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Supreme Court, Albany County, New York.

LANSNER & KUBITSCHEK, Petitioner, v. NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, and Sheila J. Poole, in her official capacity as Acting Commissioner of the New York State Office of Children and Family Services, Respondents. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules


Decided: February 15, 2019

Patterson Belknap Webb & Tyler LLP, Attorneys for Petitioner, By: John D. Winter, Esq. and Zachary M. Vaughan, Esq., 1133 Avenue of the Americas, New York, New York 10036-6710 Letitia A. James, Esq., Attorney General of the State of New York, Attorney for Respondents (By: Kyle W. Sturgess, Assistant Attorney General), The Capitol, Albany, New York 12224-0341

In this Article 78 proceeding, the petitioner law firm of Lansner & Kubitschek (“L & K”) seeks a judgment, pursuant to the Freedom of Information Law (“FOIL”), New York Public Officers Law (“POL”) § 84 et seq., directing respondents New York State Office of Children and Family Services (“OCFS”) and its Commissioner to produce certain written decisions that were issued following fair hearings conducted pursuant to Social Services Law (“SSL”) § 422(8)(b) (Verified Petition, sworn to September 4, 2018 [“Pet'] ¶ 21). L & K also seeks attorneys fees in accordance with POL § 89(4)(c).

The issues underlying this petition have their roots in the New York State Legislature's 1973 enactment of the Child Protective Services Act which, among other things, created the State Central Register of Child Abuse and Maltreatment (the “Register”), a 24-hour phone hotline for reports alleging child abuse or mistreatment (Pet ¶ 15). Under the statute, reports made to the Register, along with “any other information obtained, reports written or photographs taken concerning such reports” are confidential and may be disclosed only in certain statutorily limited circumstances not at issue here (see SSL § 422[4][A]).

When the Register receives a report, it is subject to investigation to determine if the alleged abuse is either “indicated” or “unfounded” based on the presence or absence of credible evidence (id.). Once the investigation is complete, the person alleged to have engaged in the abuse or maltreatment will receive notification if such report has been found to be “indicated” and may request, within 90 days, that the OCFS Commissioner amend the record of the report to reflect that the alleged abuse is “unfounded” (see SSL § 422[8][a][i]).

If the Commissioner does not amend the report within 90 days of receiving the request, the accused is entitled to a fair hearing, at which the investigating body has the burden to prove by a “fair preponderance of the evidence” that the accused “committed the act or acts of child abuse or maltreatment giving rise to the indicated report” (see SSL §§ 422[8][b][ii] and 422[8][c][ii]).

Following any fair hearing, OCFS is required to issue a written decision, based solely on the record of the hearing, which “must describe the issues, recite the relevant facts and the pertinent provisions of law and department regulations, make appropriate findings, determine the issues, state reasons for the determination, and when appropriate, direct specific action to be taken by any of the parties to the hearing” (see 18 NYCRR § 434.11[a] ). In this proceeding, L & K seeks access to these written decisions, with appropriate redaction.

These documents were first sought in a letter by Carolyn Kubitschek, Esq., dated February 15, 2018, which requested the following from OCFS pursuant to POL § 87:

“All Fair Hearing decisions issued by [OCFS], between January 1, 2010, and February 15, 2018, in which the appellant was an employee or former employee of a daycare center or preschool, who was contesting an indicated report of abuse or maltreatment of a child who attended the daycare center or preschool. I understand that the names of the appellants may be redacted from the decisions” (Pet ¶ 21, Ex A).

By letter dated March 20, 2018, OCFS responded as follows:

“The Office must deny your request in its entirety, as all of the records relate to reports of child abuse and maltreatment which are confidential under SSL § 422. Confidential records are not available under the New York State FOIL statute, per POL § 87(2)(a)”1

(id. ¶ 22, Ex B).

Following receipt of this denial, L & K appealed the decision administratively by letter dated April 17, 2018, in which Kubitscheck clarified that the law firm was not seeking any “reports”, but was instead requesting OCFS “decisions” issued following fair hearings (id. ¶ 23, Ex C). L & K further clarified that it sought “decisions and legal standards and reasoning used by the Bureau of Special Hearings in deciding cases in which the subject of the report was an employee of a child day care center or a Head Start program” (id. at Ex C). It argued that such decisions were not subject to exemption under POL § 87(2)(a) and, even if they were, L & K was conducting legal research and was therefore entitled to redacted decisions under SSL § 422(4)(A)(h), which creates an exemption to the section 422 confidentiality provisions for bona fide research purposes (id. ¶ 25, Ex. C).

