Matter of Exoneration Initiative v New York City Police Dept.

Matter of Exoneration Initiative v New York City Police Dept. 2015 NY Slip Op 07740 Decided on October 22, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 22, 2015
Mazzarelli, J.P., Friedman,, Sweeny, Gische, JJ.
15375 104004/12

[*1] In re The Exoneration Initiative, Petitioner-Respondent,

v

New York City Police Department, Respondent-Appellant.

Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch

of counsel), for appellant.

Cooley, LLP, New York (Lauren Gerber Lee of counsel), for

respondent.

Order and judgment (one paper), Supreme Court, New York County (Peter H. Moulton, J.), entered October 24, 2013, granting

the petition brought pursuant to CPLR article 78 to the extent of

directing respondent New York City Police Department (NYPD) to disclose two-and-a-half unredacted pages from a file pertaining to an attempted homicide investigation pursuant to the Freedom of Information Law (FOIL),and awarding petitioner $2,000 in attorney's fees, unanimously modified, on the law, to deny the petition as to pages 1 and 2 and the identifying personal information on page 5, to vacate the award of attorney's fees, and to deny petitioner's request for attorney's fees, and otherwise affirmed, without costs.

Upon our in camera review of the records at issue, we find that NYPD's determination denying petitioner's FOIL request was

not affected by an error of law as to pages 1, 2 and the aforementioned portion of page 5 (see Mulgrew v Board of Educ. of the City School Dist. of the City of N.Y., 87 AD3d 506, 507 [1st Dept 2011], lv denied 18 NY3d 806 [2012]). In light of the

particular circumstances of this case involving an underlying conviction of attempted murder by shooting, the disclosure of identifying information about two witnesses and further details provided in the account of one of those witnesses, "could endanger the life or safety" (Public Officers Law § 87[2][f]) of

those witnesses (see Matter of Exoneration Initiative v New York City Police Dept., 114 AD3d 436, 438-439 [1st Dept 2014]; Matter of Bellamy v New York City Police Dept., 87 AD3d 874 [1st Dept 2011], affd 20 NY3d 1028 [2013]; Matter of Laporte v Morgenthau, 11 AD3d 410 [1st Dept 2004]; Matter of Johnson v New York City Police Dept., 257 AD2d 343, 348-349 [1st Dept 1999], lv dismissed 94 NY2d 791 [1999]). The identifying information is also covered

by the exemption for records whose disclosure would "constitute an unwarranted invasion of personal privacy" (Public Officers Law

§ 87[2][b]), in light of those public safety concerns, as well as

the potential "chilling effect the release of such personal information to the general public would have on future witnesses to intentional murder from cooperating with the police" (Exoneration Initiative, 114 AD3d at 439).

Though academic, respondent's argument based on the confidentiality exemption (Public Officers Law § 87[2][e][iii]) is not properly before us, since respondent failed to cite that exemption at the administrative level (see Matter of Law Offs. of Adam D. Perlmutter, P.C. v New York City Police Dept., 123 AD3d 500 [1st Dept 2014]; see generally Matter of Natural Fuel Gas Distrib. Corp. v Public Serv. Commn. of the State of N.Y., 16 NY3d 360, 368 [2011]).

Since petitioner has not substantially prevailed, it is not entitled to attorney's fees pursuant to Public Officers Law §

89(4)(c).

The Decision and Order of this Court entered herein on June 11, 2015 is hereby recalled and vacated (see M-3258 decided simultaneously herewith).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 22, 2015

CLERK