Mayor Corning in his individual capacity, not as an officeholder, and, therefore, an "agency" did not keep or hold the documents. Petitioner did not, however, request disclosure of the Corning papers while they were being "kept [or] held" by Corning. Rather, disclosure is sought from the City of Albany, which now has custody of the papers and is storing them. Therefore, the only questions properly before us are whether the City of Albany is an "agency" and whether the Corning papers are "record[s]" for purposes of FOIL.
5. FOIL also allows a party to receive an advisory opinion from the Committee on Open Government (see, Public Officers Law § 89 [1] [b]).

a. General or specific?

The statutory exemptions are specific in nature. N.Y. Pub. Off. Law § 87(2) (McKinney 1988). "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government," Capital Newspapers Division of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252, 505 N.E.2d 932, 513 N.Y.S.2d 367 (1987) ("[t]he 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"); Russo v. Nassau Community College, 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993); Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); M. Farbman & Sons v. New York City, 62 N.Y.2d 75, 464 N.E.2d 437, 476 N.Y.S.2d 69 (1984); Fink v. Lefkowitz, 47 N.Y.2d 567, 393 N.E.2d 463, 419 N.Y.S.2d 467 (1979); Muniz v. Roth, 163 Misc.2d 293, 620 N.Y.S.2d 700 (Sup. Ct. 1994) (holding that merely asserting the exemption without particularity is insufficient); In Re W. Harlem Bus., 13 N.Y.3d 882, 921 N.E.2d 592, 893 N.Y.S.2d 825 (2010) (Empire State Business Corporation failed to meet its burden of sufficiently identifying a particular exemption when it submitted documents for in camera review because it failed to specify which documents fell under the inter/intra-agency exemption); In Re Carnevale, 68 A.D.3d 1290, 891 N.Y.S.2d 495 (3d Dep’t 2009) (holding that respondents categorical assumption that all law enforcement investigations will be harmed if witnesses names are available through a FOIL request failed to establish that witnesses statements to police fell under any particular exemption).

The FOIL exemptions must be read as having engrafted, as a matter of public policy, certain limitations on the disclosure of otherwise accessible records. Xerox v. Town of Webster, 65 N.Y.2d 131, 480 N.E.2d 74, 490 N.Y.S.2d 488 (1985) (denying access to intra-agency records under FOIL exemption notwithstanding general principles for access to public records under § 51 of General Municipal Law).

Once it is determined that the requested material falls within a FOIL exemption, no further policy analysis is required. Hanig v. Department of Motor Vehicles, 79 N.Y.2d 106, 588 N.E.2d 750, 580 N.Y.S.2d 715 (1992); Bellamy v. New York City Police Dept., 59 A.D.3d 353, 874 N.Y.S.2d 60 (1st Dep’t 2009) (holding that while age of requested record is a factor in determining an exemption, age alone is not a sufficient basis to find an exemption inapplicable).

Waiver or loss of exemption. Public disclosure of records may waive the cloak of confidentiality. McGraw-Edison Company v. Williams, 133 Misc.2d 1053, 509 N.Y.S.2d 285 (Sup. Ct. 1986) (inadvertent disclosure does not waive an exemption); Moore v. Santucci, 151 A.D.2d 676, 543 N.Y.S.2d 103, (2d Dep't 1989) (investigative statements lose cloak of confidentiality once the statements have been used in open court); Gerbe v. Franklin Hospital Medical Center, N.Y.L.J., Sept. 6, 1991 (Sup. Ct., Nassau County, 1991) (granting access to investigation file where no promise of confidentiality and agency allowed counsel access to file). Improper or inadvertent disclosure may not waive confidentiality, Mitzner v. Sobol, 173 A.D.2d 1064, 570 N.Y.S.2d 402 (3d Dep't 1991) (unauthorized disclosure of a record does not operate as a waiver of the FOIL exemptions); New York 1 News v. President of the Borough of Staten Island, 631 N.Y.S.2d 479 (Supreme Court Kings County 1995) (FOIL exemption may be waived by voluntary disclosure of a significant part of the privileged communications or, alternatively, if a release creates even an unintended impression of the existence of underlying material); McGraw-Edison Company v. Williams, 133 Misc.2d 1053, 509 N.Y.S.2d 285 (Sup. Ct. 1986) (inadvertent disclosure does not waive an exemption); Miller v. New York State Dept. of Transp., 58 A.D.3d 981, 871 N.Y.S.2d 489 (3d Dep’t 2009) (inadvertent disclosure does not waive exemption).

Identifying the exemption. A governmental body seeking an exemption from the disclosure requirements of FOIL has the burden of proving that a record falls "squarely within the ambit of one of [the] statutory exemptions." Russo v. Nassau Community College, 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993) (quoting Fink v. Lefkowitz, 47 N.Y.2d 567, 571). N.Y. Pub. Off. Law. § 89(4)(b) (McKinney 1988). See Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); Washington Post v. Insurance Dep't, 61 N.Y.2d 557, 463 N.E.2d 604, 475 N.Y.S.2d 263 (1984); Doolan v. BOCES, 48 N.Y.2d 341, 398 N.E.2d 533, 422 N.Y.S.2d 927 (1979). See also Grune v. Alexanderson, 168 A.D.2d 496, 562 N.Y.S.2d 739, (2d Dep't 1990) (agency failed to identify with specificity those portions of records claimed to be exempt); Burton v. Slade, 166 A.D.2d 352, 561 N.Y.S.2d 637 (1st Dep't 1990) (abuse of discretion for agency to deny access without reviewing documents and stating with particularity reasons for denial).