As additional support for petitioner's position, Kubitschek cited to State Administrative Procedure Act (“SAPA”) §§ 202-e and 307(3)(a) — which respectively provide for agency disclosure of “guidance documents” on which it relies, and the public inspection and copying of agency written final decisions, subject to redaction 2 (id. at Ex C). She also noted that comparable administrative hearing decisions from the Justice Center for the Protection of People with Special Needs (“the Justice Center”), issued pursuant to SSL § 494, are publicly available with redactions, on the Justice Center's web page 3 (id. at Ex C). On this basis, L & K asserted that failure to disclose the OCFS decisions appeared to be an equal protection violation (id.).

OCFS responded to L & K's appeal in an e-mail dated May 4, 2018 (id. ¶¶ 26-29, Ex D). The e-mail stated that to the extent the appeal sought additional material, such as “standards” and “legal reasoning” used by the Bureau of Special Hearings, it was beyond the scope of the initial FOIL request, as was the assertion that L & K was entitled to the decisions for bona fide research purposes (id., Ex D). Thus OCFS declined to address these issues. The agency further took the position that its fair hearing decisions fell into the category of “material obtained or reports written” in connection with abuse reports and, as such, were exempt from disclosure under POL § 87(2)(a) (id.). As a result, OCFS denied the FOIL appeal in its entirety.

L & K then initiated this Article 78 proceeding, in which it contends that respondents' denial of its FOIL application was erroneous and in violation of the statute. According to L & K, OCFS violated section 87(2) of FOIL in refusing to disclose the fair hearing decisions, which are not “specifically exempted from disclosure by state or federal statute” (id. ¶ 31 quoting POL § 87[2][a]). L & K further argues that OCFS's contention that parts of its appeal were “beyond the scope” of the initial FOIL request violates section 89(4)(a) of the POL, which requires the agency to “fully explain ․ the reasons for further denial” of a FOIL request (id. ¶ 32).

In addition, L & K argues in its Memorandum of Law (“Pet MOL”) that it is engaged in bona fide research concerning OCFS fair hearings, and thus even if the documents sought were exempt, pursuant to SSL § 422(4)(A)(h) it is authorized to receive “information obtained, reports written or photographs taken” in relation to the initial reports to the Register, which would include the fair hearing decisions (Pet MOL at 8).

In opposition to L & K's petition, respondents have submitted a verified answer, along with an attorney affirmation from the OCFS counsel's office and a memorandum of law. As explained by counsel, OCFS does not conduct child protective services (“CPS”) investigations, as they are conducted by the CPS unit in each county's respective Department of Social Services or, in New York City, by the CPS unit within the Administration of Children's Services (“ACS”)” (Affirmation of Craig Sunkes, Esq., dated October 16, 2018 [“Sunkes”] Aff ¶ 5). CPS investigations are instituted in response to a report of abuse or maltreatment to the Register (id. ¶ 6).

Counsel further explains that these investigations entail the creation of various reports with a multitude of personal identifying information concerning the named adults, parents and children that are the subjects of the initial report to the Register, including, but not limited to, names, dates of birth, ethnicity, mental and medical health conditions, and relevant employment information (id.). Investigations, and the reports generated, may also include photographs of the alleged abused and their homes, documentary and testimonial evidence, medical records, mental health reports and evaluations, law enforcement reports, educational records, financial records and personal diaries (id. ¶ 8). Counsel averred that protection of such confidential information is a paramount concern throughout the investigative process, and any unauthorized release of investigative material and reports constitute a Class A Misdemeanor, punishable by up to 1 year in jail and/or a $ 1,000 fine, and possible civil liability under 42 USC § 1983 (id. ¶¶ 9-10).

Following the conclusion of a CPS investigation, all reports where a child's abuse and maltreatment were found to be “indicated” are maintained in the Register's database until the youngest child named in the report reaches the age of 28 (id. ¶ 11). All “unfounded” reports of child abuse are sealed, in accordance with the SSL, but maintained for 10 years, with the disclosure of such being extremely limited (id.).

