Supreme Court, Rensselaer County, August 13, 2024

Lippes Mathias Wexler Friedman LLP, Albany (Lawrence Schaefer of counsel), for petitioner.

Office of College General Counsel, Averill Park (Scott J. Ely of counsel), for Hudson Valley Community College and others, respondents.

Following a serious assault on the grounds of the Hudson Valley Community College (hereinafter HVCC), respondents^[FN1] {**85 Misc 3d at 455}hired an independent contractor to perform a Physical Security Assessment (the Assessment) that identified dozens of "vulnerabilities." Petitioner, respondents' largest employee union, whose membership mostly works on the college campus, sought access to the Assessment via a Freedom of Information Law (Public Officers Law art 6 [hereinafter FOIL]) request. Respondents released most of the requested records but withheld the Assessment itself because its disclosure could endanger "life and safety." Petitioner appealed that determination and respondents again refused to disclose the Assessment. This case ensued.

The faculty and staff of a college have an undeniable interest in the safety of their workplace and in obtaining information generated by their public employer. As petitioner argues, the collective bargaining agreement between the parties requires respondents to "provide a safe place to work" and guarantees that "[f]aculty members will not be required to work under unsafe conditions or to engage in activities which endanger their health, safety, and wellbeing." To that end, respondents have offered to share the Assessment in confidence with members of the College's shared governance team and the respective unions. Thus, the limited question before this court is whether respondents are required to also publish the Assessment for the general public.

The right to enjoy a safe working environment and the right to public disclosure of information related to that safe environment are neither synonymous nor equal. Thankfully for the safety of those who work and attend classes at HVCC, the requested disclosure must be denied because an exemption to the Public Officers Law applies to prevent the public disclosure of information that would undermine the very security petitioner seeks to ensure.

In November 2022, a serious assault occurred on the grounds of the HVCC campus. Discussions regarding a review of the safety situation on the HVCC campus began in May 2023 following significant media coverage of the attack. In June 2023, respondents received a proposal for a Physical Security Assessment, and in July 2023, respondents entered into a{**85 Misc 3d at 456} contract with an independent contractor, who was tasked with conducting the Assessment. The Assessment included site reviews, interviews, and a review of each of the following items:

a. Copies of security-related policies;

b. Building or facility access authorization policies and procedures;

c. Facility locking and unlocking procedures;

d. Visitor management and control procedures;

e. Student and visitor credentialing policies;

f. Active shooter policies;

g. Security procedure manuals;

h. Key management and control;

i. Designation of access privileges;

j. Workplace violence policies and procedures;

k. Campus site plans;

l. Critical assets lists, hours of operation for the campus;

m. Emergency action plans, policies, and procedures;

n. Security incident experience/report:

-Reported on-site criminal incidents

-Security-related incidents

o. Any prior or previous assessments that may have been conducted for the building or facility.

In or around September 2023, the Assessment was completed and provided to respondents.

On November 27, 2023, petitioner submitted a FOIL request for the following records:

a. A copy of the campus safety review undertaken and completed by the College in 2023;

b. Copies of any of the following pertaining to the creation or performance of any campus safety review or security assessment:

1. Purchase agreements;

2. Retainer agreements;

3. Invoices;

4. Receipts or payments made to the vendor;

5. The Request for Proposal and/or any records that define the "scope of services" for the campus safety review;

6. Any written communications between members of the College administration and any entity or organization engaged,{**85 Misc 3d at 457} hired, retained, or contracted by the College or hired to perform such a safety review or security assessment.

By letter dated January 3, 2024, respondents granted in part, and denied in part, the FOIL request. The College provided the records pertaining to the creation and performance of the Physical Security Assessment, but denied access to the Assessment. Respondents asserted that the Assessment was exempt

"based on § 87(2) of the Public Officers Law, specifically subsections (f) records may be withheld 'if disclosure could endanger the life and safety of any person'; (g) 'are intra-agency materials which are not final agency policy or determinations and which constitute internal rather than external records[']; and (i) 'if disclosure would jeopardize the capacity of an agency . . . to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructure.['] "

By letter dated January 23, 2024, petitioner appealed the January 3, 2024 determination. On January 30, 2024, respondents denied the appeal.

