Order: Helene Bernstein M.D. v. State University Of New York (Suny) Upstate Medical University

On December 10, 2019 a Order was filed involving a dispute between Helene Bernstein M.D., and State University Of New York, for Special Proceedings - CPLR Article 78 in the District Court of Onondaga County.

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At a Motion Term of the Supreme
Court of the State of New York,
held in and for the County of
Onondaga on February 25, 2020.
PRESENT: HON.DONALDA.GREENWOOD
Supreme Court Justice

STATE OF NEW YORK
SUPREMECOURT COUNTYOFONONDAGA

HELENE BERNSTEIN, M.D.,
DECISION AND ORDER
Petitioner, ON PETITION

THE STATE UNIVERSITY OF NEW YORK (SUNY)
UPSTATE M EDICAL UNIVERSIl'Y,

Respondent.

For a Judgment pursuant to Article 78 of
the Civil Procedure Law and Rules

APPEARANCES: THOMAS C. BUCKEL, JR., ESQ., OF BUCKEL LAW FIRM, PI,LC
For Petitioner

JOSEPH D. CALLERY, ESQ., ASSISTANT ATTORNf,Y GENERAL,
NEw YORK STATE ATTORNEY GENERAL'S OFFICE and
ANN DOTZLER, ESQ., ASSISTANT COUNSEL, STATE UNIVERSITY
OFNEWYORK
For Respondent

The petition was filed in Decernber of2019 and seeks injunctive and declaratory relief

pursuant to Article 78 and CPLR $ 3001 determining that the respondent has violated Public

Officers Law $$ 84 et seq. (FOIL) and seeks to order the respondent to comply with the law by

providing petitioner with complete unredacted copies of SUNY Upstate University Police

Department Reports conceming a report made against the petitioner and altemative relief that the

Court order an in camera review ofthe responsive records as well as attomey's fees.

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The petition alleges that in July of 2019 petitioner leamed that someone made a false and

malicious compliant about her to the SUNY Upstate University Poticy Department and the

allegation was that she made a death threat against Dr. Silverman and Mark Gilbert. Silverman

was involved in the first petition and is the professor and chair of the OBGYN Department at

SUNY Upstate and Gilbert is the practice administrator there. On the basis of the false report a

waming with petitioner's photo was distributed to security checkpoints throughout Upstate and

Crouse, calling for security personnel to deny petitioner's access to those hospitals. Petitioner

obtained a written statement fiom Crouse that the SUNY University Police undertook an

investigation of the charges against her, which it concluded "with a finding of insufficient

evidence to support the allegation." Petitioner was not arrested or charged with any crime. On

l,tly 26,2019 she sent a FOIL request to the SUNY Upstate Police demanding "all records

relating to myself." She clarified the request on July 29, 2019 by demanding "all Upstate

University Police records relating to myself.'' On August 8, 2019 SUNY denied the request

claiming that disclosure "would constitute an unwarranted invasion ofprivacy" and "would

endanger the life and safety of any person." It did not articulate any details for not disclosing the

information and listed only the statutory language. On August 20,2019 petitioner appealed the

denial without legal counsel and she did not set forth any legal arguments about why the denial

was improper, instead suggesting the denial did not adequately explain the reasons for non-

disclosure and there are insufficient grounds to deny the FOIL request. On November 5,2019

the FOIL Appeals Officer conceded that respondents blanket denial ofthe FOIL request was

improper and determined that the records "may be redacted to protect personal privacy" and

"may appropriately be redacted to remove portions that could endanger the life or safety ofany

person." The Appeals Officer also did not articulate details for redacting portions of the

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documents on privacy or endangerment grounds other than to focus on the protection of the

petitioner's social security number. On October 2, 2019 SUNY delivered fifteen pages of

University Police Reports to petitioner said to be the police records concerning her, with the

reports being mostly redacted. The date, time, place, parties and nature of the alleged conduct

and the identity of the complainants cannot be determined. One redacted part of the document

states "case closed" and no investigation is ongoing by the SUNY police or any other law

enforcement agency. On October 30, 2019 the SUNY Upstate Appeals Officer advised

petitioner that he believes the redactions ofvirtually all information in the reports "were made in

accordance with my decision" and that he considered the appeal closed.

