Matter of Banks v New York City Police Dept. Legal Bur.-FOIL Unit

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Matter of Banks v New York City Police Dept. Legal Bur.-FOIL Unit 2012 NY Slip Op 30388(U) February 15, 2012 Supreme Court, New York County Docket Number: 401974/11 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 212212012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY Justice MOTION DATE - v MOTION SEQ. NO. MOTION CAL. NO. \ I The following papers, numbered 1 to were read on this motion to/for PAPERS NUMPERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits Replying Affidavits Cross-Motion: FILED NO <Yes Upon the foregoing papers, it is ordered that this motion NEW Y U I I< 1 COUNTY CLEHKS OFFICE I Dated: >/If/ 1 7 F fm J. S. C. I 1 2012 0 NON-FINAL DISPOSITION 0 DO NOT POST 0 REFERENCE Check if appropriate: 0 SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. Check one: FINAL DISPOSITION --. . . .. . . . . . . . . . .. . . . [* 2] Index No. 40 1974111 Motion Subm.: Motion Seq. No.: Petitioner, 11/16/11 00 I DECISION & JUDGMENT For a judgment pursuant to Article 78 of the Civil Practice Law and Rules, +gains t- FILE The New York City Police Department Legal Bureau - FOIL Unit; James Russo, Sergeant; Associate Investigator Hippolyte and Jonathan David, Records Access Appeals Officer, FEB 2 12012 NEW YORK COUNTY CLERKS OFFICE For respondents: Katie M. Flaherty, Esq. Michael A. Cardozo Corporation Counsel S . Andrew Schaffer Deputy Commissioner, Legal Matters New York City Police Dept. One Police Plaza, Rm. 1406 New York, NY 10038 646-6 10-5400 For petltloner, self-represented: Mr. Martin Banks, #83A7866 Wende Correctional Facility 3622 Wende Rd., P.O. Box 1187 Alden, NY 14004-1187 716-9374000 By order to show cause dated July 28,201 1, petitioner brings this special proceeding pursuant to CPLR Article 78. Respondents oppose and, by notice of cross motion dated October 21,201 1, move pursuant to CPLR 7804(f) and 321 1 for an order denying the petition and dismissing the proceeding on the grounds that the petition fails to state a claim upon which relief may be granted. Petitioner opposes the cross motion. . - . . . .. . . _ [* 3] I, BACKGROUND On December 1, 1982, petitioner was arrested and charged with inurder in the second degree, attempted rape in the first degree, and criminal possession of a weapon in the fourth degree for the murder and attempted rape of his ten-year-old second cousin. Petitioner was thereafter convicted of murder in the second degree. (Affidavit of Martin Banks, dated July 11, 201 1 [Banks Affid.], Exh. A). By letter dated August 3,20 10, petitioner served respondents with a Freedom of Information Law (FOIL) request, seeking records related to his arrest for these crimes. (Id.). By letter dated September 20,20 10, respondents acknowledged his request and advised that they would make a determination thereon by December 10,2010. (Id.,Exh. B). By letter dated January 10,201 1, respondents denied the request on the ground that the documents sought are exempt from disclosure pursuant to section 50-b of the Civil Rights Law. ( I d , Exh. D). By letter dated February 8,201 1, petitioner appealed the denial, and by letter dated March 28,201 1, respondents denied the appeal. ( I d , Exhs. E, Fj. 11, CQNTENTIONS Petitioner argues that the reason for respondents denial of his request is inapplicable as he already knows the victim s name. (Banks Affid.). Respondents contend that the records sought by petitioner contain the victim s name and are thus exempt from disclosure, regardless of whether petitioner knows the name, as he was convicted of the crimes, not merely arrested and charged. Counsel also affirms that she reviewed the records responsive to petitioner s request and that each document contains the victim s 2 [* 4] identity. (Affirmation of Katie M. Flaherty, Esq., dated Oct. 21,201 1). In opposition, petitioner maintains that respondents erroneously denied his request as it is irrelevant that he was convicted of the crimes, and observes that respondents failed to show with - particularity that the exemption applies to all of the requested records. (Affidavit of Martin Banks, dated Jan. 2, 2012). Generally, all agency records under FOIL are presumptively available for public access, inspection or use, unless such records fall within one of eight categories of exemptions. (See Public OSJicer-s Law 5 87[2]). An agency may not withhold information it chooses, but must state with particularity and list specific justifications for withholding information from the party seeking access to it. (Matter ofMoore v Santucci, 151 AD2d 677 [2d Dept 19891, citing Matter of Fink v Lefkowitz, 47 NY 2d 567, 571 [ 19791; see also City of Newark v Law Dept. o City of f New York, 305 AD2d 28 [lnt Dept 20031). Pursuant to Civil Rights Law 8 50-b( 1), the identity of any victim of a sex offense shall be confidential, and no document in the custody of any public officer or employee which identifies such a victim shall be made available for public inspection, nor shall a public office or employee disclose such a document. As petitioner was convicted of the crimes, the records are exempt from disclosure. (Matter of Fappiano v New York Ct Police Dept,, 95 NY2d 738 [2001]). That petitioner knows iy the victim s name does not negate the exemption. (Id. at 748 [ Nor does the fact that petitioners already know the identity of their victims provide a basis for disclosure. ]). Moreover, based on respondents counsel s assertion that she personally reviewed the 3 [* 5] records responsive to petitioner s request and that each document contains the victim s identity, respondents have made a particularized showing that the records are exempt from disclosure. IV, CONCTLJSION Accordingly, it is hereby ORDERED and ADJUDGED, that the petition is denied and the proceeding is dismissed. ENTER: FEB 1 5 2012 4 FILED

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