On April 19, 2024, petitioner commenced this special proceeding pursuant to CPLR article 78 to challenge respondents' determinations. On June 4, 2024, respondents joined issue [*3]by answer.^[FN2] Upon reviewing the pleadings and the relevant law, on July 25, 2024, the court directed respondents to provide the Security Assessment Report to the court for in camera review. Respondents have since made that submission as directed and the court has reviewed the Security Assessment Report.

a. Freedom of Information Law—Public Officers Law Article 6

"The Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness . . . and to discourage official secrecy" (Matter of Newsday, Inc. v Sise, 71 NY2d 146, 150 [1987], cert denied 486 US 1056 [1988]; see also Public Officers Law § 84 ["(G)overnment is the public's business and . . . the public . . . should have access to the records of government in accordance with{**85 Misc 3d at 458} the provisions of (FOIL)"]). To those ends, FOIL imposes a broad duty on government to make its records available to the public (see Matter of Gould v New York City Police Dept., 89 NY2d 267, 274-275 [1996]).

Moreover, "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government" (Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987]; see Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 492 [1994]; Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 697 [1993]). It is thus well settled that all records of a public agency are presumptively available for public inspection under FOIL, unless the documents in question fall squarely within one of the narrow exemptions to disclosure set forth in Public Officers Law § 87 (2) (see Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]; Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 79-80 [1984]; Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]).

An agency that seeks to withhold documents or portions thereof pursuant to one or more of the statutory exemptions must articulate a "particularized and specific justification" for not disclosing requested documents and, moreover, must "make a particularized showing that a statutory exemption applies to justify nondisclosure" (Matter of Gould v New York City Police Dept., 89 NY2d at 273, 275). "The standard of review in a CPLR article 78 proceeding challenging an agency's denial of a FOIL request is much more stringent than the lenient standard generally applicable to CPLR article 78 review of agency actions" (Matter of Luongo v Records Access Officer, 161 AD3d 1079, 1080 [2d Dept 2018]; accord Matter of Lane v Port Wash. Police Dist., 221 AD3d 698, 700-701 [2d Dept 2023]). "[T]he burden rest[s] on the agency to demonstrate that the requested material indeed qualifies for exemption . . . [O]nly where the material requested falls squarely within . . . one of these statutory exemptions may disclosure be withheld" (Matter of Gould v New York City Police Dept., 89 NY2d at 274-275 [internal quotation marks and citations omitted]). A conclusory contention that an entire category of documents is exempt will not suffice; generally, evidentiary support for that position is required (see Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 567 [1984]). In other words, "blanket exemptions for particular types of documents are inimical to{**85 Misc 3d at 459} FOIL's policy of open government" (Matter of Gould v New York City Police Dept., 89 NY2d at 275, citing Capital Newspapers Div. [*4]of Hearst Corp., 67 NY2d at 569).

Generally, in response to a petitioner's FOIL request, the agency has the choice of either producing the existing record in full or removing the information that it does not want to produce, but it "cannot refuse to produce the whole record simply because some of it may be exempt from disclosure" (Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v Mills, 18 NY3d 42, 46 [2011]). "If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of [the] documents and order disclosure of all nonexempt, appropriately redacted material" (see Matter of Gould v New York City Police Dept., 89 NY2d at 275; see also Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 133 [1985]).

In addition to the statute and New York case law, federal cases and advisory opinions of the Committee on Open Government provide persuasive authority when interpreting exemptions. New York's Freedom of Information Law was modeled after the Federal Freedom of Information Act and the Court of Appeals has "repeatedly looked to federal precedent when interpreting FOIL" (Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 231 [2018]; see generally Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 76 [2017]; Matter of Friedman v Rice, 30 NY3d 461, 466 [2017]; Matter of Lesher v Hynes, 19 NY3d 57, 64 [2012]). Likewise, while "the advisory opinions of the Committee on Open Government are neither binding upon the agency nor entitled to greater deference in an article 78 proceeding than is the construction of the agency" (Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 493 [1994] [internal quotation marks omitted]), the Committee's reasoning may lead a court to agree with its conclusion (see Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v Mills, 74 AD3d 1417, 1419 [3d Dept 2010], affd 18 NY3d 42 [2011]).

b. Public Officers Law § 87 (2) (f)—Exempting Records That "if Disclosed Could Endanger the Life or Safety of Any Person"