The petition contains one cause ofaction (delineated as Count 1). It alleges that there is

no investigation or criminal proceeding against the petitioner and as such the law enforcernent

exception applies to the subject FOIL request and that SI-INY did not assert the FOIL law

enforcernent exception in redacting most ofthe information. It did not specifz the privacy and

life endangerment at stake in its police reports and accordingly failed to comply with FOIL as a

matter oflaw. Petitioner has waived any privacy protection pursuant to FOIL. FOIL does not

protect privacy rights to someone who files a false report ofa crime, particularly where, as here,

it was investigated and found to be false. It is also alleged there is no potential threat ofphysical

harm to any person based on the false charges against the petitioner and that she is entitled to an

order directing the respondent to produce, without redactions, all of the documents which have

been withheld.

The petitioner argues in her memorandum oflaw that under FOIL an individual can

request records from New York State or a municipal agency. See, Public Officers Law S$ 84

and 89(3). Respondent is an agency subject to FOIL. See, Matter of Citizens for Alternatives to

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Animal Labs v. Board ofTrustees ofSUNY,92 NY2d 357 (1998). The statute does not require

that the party requesting records make any showing ofneed, good faith or legitimate purpose.

Full disclosure by public agencies is, under FOIL, a public right and in the public interest

irrespective ofthe status orthe need ofthe person making the request. See, M Farbman & Sons,

Inc. v. NYC Health and Hospitals Corp.,62 NY2d 45 (1984). FOIL is to be liberally construed

and its statutory exceptions narrowly interpreted. See, Mauer of Data Tree, LLC v. Romaine,9

NY3d 454 (2007). Records are presumptively available for public inspection and copying unless

the agency satisfies its burden of demonstrating that "material requested falls squarely within the

ambit of one of [the] statutory exceptions." Matter of Finkv. LeJkowitz,4T NY2d 6'7 (1979).

While FOIL exemptions are to be narrowly read, they must be given their natural and obvious

meaning where such interpretation is consistent with the legislative intent and the general

purpose and manifest policy underlying the statute. See, Matter of Hanig v. State of New York

Department of Motor Vehicles, T9 NY2d 106 (1992). Where a government agency seeks to

invoke a FOIL exception, such as those afforded by $ 87(2Xb) (personal privacy) and g 87(2)(f)

(potential endangerment of others), it bears the burden of showing the denial was justified. See,

Matter of New York Times Co. v. New York State Executive Chamber,5T Misc.3d 405 (Albany

Co.,2017). To bear its burden, the agency must specifically name the records for which the

exception is claimed, along with the risks presented by supplying the requested records, and

vague allegations and./or attorney affirmations alone do not suffice. See, Matter of New York

Times, supra.

An agency's denial ofa FOIL request is subject to judicial review under Article 78 and

Public Officers Law $ 89(4)(b) provides that the requester first exhausts his or her administrative

remedies under $ 89(4)(a), as petitioner alleges she did here. In an Article 7g review the state

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agency bears the burden ofjustifuing the denial. See, New York State Rifrle & Pistol Association

v. Kelly,55 AD3d222 (l't Dept.2008). To meet that burden, an agency must show the material

is not subject to FOIL disclosure and must "articulate a particularized and specific justification of

denying access." Matter of Capital Newspapers Division of Hearst Corp. v. Burn, 6'7 NY2d 562

( 1986). Such a justification cannot be general and conclusory and must not be contrary to the

purpose and policy of FOIL, which is that a free society is maintained when the govemment is

responsive and responsible to the public and when the public is aware ofgovernmental actions.

See, South Shore Press, Inc. v. Havemeyer, 136 AD3d 929 (2dDept.2006). Blanket exemptions

for particular types of documents are inimical to FOIL's policy of open govemment. See, Matter

of Police Benevolent Association ofNYS, Inc. v. State of New York,145 AD3d 1391 (3'd Dept.