Upon the initiation of a fair hearing on an “indicated” report, the CPS unit will submit its supporting evidence to the OCFS Bureau of Special Hearings, which assigns an administrative law judge to facilitate all pre-hearing procedural matters with the parties, and to conduct the hearing (id. ¶ 21). The CPS unit may appear in person for the hearing, or merely submit its record proof (id. ¶ 23). The person alleged to have engaged in child abuse may appear pro se or by counsel to submit evidence, call witnesses and cross-examine any witnesses presented by the CPS unit (id.). In accordance with OCFS regulations, the hearing is not open to the public (id.¶ 24 citing 18 NYCRR 434.7[a] ). Following the hearing, the Bureau of Special Hearings issues a written decision, which is provided to the accused, the CPS unit and the Register in accordance with 18 NYCRR § 434.11(b) (id.). The written decision may be subject to challenge under Article 78 of the CPLR (id. ¶ 25).

Pursuant to OCFS's regulations, “[t]he record of the hearing, including the recommendations of the hearing officer, is confidential” (id. ¶ 30 quoting 18 NYCRR § 434.9). It is OCFS's position that, if it were required to release a copy of a fair hearing decision to a non-party, “the redactions required to protect confidentiality would render the remaining words meaningless” (id. ¶ 30).

Respondents acknowledge that, under the Social Services Law, the “Legislature did not provide statutory instruction as to what non-parties or other entities may obtain copies of Fair Hearing decisions” (id. ¶ 32). However, it expresses the view that such silence should be construed to indicate that the Legislature did not intend for these decisions to be made available to the public (id. ¶ 32).

In its memorandum of law (“Resp MOL”), OCFS reiterates the position it took in initially rejecting the FOIL request: that the fair hearing decisions fall under the FOIL exemption for agency records that are “specifically exempted from disclosure by state or federal statute” under POL § 87(2)(a) (Resp MOL at 4).4 Specifically, the agency contends that while fair hearing decisions are not specifically delineated as confidential in the statute, the Legislature's pervasive use of confidentiality provisions throughout SSL § 422 to protect personal and private information creates a public policy of “blanket” confidentiality that was intended to cover not only CPS investigative material, but also the fair hearing decisions themselves (id. at 5-6). According to OCFS, its regulations — providing for the confidentiality of fair hearings and decisions rendered thereafter — reaffirm the extension of the statute's blanket privacy protections to the fair hearing decisions being sought by L & K (id. at 6).

Respondents also argue that disclosure of the fair hearing decisions — even with redactions — would render the statute's intent to protect such information from public disclosure meaningless (id. at 7). It invited an in camera inspection of the requested decisions so that the Court could fully assess their confidential nature, and the ability of redactions to sufficiently protect such confidentiality (id. at 9).

In response to L & K's assertion that it is a bona fide researcher, and therefore entitled to access to the fair hearing decisions, OCFS notes that L & K failed to avail itself of the agency procedures to be approved as a bona fide researcher, which are available online, by e-mail or regular mail (Sunkes Aff ¶ 31). Moreover, OCFS contends that L & K's claim that it needs access to the fair hearing decisions to better represent its clients and train other attorneys to represent persons who request a fair hearing from OCFS is not the type of academic, administrative, or scientific research intended as a bona fide research purpose under the statute (Resp MOL at 8-9).

In its reply memorandum of law (“Reply MOL”), L & K notes that SSL § 422(4)(A) makes confidential all “reports made pursuant to this title as well as any other information obtained, reports written or photographs taken concerning such reports.” This statutory list does not include post-hearing decisions issued by OCFS. Therefore, L & K reasons, such decisions are not “specifically exempted from disclosure by state or federal statute”, and accordingly are subject to production under FOIL following redaction of confidential information (Reply MOL at 2). To the extent that respondents argue that redaction of the fair hearing decisions would render them meaningless and unreadable, L & K invites an in camera inspection of the requested fair hearing decisions to determine the accuracy of such assertion and obtain judicial guidance on redactions that would be appropriate (id. at 8).

Petitioner's reply also reiterates its contention that it is seeking the fair hearing decisions for a bona fide research purpose, as it would like to use those decisions to assist it in better representing its clients in proceedings before OCFS (id. at 5).

