FOIL: Prisoner Denied 'Dear Peggy' LetteR

New York's Freedom of Information Law, or FOIL, means even prisoners get access to non-exempt records under the FOIL, New York Public Officers Law Sections 84-89. The prisoner here was denied access to records under the possibility that the production of these records could endanger life or safety. The Prisoner filed a Pro Se Freedom of Information Law case, a FOIL Lawsuit. The Court denied his petition.

The Court Observed that "Petitioner's FOIL request for the "Dearest Peggy" letter was denied pursuant to Public Officers Law §87(2)(f) on the grounds that disclosure of the letter could endanger the life or safety of any person. Petitioner's request for the "Bloods" letter was denied because it constituted contraband containing gang material." One should note that although he was a prisoner, he could still make FOIL Requests and file litigation to enforce the FOIL. Indeed, there is a running joke that "everyone can have fun with FOIL" but you cannot gain access to exempted records:

Contraband confiscated by a correctional facility and used as evidence in a disciplinary hearing against an incarcerated individual is akin to physical evidence used against a defendant in a criminal proceeding (see Dobranski v Houper, 154 AD3d 736, 739 [3d Dept 1989]. Thus, this Court finds that the letters in question are not records within the meaning of FOIL. That the contraband in question happens to be a letter, as opposed to a cell phone or clothing, for example (see Matter of Badalamenti v Off. of Dist. Atty. Nassau County, 89 AD3d 1019, 1020 [2d Dept 2011] [cellphone]; Sideri v Off. of Dist. Atty., New York County, 243 AD2d 423, 423 [1st Dept 1997] [clothing and weapons]), does not alter the analysis. Petitioner's personal letters, had they not been confiscated by DOCCS as illegal contraband, would not constitute a record for the purposes of FOIL and would not be subject to disclosure (see Public Officers Law §86[4]; Pennington v Clark, 194 Misc 2d 381 [Sup Ct, 2002]; see generally Broach & Stulberg, LLP v New York State Dept of Labor, 195 AD3d 1133 [3d Dept 2021], lv denied 37 NY3d 914 [2021]). Moreover, permitting incarcerated individuals to obtain the return of confiscated contraband through FOIL is not in line with the legislative purpose of the statute (Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, 440 [2005] ["The Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy"]).

Thus, this FOIL case stands for the important proposition to know the law before you bring a FOIL lawsuit: even if you are in prison, you can hire a lawyer and that lawyer can seek attorney's fees under the public officers law for bringing a successful litigation.

The Case is MATTER OF BARLETTA v. MARTUSCELLO, 2024 N.Y. Slip Op 50834 (NY: Supreme Court, Albany 2024).

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954)-745-4592 (FLA)

New York State Freedom of Information Law - State/Federal - Freedom of Information Law and Freedom of Information Act | Call 631-450-2515 or E-Mail info@CoryHMorris.com to arrange for an evaluation of your matter (injury, accident, traffic matter, criminal matter or appellate matter also).