2016). In an Article 78 review the court must examine whether the administrative determination

was made in violation of lawful procedure affected by error of law or was arbitrary, capricious or

an abuse of discretion. See, Matter of Hollander v. Suffolk County Department of Social

Seruices,140 AD3d 1064 (2d Dept. 2016). An arbitrary determination is one without sound

basis in reason and made without regard to the facts. See, Matter of Gotleib v. City of New York,

129 AD3d 724 (2dDept.20l5). With respect to police reports kept during a criminal

investigation, they are subject to FOIL disclosure. See, Buffalo Broadcasting Co. v. City of
Buffalo,126 AD2d 983 (4th Dept. 1987). Purely factual data in police reports such as names,

addresses and physical descriptions of crime victims, witnesses and perpetrators, a checklist that

indicates whether the victims and witnesses have been interviewed and shown photos, whether

the crime scenes have been photographed and dusted for fingerprints and whether neighborhood

residents have been canvassed, as well as the blank space denominated "details" where the

officer records any particulars in the action have been considered "purely factual data." See,

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Gould v. NYC Police Department,89 NY2d 267 (1996). The Court has also granted disclosure

of a police investigation file where witnesses were not promised anonymity. See, Cornell

University v. City of New York Police Department,l53 AD2d 515 (l't Dept. 1989). The Fourth

Department has also rejected a sheriffs practice of withJrolding reports of offenses even where

the person reporting the offense indicated a preference that the incident is not released to the

media. See, Johnson Newspaper Corp. v. Call, 115 AD2d 335 (4th Dept. 1985).

Petitioner argues here that SL.INY did not invoke the law enforcernent exemption of

Public Officers Law $ 87(2)(e), which is a limited law enforcement exemption to withhold police

activity reports if the information would interfere with investigations, identif,z or disclose

confidential information relating to the investigation . See, Matter of Allen v. Strojnowski, 129

AD2d 700 (2d Dept. 1987). Instead without offering details it is argued that it issued a blanket

denial ofpetitioner's request saying merely it was denied in accordance with the exemption.

Respondent contends that it has provided sufficient factual basis for the application ofthe

FOIL exemptions and that production ofrecords without redactions would be against FOIL and

public policy. As a result, the documents were then redacted by the Records Access Officer,

Michael Jurbala, and he provides an affidavit. Respondents raise the following objections in

point of law: that the information contained in the reports is protected from disclosure and such

disclosure would constitute an unwarranted invasion ofpersonal privacy under Public Officers

Law $ 87(2)(b) and endanger the life and safety ofindividuals under $ 87(2)(0; that there is no

public interest weighing in favor ofthe full disclosure ofthe records and the active or inactive

status ofthe investigation does not negate that responsive records and statements they contain

require protection under the statutes; that the claim that the records should be automatically

released without court review is erroneous and that petitioner is not entitled to attomey's fees.

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Respondent provides an affidavit from Michael Jurbala, its Records Access Officer. He

indicates that on July 29,2019 petitioner submitted a FOIL request requesting "all Upstate

University Police Records relating to myself' and all records "that clariry how my records were

used, stored, shared, maintained or destroyed." On that date his office sent a letter

acknowledging the petitioner's request. On August 8, 2019 he issued a decision denying

petitioner's request on the grounds that after review ofthe records the disclosure ofthe records

would constitute an unwarranted invasion ofpersonal privacy under $ 87(2)(b) and disclosure

would endanger the life or safety of any person under $ 87(2X0. Thereafter he received a letter

from SUNY's Freedom of Information Law Appeals Officer, Hank Bennett, dated September 5,

2019, issuing a decision on petitioner's appeal where he found that the records should be

released to petitioner but that the information contained within the records that fell within the

FOIL exemptions as identified in the August 8, 2019letter should be redacted before release. He

also corrected the language ofthe August 8, 2019 decision that the language of $ 87(2)(f)

provides that the safety exemption applies is whether it "could endanger" not "would endanger".

Following the Appeals Officer's decision, he redacted from the records the information that fell

within those two exceptions and provided the documents to petitioner on October 2, 2019.

Those records were comprised of (l) University Police incident reports documenting suspected

crimes or complaints that petitioner had engaged in, harassing or threatening behavior which

would be a threat to public safety; (2) University Police supplemental narrative reports relating to

the investigation of the reported public safety complaints about petitioner; and (3) witness

statements reflecting the identifies ofcertain persons who spoke with police during the

investigation. He notes that given the nature of the police investigation and the fact that multiple

witnesses expressed a concern for their safety with regard to petitioner, the primary concem in

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reviewing and releasing of information to the public was a possibility ofharassment and

retaliation against the sources of information and the witness. In regard to the personal privacy

exemption, the identifoing details redacted from the record provided to the petitioner were as

follows: (l) address and location of incidents; (2) dates and times ofthe incidents; (3) victims'

names, race, sex, skin tone, use ofglasses, date of birth, age, home address, cell numbers, social

security number, work phone and occupation, all which would confirm the individual's identity;

