Aurigemma v. New York State Department of Taxation & Finance

Appeals (1) from a judgment of the Supreme Court (Mott, J.), entered July 1, 2013 in Albany County, which, among other things, partially granted petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of respondents partially denying petitioners’ Freedom of Information Law request, and (2) from a judgment of said court, entered July 30, 2013 in Albany County, which, among other things, denied respondents’ motion for reargument.

In 2011, respondent Department of Taxation and Finance undertook a department-wide audit to identify employees who had overstated their job-related expense deductions on their personal income tax returns. As a result of this audit, petitioners, all of whom were employed in the Department’s Criminal Investigation Division, were issued notices in August 2012 advising them to — in accordance with the provisions of their

Here, in denying access to the 68 pages of proposed interrogation questions, respondents relied exclusively upon Public Officers Law § 87 (2) (e) (iv), which exempts from disclosure “records or portions thereof that. . . reveal criminal investigative techniques or procedures, except routine techniques and procedures.” The statute — on its face — references criminal investigative techniques or procedures, and prevailing case law suggests that this exemption applies only to a FOIL request that, at the very least, has its genesis in an underlying criminal investigation or prosecution (see Matter of Fink v Lefkowitz, 47 NY2d 567 , 572 [1979]; Matter of De Oliveira v Wagner, 274 AD2d 904 , 905 [2000]; Matter of Spencer v New York State Police, 187 AD2d 919 , 920-921 [1992]; Matter of Dobranski v Houper, 154 AD2d 736 , 737 [1989]). The record before us makes no reference to a criminal investigation implicating petitioners, nor does it suggest that state or local law enforcement officials would be involved in the proposed interrogation of them. Rather, the record simply reflects that respondents — in their capacity as petitioners’ employer — sought to question petitioners in accordance with the provisions of their union contract for the purpose of gathering information that, in turn, potentially could result in the commencement of administrative disciplinary proceedings. Under these circumstances, we find that the law enforcement exemption embodied in Public Officers Law § 87 (2) (e) (iv) is inapplicable to the documents at issue. Moreover, having reviewed these documents, we are satisfied that, even assuming this exemption otherwise applied

Respondents contend, however, that two additional grounds exist for denying disclosure of the proposed interrogation questions — namely, Public Officers Law § 87 (2) (e) (i), which exempts from disclosure records that “interfere with law enforcement investigations or judicial proceedings,” and Public Officers Law § 87 (2) (g), which exempts predecisional, inter-agency or intra-agency materials from disclosure. Although respondents made no mention of the cited exemptions in either the administrative decisions denying access to the requested documents, the answer filed in response to the CPLR article 78 petition or the accompanying affidavit submitted by respondents’ records appeal officer, respondents note that such exemptions were referenced in the “privilege log” that was attached to the records appeal officer’s affidavit. Hence, respondents assert, Supreme Court should have considered these two additional grounds as bases for denying disclosure of the proposed interrogation questions.

As a starting point, respondents appear to have advanced these very arguments in the context of their motion to reargue before Supreme Court — the denial of which is not appealable (see Schillaci v Sarris, 122 AD3d 1085 , 1087 [2014]). Moreover, while respondents are correct in noting that there indeed have been instances where, in the context of a FOIL request, the administrative agency has been permitted to invoke alternative grounds for nondisclosure (compare Matter of Williamson v Fischer, 116 AD3d at 1170 n 2, and Matter of Rose v Albany County Dist. Attorney’s Off., 111 AD3d 1123 , 1125 [2013], with Matter of Loudon House LLC v Town of Colonie, 123 AD3d 1409 , 1411 n [2014], and Matter of Miller v New York State Div. of Human Rights, 122 AD3d 431 , 432 [2014]), we are not persuaded that respondents actually did so here. Simply put, respondents bore two separate burdens in this matter: first, to articulate “a particularized and specific justification for denying access” to the requested documents at the administrative level (Matter of MacKenzie v Seiden, 106 AD3d at 1141 [internal quotation marks and citations omitted]) and, second, in the context of the ensuing CPLR article 78 proceeding, to serve an answer containing “pertinent and material facts showing the

Peters, P.J., Rose and Lynch, JJ., concur. Ordered that the judgment entered July 1, 2013 is affirmed, without costs. Ordered that the appeal from the judgment entered July 30, 2013 is dismissed, without costs.