State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 522757 

________________________________

In the Matter of JAMES LAVECK,

Appellant,

v MEMORANDUM AND ORDER

VILLAGE BOARD OF TRUSTEES OF

THE VILLAGE OF LANSING,

Respondent.

________________________________

Calendar Date: October 14, 2016

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

__________

Trevor J. DeSane, Center for Wildlife Ethics Inc., New York

City, for appellant.

William J. Troy III, Ithaca, for respondent.

__________

Clark, J.

Appeal from a judgment of the Supreme Court (Rumsey, J.),

entered December 24, 2015 in Tompkins County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to review a determination of the Mayor of the Village

of Lansing partially denying petitioner's Freedom of Information

Law request.

In conjunction with the Department of Environmental

Conservation and Cornell University, the Village of Lansing, a

municipal corporation located in Tompkins County, participates in

a deer management program that, subject to various restrictions,

allows approved hunters to hunt and kill deer with bows and

arrows on the private property of consenting landowners in the

Village. In January 2015, petitioner submitted a Freedom of

Information Law (see Public Officers Law art 6 [hereinafter
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FOIL]) request to respondent seeking numerous documents relating

to the Village's deer management activities, including all

communications with property owners in the Village. In response,

Jodi Dake, the Village clerk and treasurer, provided petitioner

with a list of documents that would be made available to him upon

payment of copying costs (see Public Officers Law § 87 [1] [b]

[iii]), as well as the cost of employee time required to prepare

the copies. Dake explained that some of the documents could not

be reproduced electronically, as requested by petitioner, due to

redactions that were necessary "to protect information that

would, if disclosed, result in an unwarranted invasion of

personal privacy and could, if disclosed, endanger the life and

safety of persons."

Petitioner appealed to the Mayor (see Public Officers Law 

§ 89 [4] [a]), asserting, among other things, that the

justifications provided for the redactions were insufficient and

that the imposition of costs for redacted copies and employee

preparation time was improper. The Mayor, concluding that

petitioner's "[r]equest involved records that included material

that could properly be redacted," upheld the imposition of

copying costs incurred as a result of the redactions, but

determined that petitioner could not be charged for employee

preparation time. Petitioner then commenced this CPLR article 78

proceeding seeking, among other things, an order directing

respondent to provide complete and unredacted electronic copies

of all requested records. Following joinder of issue, Supreme

Court dismissed the petition, concluding that the safety and

lives of landowners who participated in the deer management

program could be endangered by the release of information

revealing their identities and therefore such information was

exempt from disclosure under Public Officers Law § 87 (2). 

Petitioner appeals. 

Under FOIL, "[a]ll government records are . . .

presumptively open for public inspection and copying unless they

fall within one of the enumerated exemptions of Public Officers

Law § 87 (2)" (Matter of Gould v New York City Police Dept., 89

NY2d 267, 274-275 [1996]; see Matter of Johnson v Annucci, 138

AD3d 1361, 1362 [2016], lv denied 27 NY3d 911 [2016]). These
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exemptions are construed narrowly and the burden rests on "the

public agency to demonstrate that 'the material requested falls

squarely within the ambit of one of the[] statutory exemptions'"

(Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359,

362 [2002], quoting Matter of Fink v Lefkowitz, 47 NY2d 567, 571

[1979]; see Public Officers Law § 89 [4] [b]; Matter of ColumbiaGreene Beauty Sch., Inc. v City of Albany, 121 AD3d 1369, 1370

[2014]). "[T]he [public] agency must articulate 'particularized

and specific justification' for not disclosing requested

documents" (Matter of Gould v New York City Police Dept., 89 NY2d

at 275, quoting Matter of Fink v Lefkowitz, 47 NY2d at 571; see

Matter of Rose v Albany County Dist. Attorney's Off., 111 AD3d

1123, 1125 [2013]); conclusory assertions, unsupported by facts,

will not suffice (see Church of Scientology of N.Y. v State of

New York, 46 NY2d 906, 907-908 [1979]; Matter of Rose v Albany

County Dist. Attorney's Off., 111 AD3d at 1126; Matter of

Carnevale v City of Albany, 68 AD3d 1290, 1292 [2009]).

