Papers Considered:1. Verified Petition, sworn to September 4, 2018, with supporting memorandum of law;2. Verified Answer to Petition, sworn to October 16, 2018, with supporting Attorney Affirmation from Craig Sunkes, OCFS Records Access Officer, dated October 16, 2018 and supporting memorandum of law; and3. Petitioner’s Reply Memorandum of Law, dated October 25, 2018;5. January 4, 2019 in camera production of OCFS decisions after hearing, with proposed redactions, and underlying investigative material, hearing evidence and recorded fair hearing proceedings; and6. Petitioner’s response to in camera production, dated January 17, 2019.DECISION & ORDER In this Article 78 proceeding, the petitioner law firm of Lansner & Kubitschek (“L&K”) seeks a judgment, pursuant to the Freedom of Information Law (“FOIL”), New York Public Officers Law (“POL”) §84 et seq., directing respondents New York State Office of Children and Family Services (“OCFS”) and its Commissioner to produce certain written decisions that were issued following fair hearings conducted pursuant to Social Services Law (“SSL”) §422(8)(b) (Verified Petition, sworn to September 4, 2018 ["Pet'] 21). L&K also seeks attorneys fees in accordance with POL §89(4)(c).The issues underlying this petition have their roots in the New York State Legislature’s 1973 enactment of the Child Protective Services Act which, among other things, created the State Central Register of Child Abuse and Maltreatment (the “Register”), a 24-hour phone hotline for reports alleging child abuse or mistreatment (Pet 15). Under the statute, reports made to the Register, along with “any other information obtained, reports written or photographs taken concerning such reports” are confidential and may be disclosed only in certain statutorily limited circumstances not at issue here (see SSL §422[4][A]).When the Register receives a report, it is subject to investigation to determine if the alleged abuse is either “indicated” or “unfounded” based on the presence or absence of credible evidence (id.). Once the investigation is complete, the person alleged to have engaged in the abuse or maltreatment will receive notification if such report has been found to be “indicated” and may request, within 90 days, that the OCFS Commissioner amend the record of the report to reflect that the alleged abuse is “unfounded” (see SSL §422[8][a][i]).If the Commissioner does not amend the report within 90 days of receiving the request, the accused is entitled to a fair hearing, at which the investigating body has the burden to prove by a “fair preponderance of the evidence” that the accused “committed the act or acts of child abuse or maltreatment giving rise to the indicated report” (see SSL §§422[8][b][ii] and 422[8][c][ii]).Following any fair hearing, OCFS is required to issue a written decision, based solely on the record of the hearing, which “must describe the issues, recite the relevant facts and the pertinent provisions of law and department regulations, make appropriate findings, determine the issues, state reasons for the determination, and when appropriate, direct specific action to be taken by any of the parties to the hearing” (see 18 NYCRR §434.11[a]). In this proceeding, L&K seeks access to these written decisions, with appropriate redaction.These documents were first sought in a letter by Carolyn Kubitschek, Esq., dated February 15, 2018, which requested the following from OCFS pursuant to POL §87:“All Fair Hearing decisions issued by [OCFS], between January 1, 2010, and February 15, 2018, in which the appellant was an employee or former employee of a daycare center or preschool, who was contesting an indicated report of abuse or maltreatment of a child who attended the daycare center or preschool. I understand that the names of the appellants may be redacted from the decisions” (Pet 21, Ex A).By letter dated March 20, 2018, OCFS responded as follows:“The Office must deny your request in its entirety, as all of the records relate to reports of child abuse and maltreatment which are confidential under SSL §422. Confidential records are not available under the New York State FOIL statute, per POL §87(2)(a)”1 (id. 22, Ex B).Following receipt of this denial, L&K appealed the decision administratively by letter dated April 17, 2018, in which Kubitscheck clarified that the law firm was not seeking any “reports”, but was instead requesting OCFS “decisions” issued following fair hearings (id. 23, Ex C). L&K further clarified that it sought “decisions and legal standards and reasoning used by the Bureau of Special Hearings in deciding cases in which the subject of the report was an employee of a child day care center or a Head Start program” (id. at Ex C). It argued that such decisions were not subject to exemption under POL §87(2)(a) and, even if they were, L&K was conducting legal research and was therefore entitled to redacted decisions under SSL §422(4)(A)(h), which creates an exemption to the section 422 confidentiality provisions for bona fide research purposes (id. 25, Ex. C).As additional support for petitioner’s position, Kubitschek cited to State Administrative Procedure Act (“SAPA”) §§202-e and 307(3)(a) — which respectively provide for agency disclosure of “guidance documents” on which it relies, and the public inspection and copying of agency written final decisions, subject to redaction2 (id. at Ex C). She also noted that comparable administrative hearing decisions from the Justice Center for the Protection of People with Special Needs (“the Justice Center”), issued pursuant to SSL §494, are publicly available with redactions, on the Justice Center’s web page3 (id. at Ex C). On this basis, L&K asserted that failure to disclose the OCFS decisions appeared to be an equal protection violation (id.).OCFS responded to L&K’s appeal in an e-mail dated May 4, 2018 (id.
