In the Matter of Newsday, LLC v County of Nassau
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Attorneys and Parties
Brief Summary
A media company sought government records under the Freedom of Information Law (FOIL) (Public Officers Law article 6) [makes agency records presumptively open to public inspection and copying unless specifically exempted], including Nassau County cybersecurity contracts and the Nassau County Executive's past public calendars.
The Supreme Court, Nassau County, denied the CPLR article 78 petition and dismissed the proceeding, accepting the County's reliance on Public Officers Law § 87(2)(i) [exempts material that, if disclosed, would jeopardize the capacity of an agency or a sharing entity to guarantee the security of its information technology assets] and Public Officers Law § 87(2)(f) [permits an agency to deny access to records that, if disclosed, could endanger the life or safety of any person].
The Appellate Division overturned the denial of the branches of the petition seeking the cybersecurity contracts, the County Executive's public calendars, and attorneys' fees, and remitted for in camera review of the records and a new determination.
The County's affidavits and affirmation were too conclusory and did not specifically explain how disclosure of limited contract information such as vendor names, cost, and duration, or any portion of past public calendars, would fit the claimed FOIL exemptions. Because the records were not in the appellate record, the proper remedy was in camera inspection and disclosure of nonexempt material with redactions as needed.
Background
In April 2023, Newsday requested all Nassau County cybersecurity contracts in effect for the prior five years. The County denied the request under Public Officers Law § 87(2)(i), asserting disclosure could jeopardize its information technology security, and denied Newsday's administrative appeal. In September 2023, Newsday requested the Nassau County Executive's public calendars for January 1, 2022, through June 30, 2023. The County denied that request under Public Officers Law § 87(2)(f), asserting disclosure would endanger the County Executive's safety, and then failed to respond to Newsday's administrative appeal. Newsday brought this proceeding under CPLR article 78 and sought attorneys' fees and litigation costs under Public Officers Law § 89(4)(c) [authorizes attorneys' fees and litigation costs in certain FOIL proceedings].
Lower Court Decision
The Supreme Court, Nassau County, denied the petition in full and, in effect, dismissed the proceeding, upholding the County's refusal to disclose both categories of records.
Appellate Division Reversal
The Appellate Division modified the judgment. It held that the County failed to provide the required particularized and specific justification for withholding the requested cybersecurity contract information and failed to show that disclosure of any portion of the County Executive's past public calendars could endanger life or safety. The court directed the County to produce the requested records in unredacted form for in camera inspection by the Supreme Court, Nassau County, so that the lower court can decide what, if anything, may properly be redacted before disclosure. The request for attorneys' fees and costs was deemed premature and was also remitted for a new determination after the in camera review.
Legal Significance
The decision reinforces that FOIL exemptions are to be narrowly construed and that agencies bear a heavy burden to justify nondisclosure with concrete, record-specific facts. Generalized claims about cybersecurity risks or personal safety are insufficient, especially where the requester seeks limited information or historical calendars. When a court cannot determine from the submissions whether documents are entirely exempt, it should conduct an in camera review and order disclosure of all nonexempt material with only appropriate redactions.
A New York agency cannot withhold entire sets of records under FOIL based on broad security assertions; it must show specifically why the particular information sought is exempt, and courts should use in camera review to separate truly sensitive material from information that must be disclosed.