                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 21, 2015                      518887
________________________________

In the Matter of GREGORY
   AURIGEMMA et al.,
                    Respondents,
      v
                                            MEMORANDUM AND ORDER
NEW YORK STATE DEPARTMENT OF
   TAXATION AND FINANCE et al.,
                    Appellants.
________________________________


Calendar Date:   March 24, 2015

Before:   Peters, P.J., Egan Jr., Rose and Lynch, JJ.

                             __________


      Eric T. Schneiderman, Attorney General, Albany (Victor
Paladino of counsel), for appellants.

      Law Office of Barry Leibowicz, Great Neck (Scott Ahroni of
counsel), for respondents.

                             __________


Egan Jr., J.

      Appeals (1) from a judgment of the Supreme Court (Mott,
J.), entered July 1, 2013 in Albany County, which, among other
things, partially granted petitioners' application, in a
proceeding pursuant to CPLR article 78, to review a determination
of respondents partially denying petitioners' Freedom of
Information Law request, and (2) from a judgment of said court,
entered July 30, 2013 in Albany County, which, among other
things, denied respondents' motion for reargument.

      In 2011, respondent Department of Taxation and Finance
undertook a department-wide audit to identify employees who had
overstated their job-related expense deductions on their personal
                              -2-                518887

income tax returns. As a result of this audit, petitioners, all
of whom were employed in the Department's Criminal Investigation
Division, were issued notices in August 2012 advising them to –
in accordance with the provisions of their union contract –
submit to an official interrogation in order to determine whether
disciplinary action was warranted. Petitioners objected to the
interrogation and, in conjunction therewith, filed a Freedom of
Information Law (see Public Officers Law art 6 [hereinafter
FOIL]) request seeking "any and all documents, records, memoranda
and files . . ., which relate, concern, were precipitated by, or
respond to, directly or indirectly, to the . . . proposed
interrogation of [petitioners]." Respondents' records access
officer produced various documents but denied access to, among
other things, 68 pages of documents containing proposed
interrogation questions – citing Public Officers Law § 87 (2) (e)
(iv). Petitioners administratively appealed and, although
certain additional and unrelated documents were released, access
to the 68 pages at issue again was denied.

      Petitioners thereafter commenced this CPLR article 78
proceeding seeking disclosure of the remaining withheld
documents. Following an in camera inspection, Supreme Court, by
judgment entered July 1, 2013, concluded that the 68 pages of
proposed questions did not fall with the exemption set forth in
Public Officers Law § 87 (2) (e) (iv) and ordered the release of
those pages. As to the balance of the requested documents,
Supreme Court concluded that such materials were properly
withheld. Additionally, by judgment entered July 3, 2013,
Supreme Court denied petitioners' request for counsel fees.
Respondents then moved to reargue Supreme Court's July 1, 2013
judgment, apparently contending that Supreme Court overlooked two
additional statutory grounds for the denial of petitioners' FOIL
request relative to the 68 pages at issue,1 and petitioners
cross-moved for reargument of Supreme Court's prior judgments and
certain injunctive relief. By judgment entered July 30, 2013,


    1
        The basis for respondents' motion to reargue apparently
was explained in detail in the accompanying memorandum of law,
which is referenced in Supreme Court's resulting decision but is
not included in the record on appeal.
                              -3-                518887

Supreme Court denied respondents' motion to reargue, granted
petitioners' cross motion to reargue but adhered to its prior
decisions and denied petitioners' request for injunctive relief.
Respondents now appeal from Supreme Court's July 1, 2013 and July
30, 2013 judgments.2

      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 Williamson v Fischer, 116 AD3d 1169, 1170
[2014], lv denied 24 NY3d 904 [2014] [internal quotation marks
and citations omitted]; see Matter of Ward v Gonzalez, 123 AD3d
1345, 1346 [2014]; Matter of MacKenzie v Seiden, 106 AD3d 1140,
1141 [2013]). In this regard, "[e]xemptions are narrowly
construed, with the agency that seeks to prevent disclosure
bearing the burden of demonstrating that the requested material
falls squarely within an exemption by articulating a
particularized and specific justification for denying access"
(Matter of MacKenzie v Seiden, 106 AD3d at 1141 [internal
quotation marks and citations omitted]; see Matter of Ward v
Gonzalez, 123 AD3d at 1346; Matter of Hearst Corp. v New York
State Police, 109 AD3d 32, 34 [2013]).

