Дело Newsday, LLC против округа Нассо

Matter of Newsday, LLC v County of Nassau

2026 NY Slip Op 05310

September 16, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

In the Matter of Newsday, LLC, appellant, v County of Nassau, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-10010, (Index No. 619618/23)

Mark C. Dillon, J.P.

Valerie Brathwaite Nelson

Lillian Wan

Phillip Hom, JJ.

Ballard Spahr LLP, New York, NY (Alia L. Smith and Sasha Dudding of counsel), for appellant.

Rosenberg Calica Birney Liebman & Ross LLP, Garden City, NY (Joshua M. Liebman and Peter J. Clines of counsel), for respondents.

[*1] DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and for an award of attorneys' fees and litigation costs, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Ellen Tobin, J.), entered July 11, 2024. The judgment denied the petition and, in effect, dismissed the proceeding.

ORDERED that the judgment is modified, on the law, (1) by deleting the provision thereof denying that branch of the petition which was to compel the production of all of the cybersecurity contracts of the respondent County of Nassau "in effect for the last 5 years" and, in effect, dismissing that portion of the proceeding, and substituting therefor a provision granting that branch of the petition to the extent that the respondent County of Nassau is directed to produce the records requested in an unredacted form for an in camera inspection by the Supreme Court, Nassau County, in accordance with this decision and order, (2) by deleting the provision thereof denying that branch of the petition which was to compel the production of the public calendars of the Nassau County Executive for the period of January 1, 2022, through June 30, 2023, and, in effect, dismissing that portion of the proceeding, and substituting therefor a provision granting that branch of the petition to the extent that the respondent County of Nassau is directed to produce the records requested in an unredacted form for an in camera inspection by the Supreme Court, Nassau County, and (3) by deleting the provision thereof denying that branch of the petition which was for an award of attorneys' fees and litigation costs and, in effect, dismissing that portion of the proceeding; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of those branches of the petition which were to compel the production of all of the cybersecurity contracts of the respondent County of Nassau "in effect for the last 5 years" and the public calendars of the Nassau County Executive for the period of January 1, 2022, through June 30, 2023, and for an award of attorneys' fees and litigation costs related to the petitioner's Freedom of Information Law requests based upon the in camera inspection.

In April 2023, pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art 6), the petitioner requested from the respondent County of Nassau all cybersecurity contracts [*2] "in effect for the last 5 years." The County denied the request on the ground that the requested records were exempt from disclosure under Public Officers Law § 87(2)(i). The petitioner administratively appealed. The County denied the appeal, determining that disclosing the requested records might allow a person or entity to implement an attack against its information technology assets and jeopardize the security of those assets. The County emphasized that this was "particularly so in light of unanimous agreement by our security and information technology experts that disclosure may jeopardize our technology assets."

In September 2023, the petitioner requested copies of the public calendars of the Nassau County Executive for the period of January 1, 2022, through June 30, 2023. The County denied the request pursuant to Public Officers Law § 87(2)(f), determining that "disclosure of this information would endanger the life or safety of individuals, notably the County Executive." On November 15, 2023, the petitioner administratively appealed the denial, but the County did not respond.

The petitioner then commenced this proceeding pursuant to CPLR article 78 against the County and Gregory Kalnitsky, in his official capacity as FOIL Appeals Officer for the County (hereinafter together the County), to compel production of the requested records and for an award of attorneys' fees and litigation costs pursuant to Public Officers Law § 89(4)(c). Concerning its request for the production of certain cybersecurity contracts, the petitioner argued, among other things, that the County had failed to provide a "valid reason why every bit of the requested contracts," including the name of the vendors and the duration and cost of the contracts, "should be shielded from public disclosure." Concerning its request for the County Executive's past public calendars, the petitioner argued that the County had failed to demonstrate "that the release of the calendar[s] would jeopardize the County Executive's safety, especially given that [the petitioner] sought only the calendar[s] reflecting events that occurred in the past ."

In a judgment entered July 11, 2024, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.

"In order to promote open government and public accountability, FOIL imposes a broader duty on government to make its records available to the public" ( Matter of Lane v County of Suffolk , 236 AD3d 791, 792 [internal quotation marks omitted]; see Matter of Sarkodie v Kings County Dist. Attorney , 226 AD3d 12, 15). "To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted" ( Matter of Lockwood v County of Suffolk , 219 AD3d 728, 729 [internal quotation marks omitted]; see Matter of Law Offs. of Cory H. Morris v County of Nassau , 158 AD3d 630, 631). An agency asserting an exemption to FOIL bears the burden of establishing that the documents qualify for that exemption and, "to meet that burden, the agency must articulate particularized and specific justification for denying disclosure" ( Matter of Roth & Roth, LLP v Queens County Dist. Attorney's Off. , 239 AD3d 657, 658 [internal quotation marks omitted]; see Matter of New York Civ. Liberties Union v Village of Freeport , 229 AD3d 629, 630). "If the agency fails to prove that a statutory exemption applies, FOIL compels disclosure, not concealment" ( Matter of Lane v Port Wash. Police Dist. , 221 AD3d 698, 700 [internal quotation marks omitted]). "The standard of review in a CPLR article 78 proceeding challenging an agency's denial of a FOIL request is much more stringent than the lenient standard generally applicable to CPLR article 78 review of agency actions" ( id. at 700-701 [internal quotation marks omitted]). "A court is to presume that all records are open and it must construe the statutory exemptions narrowly" ( id. ). "If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material" ( Matter of Gould v New York City Police Dept. , 89 NY2d 267, 275).