"Any record which, if disclosed, would endanger the life or safety of any person may be exempt from disclosure" (Asian Am. Legal Defense & Educ. Fund v New York City Police Dept., 41 Misc 3d 471, 479 [Sup Ct, NY County 2013, Hunter, Jr., J.],{**85 Misc 3d at 460} affd 125 AD3d 531 [1st Dept 2015], lv denied 26 NY3d 919 [2016], citing Public Officers Law § 87 [2] [f]). "The agency in question need only demonstrate a possibility of endangerment in order to invoke this exemption" (Matter of Bellamy v New York City Police Dept., 87 AD3d 874, 875 [1st Dept 2011] [internal quotation marks, brackets and citations omitted]; accord Matter of Whitfield v FOIL Appeals Officer, Dept. of Corr. & Community Supervision, 221 AD3d 1341, 1345 [3d Dept 2023]; see also Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 209 AD3d 1208, 1213 [3d Dept 2022], affd 42 NY3d 936 [2024]; Matter of Williamson v Fischer, 116 AD3d 1169, 1171 [3d Dept 2014], lv denied 24 NY3d 904 [2014]; Matter of Stronza v Hoke, 148 AD2d 900, 901 [3d Dept 1989] ["(T)here need only be a possibility that such information would endanger the lives or safety of individuals"], lv denied 74 NY2d 611 [1989]).

Even seemingly innocuous information may be exempt from disclosure where its use could create a significant danger to life or safety (see Matter of Flowers v Sullivan, 149 AD2d 287, 297 [2d Dept 1989] [disclosure of details regarding electrical, security and transmission systems of correctional facility properly denied where such disclosure might impair the effectiveness of these systems and compromise the safe and successful operation of the prison], [*5]appeal dismissed in part 75 NY2d 850 [1990], appeal dismissed 75 NY2d 1004 [1990]; Matter of Stronza v Hoke, 148 AD2d at 900 [portions of certain program and security assessment summaries in possession of correctional facility were exempt from disclosure to inmate under Public Officers Law § 87 (2) (f)]; Matter of Rankin v Metropolitan Transp. Auth., 2010 NY Slip Op 32161[U] [Sup Ct, NY County 2010, Sherwood, J.] [Holding petitioner's FOIL request for maps and blueprints of the New York City subways was properly denied due to the potential devastating effect of providing access to highly sensitive material to potential terrorists]; see generally Matter of Grabell v New York City Police Dept., 139 AD3d 477, 479 [1st Dept 2016] [Previous deployment history of police resources was exempt from disclosure where it "would allow terrorists to infer the inverse, namely, locations and times when NYPD does not use them, and would permit a terrorist to conform his or her conduct accordingly"], lv denied 28 NY3d 910 [2016]; Matter of Asian Am. Legal Defense & Educ. Fund v New York City Police Dept., 125 AD3d at 532 [Upholding the denial of a "broadly worded request for a {**85 Misc 3d at 461}trove of NYPD Intelligence Division documents replete with sensitive information about the unit's methods and operations, which could be publicly disseminated and potentially exploited by terrorists"]).

Pursuant to 5 USC § 552 (b) (7) (F), materials that "could reasonably be expected to endanger the life or physical safety of any individual" are exempt under the Federal Freedom of Information Act. While the exemption does not present a perfect parallel to Public Officers Law § 87 (2) (f), cases analyzing the "life or physical safety" portion of the exemption are instructive. As one federal court has recognized, considering the clear threat of malevolent actors seeking to use information to probe vulnerabilities, agencies sometimes want to keep critical infrastructure "information confidential. At the same time, members of the public sometimes want to review that sensitive information to see what the government is up to and to help ensure that the government is adequately protecting the country from harm" (Public Empls. for Envtl. Responsibility v United States Section, Intl. Boundary & Water Commn., U.S.-Mexico, 740 F3d 195, 198 [DC Cir 2014]). The courts must balance these competing interests in light of the relevant statutes. "In most cases involving security information, it is not difficult to show that disclosure may 'endanger the life or physical safety of any individual' " (Milner v Department of Navy, 562 US 562, 582 [2011, Alito, J., concurring]). Consistent with this, federal courts have recognized that "life or safety" broadly applies to protected information that could be maliciously used (see Electronic Privacy Info. Ctr. v United States Dept. of Homeland Sec., 777 F3d 518, 520 [DC Cir 2015] [Emergency Wireless Protocol that codified a unified voluntary process for the orderly shut-down and restoration of wireless services during critical emergencies was properly subject to redaction to protect life or physical safety], cert denied 577 US 1062 [2016]; Public Empls. for Envtl. Responsibility v United States Section, Intl. Boundary & Water Commn., U.S.-Mexico, 740 F3d at 206 [Upholding the exemption of records related to two dams located on the border between the United States and Mexico because "(t)errorists or criminals could use that information to determine whether attacking a dam would be worthwhile, which dam would provide the most attractive target, and what the likely effect of a dam break would be"]; American Civ. Liberties Union v Federal Bur. of Prisons, US Dist Ct, D DC, Nov. 28, 2022, CV 20-2320 [RBW], slip op at 20{**85 Misc 3d at 462} [Upholding the exemption for prison blueprints because, due to the "nature of the blueprints and the level of detail included therein, releasing any portion of the blueprints of that facility provides opportunity to probe for vulnerabilities to breach security of the facility"]; Center for Pub. Integrity v U.S. Dept. of Energy, 613 F Supp 3d 310, 324 [D DC 2020] [Upholding [*6]the exemption for information about nuclear defense]; Greenpeace, Inc. v Department of Homeland Sec., 311 F Supp 3d 110, 128-131 [D DC 2018] [Upholding the exemption for information regarding previously high-risk facilities that have reduced their chemical holdings]; Standing Rock Sioux Tribe v U.S. Army Corps of Engrs., 249 F Supp 3d 516, 522 [D DC 2017] [Upholding the exemption for documents discussing the risks associated with potential spills at vulnerable locations along oil pipelines]).

