IN RE: James C. RUSSELL (2024)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to compel the production of certain documents pursuant to the Freedom of Information Law (Public Officers Law art 6), the Town of Mount Pleasant, New York, appeals from a judgment of the Supreme Court, Westchester County (Robert A. Neary, J.), entered September 20, 2022.  The judgment, insofar as appealed from, granted that branch of the petition which was to direct the disclosure of the subject documents.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The petitioner submitted a request pursuant to the Freedom of Information Law (Public Officers Law art 6;  hereinafter FOIL) to the Town of Mount Pleasant, New York, seeking a list of the names and email addresses of all residents who subscribe to receive email updates regarding items posted on the Town's website, which is referred to as “E-news.”  The Town's website allows residents to subscribe to E-news by submitting their email addresses.  The Town clerk and the Town supervisor denied the petitioner's request.

Thereafter, the petitioner commenced this CPLR article 78 proceeding against the Town, inter alia, to compel the production of the documents at issue.  The Supreme Court, among other things, granted that branch of the petition, directing the Town to disclose the requested documents to the petitioner under the condition that the petitioner “not reproduce, redistribute or circulate the information for solicitation, fund raising or any commercial purpose.”  The Town appeals.

“FOIL imposes a broad duty on government to make its records available to the public” (Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 274, 653 N.Y.S.2d 54, 675 N.E.2d 808;  see Matter of Eckel v. Nassau County, 219 A.D.3d 1426, 1427, 196 N.Y.S.3d 748).  “[A]n agency may deny access to records or portions thereof ‘to prevent unwarranted invasions of ․ privacy’ ” (Matter of Aron Law, PLLC v. New York City Fire Dept., 191 A.D.3d 664, 666, 141 N.Y.S.3d 105, quoting Public Officers Law § 89[2][a]).  “ ‘The Public Officers Law provides a nonexhaustive list of categories of information that would constitute an unwarranted invasion of personal privacy if disclosed’ ” (Mattter of Gruber v. Suffolk County Bd. of Elections, 218 A.D.3d 682, 684, 192 N.Y.S.3d 657, quoting Matter of Aron Law, PLLC v. New York City Fire Dept., 191 A.D.3d at 666, 141 N.Y.S.3d 105).  Where none of these enumerated categories is applicable, “ ‘a court must decide whether any invasion of privacy ․ is unwarranted by balancing the privacy interests at stake against the public interest in disclosure of the information’ ” (Matter of Gruber v. Suffolk County Bd. of Elections, 218 A.D.3d at 684, 192 N.Y.S.3d 657, quoting Matter of Liang v. Nassau County Off. of Consumer Affairs, 176 A.D.3d 808, 809, 110 N.Y.S.3d 436).

Here, the Town did not demonstrate the applicability of any of the enumerated categories under Public Officers Law § 89(2)(b), nor did the Town show that the privacy interests at stake outweighed the public interest in the disclosure of the requested documents (see Matter of Livson v. Town of Greenburgh, 141 A.D.3d 658, 661, 34 N.Y.S.3d 612).  The petitioner seeks “to communicate with other residents regarding significant details of a proposed new master plan and zoning code, as well as a Draft Generic Environmental Impact Statement (DGEIS) review” by obtaining the names and email addresses of residents who subscribe to E-news, persons who have willingly divulged that information to the Town so that they may receive news and information, in electronic form, on matters of public concern.  The Town's contention that public disclosure of the requested documents could “expose the email addresses” of the E-news subscribers or the Town “to unnecessary cybersecurity risks” is speculative, as the Town failed to show that disclosure of those documents to the petitioner under the conditions imposed by the Supreme Court would make the E-news subscribers or the Town more susceptible to such risks than they ordinarily would be (see id.).

Accordingly, the Supreme Court properly granted that branch of the petition which was to direct the disclosure of the subject documents.

DILLON, J.P., CONNOLLY, WARHIT and LANDICINO, JJ., concur.