Timely access to prison records is critical to PLS’s ability to provide effective representation to our clients. Our primary means of obtaining records for initial investigations and advocacy is New York’s Freedom of Information Law (FOIL). We recently argued an appeal before the Appellate Division, Third Department challenging DOCCS’ withholding of videos and narrative incident reports requested through FOIL. DOCCS relied on several FOIL exemptions to justify withholding these records, including the “law enforcement,” “safety,” and “intra-agency materials” exemptions (Public Officers Law § 89[2][e], [f], and [g]).



The law requires that an agency articulate a “particularized and specific justification” when exempting records from disclosure, and our position was that DOCCS did not meet this standard. For example, some of the video at issue depicted a prison yard incident. DOCCS asserted that disclosure would create a risk of retaliation against individuals who could be identified from the video. We argued that DOCCS’ speculative concern about retaliation did not justify the safety exemption, in part because the video showed nothing more than what was readily observable to dozens of people present during the incident—a factor that weighs against withholding under the safety exemption (see Matter of Buffalo Broadcasting. Co. v. New York State Dep’t of Corr. Servs., 174 A.D.2d 212 [3d Dep’t 1992]). We also argued that DOCCS’ alleged safety concerns were undermined by the fact that prison officials had already shown the video to several incarcerated people in the context of disciplinary hearings to allow them to identify others, which was one of the very risks that DOCCS later claimed to justify withholding under FOIL.  



In addition to the videos withheld under the safety exemption, PLS challenged DOCCS’ denial of records that the agency eventually produced after litigation was pending. Ordinarily, production of records will make any challenge to their withholding moot. We asked the Court to grant an exception to the mootness doctrine and rule on the issues presented in order to address DOCCS’ misapplication of the law enforcement and intra-agency materials exemptions to surveillance videos and unusual incident reports. We argued that DOCCS’ withholding of those records presented novel and important questions about how the agency interprets the relevant FOIL exemptions, and that their misinterpretation of the exemptions is likely to continue in ways that will escape the Court’s review.



Debevoise & Plimpton LLP provided pro bono representation to PLS in this matter before both Albany Supreme Court and the Appellate Division.