(4) names and job titles of individuals other than the victims who were listed in the narrative

reports; (5) relationships among individuals other than the victim; and (6) situational descriptions

of the incidents that contain identifuing details, such as "X knows where I life", "X knows my

schedule because I fiequent X facilities/offices", "X sent a text message toX containing X

content", etc. He notes that all of the aforementioned examples provide identifring details of

victims, witnesses and third parties identified in the records that would confirm their individual

identity ifdisclosed and fall within the personal privacy exception under $ 87(2)(b). He then

reviewed the records to determine what information fell within $ 87(2X0, the life and safety

exemption. Because multiple witnesses expressed concem for their safety due to threat and

harassment by petitioner and were concemed about possible retaliation, he found it appropriate

to redact information that would identify witnesses. Because those details of the reports had

already been redacted liom the records under the unwarranted invasion ofpersonal privacy

information exemption, removing any threat of endangerment to life or safety, it was not

necessary to make further redactions. He later leamed that petitioner had been placed on an

altemative assignment off campus on May 16,2019, pending an investigation into claims she

had threatened and harassed certain individuals on respondent's campus. At that time respondent

issued petitioner a letterinforming her she was not to come on campus unless she had a specific

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medical reason to do so. In addition, campus security was notified that petitioner was so

instructed.

Respondent also provides an affidavit from Hank Bennett, who is the FOIL Appeals

Officer for SUNY. His decision granted petitioner's appeal in part and directed respondent's

Records Access Officer (RAO) to provide the records petitioner sought in her FOIL request

dated July 29,2019. Those records are comprised entirely of University police records in the

following categories: (l) incident reports documenting situations of concem, including suspected

crimes or concems about harassment and threats made by a suspect that posed a threat to public

safety; (2) supplemental narrative reports by University police officers in connection with their

investigations; and (3) witness statements in which witnesses assert fear ofretribution for

reporting. His decision directed the RAO to redact the responsive records before releasing them

to petitioner so the content that was properly exempt fiom disclosure under two statutory

exemptions would not be disclosed; those being $ 87(2)(b) (unwarranted invasion ofpersonal

privacy) and $ 87 (2)(f) (endangering the life or safety of any person). With respect to the

exemption ofunwarranted invasion ofpersonal privacy, he was guided in his decision by the

language in $ 89(2)(a) instructing that an agency "may delete identifuing details when it makes

records available". Although the RAO denied the responsive records in their entirely based on

the exemption, in his view if identifuing details were deleted there would be a threat of

unwarranted invasion ofpersonal privacy. In accordance with that decision, the identifuing

details that the RAO redacted from the records provided to petitioner included addresses,

location, dates and times, details about the victims, witnesses and third parties, including names,

job titles, relationships with the suspect and other personal information, all of which ifdisclosed

would confirm their identity. With respect to the second exemption of endangering the life or

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safety ofany person, he was guided by the language of $ 87(2Xe) which permits an agency to

"deny access to records or portions thereofthat... (l) ifdisclosed could endanger the life or safety

of any person." However, in addition to the individual who complained of the incidents to

University Police, the identity ofother witnesses and third parties was also contained in the

records. In his role as FOIL Appeal Officer, Bennett claimed he did not appiy the Public

Officers Law exemptions through the lens of his own judgment. He did not assess the validity of

the incidents reported to the University Police but instead followed the letter of the law in

considering the applicability of the exemption fiom disclosure. The status of a University Police

case, i.e. whether it is open or closed, did not impact his decision because that would only be

applicable with respect to the exemption ffom disclosure in $ 87(e), "the law enforcement

exemption". In his role as FOIL Appeals Officer in this case he did not consider the reputation,

status or position ofthe appellant or their purposes for requesting the records or for filing an

appeal. He concludes that he made his decision based on a thoughtful review of the records, the

contents to which was meticulously reviewed and described and that the decision was not made

arbitrarily or capriciously.