Agreeing with the case law, the Committee on Open Government has opined in its advisory opinions that detailed information that may be used by bad actors would properly be subject to exemption from disclosure (see generally Comm on Open Govt FOIL-AO-16715 [2007] ["if a map is so detailed that it indicates the location of certain valves, places where terrorists or others could deposit poisons or chemical or biological agents, perhaps it could be contended that there is a reasonable likelihood that disclosure, due to the degree of detail, could endanger life or safety"]).

However, pure speculation of danger remains insufficient under this exemption (see Matter of Laveck v Village Bd. of Trustees of the Vil. of Lansing, 145 AD3d 1168, 1171 [3d Dept 2016]; New York Lawyers for the Pub. Interest v New York City Police Dept., 64 Misc 3d 671, 683 [Sup Ct, NY County 2019, Perry, J.] ["this exception may not be applied simply because there is speculation that harm may result"]).

In opposition to the petition, respondents submit the affirmation of their counsel and a redacted version of the table of contents of the Assessment. Counsel affirms that releasing the Assessment poses a public safety risk because "[a]nybody in the general public will have access to it and, for those who might seek to harm the campus or its community, utilize the report as a tool for terror and community disruption." Counsel further asserts that "Hudson Valley Community College is an 'open' institution both in the physical sense and in enrollment{**85 Misc 3d at 463} meaning anyone in the community has access to its facilities." Counsel continues that "time and time again incidents of mass shootings and unpredictable violence across the country's college campuses" have taken place and, therefore, "[t]o release this security assessment report which outlines the College's most pertinent vulnerabilities is a road map to potential disaster." Significantly, counsel affirms that respondents have not yet addressed the vulnerabilities listed in the Assessment since the College's shared governance team "will review it as a whole, work with the vendor related to any changes to the [Assessment] that might be appropriate, identify different ways to address the vulnerabilities and formulate an implementation strategy."

Aside from counsel's own assertions in his affirmation, counsel relies upon a letter from respondent Dr. Ramsammy, former president of Hudson Valley Community College, denying the administrative appeal. In that letter, Dr. Ramsammy stated:

"I authorized the commission of this internal security assessment to determine the College's security risks so as to better ready and protect the campus community from becoming a target from various forms of violent offenders and/or terrorists. In this day and age where campus/school safety is the first and foremost issue on everyone's mind, I wanted to know what my campus' vulnerabilities are from the experts who are trained to identify such vulnerabilities and recommend how to mitigate and/or eliminate them. The report (and the level of detail set forth therein), by its inherent nature, gives rise to the implication that its release could endanger the life and safety of every member of our campus community including its students, administrators, employees, visitors and [*7]faculty. I cannot, in good conscience, disclose those vulnerabilities to the general public as a possible resource or tool for terror, that would have otherwise not have been known, by those who would seek to cause harm to our campus and community."

