NY Court of Appeals denies FOIL request

New York state’s highest court has reversed a lower court ruling and blocked the release of records sought under the state’s Freedom of Information Law (FOIL).

James C. Russell submitted a FOIL request to the town of Mount Pleasant, in Westchester County, asking for the names and email addresses of all subscribers to the town’s online news alert system.

“We conclude that the town established that the privacy interests in keeping the information confidential are weighty, and that disclosure of the requested records would serve no public interest,” Judge Jenny Rivera wrote for the New York State Court of Appeals.

“Accordingly, the town properly denied the FOIL request on the basis that disclosure would constitute an unwarranted invasion of personal privacy. Therefore, we reverse the Appellate Division’s order,” Rivera wrote.

The town uses a notification system called “E-news” to send subscribers email alerts regarding news, updates, or announcements relating to the town.

Russell’s request relied on the Appellate Division’s decision in Matter of Livson v Town of Greenburgh,  a 2016 Second Department decision.

In that decision, the neighboring town of Greenburgh was required under FOIL to disclose a similar email subscriber list because the town had failed to “articulate any privacy interest that would be at stake.”

Russell’s request also stated that he would not reproduce, redistribute, or circulate the names or email addresses or use the information for solicitation, fundraising, or any commercial purpose — the same conditions that the court imposed in Livson.

Mount Pleasant officials initially denied the request on the ground that they did not possess the requested records. Russell administratively appealed and the town supervisor, serving as records access appeals officer, replied “expressing discomfort with disclosing the requested records without the consent of the subscribers and stating that he would look into the request and wait for a legal opinion,” according to the Court of Appeals decision.

After the town failed to render a decision on the administrative appeal, Russell filed an Article 78 petition seeking to compel disclosure and for an award of litigation costs.

The town responded that the records are exempt from disclosure because disclosure would constitute an unwarranted invasion of personal privacy.

A survey of E-news subscribers showed that 218 of the 220 respondents stated that they did not consent to the disclosure of their email addresses.

The town also submitted an affidavit from its cybersecurity manager. He averred that disclosure of the requested records could expose E-news subscribers to “unnecessary cybersecurity risks.”

The petition was granted in state Supreme Court, which also ordered disclosure of the records subject to the same conditions as in Livson, but denied Russell’s request for litigation costs.

The town appealed and the Appellate Division affirmed the Supreme Court order, holding that the town failed to demonstrate that the privacy interests at stake outweighed the public interest in disclosure.

The Appellate Division concluded that the town’s cybersecurity risks were “speculative and the town failed to show that disclosure . . . under the conditions imposed … would make the subscribers or the town more susceptible to such risks.”

The town appealed to the Court of Appeals.

Attorneys for the town argued that disclosure of the records would constitute an unwarranted invasion of personal privacy and is therefore exempt under FOIL.

“We agree,” Rivera wrote.

At the Court of Appeals, Russell argued, for the first time, that the town’s invocation of the statutory privacy exemption is unpreserved.

“We disagree,” Rivera wrote.

“First, petitioner’s FOIL request relied solely on Livson, which balanced the private and public interests at stake and concluded that the list of names and email addresses in that case was not exempt under FOIL,” she wrote.

“Second, although the town supervisor did not expressly rule on petitioner’s FOIL request, resulting in a constructive denial, he responded to petitioner’s administrative appeal by relaying his concern about the E-news subscribers’ privacy interests in their personal information,” she wrote.

“Thus, under the circumstances of this case, we conclude that the Town adequately preserved its privacy arguments,” she wrote.

“The balancing of the interests at issue here lands squarely in favor of the subscribers’ privacy interests,” Rivera wrote.

“Contrary to the Appellate Division’s conclusion, the town’s assertions regarding the potential risks to E-news subscribers … were not speculative,” she wrote.

“Nothing is gained by the public from disclosure of these subscribers’ email addresses and accompanying names. Lastly, petitioner concedes that there are other ways he can attempt to reach Town residents using social media,” according to the decision.

“Accordingly, the Appellate Division order should be reversed, with costs, and the petition dismissed.”

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