To justify the redaction of the names, addresses and other

identifying information relating to participants in the deer

management program,1 respondent asserts that disclosure of this

information "would constitute an unwarranted invasion of personal

privacy" (Public Officers Law § 87 [2] [b]) or "could endanger

the li[ves] or safety" of the participants (Public Officers Law

§ 87 [2] [f]). Turning first to the personal privacy exemption,

respondent failed to demonstrate that the redacted information

fell into any of the categories of information that the

Legislature has specifically determined would qualify as an

unwarranted invasion of personal privacy if disclosed (see Public

Officers Law § 89 [2] [b]). In the absence of proof establishing

the applicability of one of these specifically-enumerated

categories, we evaluate whether disclosure would constitute an

unwarranted invasion of personal privacy "by balancing the

privacy interests at stake against the public interest in

1 While the unredacted documents at issue were not provided

to this Court, and Supreme Court did not conduct an in camera

review, respondent represented at oral argument that the redacted

information was restricted to the names, addresses and other

information that would identify participants in the program.
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disclosure of the information" (Matter of New York Times Co. v

City of N.Y. Fire Dept., 4 NY3d 477, 485 [2005]; accord Matter of

Massaro v New York State Thruway Auth., 111 AD3d 1001, 1002

[2013]; Matter of Hearst Corp. v City of Albany, 88 AD3d 1130,

1132 [2011]). Respondent, however, has not articulated the

implicated privacy interests, if any, that are to be weighed

against the community's interest in knowing the locations in

which deer-hunting activities may take place. Furthermore,

respondent offered no proof that participants in the program had

any expectation that their identities would remain strictly

confidential. Rather, it is clear that the success of the

program depends upon the release of the addresses of consenting

landowners to approved hunters. In short, respondent failed to

establish that disclosure of the participants' names, home

addresses or other personal identifying information would

constitute an unwarranted invasion of personal privacy (see

Public Officers Law §§ 87 [2] [b]; 89 [2] [b]; Matter of

Schenectady County Socy. for the Prevention of Cruelty to

Animals, Inc. v Mills, 74 AD3d 1417, 1419 [2010], affd 18 NY3d 42

[2011]; Matter of Carnevale v City of Albany, 68 AD3d at 1292).

Nor did respondent demonstrate that disclosure of the

redacted information "could endanger the li[ves] or safety" of

the program's participants (Public Officers Law § 87 [2] [f]). 

While respondent was only required to demonstrate "'a possibility

of endangerment'" (Matter of Bellamy v New York City Police

Dept., 87 AD3d 874, 875 [2011], affd 20 NY3d 1028 [2013], quoting

Matter of Connolly v New York Guard, 175 AD2d 372, 373 [1991];

see Matter of Johnson v Annucci, 138 AD3d at 1362), respondent's

submissions, which included the affidavits of Dake and the Mayor

of the Village of Cayuga Heights, which adjoined the Village of

Lansing, fell short of such demonstration. Dake merely stated

that deer management programs "can be contentious" and that board

members of the Village of Cayuga Heights had received threats

when they "considered" those programs. The Mayor of the Village

of Cayuga Heights confirmed that "[p]roponents of [the] culling

operation, including [her] and other Village officials, ha[d]

received death threats and other threats of personal harm." 

However, neither affidavit established that similar threats had

been made in the Village of Lansing or that participation in the
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deer management program was controversial in that community. 

Moreover, there was no indication that participants in the

program, who were known to each other and whose participation

could be discovered through observation, had received any

threats. As respondent failed to demonstrate the possibility of

endangerment in its community, it could not rely on Public

Officers Law § 87 (2) (f) to justify the redactions (see Matter

of Mack v Howard, 91 AD3d 1315, 1316 [2012]; Matter of Carnevale

v City of Albany, 68 AD3d at 1292). 

Having failed to establish the applicability of a statutory

exemption, respondent improperly redacted the names, addresses

and other identifying information of participants in the deer

management program (see Matter of Schenectady County Socy. for

the Prevention of Cruelty to Animals, Inc. v Mills, 74 AD3d at

1418; Matter of Carnevale v City of Albany, 68 AD3d at 1292). 

Consequently, respondent is directed to provide petitioner with

unredacted copies of the requested documents, in electronic form

if possible. Finally, although petitioner has substantially

prevailed in this proceeding, we decline to award him counsel

fees and costs, inasmuch as the redactions were made in good

faith (see Public Officers Law § 89 [4] [c]; compare Matter of

New York State Defenders Assn. v New York State Police, 87 AD3d

193, 197 [2011]). 

Petitioner's remaining contentions relating to the

imposition of copying costs are rendered academic by our

determination.

McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
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ORDERED that the judgment is modified, on the law, without

costs, by reversing so much thereof as dismissed that part of the

petition seeking to compel respondent to provide complete and

unredacted electronic copies of all records responsive to his

Freedom of Information Law request; petition granted to that

extent; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court