In reply, petitioner submits the affidavit of its president, Robert Whitaker. Dr. Whitaker swears:

"A safe and secure learning environment on the campus is a major concern for the Association and its membership. In recent years, numerous incidents{**85 Misc 3d at 464} on college campuses nationwide, including mass shootings, violent acts by students against faculty, and threats of violence against faculty, and the danger of student-on-student violent acts have significantly heightened these concerns. Our campus has experienced its own violence. In November 2022, an HVCC student was senselessly attacked by another student on the campus. The attacker was criminally charged. In addition, members have reported threats of violence by students against faculty, including threats of physical harm in response to the students receiving poor grades on assignments or missing work in a course. Our members are doing all we can to support our students and enable the students to successful at the College."

Dr. Whitaker further swears that the impetus for the creation of the Assessment was to address apparent dangers in cases of "campus emergency, . . . a mass shooting or similar type of crisis."

Petitioner argues in its memorandum of law that the public safety exemption does not apply because "the disclosure of the unredacted Security Assessment cannot reasonably be concluded to endanger life or safety because there is no assertion of a 'real' or 'legitimate' threat—only vague assertions."

The petitioner's two submissions could hardly be more incongruent. While counsel argues that there is no "real" or "legitimate" threat, petitioner's president swears to significant dangers including local threats. While respondents failed to submit an affidavit from any official besides counsel, the reality of the public safety concern is uncontested, as Dr. Whitaker himself swears to the reality of the danger. Dr. Whitaker swears that campus safety is "a major concern" and cites both national and campus specific threats (compare Matter of Laveck v Village Bd. of Trustees of the Vil. of Lansing, 145 AD3d at 1171 [lack of related threats rendered the denial speculative]).

The standard does not require an agency to identify a pending threat or an individual bad actor. Less than two years ago, the Appellate Division, Third Department again held that the exemption only requires that the release "could endanger the life or safety of any person," and "the agency in question . . . need only demonstrate a possibility of endangerment in order to invoke this exemption" (Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision,{**85 Misc 3d at 465} 209 AD3d at 1211-1212 [internal quotation marks and citations omitted]). The Court of Appeals affirmed this decision only a month ago.

The record establishes that the Assessment was created both in response to an actual dangerous situation and in anticipation of future dangers. The substance of what was reviewed to create the document further shows the way a bad actor could misuse the general release of this information to further endanger life and safety. From reviewing building and facility access authorization policies and procedures to active shooter policies, the Assessment was meant to [*8]probe for vulnerabilities. The redacted table of contents demonstrates that this is exactly what the Assessment achieved—identifying over a dozen potential weaknesses. The court does not question the good faith and earnestness of petitioner in seeking the Assessment. In fact, the court acknowledges that its fears for safety are well founded and acknowledged by respondents. To the extent that actions are taken based upon the Assessment, that is beyond the scope of this proceeding.

As outlined in detail by the case law above, where, as here, even mundane information may credibly be used by bad actors and that threat is based upon more than speculation, the information may be withheld under the public safety exemption (see Matter of Grabell v New York City Police Dept., 139 AD3d at 479; Matter of Asian Am. Legal Defense & Educ. Fund v New York City Police Dept., 125 AD3d at 532; Matter of Flowers v Sullivan, 149 AD2d at 297; Matter of Rankin v Metropolitan Transp. Auth., 2010 NY Slip Op 32161[U]; see generally Public Empls. for Envtl. Responsibility v United States Section, Intl. Boundary & Water Commn., U.S.-Mexico, 740 F3d at 206; Greenpeace, Inc. v Department of Homeland Sec., 311 F Supp 3d at 128-131; Standing Rock Sioux Tribe v U.S. Army Corps of Engrs., 249 F Supp 3d at 522).

The public safety exemption written into New York's freedom of information statute attempts to balance the understandable desire of agencies to keep malevolent actors from having a dangerous blueprint to cause harm while ensuring members of the public can review information to confirm the government is adequately protecting the public from harm. There can be no doubt that the faculty and staff of a college have a very real interest in staying informed about the safety of their workplace;{**85 Misc 3d at 466} however, releasing a document listing currently unaddressed "vulnerabilities" for a facility open to the public and subject to current threats, according to petitioner's own president, could endanger the life or safety of those on the campus. Thus, the Public Officers Law § 87 (2) (f) exemption applies here. The court has reviewed the entire Assessment in camera and finds the petition must be denied.

Accordingly, it is ordered, the petition is denied and dismissed.