State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 28, 2016 520926 

________________________________

In the Matter of JOHNATHAN

JOHNSON,

Appellant,

v

MEMORANDUM AND ORDER

ANTHONY J. ANNUCCI, as 

Commissioner of Corrections

and Community Supervision,

et al.,

Respondents.

________________________________

Calendar Date: March 21, 2016

Before: Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

__________

Johnathan Johnson, Malone, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.

Lang of counsel), for respondents.

__________

Devine, J.

Appeal from a judgment of the Supreme Court (Feldstein,

J.), entered April 2, 2015 in Franklin County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to review a determination of the Department of

Corrections and Community Supervision denying certain requests

under the Freedom of Information Law. 

In June 2014, petitioner, a prison inmate at Upstate

Correctional Facility, filed a Freedom of Information Law (see

Public Officers Law art 6 [hereinafter FOIL]) request seeking to

obtain information on certain visitors contained in the
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facility's visitor log for May 31, 2014. Petitioner was informed

that his request was satisfied and that, upon paying the copying

cost (see Public Officers Law § 87 [1] [b] [iii]), he would be

provided with one redacted page of the visitor log book

reflecting the name of a visitor that he had on May 31, 2014. 

Petitioner thereafter filed an administrative appeal clarifying

that he was seeking information in the log about another inmate's

visitor and demanding that Department of Corrections and

Community Supervision (hereinafter DOCCS) officials contact that

visitor and obtain her written consent to the disclosure of her

name and address to petitioner. Having received no response

within the statutory time frame (see Public Officers Law § 89

[4]), petitioner commenced this CPLR article 78 proceeding. 

After the commencement of this proceeding, DOCCS denied his

administrative appeal. Supreme Court ultimately dismissed the

petition and agreed with respondents that petitioner's request

constituted an unwarranted invasion of privacy and a potential

endangerment to the visitor's life or safety and, furthermore,

that DOCCS had no obligation to contact the visitor. Petitioner

now appeals.

We affirm. "Under FOIL, agency records are presumptively

available for public inspection, without regard to the need or

purpose of the applicant, unless the requested documents fall

within one of the exemptions set forth in Public Officers Law

§ 87 (2)" (Matter of Hearst Corp. v New York State Police, 109

AD3d 32, 34 [2013] [citations omitted]; see Matter of Aurigemma v

New York State Dept. of Taxation & Fin., 128 AD3d 1235, 1236-1237

[2015]). Public Officers Law § 87 (2), as is relevant here,

exempts from disclosure materials that would "constitute an

unwarranted invasion of personal privacy" (Public Officers Law

§ 87 [2] [b]) or "could endanger the life or safety of any

person" (Public Officers Law § 87 [2] [f]). With regard to the

latter, "the agency invoking this exemption need only demonstrate

a possibility of endangerment" (Matter of Williamson v Fischer,

116 AD3d 1169, 1170-1171 [2014] [internal quotation marks and

brackets omitted], lv denied 24 NY3d 904 [2014]; see Matter of

Hynes v Fischer, 101 AD3d 1188, 1190 [2012]; Matter of Bellamy v

New York City Police Dept., 87 AD3d 874, 875 [2011], affd 20 NY3d

1028 [2013]). We agree with Supreme Court that providing a

prison inmate with personal information regarding another
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inmate's visitor – which could be shared with associates in the

community – could expose that visitor to harassment or harm and

endanger his or her life or safety (see Public Officers Law § 87

[2] [f]; Matter of Letizia v Graham, 119 AD3d 1296, 1298 [2014],

lv denied 24 NY3d 912 [2015]; Matter of Williamson v Fischer, 116

AD3d at 1170; Matter of Bellamy v New York City Police Dept., 87

AD3d at 875; Matter of Deane v Annucci, 248 AD2d 760, 761

[1998], lv denied 92 NY2d 804 [1998]). Moreover, FOIL does not

obligate DOCCS to affirmatively solicit the consent of a visitor

to the release of his or her personal information (see generally

Public Officers Law § 89 [3] [a]; [5] [g]). Petitioner's

remaining contentions, to the extent that they are properly

before us, have been examined and found to be lacking in merit. 

Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court