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NYS Court Rejects NYC Mayor's Claim of Exemption Regarding Freedom of Information Law

By Barry Skidelsky, Esq.

Citing the public interest in a transparent government and a presumption of openness, Justice Joan Lobis of the Supreme Court of the State of New York in New York County determined that NYC Mayor Bill De Blasio is not entitled to an exemption from disclosure required by the State's Freedom of Information Law (FOIL) (Public Officers Law §84 et seq).

In a hybrid Article 78 proceeding/action commenced against the Mayor (in his official capacity) by NY1 and the New York Post (a local cable news channel and newspaper, respectively) (Grace Rau, TWC News and Local Programming LLC, Yoav Gonen, and NYP Holdings, Inc. v. De Blasio (NYS Supreme Court, New York County, Index No. 157525/2016,
https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=m4kufpB4k2hsj_PLUS_phHU4aGg==&display=all&courtType=New%20York%20County%20Supreme%20Court), the court rejected the Mayor's claim that requested email correspondence with a local public relations firm were privileged as inter-agency or intra-agency materials under Public Officers Law §87(2)(g).

Finding that the public relations firm is not part of the Mayor's office or any other city agency, and that it had not been hired by the Mayor but is merely advising him on an informal basis, the court sided with the media petitioners, awarded them attorney fees, and directed the Mayor to disclose requested records.

In her decision and order entered on March 23, 2017, Justice Lobis also referred to a 1986 NYS Court of Appeals case, Capital Newspapers Div. of Hearst Corp. v. Burns (67 NY2d 562 (1986)), for the proposition that "where an agency is asserting an exemption limiting availability, not only does it bear the burden of showing that the record withheld falls within a specified exemption, it must articulate a 'particularized and specific justification for denying access.' "

Obviously failing to meet his burden in this case, the Mayor immediately announced an intention to appeal rather than to comply with the court's directive and produce the withheld documents. This case reinforces the idea that freedom of information is important for an informed electorate at all levels of government.

Barry Skidelsky is a NYC based attorney and consultant with a prominent private practice focused on traditional and digital media, entertainment, telecommunications and technology. Barry is a frequent author and speaker, a member of EASL's Executive Committee, and co-chair of its Television and Radio Committee, as well as a former chair of the NY chapter of the Federal Communications Bar Association (whose members' practices in part involve the FCC in Washington DC). Contact Barry at bskidelsky@mindspring.com or 212-832-4800.

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This page contains a single entry from the blog posted on March 24, 2017 11:07 AM.

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