New York's highest court explains scope of 'law enforcement purposes' FOIL exemption

by Jeffrey Mongelli

On Board Online • November 20, 2017

By Jeffrey Mongelli
Senior Staff Counsel

Pursuant to the Freedom of Information Law (FOIL), school districts are required to "make available for public inspection and copying all records" unless the request can be lawfully denied under one of the exemptions set forth in the statute. One statutory exemption permits school districts to deny public access to records that are "compiled for law enforcement purposes and which, if disclosed, would" either "interfere with law enforcement investigations or judicial proceedings" or "reveal criminal investigative techniques or procedures, except routine techniques and procedures." A recent decision by New York's highest court explains how this exemption applied to the State Education Department and provides guidance on how it could apply to requests made to school districts and BOCES.

In Matter of Madeiros v. New York State Education Department, the Court of Appeals analyzed the meaning of "law enforcement purposes" and concluded that this exemption is not limited to records compiled in connection with "criminal investigations and punishment of violations of the criminal law."

The case involved audits of preschool special education programs. Due to a finding by the state comptroller of widespread fraud and abuse in the reporting of allowed costs in these programs, statutory amendments were enacted in 2013 to allow municipalities to recover overpayments and retain disallowed costs discovered through audits. Commissioner's regulations were amended to require municipalities to submit audit plans and audit programs for state approval.

The petitioner, an attorney, requested disclosure of audit programs and audit plans submitted by municipalities or school districts, whether "approved, not approved, disapproved, pending or such other status."

The State Education Department (SED) denied this request because the records "would interfere with investigations of compliance with the provisions of the reimbursable cost manual and the preschool special education rate setting system."

Madeiros commenced court proceedings after SED denied an appeal from that decision. Prior to submitting an answer to Madeiros' court papers, SED made available a redacted version of some of the documents sought in the FOIL request.

The first issue the court addressed was whether the redacted portions of the records were properly withheld from disclosure pursuant to the "law enforcement purposes" exemption. Because the term "law enforcement purposes" is not defined in FOIL, the court turned to Black's Law Dictionary definition of "law enforcement" which is "not limited to the enforcement of criminal laws." The court concluded that the exemption "does not apply solely to records compiled for law enforcement purposes in connection with criminal investigations and punishment of violations of the criminal law." In addressing whether this exemption applied to the audits in question, the court described the audits as "not simply routine fiscal audits." Rather, in the statutory amendments of 2013, the Legislature sought to increase the "efficacy of audit procedures in an effort to strengthen enforcement measures," the court said.

The court concluded that the records were compiled for law enforcement purposes and that the redactions were necessary to prevent interference with a law enforcement investigation. The court echoed SED's explanation that releasing specific methods and procedures used by auditors in particular counties would supply providers subject to audit with "a roadmap to avoid disclosure of inappropriate costs." Having comprehensive information about the audits "would enable such providers to more effectively conceal fraudulent and criminal activities, thereby undermining the audit process," the decision said.

Another issue addressed by the court was whether SED was entitled to invoke an additional statutory exemption that it had failed to mention in its denial of the FOIL request. The court said "to allow it [to] do so now would be contrary to our precedent, as well as to the spirit and purpose of FOIL." The decision underscores the importance of including all potentially relevant exemptions in responses to FOIL requests.

Lastly, the court addressed whether the petitioner was entitled to attorney's fees. Pursuant to the Public Officers Law, a petitioner may be awarded attorney's fees when the petitioner "has substantially prevailed" in the proceeding and the agency either lacked a reasonable basis for denying access or "failed to respond to a request or appeal within the statutory time." According to the court, SED made no disclosure, redacted or otherwise, prior to the start of the legal proceeding. Therefore, petitioner's action ultimately succeeded in obtaining substantial post-commencement disclosure of records responsive to her FOIL request. Deeming that Madeiros "substantially prevailed," the court remitted the case to the lower court for a determination regarding an award of attorneys' fees.

Issues involving FOIL responses can be complicated and school districts should consult with their attorney to accurately determine what particular statutory exemptions might apply.

Editor's Note: The plaintiff in the case, Pamela A. Madeiros, is an Albany attorney who represents 150 special education programs throughout the state. She filed a FOIL request in an effort to get more details about what audits by county governments would involve.

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