Upon review of all the submissions in this mater, the RAO and the Appeals Officer had

sufficient grounds both to exclude personal information, such as social security numbers,

telephone numbers, dates of birth, addresses, etc. {iom the FOIL disclosure. In any event, the

petitioner does not dispute respondent's right to delete these items from its disclosure. However,

based on the respondent's submissions, the respondent failed to articulate ajustification under

the life and safety exemption ofPublic Officers Law 87(2)(!. There was no factual basis

provided in the submissions by the respondent as to the risk posed by the release ofthe records

other than a reciting of the statute itself. Therefore, the Court allowed the parties one week after

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oral argument to resolve the matter and instructed that if they were unable to do so, the Court

would review the redacted documents that were requested in camera. See, DJL Rest Corp. v.

Department of Buildings of the City of New York,273 AD2d 167 (1't Dept. 2000).

The respondent's argument that "the possibility of the petitioner threatening or harassing

the victims, the witnesses or others for making such report to the University Police and

cooperating with their investigation weighs heavily against revealing information that identifies

witnesses and the victims within the documents" (see, Affidavit of Michael Jurbala; see also,

Asian American Legal Defense and Education Fund, 125 AD3d 531 [1"1 Dept. 2015]) is

misplaced. The Asian Amen can case deals with danger to the public because ofpotential

terrorist threats. Other cases that describe records that have been withheld and sanctioned by

Courts deal with people with prior violent conduct (see, Justice v. Commissioner of New York

State Department of Corrections,l30 AD3d 1342 [3'd Dept. 2015]) or the requestor having been

convicted of an unrelated murder (see, Matter of Exoneration Initiative 1).New York City Police

Department,l32 AD3d 545 ['t Dept. 2015]).

The records reviewed by this Court are not self-evident that there could be a danger to

any individual ifthe records are released. There is no allegation of any violent history or

conduct by the petitioner. The parties in this matter had a dispute involving a research project of

the petitioner that was cancelled. Litigation in this Court ensued. The petitioner is alleged to

have made remarks, threatening the careers ofthose she felt responsible for cancelling her

project. The parties express concem that their reports to the University Police could subject

them to retribution. There is also a conclusory statement that the third-party statement allegedly

made by petitioner could be interpreted as a physical threat, and it is thisstatement that is relied

on by the respondent. These statements were reported to the University Police several months

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after the conversation took place. No arrests were made, no prosecution ensued, and no orders of

protection were issued. Furthermore, the state has failed to provide the Court with any threat

assessment based on factual information that the petitioner could be a danger to any individual

by the release of these records. Thus, the determination of the Record Access Appeals Officer

that the records requested are exempt from disclosure "could endanger the life or safety ofany

person" is arbitrary, capricious, an abuse ofdiscretion and without basis in fact or law.

Therefore, subject to redaction for personal information, the records should be released by the

respondents. The documents provided to the Court in camera willbe retumed to respondent to

make the necessary redactions. The redactions should not include situational descriptions of the

incidents with identifuing details, as this improperly allows essentially complete redaction of the

record contrary to the intent of the statute.

Attomeys fees are only allowed within the Court's discretion if the petitioner

substantially prevails. That is not the case here.

NOW, therefore, for the foregoing reasons, it is

ORDERED, that the subject requested records be redacted for any personal information,

including but not limited to names, addresses, phone numbers, social security numbers, e-mail

addresses, age, dates ofbirth, etc., and it is further

ORDERED, that the respondent release the subject records, that were submitted to the

Court rz camela, to the petitioner within fifteen ( 15) days, except for aforesaid redactions, and it

is further

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ORDERED, that the request for attomey's fees is Denied.

ENTER

Dated: March
Syracuse,
12,2020
New York
q-1il -/, ),2-/
NALD A. G ENWOOD
Supreme Court Justice

Papers Considered:

I . Notice of Petition, undated, filed on December 10, 2019.

2. Verified Petition, dated November 25,2019, verified December 6,2019, and attached
exhibits.

3. Memorandum of Law in Support of Verified Petition, undated, filed on December 10,
2019.

4. Answer of Respondent dated February 20, 2020.

5. Respondent's Memorandum of Law in Opposition to Verified Petition, dated February
20,2020.

6. Affidavit of Michael Jurbala dated February 19,2020

7. Affidavit of Hank Bennett dated February 19,2020.

8. Petitioner's Reply Affidavit dated February 20,2020, and attached exhibits.

9. Petitioner's Reply Memorandum of Law in support of Verified Petition, undated, filed
February 24,2020.

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Document Filed Date

March 12, 2020

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December 10, 2019

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Order: Helene Bernstein M.D. v. State University Of New York (Suny) Upstate Medical University

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