IN RE: JOHN H. (2006)

Appeal from a judgment of the Supreme Court (Benza, J.), entered November 19, 2004 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent denying petitioner's Freedom of Information Law request.

Petitioner, then an inmate at Great Meadow Correctional Facility in Washington County, submitted a Freedom of Information Law (see Public Officers Law art. 6) (hereinafter FOIL) request to respondent in November 2003, seeking investigative reports, interviews and related documents generated in response to his allegation that he was sexually assaulted by a correction officer while incarcerated at Green Haven Correctional Facility in Dutchess County.   Respondent denied petitioner's request, as well as his administrative appeal of that denial.   Petitioner's subsequent request for information regarding whether criminal activity had been found was also denied.   Petitioner then commenced this CPLR article 78 proceeding challenging respondent's determination.   Supreme Court granted the petition and directed respondent to disclose the relevant documents, subject to redaction of any reference to correction officers' home addresses, phone numbers, Social Security numbers, dates of birth or other identifying information.   Respondent appeals and we now reverse.

 Initially, we note that exemptions to FOIL must be narrowly construed and it is “ ‘the agency seeking to prevent disclosure [that] 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' ” (Matter of Beyah v. Goord, 309 A.D.2d 1049, 1050, 766 N.Y.S.2d 222 [2003], quoting Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665 [1986] ).¹  Respondent contends that he articulated such a particularized and specific justification for denying disclosure under Public Officers Law § 87(2)(e)(iii) and (iv), which exempt from disclosure records that “are compiled for law enforcement purposes and which, if disclosed, would ․ identify a confidential source or disclose confidential information relating to a criminal investigation;  or ․ reveal criminal investigative techniques or procedures, except routine techniques and procedures,” and section 87(2)(f), which exempts records that “if disclosed could endanger the life or safety of any person.”   Specifically, respondent asserts that the requested records, which have been submitted for in camera review, and the affidavit of Kenneth J. McLaughlin, Director of Operations of the Office of the Inspector General of the Department of Correctional Services, establish that disclosure would identify a confidential source and endanger the life or safety of a person.

 In his affidavit, McLaughlin explained that, as a general matter, exposing the identity of an inmate or employee who cooperated in an investigation could expose that individual to a significant risk of retribution and impair the efficacy of future investigations by undermining the Department's ability to guarantee confidentiality.   Upon our in camera review of the requested documents, however, we agree with Supreme Court that neither the specific records at issue nor McLaughlin's affidavit contain any suggestion that the participating witnesses qualify as “confidential source[s],” and that the records “do not reveal any source or disclose any information which would be deemed confidential [or] reveal any nonroutine criminal investigative techniques or procedures” (Matter of Beyah v. Goord, supra at 1051-1052, 766 N.Y.S.2d 222;  cf. Matter of Grajales v. Lungen, 15 A.D.3d 789, 790, 790 N.Y.S.2d 268 [2005], lv. denied 5 N.Y.3d 704, 801 N.Y.S.2d 1, 834 N.E.2d 780 [2005] ).   Thus, the exemptions contained in Public Officers Law § 87(2)(e)(iii) and (iv) are inapplicable.   We conclude, however, that the documents are exempt under section 87(2)(f) inasmuch as disclosure could endanger the life or safety of a person (see Matter of Argentieri v. Goord, 25 A.D.3d 830, 832, 807 N.Y.S.2d 445, 447 [2006];  Matter of Tate v. De Francesco, 217 A.D.2d 831, 832, 629 N.Y.S.2d 529 [1995], lv. denied 86 N.Y.2d 712, 635 N.Y.S.2d 949, 659 N.E.2d 772 [1995];  Matter of Stronza v. Hoke, 148 A.D.2d 900, 900-901, 539 N.Y.S.2d 528 [1989], lv. denied 74 N.Y.2d 611, 546 N.Y.S.2d 555, 545 N.E.2d 869 [1989];  cf. Matter of Beyah v. Goord, supra at 1052, 766 N.Y.S.2d 222).

ORDERED that the judgment is reversed, on the law, without costs, determination confirmed and petition dismissed.

FOOTNOTES

1.   Respondent does not raise the issue of whether the requested documents are exempt from disclosure pursuant to Civil Rights Law § 50-a(1) and, thus, we do not consider whether that provision has any applicability in this case (cf. Matter of Argentieri v. Goord, 25 A.D.3d 830, 807 N.Y.S.2d 445 [2006] ).

MERCURE, J.P.

PETERS, CARPINELLO, ROSE and KANE, JJ., concur.