Summary of a Recent
Judicial Development in
Administrative Law

Department of Agriculture Ordered to Release Documents Pursuant to the
Freedom of Information Law

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Humane Society of the United States v. Brennan, 861 N.Y.S.2d 234 (N.Y. App. Div. 2008), the New York Appellate Division affirmed the New York Supreme Court's order that certain state Department of Agriculture documents be released to the Humane Society pursuant to the Freedom of Information Law, because the documents consisted of objective, factual data not exempt from the law.

Background

The Humane Society requested records related to the production of foie gras from the New York Department of Agriculture and Markets pursuant to the Freedom of Information Law (FOIL). Id. at 910. The Department turned over several documents, but withheld some documents on the basis that they were inter- or intra-agency materials exempt from disclosure. Id. Upon administrative appeal, the New York Supreme Court determined that certain of the documents were not exempt from disclosure, and the Department appealed. Id.

Arguments

The Department of Agriculture argued that the documents were exempt from disclosure under FOIL pursuant to Public Officers Law § 87(2). Id.

Analysis and Holdings

The appellate division noted that pursuant to FOIL, government documents are presumptively available for inspection and copying unless they are statutorily exempt by Public Officers Law § 87(2), and the burden is on the agency resisting disclosure to show that documents fall within that exception. Id. at 910-11. Public Officers Law § 87(2)(g) provides an exemption for inter- or intra-agency records that are not "factual data," which is objective information, rather than "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making." Id. at 911. The appellate division found that the documents in issue, which consisted of handwritten notes and memoranda prepared by a Department-employed veterinarian in connection with an avian influenza investigation, constituted objective, factual data not exempt from FOIL, with the exception of telephone numbers that should be redacted pursuant to Public Officers Law § 87(2)(b) because they presented an unwarranted invasion of personal privacy. Id. The appellate division also affirmed redaction of certain inter- and intra-agency discussions, recommendations and opinions in the memorandum that were exempt from disclosure. Id.

The case was decided on July 17, 2008.