Subsequent to the completion of the parties' briefing and pursuant to a telephone conference with counsel for both parties on November 28, 2018 and a letter order the following day, respondents produced for in camera review fifteen OCFS post-hearing administrative decisions that would be covered by the FOIL request for the years 2016 and 2017, on which OCFS indicated its suggested redactions and in a cover letter (copied to petitioner) set forth the basis for such. Respondents also provided the underlying State Central Register Records for each decision rendered, which include such items as call narratives, case summaries and investigative material, photographs, medical and police reports, hearing exhibit lists and hearing audio. The redactions suggested by petitioner fall into three categories: (1) personal identifying information; (2) direct quotations from the investigative record; and (3) paraphrases of investigative documents or statements of fact that petitioner avers were “derived from intake and subsequent reports” (Resp Ltr of 1/14.19).

Petitioner responded by letter dated January 22, 2019. It agrees that respondents may redact identifying information, but objects to redaction of the ages of all children at issue. It further objects to redaction of sections of the decisions identified by respondents as “detailed factual recitation of allegations derived from intake and subsequent reports” as not covered by SSL § 422(4) (see Pet Ltr of 1/22/19). Finally, while it acknowledges that “block quotes” from investigative material are covered by the confidentiality protections of section 422, it argues that they should be produced because it has a bona fide research purpose for the material.(id.).


The two issues before me on this petition are: (1) whether the fair hearing decisions at issue are exempted from disclosure under SSL § 422, and therefore under the FOIL exemption for materials protected against disclosure by state or federal statute; and (2) whether petitioner is entitled to these documents for a bona fide research purpose.

I address these arguments in turn below.

I. Exempted from Disclosure by State Statute

FOIL “mandates that ‘[e]ach agency shall ․ make available for public inspection and copying all records’ unless the records fall within a statutory exemption” (Matter of Encore Coll. Bookstores v. Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 N.Y.2d 410, 417, 639 N.Y.S.2d 990, 663 N.E.2d 302 [1995], quoting POL § 87[2]). Under FOIL, an agency may deny access to records or portions thereof if they are “specifically exempted from disclosure by state or federal statute” (POL § 87[2][a]). Such exemptions, however, “are to be narrowly construed to provide maximum access, and the 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” (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]; see also Mater of Friedman v. Rice, 30 N.Y.3d 461, 475, 68 N.Y.S.3d 1, 90 N.E.3d 800 [2017] [same] ).

Indeed, “agency records are presumptively available for inspection and copying under FOIL ‘in accordance with the underlying premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government’ ” (Kosmider v. Whitney, 160 A.D.3d 1151, 1153, 75 N.Y.S.3d 305 [3rd Dept. 2018] quoting Matter of Madeiros v. New York State Educ. Dept., 30 N.Y.3d 67, 73, 64 N.Y.S.3d 635, 86 N.E.3d 527 [2017] [internal quotations omitted] ). The philosophy underlying the statute is one of “maximum public access to government documents” (Encore Coll. Bookstores v. Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 N.Y.2d 410, 416, 639 N.Y.S.2d 990, 663 N.E.2d 302 [1995]). Accordingly, “under this framework, FOIL is to be ‘liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of the government” (Kosmider, 160 A.D.3d at 1153, 75 N.Y.S.3d 305, quoting Matter of Buffalo News v. Buffalo Enter. Dev. Corp., 84 N.Y.2d 488, 492, 619 N.Y.S.2d 695, 644 N.E.2d 277 [1994]). Moreover, “[w]hile a statute need not expressly state that it is intended to establish a FOIL exemption, there must be a ‘clear legislative intent to establish and preserve confidentiality’ ” (id., quoting Matter of Capital Newspapers Div. of Hearst Corp v. Burns, 67 N.Y.2d at 567, 505 N.Y.S.2d 576, 496 N.E.2d 665).

Here, there is an express provision barring disclosure of reports to the Register and subsequent investigative material under SSL § 422 (4)(A). Respondents seek to have this exemption construed so as to implicitly cover OCFS's post-investigative fair hearing decisions. There is no doubt that, due to the sensitive nature of the abuse reports and investigation process, “there is a strong public policy of confidentiality expressed in § 422(4)” (New York News Inc. v. Grinker, 142 Misc. 2d 325, 328, 537 N.Y.S.2d 770 [Sup. Ct. New York County 1989] [finding that “[c]onfidentiality in child abuse investigations and complaints furthers an important governmental and societal interest”] ). But the statute does not extend that protection to decisions reached following a fair hearing. Rather, such decisions are governed by section 422(8), and that paragraph does not contain an express confidentiality provision.5

The only confidentiality afforded such decisions has been bestowed by OCFS in its regulations. On its face, however, a regulation is not a “state or federal statute” covered by the exemption in section 87(2)(a) of the POL. Indeed, if a regulation were to be so construed, it would allow the issuing agency to limit disclosure of materials it did not wish released by its own fiat. In any case, a construction of the term “statute” to encompass a “regulation” would directly conflict with the rule of narrow construction applicable to FOIL exemptions (see Herald Co., Inc. v. Feurstein, 3 Misc. 3d 885, 891, 779 N.Y.S.2d 333 [Sup. Ct., N.Y. County 2004] [applying narrow construction rule in finding tribal gaming compact is not a statute for purposes of the exemption] ).

The position taken by respondents is that disclosure of hearing decisions is inconsistent with section 422, as it would inevitably require the revelation of investigative materials whose disclosure is barred by section 422(4). That argument is unconvincing, for a number of reasons.

First, not only is there no statute which bars disclosure of hearing determinations, but SAPA specifically provides for the release of such materials, as follows:

“Each agency shall maintain an index by name and subject of all written final decisions, determinations and orders rendered by the agency in adjudicatory proceedings ․ Such index and the text of any such written final decision, determination or order shall be available for public inspection and copying ․ within sixty days after having been rendered” (SAPA § 307[3][a]).

Pursuant to § 307[3][b], an agency may delete information from such materials that constitute an unwarranted invasion of personal privacy in accordance with section 89 of the POL, and must delete any information that which would reveal confidential material protected by federal or state statute. But otherwise, the statute mandates disclosure. Thus, the general practice provided for by state law is for an agency to make public its administrative decisions while removing confidential and identifying information — not to withhold those decisions from release altogether (see 1995 NY Op Atty Gen 23 [1995] [section 307(3)(a) applies to all agency written final determinations issued after an adjudicatory process where the statute governing the hearing provides a party with an “opportunity to be heard”] ).

Indeed, as noted by petitioner in its appeal to OCFS, the Justice Center faces virtually identical statutory confidentiality provisions and administrative processes, yet it makes its hearing officer decisions public — subject to redaction of identifying information — on its website in accordance with SAPA § 307.

Under SSL § 492, the State established in the Justice Center “a vulnerable persons' central register”, which, like the child abuse Register discussed above, receives reports of allegations of reportable incidents of abuse and neglect involving persons receiving disability services in State run or licensed facilities. Upon receipt of and acceptance of allegations of a reportable incident, the Justice Center, among other things, commences an investigation into the allegations (see SSL § 492). As with the investigations underlying the OCFS hearings at issue, following the completion of an investigation the Justice Center determines if the allegations are “substantiated” or “unsubstantiated” (id. § 493). Unsubstantiated reports are sealed (id.). Reports that are “found to be substantiated as well as any other information obtained, reports written or photographs taken concerning such reports [and reports maintained by any investigating body]6 ․ shall not be disclosed to any other party unless authorized pursuant to this section or any other applicable state or federal law” (id. § 496). Persons who are the subject of a substantiated report may request an amendment of the findings, and if denied they have the right to a hearing before an administrative law judge as to whether the agency can demonstrate by a preponderance of the evidence the alleged abuse and/or neglect (id. § 494). After receipt of the administrative law judge's report and recommendation, the Executive Director of the Justice Center issues a final determination in writing (see 14 NYCRR § 700.13). As with the OCFS hearing, the final order is based “exclusively upon the record of the hearing and shall contain findings of fact and conclusions of law ․ [and is subject to Article 78 review]” (id.).

Yet despite a virtually identical process to that employed by OCFS and precisely the same confidentiality issues, the final determinations and orders after fair hearings issued by the Justice Center Executive Director are, in accordance with SAPA § 307(3)(a)-(b), available for public inspection and copying via the Justice Center's webpage with a searchable index, subject to redaction to avoid unwarranted invasion of personal privacy.

The Justice Center's disclosure of its hearing determinations begs the question as to why respondents cannot engage in a similar redaction process, and make the OCFS final decisions publicly available. At very least, this counter-example rebuts respondents' assertion that the decisions sought in the FOIL request at issue are “so reflective of the details in the underlying [investigation material] that disclosure with redaction of confidential information would render meaningless the remainder of the text” (Resp MOL at 6).

The practicality of redaction to protect the confidentiality requirements of the governing statutes was confirmed via the in camera review performed by the Court. While in some instances, significant redactions (i.e., descriptions of information contained in the investigative record; deletion of injuries suffered by a child as “personal information”) make it difficult to understand the factual background of the case, in others the decision is based largely on hearing testimony, and the basis for the hearing officer's decision is provided in full. Whatever the value of these records will be to petitioner, the submissions show unequivocally that redaction is not impractical.

The in camera submission, and the accompanying redaction log, have given rise to a subsidiary dispute set forth in the parties' letters as to the criteria for redaction.

The parties agree that identifying information about individuals should be redacted, and such is consistent with POL §§ 87 and 89, as well as section 307(3)(b) of SAPA, which provide for the removal of such identifying information in publicly disclosed materials. Respondent is correct, however, that disclosure of the age of a child at issue in no way, without further details, “identifies” that individual. Indeed, the Appellate Division frequently references the age of the child, while at the same time protecting the child's identity from disclosure 7 (see e.g. Elizabeth B. v. New York State Office of Children & Family Servs., 149 A.D.3d 8, 9-10, 47 N.Y.S.3d 515 [3d Dept. 2017] [noting years in which children at issue were born] ). The ages of individuals discussed in the decision should, therefore, not be redacted.

The parties also agreed that direct quotes from the investigative record fall under section 422. They dispute, however, OCFS's redaction of materials on the ground that they include a “[d]etailed factual recitation derived from intake and subsequent reports and investigations, including hearing exhibits.” OCFS's position is apparently that such information is covered by the language of section 422(4), which covers (with emphasis added) “[r]eports made pursuant to this title as well as any other information obtained, reports written or photographs taken concerning such reports.” SAPA § 307(3)(b) also requires redaction of “confidential material protected by state statute.”

Upon consideration of these positions, I decline, in the context of this proceeding, to rule on the propriety of the specific remaining redactions presented by respondents. These present a variety of complex issues, including whether descriptions of videos obtained in the course of the investigation but recorded prior thereto must be treated as confidential; whether general factual background derived from the investigation may be redacted; whether description of children's injuries (such as bruises) constitutes personal information when identifying information has been redacted, and many other questions. Because OCFS withheld all of these materials in response to petitioner's FOIL request, there has been no administrative appeal from these redactions, and none of these issues are addressed in the petition or response. Further, petitioner must make its arguments without any of the context which is provided by the unredacted portions of the opinions, which in some instances provide greater clarity as to the nature or source of the information redacted. Finally, because the Court conducted an in camera review only a subset of the opinions, any conclusions as to the propriety of the redactions would be in the nature of an advisory opinion as to the general standards applicable to documents not before it.

Thus, while the in camera review makes clear that redaction does not render all of the materials at issue meaningless, this is not the proper forum to adjudicate the scope of the proposed redactions. Rather, the appropriate procedure is to direct that the agency provide petitioner with the responsive records subject to redaction supported by a reasonable basis in the statute,8 and which shall at very least produce the unredacted portions of the decisions submitted to the Court, and comparable information in the other decisions responsive to the request. Petitioner should then be able to challenge the redactions through the administrative appeal process, and OCFS may in the first instance address any arguments that petitioner has regarding the propriety of the redactions in that context.

II. Bona Fide Research Purpose

Although the finding moots in part the question of whether petitioner has a bona fide research purpose in seeking the materials at hand, it does not do so entirely. In particular, if petitioner were able to obtain access to the investigative materials under the “bona fide research” exception, then there would be no need for respondent to redact such information as set forth above 9 (see Resp Ltr of 1/22/19 [arguing that direct quotes from the investigative record should be disclosed even though covered by section 422[4], in light of petitioner's bona fide research purpose] ). I proceed, then, to consider whether this exception applies.

Under SSL § 422(4)(A)(h), reports made to the Register, and related investigative material, are to be made available, subject to redaction, to “any person engaged in a bona fide research purpose ․” In its administrative appeal, petitioner claimed that its request fell within the ambit of this provision, since it was to use the material it sought as an aid to improving its legal representation.

The statute does not provide any guidance as to the definition of the phrase “bona fide research purpose, and “[t]here is ․ no ascertainable legislative history” with respect to this exception (Newsday, Inc. v. State Commn. on Quality of Care for the Mentally Disabled, 158 Misc. 2d 65, 66, 601 N.Y.S.2d 363 [Sup. Ct. Albany County 1992]). However, the court in Newsday determined, following a review of similar phrases used in other New York statutes regulating disclosure of confidential information, that the provision “evinces an intent to restrict disclosure to those conducting scientific or psychological research” (158 Misc. 2d at 67, 601 N.Y.S.2d 363). With this background in mind — and given the legislative intent to maintain the confidentiality of the investigative process into allegations of child abuse — the court found that a “bona fide research purpose” should be understood as “including academic, administrative or scientific research for the purpose of ascertaining the causes of child abuse and methods of alleviating or eliminating the problem” (id.). The Court found that petitioner, an investigative journalist engaged in research for an article on child abuse, was not engaged in “a bona fide research purpose” falling within the statutory ambit because to so hold would “eviscerate the legislative intent ․ and allow access to confidential reports for any form of research including litigation, which has been specifically disallowed” (id., citing Smith v. State of New York, 181 A.D.2d 227, 231, 585 N.Y.S.2d 838 [3rd Dept. 1992]).10

L & K admits that the only reason it is seeking information from OCFS is for litigation purposes — so that it might better represent its clients in proceedings with OCFS (Reply MOL p.5-6). This is clearly not academic, administrative or scientific research designed to help prevent child abuse as contemplated in Newsday. Further, a finding that the confidentiality protection of section 422 must give way to an attorney's efforts to better prepare to represent clients would result in an exception broad enough to cover any sort of claimed research, and would swallow the statute whole and undermine its purpose of maintaining the confidentiality of the investigative process. Thus, as in Newsday, L & K's argument that it is entitled to the initial reports of abuse and all related investigation material because it is engaged in a “bona fide research purpose” is rejected.

As a result, while petitioner is entitled to the documents sought, production thereof is subject to redaction for investigative materials as discussed supra.

III. Attorneys' Fees

Petitioner seeks attorneys' fees and litigation costs from respondents on the ground that OCFS did not have a reasonable basis under the law to withhold its post-hearing decisions (Pet ¶¶ 30-32). FOIL provides, in pertinent part, that where (1) a petitioner has substantially prevailed in an Article 78 proceeding to obtain the information sought, and (2) the court finds that the agency had no reasonable basis for denying access, the court “shall assess, against the agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by [the petitioner]” (POL § 89[4][c][ii] [emphasis added] ).

A petitioner “substantially prevails” in a FOIL proceeding “when [he or she] ‘receive[s] all the information that [he or she] requested and to which [he or she] is entitled in response to the underlying FOIL litigation’ ” (Cobado v. Benziger, 163 A.D.3d 1103, 1106, 80 N.Y.S.3d 529 [3d Dept. 2018] quoting Matter of Competitive Enter. Inst. v. Attorney Gen. of New York, 161 A.D.3d 1283, 1286, 76 N.Y.S.3d 640 [3d Dept. 2018]). This does not mean that petitioner received every page of every document sought in its request, but that it obtained the “full and only response available pursuant to the statute under the circumstances” (see Matter of Legal Aid Socy. v. New York State Dept. of Corr. & Community Supervision, 105 A.D.3d 1120, 1122, 962 N.Y.S.2d 773 [3d Dept. 2013]).

This is essentially what has occurred here. L & K sought OCFS post-hearing decisions, and respondents have been directed to produce such documents. Nor can I find that OCFS had a reasonable basis for denying petitioner's FOIL request in its entirety. Respondents only advanced the argument that OCFS's final post-hearing determinations are exempt from disclosure under SSL § 422(4)(A), which I have rejected for reasons set forth above. Although there is a strong public policy concern to keep the confidentiality of investigative material under this statute, this provision does not apply to the OCFS hearing determinations issued, which are governed by SSL § 422(8) and subject to public production under SAPA § 307. And I find no basis, following review, to respondents' contention that redaction cannot be accomplished in a way that permits a meaningful response to the request.

Undoubtedly, the scope of the redaction involves complex and difficult legal questions. But the fact that the production is subject to redaction — as petitioner acknowledged it would be in the administrative proceedings (see Resp MOL Ex D [“I am not requesting any identifying information”] ) — does not preclude a finding that petitioner has substantially prevailed as that term was meant by the statute (see Madeiros v. New York State Educ. Dept., 30 N.Y.3d 67, 79, 64 N.Y.S.3d 635, 86 N.E.3d 527 [2017] [fees awarded; although “the Department's redactions in the eventually-released records have been upheld, petitioner's legal action ultimately succeeded in obtaining substantial unredacted post-commencement disclosure responsive to her FOIL request”] ). Moreover, while I have recognized that respondents were entitled to withhold some information on the legal basis it initially advanced, I can see no reasonable ground for OCFS's blanket refusal to provide the hearing decisions (see New York Civil Liberties Union v. City of Saratoga Springs, 87 A.D.3d 336, 926 N.Y.S.2d 732 [3d Dept. 2011] [fees awarded when respondent “lacked a reasonable basis for the blanket denial of such request”] ).

Finally, where the statutory prerequisites for fees are satisfied, as they are here, a court's assessment of reasonable counsel fees and litigations costs is mandatory, in accordance with the December 13, 2017 amendment to the POL (see Chapter 453 of the Laws of 2017, § 1).

Accordingly, it is

ORDERED that the petition is hereby GRANTED and respondents are directed to promptly comply with petitioner's FOIL request in a manner not inconsistent with this Decision & Order within 60 days of its date; and it is further

ORDERED that petitioner's counsel, within 60 days of the date of this judgment, shall submit, on notice, a comprehensive affirmation setting forth his or her qualifications, billing rate, billing records and the attorney's fees and litigations costs sought, along with a proposed order for such fees and costs; and it is further

ORDERED that respondents may submit opposition papers, if any, concerning the reasonableness of the fees and costs being sought within 30 days of service of counsel's costs and fee application; and it is further

ORDERED that petitioner's counsel may submit a reply to such objections, if any, within 15 days of service of the objections, and, if warranted, a hearing of the subject fees and litigations costs will be scheduled thereafter.

This shall constitute the Decision & Order of the Court. This Decision & Order is being transmitted to the County Clerk for filing, with copies being mailed to petitioner's and respondents' counsel. The signing of this Decision & Order and transmittal to the County Clerk shall not constitute notice of entry under CPLR 5513, and the parties are not relieved from the applicable provisions of that Rule respecting to filing and service of Notice of Entry.



1.   As discussed below, section 87(2)(a) allows an agency to withhold from a FOIL applicant documents “specifically exempted from disclosure by state or federal statute.”

2.   Section 202-e(1) provides in relevant part: “Not less than once each year, every agency shall submit to the secretary of state for publication in the state register a list of all guidance documents on which the agency currently relies, and provide information on where and how regulated parties and members of the public may inspect and obtain copies of any such document; provided, however, that the department of environmental conservation shall be exempt from the requirements of this subdivision. Unless otherwise provided for by law, an agency may make such documents available as provided in the freedom of information law, and may charge fees pursuant to such law for copies of any such document.” Section 307(3)(a) is described in greater detail below.

3.    see

4.   Although the respondents' MOL does not contain page numbers, I have inserted them for ease of reference, beginning with the “Preliminary Statement” page as “page 1”.

5.   The only confidentiality provision in this paragraph provides that a report which is held to be unfounded is to be “sealed” (see SSL § 422[8][e]). But this language addresses the confidentiality of the initial report, not a subsequent decision after fair hearing.

6.   This language essentially mirrors that contained in SSL § 422(4)(A).

7.   SSL § 422(4)(e) allows OCFS to disclose confidential information to a court “upon a finding that the information in the record is necessary for the determination of an issue before the court.” The point here is not that the reference by the Appellate Division to investigative information shows it is not confidential for purposes of FOIL, but that the Court, in shielding the personal information of the parties from disclosure, does not treat the ages of those involved as non-public or identifying.

8.   Except, as set forth above, the ages should not be redacted.

9.   Redaction of identifying information would, of course, still be required under ths statute.

10.   The cited decision in Smith addressed a confidentiality provision under the Mental Hygiene Law, with a comparable exemption allowing disclosure for research purposes (see Mental Hygiene Law [“MHL”] § 33.13(c)(8)[iii] [providing for disclosure to qualified researchers who are approved for research projects at facilities] ). The holding of Smith dealt with a distinct issue, however: whether documents confidential under the MHL were discoverable in litigation under a provision allowing “disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality” (181 A.D.2d at 231, 585 N.Y.S.2d 838).

David A. Weinstein, J.

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