                          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
                              -2-                522757

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
                              -3-                522757

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 Columbia-
Greene 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.
                              -4-                522757

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
                              -5-                522757

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.
                              -6-                  522757

      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
