Justice Doris Ling-Cohan
Petitioner sought to annul and set aside New York City Police Department’s denial of access to certain records requested under the Freedom of Information Law (FOIL). NYPD cross-moved for dismissal, arguing the records sought were exempt from disclosure under Public Officers Law §87(2)(e)(i) as they were the subject of an open law enforcement investigation. The Court of Appeals has made clear that an agency must fulfill its burden to articulate a factual basis for an exemption. The court stated the NYPD’s proffer of a five paragraph affidavit stating in a conclusory manner the records sought were subject to exemption as they were part of an open investigation were insufficient to warrant exemption. It ruled the NYPD failed to show the petition should be dismissed on the basis of §87(2)(e)(i), stating the affidavit did not meet the significant burden to articulate a factual basis for the exemption claimed. The NYPD also requested the court seal the record under New York Civil Rights Law §50-b, but the court noted the NYPD failed to suggest a reason why the records could not be redacted to delete details tending to identify the victim’s identity. It thus denied the NYPD’s motion to seal the record or dismiss the petition.