On appeal and consistent with the CPLR article 78 petition, the petitioner states that it is only seeking access to "certain limited information about the County's cybersecurity contracts," namely, "the vendors' names, the cost, [and] the duration." "Public Officers Law § 87(2)(i) exempts material that, if disclosed, would jeopardize the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets [*3] encompassing both electronic information systems and infrastructures" ( Matter of TJS of N.Y., Inc. v New York State Dept. of Taxation & Fin. , 89 AD3d 239, 243 [internal quotation marks omitted]).

Here, the County produced affidavits of four employees, each of whom summarily concluded that releasing any portion of the subject cybersecurity contracts would jeopardize the County's capacity to guarantee the security of its information technology assets. However, none of the affidavits explained how disclosure of the requested information, which consisted of "the vendors' names, the cost, [and] the duration" of the subject contracts, would jeopardize the County's capacity to guarantee the security of its information technology assets ( cf. Matter of Freedom Found. v New York City Dept. of Citywide Admin. Servs. , 230 AD3d 999, 1005; Matter of Miller v New York State Div. of Human Rights , 122 AD3d 431, 432). Accordingly, the Supreme Court should have granted that branch of the petition which sought the disclosure of all cybersecurity contracts "in effect for the last 5 years" to the extent that the petitioner sought the vendors' names, the cost, and the duration of those contracts. However, since the subject documents are not part of the record on appeal, we remit the matter to the Supreme Court, Nassau County, to conduct an in camera inspection of all representative documents to determine whether any of the material in those records falls within the asserted FOIL exemption, and whether that material should be redacted.

Public Officers Law § 87(2)(f) permits an agency to deny access to records that, if disclosed, could endanger the life or safety of any person ( see Matter of New York Civ. Liberties Union v Village of Freeport , 229 AD3d at 630; Matter of Burns v Cooke , 189 AD3d 826, 828). "'The agency in question need only demonstrate a possibility of endanger[ment] in order to invoke this exemption'" ( Matter of Burns v Cooke , 189 AD3d at 828, quoting Matter of Bellamy v New York City Police Dept. , 87 AD3d 874, 875, affd 20 NY3d 1028).

Here, the County submitted an affirmation of Detective Sergeant Fintan McCormac, the Commanding Officer of the Special Investigation Squad (hereinafter SIS) of the Nassau County Police Department, who is "responsible for the safety and security of" Nassau County Executive Bruce Blakeman. McCormac stated that SIS had received "a wide range of threats directed at" the County Executive, including but not limited to "direct threats of physical harm made by individuals while attempting to approach [the County Executive] at public events," and that "there [had] been an increase in the volume of threats directed at [the County Executive] over the past year." McCormac stated that "even a prior calendar or schedule of past events, can be exploited by a potential bad actor to establish patterns of [the County Executive's] movements, which in turn can be used to anticipate his future movements by an individual or individuals seeking to attack or otherwise harm him."

McCormac's affirmation was insufficient to establish that the disclosure of any portion of the County Executive's past public calendars , including but not limited to the County Executive's public appearances, could endanger the County Executive's life or safety ( see Matter of Dilworth v Westchester County Dept. of Correction , 93 AD3d 722, 724-725; see also Matter of Journal News v City of White Plains , 39 Misc 3d 1235[A], 2012 NY Slip Op 52487[U], *6-7 [Sup Ct, Westchester County]; cf. Matter of Burns v Cooke , 189 AD3d at 828). Accordingly, the Supreme Court should have granted that branch of the petition which sought to compel the disclosure of the County Executive's past public calendars for the period of January 1, 2022, through June 30, 2023. However, since the subject documents are not part of the record on appeal, we remit the matter to the Supreme Court, Nassau County, to conduct an in camera inspection of all representative documents to determine whether any of the material in those records falls within the asserted FOIL exemption, and whether that material should be redacted.

Under these circumstances, the petitioner's request for an award of attorneys' fees and litigation costs is premature ( see Matter of Lane v Port Wash. Police Dist. , 221 AD3d at 708).

In light of the foregoing, we need not reach the petitioner's remaining contentions.

DILLON, J.P., BRATHWAITE NELSON, WAN and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court