26-29, Ex D). The e-mail stated that to the extent the appeal sought additional material, such as “standards” and “legal reasoning” used by the Bureau of Special Hearings, it was beyond the scope of the initial FOIL request, as was the assertion that L&K was entitled to the decisions for bona fide research purposes (id., Ex D). Thus OCFS declined to address these issues. The agency further took the position that its fair hearing decisions fell into the category of “material obtained or reports written” in connection with abuse reports and, as such, were exempt from disclosure under POL §87(2)(a) (id.). As a result, OCFS denied the FOIL appeal in its entirety.L&K then initiated this Article 78 proceeding, in which it contends that respondents’ denial of its FOIL application was erroneous and in violation of the statute. According to L&K, OCFS violated section 87(2) of FOIL in refusing to disclose the fair hearing decisions, which are not “specifically exempted from disclosure by state or federal statute” (id. 31 quoting POL §87[2][a]). L&K further argues that OCFS’s contention that parts of its appeal were “beyond the scope” of the initial FOIL request violates section 89(4)(a) of the POL, which requires the agency to “fully explain…the reasons for further denial” of a FOIL request (id. 32).In addition, L&K argues in its Memorandum of Law (“Pet MOL”) that it is engaged in bona fide research concerning OCFS fair hearings, and thus even if the documents sought were exempt, pursuant to SSL §422(4)(A)(h) it is authorized to receive “information obtained, reports written or photographs taken” in relation to the initial reports to the Register, which would include the fair hearing decisions (Pet MOL at 8).In opposition to L&K’s petition, respondents have submitted a verified answer, along with an attorney affirmation from the OCFS counsel’s office and a memorandum of law. As explained by counsel, OCFS does not conduct child protective services (“CPS”) investigations, as they are conducted by the CPS unit in each county’s respective Department of Social Services or, in New York City, by the CPS unit within the Administration of Children’s Services (“ACS”)” (Affirmation of Craig Sunkes, Esq., dated October 16, 2018 ["Sunkes"] Aff 5). CPS investigations are instituted in response to a report of abuse or maltreatment to the Register (id. 6).Counsel further explains that these investigations entail the creation of various reports with a multitude of personal identifying information concerning the named adults, parents and children that are the subjects of the initial report to the Register, including, but not limited to, names, dates of birth, ethnicity, mental and medical health conditions, and relevant employment information (id.). Investigations, and the reports generated, may also include photographs of the alleged abused and their homes, documentary and testimonial evidence, medical records, mental health reports and evaluations, law enforcement reports, educational records, financial records and personal diaries (id. 8). Counsel averred that protection of such confidential information is a paramount concern throughout the investigative process, and any unauthorized release of investigative material and reports constitute a Class A Misdemeanor, punishable by up to 1 year in jail and/or a $1,000 fine, and possible civil liability under 42 USC §1983 (id.