Conclusory allegations are insufficient to meet the agency's burden of proof. Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); Dobranski v. Houper, 154 A.D.2d 736, 546 N.Y.S.2d 180 (3d Dep't 1989); Mooney v. State Police, 117 A.D.2d 445, 502 N.Y.S.2d 828 (3d Dep't 1986); Hopkins v. City of Buffalo, 107 A.D.2d 1028, 486 N.Y.S.2d 514 (4th Dep't 1985)

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Jeff Kaufman on Social Media and the First Amendment

In depth: Are off-duty social network communications by teachers protected by the First Amendment?

Yes, but limited. It was inevitable. As our means of communication expanded and our ability to communicate with ever increasing numbers of recipients so have school officials and the Courts have had to deal with both the content and mode of communication. Additionally as the conduct sought to regulated stems from teacher off-duty behavior, school districts have increasing disciplined teachers for communications they have made far from the classroom.
Teachers have historically been subject to strict rules about in school behavior and while Tinker’s protection has applied to teachers’ free speech rights, for the most part, out of school speech was treated much differently.
We first start with Pickering v. Board in 1968. Marvin Pickering, a teacher, wrote a letter to the local newspaper in which he criticized what he characterized as the Board of Education’s large allocation of funds to the high school’s athletic programs, and the Board and Superintendent’s failure to inform taxpayers why they wanted to raise taxes. The Supreme Court, with Justice Marshall writing for the majority, decided that Pickering had commented on a matter of public concern, but focused much of its analysis on the truth or falsity of Pickering’s communication. What exactly would constitute a true “matter of public concern” was incompletely defined. However, the Court made clear that in addition to the topic of Pickering’s speech, an important point in his favor was that his letter to the newspaper was not directed toward anyone with whom he came into daily working contact, nor did the content of the letter in any way impair Pickering’s close working relationship with his immediate supervisor. In addition, the Court also noted that Pickering’s letter did not cause controversy in the community.
The Pickering test was further defined in a subsequent decision, Mt. Healthy City School Dist. Bd. of Educ. v. Doyle. Unlike Pickering, Doyle involved a teacher discharge for alleged protected speech.
Justice Rehnquist writing for the majority considered the facts surrounding the dismissal of Fred Doyle, an untenured teacher in the Mt. Healthy City School District. Stating that the issue of tenure becomes irrelevant when constitutional violations are alleged, and that in constitutional issues untenured teachers are protected to the same extent as tenured teachers,  the court nevertheless vacated the decisions of the lower courts that called for Doyle’s reinstatement and remanded the controversy.
Doyle had spoke about a new dress code for teachers on a local radio station. A month later the district superintendent recommended to the Board that Doyle not be rehired, and the Board concurred, noting Doyle’s “lack of tact in handling professional matters” and his report to the radio station, as well specifically mentioning an obscene gesture Doyle had made to two female students.
The Court refused to reverse the Board’s decision not to rehire Doyle. Stating that even if protected conduct played a “substantial’ or otherwise” part in a teacher’s dismissal, if the same decision would have been reached notwithstanding that conduct, the decision not to rehire was justified. If that were not the case, the majority reasoned, an employee’s act of engaging in protected conduct would prevent the employer from assessing his day–to–day professional conduct, and place the employee in a better position than he would have otherwise been.
In the Mt. Healthy decision the Court added a two–step process to the Pickering balancing test. First, if an employer dismisses or fails to rehire an employee because of his expressive conduct, the employee must show that constitutionally protected conduct was a substantial or motivating factor in the negative employment decision, and second, the burden then falls on the employer to show that it would have made the same decision even in the absence of the protected conduct.
The modified Pickering two step test went under close examination in Connick v. Myers where a 5-4 split upheld the involuntary transfer of an assistant district attorney’s dissemination of a questionnaire her supervisors found disruptive to not be a matter of public concern.
In another 5-4 decision the Supreme Court announced in Garcetti v. Ceballos that an Assistant District Attorney who wrote a memo to his supervisors that there were legal problems with a prosecution and then he testified on behalf of the defense faced retaliatory employment actions including reassignment and denial of promotion was denied redress after the lower court applied the matter of public concern and modified Pickering test.
The Garcetti court wrote, “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
Online Speech
In the seven years since Garcetti lower courts have had to grapple with an increasing number off duty, online speech of public employees, especially teachers. In Spanierman v. Hughes  a Connecticut high school English teacher who posted a MySpace profile indicating he was “Mr. Spiderman” and communicated with students was ultimately terminated. Despite his claims of constitutionally protected speech the court upheld the School District’s decision finding that the teacher’s actions were potentially disruptive.
A middle school dean in San Diego posted an advertisement on Craigslist for “men seeking men” for sexual purposes. The ad showed photos of the dean and graphic descriptions of his sexual preferences. After the San Diego Unified School District dismissed him he won reinstatement through the California Commission on Professional Competence. His win was short-lived, however, when the District sought and won the right to dismiss him in Court. In San Diego Unified School Dist. v. Commission on Professional Competence the Court found that the pornographic nature of the ad interfered with his ability to serve as a role model in school.
Finally a 15 year unblemished record helped to prevent a Brooklyn elementary school teacher from being dismissed for posting derogatory comments about her students on Facebook shortly after a student drowned on a school trip. While the arbitrator dismissed the teacher from employment an appeal to both New York’s Supreme Court and the Appellate Division in Rubino v. City of New York resulted in the teacher being able to keep her job with a fine. The court, using the Pell standard, found that the teacher’s conduct did not warrant dismissal and that this was a single lapse of judgment.
It is unclear where this litigation is headed. Clearly some courts are willing to deal with the matter using free speech analysis while others will not. In either case there is little doubt that the increased amount and availability of social media will cause additional cases to be brought.