IN RE: CENTER FOR CONSTITUTIONAL RIGHTS et al. (2024)

Order and judgment (one paper), Supreme Court, New York County (Arlene Bluth, J.), entered August 22, 2022, denying the petition to compel respondents to disclose records requested by petitioners pursuant to the Freedom of Information Law (FOIL) (Public Officers Law §§ 84–90), and dismissing the proceeding brought pursuant to CPLR article 78, unanimously modified, on the law, to vacate the dismissal in part, reinstate the petition to the extent indicated in this order, remand the matter for an in camera review of certain records consistent with this order, and otherwise affirmed, without costs.

The court properly found that respondent New York City Administration for Children's Services (ACS) articulated a particularized and specific justification for denying access to emails exchanged among three individually named ACS employees under the intra-agency materials exemption to FOIL (see Public Officers Law § 87[2][g];  Matter of Kosmider v. Whitney, 34 N.Y.3d 48, 54, 108 N.Y.S.3d 399, 132 N.E.3d 592 [2019]).

However, the court should have reviewed emails exchanged among the External Affairs office of ACS, the Commissioner of ACS, the First Deputy Commissioner of ACS, and other ACS employees in camera to determine whether the intra-agency materials exemption applies therein.  According to ACS' records access officer, these emails addressed not only what course of action to take in response to an issue concerning an employee of an ACS contractor and how to communicate about the matter to the media, but also sought “to determine what occurred” during the events that are the focus of the FOIL request.  The applicability of the intra-agency materials exemption to those records cannot be determined on this record and therefore, we remand for an in camera review only of those emails (see Matter of Jewish Press, Inc. v. New York City Dept. of Investigation, 193 A.D.3d 461, 463, 147 N.Y.S.3d 6 [1st Dept. 2021];  see also Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 277, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996]).

We note that, if the documents at issue contain both materials protected by the intra-agency exemption and nonprotected factual information, petitioner is not entitled to redacted documents because “redactions to records requested under FOIL are available only under the personal privacy exemption” (Matter of Queensrail Corporation v. Metropolitan Transp. Auth., 222 A.D.3d 501, 501, 202 N.Y.S.3d 53 [1st Dept. 2023];  see also Matter of Stengel v. Vance, 192 A.D.3d 571, 571, 140 N.Y.S.3d 707 [1st Dept. 2021]).

ACS properly certified that it did not possess any other responsive records (see Matter of Rattley v. New York City Police Dept., 96 N.Y.2d 873, 875, 730 N.Y.S.2d 768, 756 N.E.2d 56 [2001]), and petitioners “failed to articulate a demonstrable factual basis to support the contention that [further] documents exist and are within [ACS]'s control” (Matter of Grabell v. New York City Police Dept., 139 A.D.3d 477, 479, 32 N.Y.S.3d 81 [1st Dept. 2016], lv denied 28 N.Y.3d 910, 2016 WL 7364686 [2016]).