Matter of The Exoneration Initiative v New York City Police Dept.
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Matter of The Exoneration Initiative v New York City Police Dept. 2012 NY Slip Op 31901(U) July 12, 2012 Sup Ct, NY County Docket Number: 102688/12 Judge: Peter H. Moulton 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. SCANNED ON 711912012 [* 1] SUPREME COURT OF $HE STATE OF NEW YORK - NEW YORK COUNTY c/L7Urc, PRESENT: / PART YD? Justice -vMOTION 8EO. NO. 01 MOTION CAL. NO. The following papers, numbered 1 to were read on this motion tolfor PAPERS N M V - Notice of Motlon/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavitr - Exhibits Replying Affldavita Yes Cross-Motion: 0 No A Upon the foregoing papers, It is ordered that this motion p/m- % \q&p- /J &&T-m.&Is- L.Ld-1-d.F FILED NEW YORK COUNTY CLERKS OFFICE Dated: Sheck one: 0 FINAL D I S P O S m Check if appropriate: D DO NOT SUBMIT ORDER/ JUDG. -FINAL DISPO ---SETTLE ORDER/ JUDG. [* 2] THE EXONERATION INITIATIVE, Petitioner , For a Judgment under Article 78 of the Civil Practice Law and Rulee, - againe t - Index No. 102688/12 THE NEW YORK CITY POLICE DEPARTMENT, FILED Peter H. Moulton, Justice NEW YORK COUNTY CLERKS OFFICE Petitioner in this Article 7 8 proceeding aeeks to reverse the City Police Department ("NYPD,') and to compel the NYPD to disclose, pursuant to the state's Freedom of Information Law ("FOIL") certain records in its possession. since 1996 after being convicted of murder. Rosario, or attorneys working on his behalf, have made prior requests under FOIL for the police records pertaining to the investigation of the homicide. apparently made in 2004, The last such request was although the NYPD states it has been 1 [* 3] unable to locate the folder associated with this final request. Some records were produced pursuant to these multiple requests, but a number of records were withheld, and others - particularly one or more concerning eyewitnesses - were substantially redacted. Rosario and his lawyers apparently did not challenge the adequacy of these prior productions via Article 78 proceedings. The current petitioner, the Exoneration Initiative, describes itself as an organization that investigates and, where appropriate, litigates claims of actual innocence on behalf prisoners in New York State. (Verified Petition, of Rebecca Freedman, E s q . , 7 4.) of indigent 10; Affirmation The record before the court demonstrates that The Exoneration Initiative has not, as of yet, agreed to serve as Rosario'a lawyer. Rosario has signed an authorization and waiver which allows the Exoneration Initiative to investigate his claim of innocence with the understanding that it is not undertaking to represent him. By letter dated November 18, 2011, the Exoneration Initiative requested four categories of documents relating to Rosario's 1996 arrest. This request was denied by the NYPD's Record Access Officer ("RAO") in a letter dated December I, 2011. The RAO denied access on the ground that information contained in the requested records would endanger the life or safety of witnesses. By letter 2 [* 4] dated December 14, 2011, petitioner administratively appealed this determination. By letter dated February 24, 2012, the Records Access Appeals Officer ( M o r , ) remanded the matter to the RAO to search for the requested records. The February 24 th letter also stated that That part of your appeal which concerned redactions made to a record that you included with your November 18, 2011 FOIL request will be separately addressed in an appeal determination after a search f o r the requested arrest records, including the redacted record that you provided, is completed. petition. DISCUSSION T h e NYPD moves to dismiss the petition on three grounds. First, it cites the previous FOIL requests of Rosario and h i s lawyers, and argues that the instant request is time-barred. According to the NYPD the Exoneration Initiative stands in the shoes of Rosario and the time to appeal the adequacy of prior FOIL productions has long since passed. CPLR 217(1) requires that an Article 7 8 proceeding must be brought within four months of the challenged final decision. This argument fails. At this juncture, the Exoneration 3 [* 5] Initiative is not a representative of Rosario. It is true that at some point in the f u t u r e it is possible t h a t the Exoneration Initiative will engage in legal representation of Rosario. It is also possible that Exoneration Initiative and Rosario may never have an attorney-client relationship. The Exoneration Initiative is analogous to a media outlet investigating whether police records undermine a criminal conviction. The only cases cited by the NYPD in support of their argument that a FOIL repeat of a "representatives" are treated as equivalent of a principal's FOIL request are cases where attorneys made FOIL requests on behalf of their clients. At this time, there is no attorney client relationship between Rosario and the Exoneration Initiative. It is certainly true that, like a newspaper's efforts to uncover a wrongful conviction, the Exoneration Initiative's efforts may benefit an incarcerated person. However, that does not mean that the Exoneration Initiative - any more than a newspaper becomes the representative of the person who benefits from its efforts. The U.S. Supreme Court has rejected this concept of "virtual representation" under the analogous federal FOIA statute. Instead, the Supreme Court has adhered to longstanding federal standards of 4 [* 6] nonparty preclusion. (See T a u J ~ rv Sturqell, 553 US 880 [20081 . ) After rejecting the virtual representation defense in Taylor, the Supreme Court remanded to the trial court to determine if a third party should have been precluded by an earlier FOIA denial on agency grounds, a traditional basis for third party preclusion. Here there are no facts in the record that Rosario in anyway controls the work of the Exoneration Initiative, a crucial component of the principal - agent relationship. The NYPD s second argument is that the petition was not adequately verified. This argument is without merit. The petition was properly verified by Glenn A . Garber, the Exoneration Initiative sDirector, who states that he has personal knowledge of the facts contained in the petition. The NYPD s final argument is that t h e RAAO s remand to the RAO means that the case is not ripe because petitioner has not exhausted administrative remedies. This argument also provides no basis for dismissal. There are deadlines provided in the Public Officers Law for agency response to FOIL requests. 1 In this case Petitioner sought to bring this case to the court s attention by letter submitted after the motion was fully submitted. The court was aware of the case at the time of oral argument. The submissions by the parties after the motion was fully submitted are not p a r t of the record before the court in deciding the instant motion. 5 [* 7] none of the deadlines were met by the NYPD. February 24th decision of the 0 In particular, the does not satisfy POL 5 89(4) (a) which states that an agency must, within ten days of receipt of the appeal, fully explain the reason for a denial or provide access to the record sought. The FWAO d i d neither of these things, within ten days of the appeal, or at any time thereafter. In such circumstances, a failure to timely respond is treated as a denial. (POL 55 89(4) (a), (b - 1 For the reasons stated, the motion to dismiss is denied. Respondent shall have thirty days from the date of service of this decision and order with notice of entry to answer the petition. The court will schedule oral argument after submission of the answer. This constitutes the decision and order of the court. Date: FILED July 12, 2012 AJSC 6
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