      Here, in denying access to the 68 pages of proposed
interrogation questions, respondents relied exclusively upon
Public Officers Law § 87 (2) (e) (iv), which exempts from
disclosure "records or portions thereof that . . . reveal
criminal investigative techniques or procedures, except routine
techniques and procedures." The statute – on its face –
references criminal investigative techniques or procedures, and


    2
        Although petitioners cross-appealed from these judgments
and, further, appealed from Supreme Court's July 3, 2013 judgment
denying their request for counsel fees, respondent moved to
dismiss such appeals for failure of prosecution, and this Court
granted that motion in June 2014, dismissing petitioners' appeal
and cross appeals upon default. Accordingly, the only appeals
presently before the Court are respondents' appeals from Supreme
Court's July 1, 2013 and July 30, 2013 judgments.
                              -4-                518887

prevailing case law suggests that this exemption applies only to
a FOIL request that, at the very least, has its genesis in an
underlying criminal investigation or prosecution (see Matter of
Fink v Lefkowitz, 47 NY2d 567, 572 [1979]; Matter of De Oliveira
v Wagner, 274 AD2d 904, 905 [2000]; Matter of Spencer v New York
State Police, 187 AD2d 919, 920-921 [1992]; Matter of Dobranski v
Houper, 154 AD2d 736, 737 [1989]). The record before us makes no
reference to a criminal investigation implicating petitioners,
nor does it suggest that state or local law enforcement officials
would be involved in the proposed interrogation of them. Rather,
the record simply reflects that respondents – in their capacity
as petitioners' employer – sought to question petitioners in
accordance with the provisions of their union contract for the
purpose of gathering information that, in turn, potentially could
result in the commencement of administrative disciplinary
proceedings. Under these circumstances, we find that the law
enforcement exemption embodied in Public Officers Law § 87 (2)
(e) (iv) is inapplicable to the documents at issue. Moreover,
having reviewed these documents, we are satisfied that, even
assuming this exemption otherwise applied here, the questions at
issue were routine in nature – the disclosure of which would not
reveal detailed or specialized investigative techniques or
procedures (compare Matter of Fink v Lefkowitz, 47 NY2d at 572-
573; Matter of Spencer v New York State Police, 187 AD2d at 920-
921; Matter of Dobranski v Houper, 154 AD2d at 737).
Accordingly, the 68 pages at issue are not exempt from disclosure
under the cited exemption.

      Respondents contend, however, that two additional grounds
exist for denying disclosure of the proposed interrogation
questions – namely, Public Officers Law § 87 (2) (e) (i), which
exempts from disclosure records that "interfere with law
enforcement investigations or judicial proceedings," and Public
Officers Law § 87 (2) (g), which exempts predecisional, inter-
agency or intra-agency materials from disclosure. Although
respondents made no mention of the cited exemptions in either the
administrative decisions denying access to the requested
documents, the answer filed in response to the CPLR article 78
petition or the accompanying affidavit submitted by respondents'
records appeal officer, respondents note that such exemptions
were referenced in the "privilege log" that was attached to the
                              -5-                 518887

records appeal officer's affidavit. Hence, respondents assert,
Supreme Court should have considered these two additional grounds
as bases for denying disclosure of the proposed interrogation
questions.

      As a starting point, respondents appear to have advanced
these very arguments in the context of their motion to reargue
before Supreme Court – the denial of which is not appealable (see
Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]). Moreover, while
respondents are correct in noting that there indeed have been
instances where, in the context of a FOIL request, the
administrative agency has been permitted to invoke alternative
grounds for nondisclosure (compare Matter of Williamson v
Fischer, 116 AD3d at 1170 n 2 and Matter of Rose v Albany County
Dist. Attorney's Off., 111 AD3d 1123, 1125 [2013], with Matter of
Loudon House LLC v Town of Colonie, 123 AD3d 1409, 1411 n [2014]
and Matter of Miller v New York State Div. of Human Rights, 122
AD3d 431, 432 [2014]), we are not persuaded that respondents
actually did so here. Simply put, respondents bore two separate
burdens in this matter: first, to articulate "a particularized
and specific justification for denying access" to the requested
documents at the administrative level (Matter of MacKenzie v
Seiden, 106 AD3d at 1141 [internal quotation marks and citations
omitted]) and, second, in the context of the ensuing CPLR article
78 proceeding, to serve an answer containing "pertinent and
material facts showing the grounds of [their] action[s]" (CPLR
7804 [d]). In our view, merely attaching the privilege log to
the records appeal officer's affidavit – without any
corresponding reference to the cited exemptions or any
explanation as to the manner in which such exemptions apply to
the documents at issue – does not satisfy either of those
burdens. As a result, neither of the alternative grounds relied
upon by respondents will be considered by this Court.
Respondents' remaining contentions, to the extent not
specifically addressed, have been examined and found to be
lacking in merit.

     Peters, P.J., Rose and Lynch, JJ., concur.
                              -6-                  518887

      ORDERED that the judgment entered July 1, 2013 is affirmed,
without costs.

      ORDERED that the appeal from the judgment entered July 30,
2013 is dismissed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
