PENNINGTON v. CLARK FOIL (2005)

Following the conviction of petitioner's husband of murder in the second degree (see People v. Pennington, 217 A.D.2d 919, 629 N.Y.S.2d 928, lv. denied 87 N.Y.2d 906, 641 N.Y.S.2d 235, 663 N.E.2d 1265), petitioner and her husband each filed Freedom of Information Law ( [FOIL] Public Officers Law art. 6) requests with the Erie County District Attorney's office seeking records concerning the criminal investigation that led to the conviction.   Although we affirmed a judgment denying the husband's requests (Matter of Pennington v. Clark, 307 A.D.2d 756, 763 N.Y.S.2d 191), we held petitioner's case, reserved decision and remitted the matter to Supreme Court to determine whether petitioner timely commenced her proceeding (Matter of Pennington v. Clark, 1 A.D.3d 912, 767 N.Y.S.2d 718).   Upon remittal, the court held a hearing and accepted exhibits establishing that petitioner timely filed a “notice of petition” and “order to show cause.”   The court found that the cause of petitioner's delay in serving the order to show cause on respondent was the court's delay in signing it.   Thus, the court concluded that the proceeding was timely commenced and, additionally, exercised its discretion pursuant to CPLR 304 and 306-b to order a “nunc pro tunc extension.”

 We agree that the proceeding was timely commenced and conclude that the court providently exercised its discretion in granting the extension (see Castillo v. Navarro, 13 A.D.3d 329, 330, 786 N.Y.S.2d 919;  Tarzy v. Epstein, 8 A.D.3d 656, 778 N.Y.S.2d 907;  see generally Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 736 N.Y.S.2d 291, 761 N.E.2d 1018).   We further conclude that an error in denominating the petition a “notice of petition” is a technical defect that is not fatal to a proceeding where, as here, the “notice of petition” contained all the requisite elements of a petition (see e.g. Matter of Marmo v. Department of Envtl. Conservation, 134 A.D.2d 260, 260-261, 520 N.Y.S.2d 442).

 With respect to the merits of the appeal and cross appeal, we conclude that the court properly granted petitioner's request for autopsy photographs of the homicide victim.   Although autopsy photographs are generally exempt from disclosure under County Law § 677(3)(b), a court may order that the photographs be made available for inspection to a person “having a substantial interest” in a criminal action related to the contents of the record or investigation (see generally Matter of Diaz v. Lukash, 82 N.Y.2d 211, 216, 604 N.Y.S.2d 28, 624 N.E.2d 156).

 We further conclude that the court erred in denying petitioner's request for duplication of videotaped news broadcasts retained by the Erie County District Attorney's office, and we therefore modify the judgment accordingly.   It is well settled that the provisions of FOIL are “to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government” (Matter of Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252, 513 N.Y.S.2d 367, 505 N.E.2d 932;  see Matter of Russo v. Nassau County Community Coll., 81 N.Y.2d 690, 697, 603 N.Y.S.2d 294, 623 N.E.2d 15).  “FOIL defines a ‘Record’ subject to its provisions as ‘any information kept, held, filed, produced or reproduced by, with or for an agency ․ in any physical form whatsoever’ ” (Matter of City of Newark v. Law Dept. of City of N.Y., 305 A.D.2d 28, 31, 760 N.Y.S.2d 431, quoting Public Officers Law § 86 [4];  see Capital Newspapers, Div. of Hearst Corp., 69 N.Y.2d at 248 n. 1, 513 N.Y.S.2d 367, 505 N.E.2d 932).  “All documents falling within this broad definition are under FOIL's purview (although potentially subject to a statutory exemption) regardless of ‘the function or purpose for which [such records] are generated or held’ ․ and regardless of the fact that the documents may have originated outside a government agency subject to FOIL” (City of Newark, 305 A.D.2d at 31-32, 760 N.Y.S.2d 431;  see Matter of Citizens for Alternatives to Animal Labs v. Board of Trustees of State Univ. of N.Y., 92 N.Y.2d 357, 361, 681 N.Y.S.2d 205, 703 N.E.2d 1218;  Matter of Washington Post Co. v. New York State Ins. Dept., 61 N.Y.2d 557, 565, 475 N.Y.S.2d 263, 463 N.E.2d 604).   Additionally, the scope of FOIL is not limited to “ ‘the purpose for which a document was produced or the function to which it relates' ” (Russo, 81 N.Y.2d at 698-699, 603 N.Y.S.2d 294, 623 N.E.2d 15, quoting Matter of Westchester Rockland Newspapers v. Kimball, 50 N.Y.2d 575, 581, 430 N.Y.S.2d 574, 408 N.E.2d 904;  see Capital Newspapers, Div. of Hearst Corp., 69 N.Y.2d at 253, 513 N.Y.S.2d 367, 505 N.E.2d 932).   The videotape thus fits within the definition of a record and is subject to disclosure under FOIL unless it falls under an exemption.   We reject respondents' contention that disclosure of the tape pursuant to court order would violate copyright laws.   That same contention was raised and implicitly rejected in Russo, 81 N.Y.2d at 696-700, 603 N.Y.S.2d 294, 623 N.E.2d 15.

 Finally, we conclude that the court properly denied in part petitioner's request for “secret files.”  Public Officers Law § 87(2)(b) permits an agency to deny a FOIL request for records that would amount to an unwarranted invasion of personal privacy under the provisions of section 89(2) if disclosed.  “What constitutes an unwarranted invasion of personal privacy is measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities․ This determination requires balancing the competing interests of public access and individual privacy” (Matter of Dobranski v. Houper, 154 A.D.2d 736, 737, 546 N.Y.S.2d 180;  see Matter of Empire Realty Corp. v. New York State Div. of Lottery, 230 A.D.2d 270, 273, 657 N.Y.S.2d 504).   The court properly found that some of the documents requested by petitioner contained “information attributed to non-witnesses which, if disclosed, would identify a confidential source(s), and would constitute an unwarranted invasion of personal privacy.”   Because access to records may be denied or records may be redacted to prevent disclosure of confidential information or identification of confidential sources, including sources interviewed by law enforcement (see e.g. Matter of De Oliveira v. Wagner, 274 A.D.2d 904, 904-905, 711 N.Y.S.2d 592;  Matter of Scarola v. Morgenthau, 246 A.D.2d 417, 418, 668 N.Y.S.2d 174;  Matter of DeCorse v. City of Buffalo, 239 A.D.2d 949, 950, 659 N.Y.S.2d 604), we see no error in the court's denial of petitioner's request for pages 1, 2, 5-7, 10 and 11 of the documents at issue.   Pages 3, 4 and 8, however, are in our view not exempt from disclosure.   We therefore further modify the judgment accordingly.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by granting those parts of the petition requesting duplication of videotaped news broadcasts retained by respondents and pages 3, 4 and 8 of documents withheld by Supreme Court and as modified the judgment is affirmed without costs and respondent Erie County District Attorney is directed to provide those news broadcasts and pages.

MEMORANDUM: