2. Discussion of each exemption.

There are ten categories of exempted records under FOIL. New York Public Officers Law 87(2) states that each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:

(a) are specifically exempted from disclosure by state or federal statute;

(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;

(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;

(d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise;

(e) are compiled for law enforcement purposes and which, if disclosed, would:

   i. interfere with law enforcement investigations or judicial proceedings;

   ii. deprive a person of a right to a fair trial or impartial adjudication;

   iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

   iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures;

(f) if disclosed would endanger the life or safety of any person;

(g) are inter-agency or intra-agency materials which are not:

   i. statistical or factual tabulations or data;

   ii. instructions to staff that affect the public;

   iii. final agency policy or determinations; or

   iv. external audits, including but not limited to audits performed by the comptroller and the federal government; or

(h) are examination questions or answers which are requested prior to the final administration of such questions;

(i) if disclosed, would jeopardize an agency's capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures; or

(j) are photographs, microphotographs, video-tape or other recorded images prepared under authority of section eleven hundred eleven-a of the vehicle and traffic law.

N.Y. Pub. Off. Law § 87(2)(a)-(j) (McKinney 1988 and McKinney Supp. 1993).

a. Exemption from disclosure by other state or federal statute.

An agency may deny access to records or portions thereof that are specifically exempted from disclosure by state or federal statute. N.Y. Pub. Off. Law §  87(2)(a) (McKinney 1988).

In applying this exemption, the Court of Appeals has stated that "[a]lthough we have never held that a State statute must expressly state it is intended to establish a FOIL exemption, we have required a showing of clear legislative intent to establish and preserve that confidentiality which one resisting a FOIL disclosure claims as protection." Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986). Accord M. Farbman & Sons v. New York City, 62 N.Y.2d 75, 464 N.E.2d 437, 476 N.Y.S.2d 69 (l984); In Re New York Comm., 72 A.D.3d 153, 892 N.Y.S.2d 377 (1st Dep’t 2010) (holding that because City could not demonstrate that requested documents were at some point in possession of the Worker’s Compensation Board it failed to establish that records were exempt under the Workers Compensation Law).

An agreement of confidentiality without a statutory predicate cannot form the basis for denial of access under FOIL. Washington Post v. Insurance Dep't, 61 N.Y.2d 557, 463 N.E.2d 604, 475 N.Y.S.2d 263 (1984) (granting access to minutes of insurance company meetings voluntarily given by the companies to Insurance Department for its examination; the agreement of confidentiality between the companies and Department did not have a statutory predicate that could preempt FOIL); Town of Waterford v. New York State Dept. of Environmental Conservation, 77 A.D.3d 224, 906 N.Y.S.2d 651 (3d Dep’t 2010) (FOIL does not specifically exempt documents created as part of settlement negotiations).

The statutory exemption must be based upon a state or federal statute; not a local law. See Morris v. Martin, 82 A.D.2d 965, 440 N.Y.S.2d 365 (3d Dep't 1981), rev'd, 55 N.Y.2d 1026, 434 N.E.2d 1079, 449 N.Y.S.2d 712 (1982) (granting request by property owners for sales data lists during course of tax certiorari litigation, despite contention that New York City Admin. Code 1146-15.0 prohibited disclosure of such lists).

It has also been held that "exemptions can only be controlled by other statutes, not by regulations which go beyond the scope of specific statutory language." Zuckerman v. Board of Parole, 53 A.D.2d 405, 407, 385 N.Y.S.2d 811 (3d Dep't 1976). See also N.Y.P.I.R.G. Inc. v. City of New York, N.Y.L.J., Sept. 27, 1982 (Sup. Ct., New York County, 1982) (denying access to certain tax records based upon Tax Law Article 31-A and regulations on confidentiality promulgated thereunder); Herald Co. v. School District, 104 Misc.2d 1041, 430 N.Y.S.2d 460 (Sup. Ct. 1980) (denying access to name of and charges against a tenured teacher on the basis of Education Law § 3020-a and regulations promulgated thereunder).

For cases finding an exemption from disclosure by other state or federal statutes, see Waldman v. Vill. of Kiryas Joel, 31 A.D.3d 569, 819 N.Y.S.2d 72 (2d Dep’t 2006) (under New York Election law, election records may not be publicly disseminated, but are subject only to inspection); Argentieri v. Goord, 25 A.D.3d 830, 807 N.Y.S.2d 445 (3rd Dep’t 2006) (documents generated during an investigation of a corrections officer constitute “personnel record” for the purposes of Civil Rights Law § 50-a, and thus are exempt from disclosure under FOIL); Molloy v. New York City Police Dept., 50 A.D.3d 98, 851 N.Y.S.2d 480 (1st Dep’t 2008) (although remanding for further administrative action, court opined that request relating to investigations by NYPD Internal Affairs Bureau which purportedly involved a police officer would likely be exempt from disclosure under Civil Rights Law § 50-a, which makes confidential personnel records of police officers used to evaluate performance toward continued employment and promotion).

b. Exemption based on unwarranted invasion of privacy.

An agency may deny access to records or portions thereof that, if disclosed, would constitute an unwarranted invasion of personal privacy. N.Y. Pub. Off. Law § 87(2)(b) (McKinney 1988).

An unwarranted invasion of personal privacy includes, but shall not be limited to:

i. disclosure of employment, medical or credit histories or personal references of applicants for employment;

ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility;

iii. sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes;

iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or

v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency.

(c) Unless otherwise provided by this article, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy . . .

i. when identifying details are deleted;

ii. when the person to whom a record pertains consents in writing to disclosure; or

iii. when upon presenting reasonable proof of identity, a person seeks access to records pertaining to him.

N.Y. Pub. Off. Law § 89(2)(b) and (c) (McKinney 1988).

(i) General invasion of privacy argument.

The invasion of personal privacy exemption is not limited to the examples set forth in the statute. See Hanig v. Department of Motor Vehicles, 79 N.Y.2d 106, 588 N.E.2d 750, 580 N.Y.S.2d 715 (1992) (medical histories are but one example of information that could intrude on personal privacy).

For cases which have limited access to records based upon a general invasion of privacy argument, see Hearst Corp. v. Office of State Comptroller, 24 Misc.3d 611, 882 A.D.3d 862 (N.Y. Sup. 2009)(birth dates of state employees are exempt);  Rodriguez v. Johnson,, 66 A.D.3d 536, 886 N.Y.S.2d 695 (1st Dep’t 2009) (pursuant to the public interest, respondent properly withheld certain identifying characteristics of witnesses and the statements of two witnesses who spoke to law enforcement personnel); Rhino Assets, LLC v. New York City Dept. for Aging (SCRIE PROGRAMS), 60 A.D.3d 538, 876 N.Y.S.2d 20 (1st Dep’t 2009) (holding that names of those receiving SCRIE benefits are exempt from disclosure because the nature of program requirements would reveal the age and income of individuals receiving benefits); N.Y . State Rifle and Pistol Ass’n, Inc. v. Kelly, 55 A.D.3d 222, 863, N.Y.S.2d 439 (1st Dep’t 2008) (request for digital list of names and addresses of all pistol licensees in New York City was exempt from disclosure, as disclosure of the lists would constitute an “unwarranted invasion of privacy stemming from … the ‘sale or release of lists of names and addresses if such lists would be used for commercial or fundraising purposes.’”); Humane Soc’y of the United States v. Brennan, 53 A.D.3d 909, 861 N.Y.S.2d 234 (3d Dep’t 2008) (disclosure of telephone numbers of personal targets of an investigation was exempt from disclosure); Edwards v. New York State Police, 44 A.D.3d 1216, 843 N.Y.S.2d 729 (3rd Dep’t 2007) (disclosure of crime-scene photographs were exempt from disclosure on the ground that their release would constitute an unwarranted invasion of privacy of the victim’s surviving family members); Hawley v. Vill. of Penn Yan, 35 A.D.3d 1270, 827 N.Y.S.2d 390 (4th Dep’t 2006) (unlisted and wireless numbers may be redacted from a request for a list of all calls made and received by a public official during a two-month period); New York Times Co. v. City of New York Fire Dep't, 4 N.Y.3d 477, 796 N.Y.S.2d 302 (2005) (with respect to 911 calls made in connection with the September 11, 2001 terrorist attacks on the World Trade Center, "the public interest in the words of the 911 callers is outweighed by the interest in privacy of those family members and callers who prefer that those words remain private"); Tate v. De Francesco, 217 A.D.2d. 831, 629 N.Y.S.2d 529 (3d Dept. 1995) (inmate privacy); Seeling v. Sielaff, 201 A.D.2d 298, 607 N.Y.S.2d 300 (1st Dept. 1994) (the release of Social Security numbers constitutes an unwarranted invasion of privacy); Lyon v. Dunne, 180 A.D.2d 922, 580 N.Y.S.2d 803, (3d Dep't 1992), motion for leave to appeal denied, 79 N.Y.2d 758 (1992) (redacting names, addresses, dates of birth, and phone numbers of troopers, attorneys, investigators and sources after balancing competing interests of public access and individual privacy); Buffalo Broad. Company Inc. v. New York State Dep't of Correctional Services, 174 A.D.2d 212, 578 N.Y.S.2d 928 (3d Dep't 1992) (allowing redaction of video tape of frisks of inmates during Attica uprising); Buffalo Broad. Company Inc. v. New York State Dep't of Correctional Services, 155 A.D.2d 106, 552 N.Y.S.2d 712, (3d Dep't 1990) (inmates have no general expectation of privacy, but videotape of inmates showering or going to the bathroom or which is unduly degrading or humiliating is of a personal nature and would result in personal hardship); Bernier v. Mann, 166 A.D.2d 798, 563 N.Y.S.2d 158 (3d Dep't 1990) (inmate privacy); Dobranski v. Houper, 154 A.D.2d 736, 546 N.Y.S.2d 180 (3d Dep't 1989) (redacting inmates' prison identification, dietary requirements and name and address of next of kin); Messina v. Lufthansa German Airlines, 83 A.D.2d 831, 441 N.Y.S.2d 557 (2d Dep't 1981) (denying access to information concerning a claim for unemployment insurance benefits as an unwarranted invasion of personal privacy); Waste-Stream Inc. v. Solid Waste Disposal Authority, 166 Misc.2d 6, 630 N.Y.S.2d 1020 (Sup. Ct. St. Lawrence County 1995) (personal privacy exemption rendered moot); Inner City Press v. New York City Dep't of Housing Preservation, No. 126653/93 (Sup. Ct., New York County, 1993) (denying access to home addresses and Social Security numbers); Village Times v. Three Village Cent. School Dist., No. 20325-83 (Sup. Ct., Suffolk County, March 21, 1984) (allowing redaction of name upon release of disciplinary settlement); N.Y. PIRG Inc. v. City of New York, N.Y.L.J., Sept. 27, 1982 (Sup. Ct., New York County, 1982) (denying access to New York City capital gains tax returns); In re Lipsman, N.Y.L.J., Oct. 1, 1981 (Sup. Ct., New York County, 1981) (denying access to graduate school transcripts).

For cases rejecting a claim of privacy, see Mulgrew v. Board of Educ. of City School Dist. of City of New York, 31 Misc.3d 296, 919 N.Y.S.2d 786 (Sup. Ct. 2011) (rejecting a claim that releasing the names of public school teachers in Teacher Data Reports are an invasion of privacy because their release rationally balanced in the public interest);   Schenectady County Soc. For Prevention of Cruelty To Animals, Inc v. Mills, 74 A.D.3d 1417, 904 N.Y.S.2d 512 (3d Dep’t 2010) (respondent did not meet burden of showing that names and street addresses of licensed veterinarians was an unwarranted invasion of privacy because respondent was unsure whether the addresses it maintained were home or business addresses); Humane Soc’y of United States v. Fanslau, 54 A.D.3d 537, 863 N.Y.S.2d 519 (3d Dep’t 2008) (holding that disclosure of  Sullivan County District Attorney’s financial disclosure statements pertaining to family members’ income and/or investments did not constitute an unwarranted invasion of personal privacy under FOIL); Legal Aid Society of Northeastern New York v. New York State Department of Social Services, 195 A.D.2d 150, 605 N.Y.S.2d 785 (3d Dept. 1993) (granting access to certain fair hearing decisions; rejecting a privacy argument where identifying information is redacted); Geames v. Henry, 173 A.D.2d 825, 572 N.Y.S.2d 635 (2d Dep't 1991) (granting access to conviction record); Cornell University v. City of New York Police Dep't, 153 A.D.2d 515, 544 N.Y.S.2d 356, (1st Dep't 1989), leave denied, 75 N.Y.2d 707 (1990) (revelation of details of sex crime would not constitute unwarranted invasion of privacy where victim commenced civil action); Thompson v. Weinstein, 150 A.D.2d 782, 542 N.Y.S.2d 33 (2d Dep't 1989) (granting access to criminal convictions and pending criminal action against witness as public records and not an invasion of privacy); Gannett Co. v. City Clerk's Office, City of Rochester, 157 Misc.2d 349, 596 N.Y.S.2d 968 (Sup. Ct. 1993) (granting access to names of marriage license applicants sought by newspaper); Faulkner v. DelGiacco, 139 Misc.2d 790, 529 N.Y.S.2d 255 (Sup. Ct. 1988) (granting access to inmates statements and names of prison guards, but denying access to investigative records of prison melee); Rainey v. Levitt, 138 Misc.2d 962, 525 N.Y.S.2d 551 (Sup. Ct. 1988) (granting access to examination grades of certain persons taking the civil service examination for sergeant, rejecting a privacy argument); Herald Company v. New York State Lottery, No. 01-87-ST0944, (Sup. Ct., Albany County, August 28, 1987) (granting access to lottery sales figures); Bensing v. LeFevre, 133 Misc.2d 198, 506 N.Y.S.2d 822 (Sup. Ct. 1986) (granting access to names of inmates in special housing unit, rejecting arguments under Personal Privacy Protection Law and privacy exemption); Bahlman v. Brier, 119 Misc.2d 110, 462 N.Y.S.2d 381 (Sup. Ct., 1983) (deleting names from report on sick leave of city employees); ABC Inc. v. Siebert, 110 Misc.2d 744, 442 N.Y.S.2d 855 (Sup. Ct. 1981) (revealing identity of applicant for check cashing license, rejecting invasion of personal privacy argument); Geneva Printing v. Village of Lyons, No. 18713 (Sup. Ct., Wayne County, March 25, 1981) (granting access to confidential settlement of disciplinary action against village employee, rejecting privacy argument).

(ii) Employment, credit histories, medical histories or medical records.

An unwarranted invasion of personal privacy includes, but shall not be limited to:

i. disclosure of employment, medical or credit histories or personal references of applicants for employment;

ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility.

N.Y. Pub. Off. Law § 89(2)(b) (McKinney 1988).

A medical history is information that one would reasonably expect to be included as a relevant and material part of a proper medical history. A medical history is exempt from disclosure whether or not given to a health care provider or contained in an employment application. Hanig v. Department of Motor Vehicles, 79 N.Y.2d 106, 588 N.E.2d 750, 580 N.Y.S.2d 715 (1992) (responses on driver's license application regarding disabilities is exempt as a medical history); New York 1 News v. President of the Borough of Staten Island, 766 Misc.2d 270, 631 N.Y.S.2d 479 (Sup. Ct. 1995) (granting access to elements of a staff member's prior oral or written discussion expressly adopted by agency in explaining its final decision). Rold v. Coughlin, 142 Misc.2d 877, 538 N.Y.S.2d 896, (Sup. Ct. 1989) (access to inmate health care records granted with identifying details redacted); Canty v. Office of Counsel, 30 Misc.3d 705, 913 N.Y.S.2d 528 (Sup. Ct. 2010) (exempting portions of accident reports of correctional officer describing officers’ injuries as medical records).

An employment history also may be exempt. See Obiajulu v. City of Rochester, 213 A.D.2d 1055, 625 N.Y.S.2d 779 (4th Dept. 1995) (holding that disclosure of performance evaluations and appraisals do not constitute an invasion of privacy when identifying details are deleted; disciplinary charges, the agency determination of those charges, and the penalties imposed are not exempt from disclosure); Stone v. Department of Investigation of City of New York, 172 A.D.2d 165, (1st Dep't 1991) (denying access to employment histories and confidential reports of investigatory file); LaRocca v. Bd. of Educ., 159 Misc.2d 90, 602 N.Y.S.2d 1009 (Sup. Ct. 1993) (denying access to records relating to a disciplinary matter as an employment record), modified, 220 A.D.2d 424, 632 N.Y.S.2d 576 (granting access to portions of documents not constituting "employment history" and to redacted settlement agreement); Willson v. Washburn (Sup. Ct. Oneida County November 18, 1993) (granting access to requester's own personnel file); Inner City Press/Community on the Move v. New York City Dep't of Housing Preservation and Development, No. 35882/92 (Sup. Ct., New York County, January 26, 1993) (holding that credit histories are exempt from disclosure, but that asset statements are distinguishable from credit histories and, therefore, subject to disclosure). See George v. New York Newsday, N.Y.L.J. October 4, 1994 (Sup. Ct., New York County, 1994) (Public Officers Law does not create a privacy cause of action against a private publisher of improperly released materials)(iii) Commercial or fundraising purposes. An unwarranted invasion of personal privacy includes, but shall not be limited to:

iii. sale or release of lists of names and addresses if such lists would be used for commercial or solicitation purposes.

The 2008 amendments to FOIL substitute “solicitation” for “commercial” to clarify that the intent of the exemption is to avoid the use of a list of persons’ names and residential addresses when the list would be used to contact citizens directly in their homes to solicit their business. Further, when a requester seeks names and addresses, an agency may require the requester to “provide a written certification” that the list will not be used for the purpose of engaging in solicitation or fund-raising.

N.Y. Pub. Off. Law § 89(2)(b) (McKinney 1988).

For cases applying the exemption's clause relative to requests for commercial or fundraising purposes, see  New York State Rifle and Pistol Ass’n, Inc. v. Kelly, 55 A.D.3d 222, 863 N.Y.S.2d 439 (1st Dep’t 2008) (digital list of names and addresses of all pistol licensees in New York City was exempt from disclosure because respondent provided specific proof of petitioner’s intent to use the requested materials for the purposes of fund-raising and/or commercial gain); Scott v. Records Access Officer, 65 N.Y.2d 294, 480 N.E.2d 1071, 491 N.Y.S.2d 289 (1985) (deleting names and addresses of accident victims from accident reports sought by law firm for solicitation purposes); Gannett Co. v. City Clerk's Office, City of Rochester, 157 Misc.2d 349, 596 N.Y.S.2d 968 (Sup. Ct. Monroe County 1993) (granting access to names of marriage license applicants sought by newspaper); Goodstein v. Shaw, 119 Misc.2d 400, 463 N.Y.S.2d 162 (Sup. Ct. 1983) (denying access to names and addresses of persons filing complaints with Division of Human Rights when requested by private attorney); In re Nicholas, 117 Misc.2d 630, 458 N.Y.S.2d 858 (Sup. Ct. 1983) (denying access to income executions to a lawyer seeking to send correspondence to judgment debtors); Gramet v. Gilmartin, No. 81-26110 (Sup. Ct., Suffolk County, March 31, 1982) (denying access to desk sergeant's daily journal where requester wanted to inform accident victims of their rights); Golbert v. Suffolk Dep't of Consumer Affairs, No. 80-9249 (Sup. Ct., Suffolk County, Sept. 5, 1980) (denying access to list of home improvement contractors); New York State United Teachers v. Brighter Choice Charter School, 15 N.Y.3d 560, 940 N.E.2d 899, 915 N.Y.S.2d 194 (2010) (holding that the names of teachers employed at Charter Schools are exempt from disclosure as an invasion of privacy).

(iv) Economic or personal hardship. An unwarranted invasion of personal privacy includes, but shall not be limited to:

iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it.

N.Y. Pub. Off. Law § 89(2)(b) (McKinney 1988).

For cases where a privacy argument has been asserted based on economic or personal hardship, see Buffalo News v. Buffalo Municipal Housing Authority, 163 A.D.2d 830, 558 N.Y.S.2d 364, (4th Dep't 1990) (granting access to payroll records and disciplinary records as not creating economic or personal hardship and such records are relevant to day-to-day operations of the agency); Buffalo Broad. Company Inc. v. New York State Dep't of Correctional Services, 155 A.D.2d 106, 552 N.Y.S.2d 712, (3d Dep't 1990) (inmates have no general expectation of privacy, but videotape of inmates showering or going to the bathroom or which is unduly degrading or humiliating is of a personal nature and would result in personal hardship); Hopkins v. City of Buffalo, 107 A.D.2d 1028, 486 N.Y.S.2d 514 (4th Dep't 1985) (granting access to payroll records of several public work projects); Gannett Co. v. County of Monroe, 59 A.D.2d 309, 399 N.Y.S.2d 534 (4th Dep't 1977), aff'd, 45 N.Y.2d 954, 383 N.E.2d 1151, 411 N.Y.S.2d 557 (1978) (granting access to names and salary levels of terminated county employees, because the records were relevant and essential to the ordinary work of the municipality); Smith v. County of Rensselaer, No. 41-1156-92 (Sup. Ct. Rensselaer County) (granting access to itemized bills prepared or submitted by an attorney working for an agency); Tri-State Publishing Company v. City of Port Jervis, No. 7498-91 (Sup. Ct. Orange County, March 4, 1992) (denying access to names and addresses of tenants in housing subsidy program or of property owners where all tenants are in subsidy program as an unwarranted invasion of privacy); Minerva v. Village of Valley Stream, No. 7566/81 (Sup. Ct., Nassau County, May 20, 1981) (granting access to front of village attorney's paycheck, but denying request to examine and copy the back of the check on the basis of privacy exemption); MacHacek v. Harris, 106 Misc.2d 388, 431 N.Y.S.2d 927 (Sup. Ct. 1980) (the manner in which information will be used is an improper standard to determine economic or personal hardship).

(v) Confidentiality. An unwarranted invasion of personal privacy includes, but shall not be limited to:

v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency.

N.Y. Pub. Off. Law § 89(2)(b) (McKinney 1988).

For cases considering the issue of confidentiality, see Stone v. Department of Investigation of City of New York, 172 A.D.2d 165 (1st Dep't 1991) (denying access to employment histories and confidential reports of investigatory file); Cornell University v. City of New York Police Dep't, 153 A.D.2d 515, 544 N.Y.S.2d 356 (1st Dep't 1989), leave denied, 75 N.Y.2d 707 (1990) (granting disclosure of police investigative file where witnesses were not promised anonymity); Allen v. Strojnowski, 129 A.D.2d 700, 514 N.Y.S.2d 463 (3d Dep't 1987), motion for leave to appeal denied, 70 N.Y.2d 871, 518 N.E.2d 5, 523 N.Y.S.2d 493 (1987) (denying access to names, addresses, and statements of confidential witnesses compiled during a criminal investigation); see Buffalo Evening News v. City of Lackawanna, (Sup. Ct., Erie County, June 24, 1985) (granting access to real estate escrow records and holding that the identity of a proposed supplier to a city contract is not information of a personal nature); Gannett News Service Inc. v. State Office of Alcoholism and Substance Abuse, 99 Misc.2d 235, 415 N.Y.S.2d 780 (Sup. Ct. 1979) (granting access to drug abuse surveys taken of secondary school students, although schools had been promised confidentiality).

(vi) Deletion of identifying details.

Unless otherwise provided by this article, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy . . .

i. when identifying details are deleted;

N.Y. Pub. Off. Law § 89(2)(c) (McKinney 1988).

Under the privacy exemption, an agency has authority to delete identifying details prior to disclosure. N.Y. Pub. Off. Law § 89(2)(c)(i) (McKinney 1988). See, e.g., Scott v. Records Access Officer, 65 N.Y.2d 294, 480 N.E.2d 1071, 491 N.Y.S.2d 289 (1985) (deleting names and addresses of accident victims prior to release of accident reports for commercial purposes); Obiajulu v. City of Rochester, 625 N.Y.S.2d 779 (4th Dept. 1995) (disclosure of performance evaluations and appraisals do not constitute an invasion of privacy when identifying details are deleted; disciplinary charges, the agency determination of those charges, and the penalties imposed are not exempt from disclosure); Harris v. City University, 114 A.D.2d 805, 495 N.Y.S.2d 175 (lst Dep't 1985) (granting access to certain curricula vitae but first ordering deletion of identifying information such as names, addresses and Social Security numbers); Malowsky v. D'Elia, 160 A.D.2d 798, 163 N.Y.S.2d 479, (2d Dep't 1990) (medical histories of a child in foster care and of his natural parents shall be provided under Social Services law §  373(a) after deletion of identifying details); Bahlman v. Brier, 119 Misc.2d 110, 462 N.Y.S.2d 381 (Sup. Ct., 1983) (deleting names from report on sick leave of city employees); Cirino v. Board of Education, N.Y.L.J., July 10, 1980 (Sup. Ct., New York County, 1980) (granting access to archival records on alleged communists and subversives, with identifying details deleted).

Where records are subject to other specific statutory exemptions FOIL's provisions for deletion of identifying details do not remove confidentiality requirements. Short v. Board of Managers, 57 N.Y.2d 399, 442 N.E.2d 1235, 456 N.Y.S.2d 724 (1982).

c. Exemption based on impairment of contract awards or collective bargaining negotiations.

The FOIL authorizes an agency to deny access to records or portions thereof that, if disclosed, would impair present or imminent contract awards or collective bargaining negotiations. N.Y. Pub. Off. Law §  87(2)(c) (McKinney 1988). Efforts by agencies to withhold documents through assertion of collective bargaining impairment arguments have generally proved unsuccessful. See, e.g., Doolan v. BOCES, 48 N.Y.2d 341, 398 N.E.2d 533, 422 N.Y.S.2d 927 (1979) (granting access to a BOCES prepared annual document containing regional data on salaries and fringe benefits of teachers and administrators); Professional Standards Review of America v. New York State Department of Health, 193 A.D.2d 937 (3d Dept. 1993) (granting access to contract bid submitted by private organization and to factual and statistical data used by agency in making its final determination to award the contract); Waste-Stream Inc. v. Solid Waste Disposal Authority, 166 Misc.2d 6, 630 N.Y.S.2d 1020 (Sup. Ct. 1995) (granting access to lists of potential customers, names and addresses of customers responding to a questionnaire, proposed contracts with customers and lists of all accounts extended credit within the past two years); Babigian v. Evans, 104 Misc.2d 140, 427 N.Y.S.2d 688 (Sup. Ct. 1980), aff'd, 97 A.D.2d 992, 469 N.Y.S.2d 834 (lst Dep't 1983) (granting access to list of employees who were awarded back pay); Geneva Printing v. Village of Lyons, No. 18713 (Sup. Ct., Wayne County, March 25, 1981) (granting access to terms of confidential settlement of employee's arbitration hearing); United Fed'n v. New York City Health and Hosp. Corp., 104 Misc.2d 623, 428 N.Y.S.2d 823 (Sup. Ct. 1980) (granting access to grievances and decisions rendered thereon). But see Cohalan v. Board of Education, 74 A.D.2d 812, 425 N.Y.S.2d 367 (2d Dep't 1980) (denying access to preliminary contract proposals and demands between school board and teachers' association).

The "impairment of contract award" language has been held to allow an agency to withhold documents in cases of imminent, or even potential, awards of contracts, but not in cases where contractual agreements are consummated. Compare Murray v. Troy Urban Renewal Agency, 84 A.D.2d 612, 444 N.Y.S.2d 249 (3d Dep't 1981), aff'd, 56 N.Y.2d 888, 438 N.E.2d 1115, 453 N.Y.S.2d 400 (1982) (denying access to reports by an independent appraiser for the potential sale of buildings) and Pirro v. Murray, (Sup. Ct., Onondaga County, Aug. 2, 1982) (denying access to records of resource survey project) with Shaw v. Triborough Bridge and Tunnel Auth., N.Y.L.J., June 17, 1980 (Sup. Ct., New York County, 1980) (granting access to records related to a "consummated" contractual agreement). See also Buffalo Evening News v. City of Lackawanna, (Sup. Ct., Erie County, June 24, 1985) (granting access to names of persons making escrow deposits relating to negotiations for development of aluminum mill); Faxton Hospital v. Plumley, No. 84-9 64 (Sup. Ct., Oneida County, May 30, 1984) (granting access to documents submitted by applicant for industrial development revenue bonds).  See also Verizon New York, Inc. v. Bradbury, 40 A.D.3d 1113, 837 N.Y.S.2d 291 (2d Dep’t 2007) (draft of cable franchise agreement with municipality was not exempt from disclosure as the impairment of an imminent contract award because party seeking the records and Verizon were not competitors for the issuance of a cable television franchise).

 

d. Exemption based on trade secrets or records maintained for regulation of a commercial enterprise.

The FOIL permits an agency to deny access to records or portions thereof that are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise. N.Y. Pub. Off. Law § 87(2)(d) (McKinney Supp. 1993).

Each state agency which maintains records containing trade secrets is directed by statute to promulgate regulations pertaining to such records, including, but not limited to the following: (1) the manner of identifying the records or parts; (2) the manner of identifying persons within the agency to whose custody the records or parts will be charged and for whose inspection and study the records will be made available; and (3) the manner of safeguarding against any unauthorized access to the records. N.Y. Pub. Off. Law § 87(4)(a) (McKinney 1988). The term "agency" or "state agency" for the purposes of this statutory directive means only a state department, board, bureau, division, council or office and any public corporation the majority of whose members are appointed by the governor. N.Y. Pub. Off. Law § 87(4)(b) (McKinney 1988).

When records are required to be submitted to state agencies pursuant to law by a commercial entity, the entity may request that the records or portions thereof be kept confidential on the ground that the records constitute trade secrets. N.Y. Pub. Off. Law § 89(5) (McKinney 1988). If a request is made for records characterized as trade secrets, or if the agency chooses to reject a claim of trade secrets, the entity submitting the records must be informed and be given the opportunity to justify its claim of trade secret status. N.Y. Pub. Off. Law § 89(5) (McKinney 1988). See Irving Bank Corporation v. Considine, 138 Misc.2d 849, 525 N.Y.S.2d 770 (Sup. Ct. 1988) (Public Officers Law §  89(5) sets forth a very detailed schedule within which applications for confidential treatment of commercial trade information and secrets and appeals therefrom must be made, and failure to follow this schedule can result in failure to exhaust administrative remedies).

For trade secret cases, see Verizon New York, Inc. v. Mills, 60 A.D.3d 958, 875 N.Y.S.2d 572 (2d Dep’t 2009) (holding that franchise agreement between Village and cable company was exempt because disclosure would cause substantial injury to the competitive position of the subject enterprise); Verizon New York, Inc. v. Devita, 60 A.D.3d 956, 879 N.Y.S.2d 140 (2d Dep’t 2009) (franchise agreement between municipality and cable company exempt from disclosure, but municipality retains discretion to disclose franchise reports even if reports fall under exemption); Hearst Corp. v. State, Office of State Comptroller, 24 Misc.3d 611, 882 N.Y.S.2d 862 (N.Y. Sup. Albany County 2009) (trade secret exception does not apply to state payroll tables that did not use social security numbers of state employees); Markowitz v. Serio, 11 N.Y.3d 43, 893 N.E.2d 110, 862 N.Y.S.2d 833 (2008) (request for records revealing “the number of voluntary [automobile] policies issued, renewed, cancelled … or nonrenewed” for “each Kings County zip code, including, by carrier,” was not exempt as a trade secret, as the interested insurance companies were not able to demonstrate that the records’ disclosure would put them at a competitive disadvantage); City of Schenectady v. O'Keeffe, 50 A.D.3d 1384, 856 N.Y.S.2d 281 (3d Dep’t 2008) (records pertaining to public utility’s franchise and right-of-way agreement with a state agency, and which contained cost and inventory data identifying and tracking all of the utility’s property assets that are employed along the right-of-way and used to transmit and distribute electricity, were exempt from disclosure as a trade secret, the release of which would cause substantial competitive injury); N.Y. Racing Ass'n, Inc. v. State, Racing and Wagering Bd., 21 Misc.3d 379, 863 N.Y.S.2d 540 (N.Y. Sup. Ct. 2008) (holding that release of documents concerning confidential bidding correspondence in connection with a state contract between private corporation and state agency was exempt from disclosure under FOIL, as the request documents were “proprietary trade information”); Verizon New York, Inc. v. Bradbury, 40 A.D.3d 1113, 837 N.Y.S.2d 291 (2d Dep’t 2007) (holding that draft of cable franchise agreement with municipality was not exempt from disclosure as a trade secret because Verizon failed to establish a specific harm that disclosure would cause); Professional Standards Review of America v. New York State Department of Health, 193 A.D.2d 937 (3d Dept. 1993) (granting access to contract bid submitted by private organization and to factual and statistical data used by agency in making its final determination to award the contract); Niagara Mohawk Power Corporation v. New York State Department of Environmental Conservation, 169 A.D.2d 943, 564 N.Y.S.2d 839 (3d Dep't 1991) (question of whether report of data was a "trade secret" was rendered "moot"); P.J. Garvey Carting and Storage Inc. v. County of Erie, 125 A.D.2d 972, 510 N.Y.S.2d 365 (4th Dep't 1986) (unsuccessful bidder unable to get damages for release of its "route list" by county; route list neither a trade secret nor "record" under FOIL); Waste-Stream Inc. v. Solid Waste Disposal Authority, 166 Misc.2d 6, 630 N.Y.S.2d 1020 (Sup. Ct. St. Lawrence County 1995) (while an agency may hold "trade secrets" exempt from disclosure, information sought to be withheld on the basis of substantial injury to the competitive position does not apply to the agency itself); Ragusa v. New York State Dept. of Law, 152 Misc.2d 602, 578 N.Y.S.2d 959 (Sup. Ct. 1991) (records from Attorney General's investigation of company's pricing policy are not trade secrets); American Society for the Prevention of Cruelty to Animals v. Board of Trustees, 147 Misc.2d 846, 556 N.Y.S.2d 447 (Sup. Ct. 1990) (information relating to procedures to be performed on animals did not explore researcher's underlying method, hypothesis, analysis, or results, and were not exempt from disclosure as trade secrets under 7 U.S.C. §  2157 which exempts release of trade secrets); Oswego Motor Lines v. Frank, No. 85-5409 (Sup. Ct., Onondaga County, Oct. 15, 1985) (denying access to list of charter customers or clients); N.Y. PIRG Inc. v. City of New York, N.Y.L.J., Sept. 27, 1982 (Sup. Ct., New York County, 1982) (rejecting agency's assertion that disclosure of real property gains tax returns would reveal trade secrets); Belth v. Insurance Dep't, 95 Misc.2d 18, 406 N.Y.S.2d 649 (Sup. Ct. 1977) (denying access to computer programs, statistical assumptions and mathematical models of insurance company).

e. Exemption for records compiled for law enforcement purposes.

An agency may deny access to records or portions thereof that are compiled for law enforcement purposes and which, if disclosed, would: (i) interfere with law enforcement investigations or judicial proceedings; (ii) deprive a person of the right to a fair trial or impartial adjudication; (iii) identify a confidential source or disclose confidential information about a criminal investigation; or (iv) reveal criminal investigative techniques or procedures, except routine techniques and procedures. N.Y. Pub. Off. Law § 87(2)(e) (McKinney 1988).

"[T]he purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution. . . . Records . . . which merely clarify procedural or substantive law must be disclosed." Fink v. Lefkowitz, 47 N.Y.2d 567, 393 N.E.2d 463, 419 N.Y.S.2d 467 (1979) (denying access to portions of an office manual of the Special Prosecutor for Nursing Homes on basis that disclosure would reveal non-routine investigatory techniques).

In interpreting the exemption, the courts have held that the law enforcement exemption potentially applies even where the investigation has terminated, is inactive and no judicial proceeding exists. Hawkins v. Kurlander, 98 A.D.2d 14, 469 N.Y.S.2d 820 (4th Dep't 1983), appeal withdrawn, 62 N.Y.2d 804 (1984) (denying access to transcripts of confidential interviews of witnesses in investigation by district attorney).

It has also been held that there is no requirement that the records be compiled by a law enforcement agency. Rather, the only requirement is that such records be compiled for law enforcement purposes and be held by a public agency. City of New York v. Bustop Shelters Inc., 104 Misc.2d 702, 428 N.Y.S.2d 784 (Sup. Ct. 1980). See also Frick v. Hennessy, No. 1405/79 (Sup. Ct., Sullivan County, July 25, 1979) (denying access to investigative file relating to oil spill).

For law enforcement cases, see Lesher v. Hynes, 80 A.D.3d 611, 914 N.Y.S.2d 264 (2d Dep’t 2011) (held, claim that disclosure of documents would interfere with an ongoing police investigation was sufficiently particularized to deny access); Bellamy v. New York City Police Dept., 80 A.D.3d 442, 913 N.Y.S.2d 225 (1st Dep’t 2011) (allowing access to police reports containing the names and statements of witnesses who did not testify at petitioner’s trial since no promises of confidentiality were made, nor was their any evidence that access would allow violators to evade detection by deliberately tailoring their conduct); Gomez v. Fischer, 74 A.D.3d 1399, 902 N.Y.S.2d 212 (3d Dep’t 2010) (request for statements made by a witness during an interview with investigators was improperly denied because witness statements must be disclosed unless there is a promise of confidentiality); Esposito v. Rice, 67 A.D.3d 797, 888 N.Y.S.2d 178 (2d Dep’t 2009) (respondents properly withheld statements to law officers made by persons who did not testify at a criminal trial); Smith v. Capasso, 200 A.D.2d 502, 608 N.Y.S.2d 815 (1st Dep't 1994); Spencer v. New York State Police, 187 A.D.2d 919, 591 N.Y.S.2d 207 (3d Dept. 1992) (denying access to non-routine, highly detailed step-by-step depictions of the investigatory process and to portions of the file describing autopsies performed on victims, but granting access to files regarding surveillance, establishment of roadblocks and lists of evidence seized); Lyon v. Dunne, 180 A.D.2d 922, 580 N.Y.S.2d 803 (3d Dep't 1992), motion for leave to appeal denied, 79 N.Y.2d 758 (1992) (denying access to laboratory analyses of evidence because it would reveal nonroutine techniques and procedures, however, evidence inventory list is not exempt from disclosure); Laureano v. Grimes, 179 A.D.2d 602, 579 N.Y.S.2d 357 (1st Dep't 1992) (granting access to police memo books of investigation where no assertion or promise of confidentiality and confidentiality, if given, was lost since witnesses later testified); Ennis v. Slade, 179 A.D.2d 558, 579 N.Y.S.2d 59 (1st Dep't 1992), motion for leave to appeal denied, 79 N.Y.2d 758 (1992) (denying access to records of narcotics buy operation); Mitchell v. Slade, 173 A.D.2d 226, 569 N.Y.S.2d 437 (1st Dep't 1991) (arrest follow-up report was not exempt under law enforcement or intra-agency exemptions); Grune v. Alexanderson, 168 A.D.2d 496, 562 N.Y.S.2d 739 (2d Dep't 1990) (portions of arson control plan which reveal routine criminal investigative techniques or procedures are subject to disclosure); Dobranski v. Houper, 154 A.D.2d 736, 546 N.Y.S.2d 180 (3d Dep't 1989) (denying access to identikit papers and notations as nonroutine); Cornell University v. City of New York Police Dep't, 153 A.D.2d 515, 544 N.Y.S.2d 356 (1st Dep't 1989), leave denied, 75 N.Y.2d 707 (1990) (granting disclosure of police investigative file where witnesses were not promised anonymity); New York News Inc. v. Office of the Special State Prosecutor of the State of New York, 153 A.D.2d 512, 544 N.Y.S.2d 151 (1st Dep't 1989) (depositions compiled during investigation were exempt as disclosure could interfere with law enforcement investigations); Auburn Publisher Inc. v. City of Auburn, 147 A.D.2d 900, 537 N.Y.S.2d 354 (4th Dep't 1989) (denying access to affidavits in police investigation); Allen v. Strojnowski, 129 A.D.2d 700, 514 N.Y.S.2d 463 (3d Dep't 1987), motion for leave to appeal denied, 70 N.Y.2d 871, 518 N.E.2d 5, 523 N.Y.S.2d 493 (1987) (denying access to names, addresses, and statements of confidential witnesses compiled during a criminal investigation); Matter of Spruils N.Y.L.J., July 28, 1995 (Sup. Ct., New York County, 1995) (denying access to police officer's memo book on personal hardship grounds and which might contain names, addresses and statements of confidential witnesses); Muniz v. Roth, 163 Misc.2d 293, 620 N.Y.S.2d 700 (Sup. Ct. 1994) (granting access to fingerprint tests because they are routine investigative techniques); Planned Parenthood of Westchester v. The Town Board of the Town of Greenburgh, Sup. Ct., Westchester County (January 27, 1992) (disclosure of photographs of arrestees compiled for law enforcement purposes would not interfere with law enforcement purposes were exempt from disclosure under FOIL); Ragusa v. New York State Dept. of Law, 152 Misc.2d 602, 578 N.Y.S.2d 959 (Sup. Ct. 1991) (granting access to Attorney General's investigative records where allegation of interference with law enforcement is wholly speculative); Matter of Woods, N.Y.L.J. February 2, 1995 (Sup. Ct., New York County, 1995) (ordering in camera inspection of police follow-up reports (DD-5's) to determine if they contain exempt opinions); Matter of Warner, N.Y.L.J. (App. Div. 1st Dept. March 17, 1995) (ordering in camera inspection of police training material to determine whether exempt as criminal investigative techniques or procedures or would endanger life or safety of any person); Matter of New York City Dept. of Investigation, N.Y.L.J., May 12, 1995 (Sup. Ct., New York County, 1995); Maffeo v. New York Organized Crime Task Force, Index #92-18502 (Sup. Ct., Westchester County April 14, 1993) (denying disclosure of applications made and warrants issued for eavesdropping surveillance pursuant to CPL 700.55; denying access to investigation interviews and lists prepared by the FBI; granting access to trial testimony transcripts).

f. Exemption for records which, if disclosed, would endanger the life or safety of any person.

Any record which, if disclosed, would endanger the life or safety of any person may be exempt from disclosure. N.Y. Pub. Off. Law § 87(2)(f) (McKinney 1988). See John H. v. Goord, 27 A.D.3d 798, 809 N.Y.S.2d 682 (3d Dep’t 2006) (request of inmate/petitioner for investigative reports, interviews and related documents generated in response to his allegations of sexual assault by a corrections officer were exempt from disclosure because disclosure would reveal the identity of a non-confidential witness, whose life or safety may then be in danger); Buffalo Broad. Company Inc. v. New York State Dep't of Correctional Services, 174 A.D.2d 212, 578 N.Y.S.2d 928 (3d Dep't 1992) (denying access to portions of videotape of security system, storming of cells, other prison techniques during Attica uprising as possible endangerment to prison security and staff safety); Newton v. Police Department City of New York, 183 A.D.2d 621, 585 N.Y.S.2d 5 (1st Dep't 1992) (disclosure of certain law enforcement records could endanger the life or safety of person); Connolly v. New York Guard, 175 A.D.2d 372, 572 N.Y.S.2d 443 (3d Dep't 1991) (denying access to some of the mobilization plans and documents of the New York Guard); Bernier v. Mann, 166 A.D.2d 798, 563 N.Y.S.2d 158 (3d Dep't 1990) (institutional safety justified denial of petitioner's request for information on inmates involved in a prison disturbance); Buffalo Broad. Company Inc. v. New York State Dep't of Correctional Services, 155 A.D.2d 106, 552 N.Y.S.2d 712 (3d Dep't 1990) (agency failed to establish that videotape of inmates endangered safety and security); Dobranski v. Houper, 154 A.D.2d 736, 546 N.Y.S.2d 180 (3d Dep't 1989) (denying access to deposition and criminal information underlying criminal complaint); Stronza v. Hoke, 148 A.D.2d 900, 539 N.Y.S.2d 528 (3d Dep't 1989) (agency need only demonstrate a possibility that information would endanger the lives or safety of individuals); Lonski v. Kelly, 149 A.D.2d 976, 540 N.Y.S.2d 114 (4th Dep't 1989) (denying access to videotape depicting petitioner's transfer to special housing unit); Flowers v. Sullivan, 149 A.D.2d 287, 545 N.Y.S.2d 289 (2d Dep't, 1989) (denying access to records of prison security system); Nalo v. Sullivan, 125 A.D.2d 311, 509 N.Y.S.2d 53 (2d Dep't 1986), appeal denied, 69 N.Y.2d 612, 511 N.E.2d 86 (1987) (denying access to records referring to petitioner as member of organized crime and escape risk); Matter of Warner, N.Y.L.J., March 17, 1995 (App. Div. 1st Dept. 1995) (ordering in camera inspection of police training material to determine whether exempt as criminal investigative techniques or procedures or would endanger life or safety of any person); McDermott v. Lippman N.Y.L.J., January 4, 1994 (Sup. Ct., New York County, 1993) (denying disclosure of security survey of New York trial courts due to possibility that disclosure will pose a danger to the life or safety of any person); New York News v. Koch, N.Y.L.J., May 22, 1987 (Sup.Ct., New York County, 1987) (denying access to records pertaining to a pending investigation of Bess Myerson on basis of prejudice to fair trial rights, harm to witnesses, confidential information, and privacy rights); Elmira Star-Gazette v. Strojnowski, No. 9924-84 (Sup. Ct., Albany County, Nov. 7, 1984) (denying access to state police reports); ABC Inc. v. Siebert, 110 Misc.2d 744, 442 N.Y.S.2d 855 (Sup. Ct. 1981) (granting access to names and business addresses of principals of check cashing businesses licensed by Banking Dep't, but denying access to other aspects of license applications, such as home addresses); Whitfield v. Bailey, 80 A.D.3d 417, 914 N.Y.S.2d 58 (1st Dep’t 2011) (granting access to records but allowing redaction of names of witnesses who testified at trial since disclosure could endanger their life or safety); Canty v. Office of Counsel, 30 Misc.3d 705, 913 N.Y.S.2d 528 (Sup. Ct. 2010) (holding that while certain portions of the accident reports of correctional officers were subject to disclosure, certain identifying information could be redacted which might endanger the life or safety of the officers).

g. Exemption for inter-agency or intra-agency materials.

Inter-agency or intra-agency records are exempt from disclosure unless they are: (i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) final agency policy or determinations; or (iv) external audits, including audits by the comptroller or federal government. N.Y. Pub. Off. Law § 87(2)(g) (McKinney 1988). The exemption is intended to protect the deliberative process of government, and to encourage the free exchange of ideas among government policymakers. See Russo v. Nassau Community College, 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993) (inter-agency materials are construed to mean "deliberative material", i.e. communications exchanged for discussion purposes not constituting final policy decisions); Gould v. New York City Police Dep't, 89 N.Y.2d 267, 653 N.Y.S.2d 54(1996); New York Times Co. v. City of New York Fire Dep't, 4 N.Y.3d 477, 796 N.Y.S.2d 302 (2005). The FOIL allows denial of access to predecisional memoranda or other nonfinal recommendations, whether or not action is taken. Xerox v. Town of Webster, 65 N.Y.2d 131, 480 N.E.2d 74, 490 N.Y.S.2d 488 (1985).

An agency, however, is not authorized to throw a protective blanket over all information by casting it in the form of an internal memo. Miracle Mile Ass'n v. Yudelson, 68 A.D.2d 176, 417 N.Y.S.2d 142 (4th Dep't 1979), appeal denied, 48 N.Y.2d 706, 397 N.E.2d 758, 422 N.Y.S.2d 68 (1979).

With regard to the general applicability of the exemption, it has been held that "records may be considered 'intra-agency material' even though prepared by an outside consultant at the behest of an agency as part of the agency's deliberative process." Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 480 N.E.2d 74, 490 N.Y.S.2d 488 (1985) (denying access to portions of appraisal reports prepared by private consulting firm for town). Accord Goodstein & West v. O'Rourke, 201 A.D.2d 731, 608 N.Y.S.2d 306 (2d Dept. 1994) (denying access of investigative report prepared by Department of Correction at the requests of the Office of Affirmative Action as inter-agency or intra-agency materials); Austin v. Purcell, 103 A.D.2d 827, 478 N.Y.S.2d 64 (2d Dep't 1984) (consultants' reports and opinion of outside counsel treated as intra-agency material); Bray v. Mar, 106 A.D.2d 311, 482 N.Y.S.2d 759 (lst Dep't 1984) (panel of outside experts considered part of agency); Sea Crest Construction Corp. v. Stubing, 82 A.D.2d 546, 442 N.Y.S.2d 130 (2d Dep't 1981) (correspondence between town and outside consultant is intra-agency); Montalvo v. City of New York, N.Y.L.J., October 19, 1995 (Sup. Ct., New York County, 1995) (an outside consultant); Gannett Satellite Information Network Inc. v. City of Elmira, No. 94-1752 (Sup. Ct., Chemung County, August 26, 1994) (denying access to appraisal figures of appraisers retained by City as professional opinions; not statistical or factual tabulations and data). Town of Waterford v. New York State Dept. of Environmental Conservation, 77 A.D.3d 224, 906 N.Y.S.2d 651 (3d Dep’t 2010) (exemption for intra/inter-agency materials could be applied to records containing communications exchanged between state and federal agencies during planning and implementation of environmental remediation project). But see Tuck-It-Away Assoc., L.P. v. Empire State Development Corp., 54 A.D.3d 154, 861 N.Y.S.2d 51 (1st Dep’t 2008) (holding that the intra- or inter-agency exemption does not attach to a government agency’s communications with a firm hired as a consultant by that agency whose approval is required for the project, when the same firm was also hired by the entity promoting the project in question)

Material which is not prepared by or at the behest of an agency cannot fall within the intra-agency exemption. The mere fact of records being collected by an agency and appended to its report does not transform a record into intra-agency material. Ingram v. Axelrod, 90 A.D.2d 568, 456 N.Y.S.2d 146 (3d Dep't 1982) (granting access to material not prepared by or for the department). Accord Lowry v. Bureau of Labor Services, No. 20438-83 (Sup. Ct., New York County, March 9, 1984) (granting access to correspondence between a public agency and a private organization it regulates).

Even if a record is a draft or preliminary, an agency is obliged to review the record for the purpose of disclosing those portions that are accessible. Gould v. New York City Police Dept., 89 NY 2d 267, 675 NE 2d 808, 25 Med.L.Rptr. 1004 (1996) (holding that police complaint follow-up reports are not categorically exempt from disclosure and that police activity logs are agency records)

For cases granting access, see Mulgrew v. Board of Educ. of City School Dist. of City of New York, 31 Misc.3d 296, 919 N.Y.S.2d 786 (Sup. Ct. 2011) (holding that the names of teachers included in Teacher Data Reports do not fall under the exception since such names are “statistical or factual tabulations of data”); Humane Soc’y of the United States v. Empire State Development Corp., 53 A.D.3d 1013, 863 N.Y.S.2d 107 (3d Dep’t 2008) (copies of project finance memorandum and cost-benefit analysis for funding arrangement between private company and Empire State Development Corp. were not exempt from disclosure as an intra-agency material, provided that the state agency’s projections were redacted from the record); Humane Soc’y of the United States v. Brennan, 53 A.D.3d 909, 861 N.Y.S.2d 234 (3d Dep’t 2008) (handwritten notes and memoranda authored by a Department of Agriculture and Markets veterinarian in connection with the investigation of avian flu at a foie gras farm were not exempt from disclosure as intra-agency records, as they contained objective, factual data); Tuck-It-Away Assoc., L.P. v. Empire State Development Corp., 54 A.D.3d 154, 861 N.Y.S.2d 51 (1st Dep’t 2008) (holding that the intra- or inter-agency exemption does not attach to a government agency’s communications with a firm hired as a consultant by that agency whose approval is required for the project, when the same firm was also hired by the entity promoting the project in question); New York Times Co. v. City of New York Fire Dep't, 4 N.Y.3d 477, 796 N.Y.S.2d 302 (2005) (held, dispatch calls made over Fire Department's internal communications system concerning response to September 11 terrorist attacks are disclosable "to the extent they consist of factual statements or instructions affecting the public"); Russo v. Nassau Community College, 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993) (while the nature of a classroom may be one of deliberation, teaching materials used in the course for years constitute final agency policy or determinations); Professional Standards Review of America v. New York State Department of Health, 193 A.D.2d 937 (3d Dept. 1993) (granting access to rating sheets used to make final determination, but remitting the matter for in camera inspection and redaction of any subjective commentary, opinions and recommendations); Svaigsen v. City of New York, 203 A.D.2d. 32, 609 N.Y.S.2d 894 (1st Dept. 1994) (granting access to interviews of investigating officers that might ordinarily be exempt as pre-decisional intra-agency materials where such interviews comprise a factual account); Miller v. Hewlett-Woodmere Union Free School District, N.Y.L.J., May 16, 1990 (Sup. Ct., Nassau County, 1990) (granting access to records of final decision denying request to change schools); Rold v. Coughlin, 142 Misc.2d 877, 538 N.Y.S.2d 896, (Sup. Ct. 1989) (granting access to inmate health care records as factual data and final agency determinations); Faulkner v. DelGiacco, 139 Misc.2d 790, 529 N.Y.S.2d 255 (Sup. Ct. 1988) (granting access to inmates statements as not intra-agency); Matter of Woods, N.Y.L.J. February 2, 1995 (Sup. Ct., New York County, 1995) (Ordering in camera inspection of police follow-up reports (DD-5's) to determine if they contain exempt opinions); Smith v. Capasso, 200 A.D.2d 502, 608 N.Y.S.2d 815 (1st Dept. 1994).

For cases denying access, see Miller v. New York State Dept. of Transp., 58 A.D.3d 981, 871 N.Y.S.2d 489 (3d Dep’t 2009) (Department of Transportation documents are not exempt because they consist of communications with people outside the agency and press releases; contain “objective information” rather than “opinions;” and contain instructions to staff that affect the public); In Re Pro, 69 A.D.3d 1040, 892 N.Y.S.2d 642 (3d Dep’t 2010) (specific documents withheld by the Department of Taxation and Finance met inter and intra-agency exemption because they contained predecisional, nonfinal discussion and recommendations); Marino v. Pataki, 55 A.D.3d 1171, 867 N.Y.S.2d 219 (3d Dep’t 2008) (handwritten notes made in preparation for a presentence investigation report were exempt from disclosure as an “inter-agency material”); Tate v. De Francesco, 217 A.D.2d. 831, 629 N.Y.S.2d 529 (3d Dept. 1995) (denying, after in camera inspection, access to records regarding a prison altercation based on privacy, safety and intra-agency exemptions); Rothenberg v. City University of New York, 191 A.D.2d 195, 594 N.Y.S.2d 210 (1st Dept. 1993) (denying access to documents regarding an individual's failure to achieve the rank of professor); O'Shaughnessy v. New York State Division of State Police, 202 A.D.2d 508 (2d Dept. 1994) (denying access to request for records relating to his application for and subsequent denial to position of State Trooper consisting of opinions, advise, evaluations, conclusions or recommendations); Rowland v. Scully, 152 A.D.2d 570, 543 N.Y.S.2d 497 (2d Dep't 1989), aff'd, 76 N.Y.2d 725, 557 N.E.2d 112, 557 N.Y.S.2d 876 (denying access to assessment forms used to determine placement of an inmate as predecisional evaluations and recommendations); Scott v. Chief Medical Examiner, 179 A.D.2d 443, 577 N.Y.S.2d 861, (1st Dep't 1992) (denying access to police officer's memo book as exempt interagency material and as private property of officer); Rome Sentinel Company v. City of Rome, 174 A.D.2d 1005, 572 N.Y.S.2d 165 (4th Dep't 1991) (denying access to internal review of agency which consisted solely of opinions and subjective material); Mitzner v. Sobol, 173 A.D.2d 1064, 570 N.Y.S.2d 402 (3d Dep't 1991) (interim report and accompanying analysis were predecisional, interagency material exempt from disclosure under FOIL); Stronza v. Hoke, 148 A.D.2d 900, 539 N.Y.S.2d 528, (3d Dep't 1989) (denying access to inmates security assessment summaries as interagency or intra-agency records and as danger to life or safety); Flores v. City of New York, 207 A.D.2d 302, 615 N.Y.S.2d 400 (1st Dept. 1994) (denying access to Internal Affairs Division and Civilian Complaint Review Board as predecisional intra-agency materials); Gannett Satellite Information Network Inc. v. City of Elmira, No. 94-1752 (Sup. Ct., Chemung County, August 26, 1994) (denying access to status reports between City and the New York State Department of Equalization and Assessment as inter-agency material to the extent that they do not contain statistical or factual tabulations or data).

(i) Statistical or factual tabulations or data. For cases on statistical or factual tabulations or data, see Professional Standards Review of America v. New York State Department of Health, 193 A.D.2d 937 (3d Dept. 1993) (backup factual and statistical data to a final determination of an agency is not exempt from disclosure, however, the subjective comments, opinions and recommendations written by committee members are not required to be disclosed and may be redacted); Akras v. Suffolk Department of Civil Service, 137 A.D.2d 523, 524 N.Y.S.2d 266 (2d Dep't 1988) (granting access to factual material relating to reclassification of incumbent position); MacRae v. Dolce, 130 A.D.2d 577, 515 N.Y.S.2d 295 (2d Dep't 1987) (granting access to actual response times of firefighters contained in an exempt planning report); Ingram v. Axelrod, 90 A.D.2d 568, 456 N.Y.S.2d 146 (3d Dep't 1982) (granting access to factual portions of investigative report); Polansky v. Regan, 81 A.D.2d 102, 440 N.Y.S.2d 356 (3d Dep't 1981) (holding that "budget examiner's worksheet" is not automatically excluded from disclosure; in camera review necessary); Miracle Mile Ass'n v. Yudelson, 68 A.D.2d 176, 417 N.Y.S.2d 142 (4th Dep't 1979), appeal denied, 48 N.Y.2d 706, 397 N.E.2d 758, 422 N.Y.S.2d 68 (1979) (granting developer access to factual materials regarding proposed shopping center); Matter of Newsday Inc., N.Y.L.J. (1st Dept. 1992) (granting access to inter-agency audit report to the extent that it contains statistical information); Gannett Satellite Information Network Inc. v. City of Elmira, Index No. 94-1752 (Sup. Ct. Chemung County August 26, 1994) (granting access to factual inventory data compiled by appraisal firm retained by City); Stewart Park and Reserve Coalition v. White, No. 0191-ST2939, (Sup. Ct., Albany County, Sept. 4, 1991) (granting access to statistical and factual data even if latter used to form an opinion); Rold v. Coughlin, 142 Misc.2d 877, 538 N.Y.S.2d 896, (Sup. Ct. 1989) (inmate health care records are factual data and final agency determinations and are available to individual patients and, therefore, are not intra-agency material); Warder v. Board of Regents, 97 Misc.2d 86, 410 N.Y.S.2d 742 (Sup. Ct. 1978) (granting access to notes of Regents meeting consisting of factual data).

(ii) Instructions to staff. For cases on instructions to staff that affect the public, see Miller v. New York State Dept. of Transp., 58 A.D.3d 981, 871 N.Y.S.2d 489 (3d Dep’t 2009) (Department of Transportation documents are not exempt because they contain instructions to staff); Buffalo Broad. Co. v. City of Buffalo, 126 A.D.2d 983, 511 N.Y.S.2d 759 (4th Dep't 1987) (granting access to tapes of police radio broadcasts); Adirondack Park Local Government Review Board v. Adirondack Park Agency, No. 273-81 (Sup. Ct., Essex County, June 24, 1981) (granting access to an agency report from its Legal Affairs Committee).

(iii) Final agency policy or determination. For cases on final agency policy or determinations, see Kheel v. Ravitch, 62 N.Y.2d 1, 464 N.E.2d 118, 475 N.Y.S.2d 814 (1984) (denying access to staff memo prepared for internal use in collective bargaining as nonfinal intra-agency memo); Russo v. Nassau Community College, 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993) (while the nature of a classroom may be one of deliberation, teaching materials used in the course for years constitute final agency policy or determinations); Mitzner v. Sobol, 173 A.D.2d 1064, 570 N.Y.S.2d 402 (3d Dep't 1991) (interim report was predecisional); Grune v. New York State Dept. of Correctional Services, 166 A.D.2d 834, 562 N.Y.S.2d 826 (3d Dep't 1990) (predecisional evaluations, recommendations and conclusions of inmates' conduct in prison are exempt); Village of Tuckahoe v. Public Service Commission, 150 A.D.2d 466, 541 N.Y.S.2d 221 (2d Dep't 1989), motion for leave to appeal denied, 74 N.Y.2d 609 (1989) (predecisional memoranda are exempt); David v. Lewishohn, 142 A.D.2d 305, 535 N.Y.S.2d 793, (3d Dep't 1988), lv. denied, 74 N.Y.2d 610, 546 N.Y.S.2d 554, 545 N.E.2d 868 (denying access to nonfinal recommendations contained in real property transfer data; MacRae v. Dolce, 130 A.D.2d 577, 515 N.Y.S.2d 295 (2d Dep't 1987) (denying access to city planning report as predecisional draft); Bray v. Mar, 106 A.D.2d 311, 482 N.Y.S.2d 759 (lst Dep't 1984) (actions and recommendation of staff or panels represent final agency action when adopted by the agency); Schumate v. Wilson, 90 A.D.2d 832, 456 N.Y.S.2d 11 (2d Dep't 1982) (denying access to minutes, recommendations and similar materials regarding an inmate's temporary release determination); Sinicropi v. County of Nassau, 76 A.D.2d 832, 428 N.Y.S.2d 312 (2d Dep't 1980), appeal denied, 51 N.Y.2d 704, 411 N.E.2d 797, 432 N.Y.S.2d 1028 (1980) (denying access to predecisional materials relating to disciplinary proceeding; charges, pleadings and stipulation of settlement had been provided); Miracle Mile Ass'n v. Yudelson, 68 A.D.2d 176, 417 N.Y.S.2d 142 (4th Dep't 1979), appeal denied, 48 N.Y.2d 706, 397 N.E.2d 758, 422 N.Y.S.2d 68 (1979) (final determinations include decisions at every level of administrative process); McAulay v. Board of Education, 61 A.D.2d 1048, 403 N.Y.S.2d 116 (2d Dep't 1978), aff'd, 48 N.Y.2d 659, 396 N.E.2d 1033, 421 N.Y.S.2d 560 (1979) (denying access to records of advisory hearing panel as predecisional); New York 1 News v. President of the Borough of Staten Island, 166 Misc.2d 270, 631 N.Y.S.2d 479 (Sup. Ct., Kings County 1995) (granting access to portions of staff member's prior oral or written discussion expressly adopted by the agency in explaining its final decision); Rome Sentinel Company v. City of Rome, 145 Misc.2d 183, 546 N.Y.S.2d 304 (Sup. Ct. 1989) (granting disclosure of final determination of fireman's suspension hearing, but denying access to documents which contain allegations, complaints, or witness names); Rold v. Coughlin, 142 Misc.2d 877, 538 N.Y.S.2d 896 (Sup. Ct. 1989) (inmate health care records are factual data and final agency determinations are available to individual patients and, therefore, are not intra-agency material); Faulkner v. DelGiacco, 139 Misc.2d 790, 529 N.Y.S.2d 255 (Sup. Ct. 1988) (denying access to investigative records of prison melee as predecisional material); Montalvo v. City of New York, N.Y.L.J. October 19, 1995 (Sup. Ct., New York County, 1995) (denying access to "final report" because report does not reflect final policy or determinations of the agency; denying access to reports of committee because they reflect only opinions and suggestions of the committee); Gannett Satellite Information Network Inc. v. City of Elmira, Index No. 94-1752 (Sup. Ct. Chemung County, August 26, 1994) (denying access to appraisal figures of appraisers retained by City as professional opinions; not statistical or factual tabulations and data; denying access to status reports between City and the New York State Department of Equalization and Assessment as inter-agency material to the extent that they do not contain statistical or factual tabulations or data).

h. Exemption for examination questions or answers.

Any examination questions or answers which are requested prior to the final administration of such questions are exempt. N.Y. Pub. Off. Law § 87(2)(h) (McKinney 1988). See Social Services Employee Union v. Cunningham, 109 Misc.2d 331, 437 N.Y.S.2d 1005 (Sup. Ct. 1981) (denying access to copies of Civil Service examination questions to allow for re-use); Livoti v. Bahou, No. 8418-81 (Sup. Ct., Albany County, Oct. 2, 1981) (denying access to copies of police sergeant exam questions and answers).

i. Exemption for computer access codes.

Computer access codes are exempt from disclosure. This law was amended recently to include any information that "would jeopardize an agency's capacity to guarantee the security of its information technology assets." N.Y. Pub. Off. Law § 87(2)(i) (McKinney 1988).

j. Exemption for traffic-control signal photographs.

Photographs, microphotographs, video-tape or other recorded images prepared under authority of section eleven hundred eleven-a of the vehicle and traffic law are exempt. N.Y. Pub. Off. Law § 87(2)(j) (McKinney Supp. 1993).