Lenchner v New York City Police Dept.

[*1] Lenchner v New York City Police Dept. 2016 NY Slip Op 51054(U) Decided on July 8, 2016 Supreme Court, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 8, 2016
Supreme Court, New York County

Charles Lenchner, Petitioner,

against

New York City Police Department, Respondent.



100139/2014



The Kurland Group, New York City (Yetta G. Kurland of counsel) for petitioner.

New York City Police Department, New York City (Lesa Moore of counsel), for respondent.
Gerald Lebovits, J.

On January 18, 2013, petitioner protested in New York City against the United States Supreme Court's decision in Citizens United v Federal Election Comm'n (558 U.S. 310 [2010]). Petitioner protested by driving a van fitted with a projector and projecting an image with the words "R.I.P. America" onto several buildings in New York City, including Senator Charles Schumer and Senator Kirsten Gillibrand's offices and Mayor Michael Bloomberg's residence. After receiving reports of this activity, the New York Police Department (NYPD) Intelligence Division commenced a counterterrorism investigation on petitioner's vehicle and its owner. On January 19, 2013, the Intelligence Division contacted petitioner about the protest. Petitioner voluntarily appeared at the 90th precinct for an interview. He was not arrested or otherwise detained after this interview. On January 28, 2013, NYPD personnel towed petitioner's van for a parking violation. On February 8, 2013, petitioner picked up the van from the impound lot. As petitioner drove out of the lot, NYPD officers pulled him over for driving in the rain without his lights on. The officers found that petitioner was driving with a suspended license and arrested petitioner and impounded the van.

On March 28, 2013, petitioner filed a request for records under the New York State Freedom of Information Law (FOIL). In that FOIL request, petitioner stated that "this request includes, but is not limited to, all records involving my arrest on February 8, 2013." Petitioner also requested "all records maintained by the NYPD, including the Intelligence Division, regarding the vehicle taken into custody during my arrest on February 8, 2013" and provided a description of his vehicle. Petitioner, however, did not mention his January 19, 2013, interview with the Intelligence Division. Respondent acknowledged petitioner's FOIL request on April 24, 2013. On April 29, 2013, respondent produced, in error, documents of an unrelated third party, [*2]which petitioner returned to respondent. On May 13, 2013, respondent produced a copy of petitioner's February 8, 2013, arrest record. Petitioner appealed to respondent on June 7, 2013, stating that the lack of "statement regarding the remainder of the records requested" in respondent's production constituted constructive denial. Respondent granted the appeal, and on July 19, 2013, produced an arrest report for a 2006 incident in which petitioner was a victim of a crime and an NYPD invoice regarding petitioner's vehicle. Petitioner filed a second appeal on August 14, 2013, stating that he had "not received a substantive response" to his request and that respondent had constructively denied petitioner's request. Petitioner did not mention his January 19, 2013, interview with the Intelligence Division on either appeal. On October 4, 2013, respondent denied petitioner's appeal. Respondent's denial letter stated that respondent provided the requested records after a diligent search. Respondent also stated that "access to any NYPD Intelligence Division records relating to the vouchered vehicle would be denied because any responsive records that might exist would be exempt from FOIL disclosure" under several subsections of Public Officers Law § 87.

Petitioner commenced this CPLR Article 78 proceeding against the NYPD to obtain documents pertaining to petitioner's arrest on February 8, 2013, and any documents pertaining to his vehicle. Petitioner also seeks attorney fees.

I. Whether Petitioner's FOIL Request Reasonably Described the Documents Sought

Petitioner reasonably described the documents sought in his FOIL request. Public Officers Law § 89 (3) "places the burden on petitioner to reasonably describe the documents requested so they can be located." (Mitchell v Slade, 173 AD2d 226, 227 [1st Dept 1991].) The agency alleging that petitioner's request did not reasonably describe the records sought must "establish that the descriptions were insufficient for purposes of locating and identifying the documents sought." (Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 83 [1984].)

Respondent argues that because petitioner failed to mention his January 19, 2013, involvement with the Intelligence Division, petitioner did not reasonably describe the documents sought in his request. Respondent states that the Intelligence Division records are separately stored from NYPD's arrest and complaint records and that access to Intelligence Division records are limited within the NYPD. Respondent alleges that because petitioner did not mention his involvement with the Intelligence Division, the FOIL unit searched only the arrest and complaint record. Petitioner's FOIL request, however, sought "all records maintained by the NYPD, including the Intelligence Division, regarding the vehicle taken into custody during [his] arrest of February 8, 2013." Petitioner also described the vehicle and provided model number, license plate, and registration information. Although petitioner did not mention his prior involvement with the Intelligence division, he sufficiently described the vehicle and sought all records related to it, including those records the Intelligence Division maintained.

In its denial letter, respondent acknowledged that petitioner sought Intelligence Division records. This letter provided that access to any NYPD Intelligence Division records relating to petitioner's vehicle would be denied because any records that might exist are exempt from FOIL disclosure under Public Officers Law § 87. Although respondent acknowledged that petitioner's request included Intelligence Division records, respondent did not certify whether it searched for those records before petitioner commenced this proceeding. Petitioner reasonably described the documents sought in his FOIL request, and respondent denied access to those documents.

II. Whether the Intelligence Division Documents are Exempt from FOIL Disclosure

A court reviewing a denial of a FOIL request must "presume that all records of a public agency are open to public inspection and copying, and must require the agency to bear the burden of showing that the records fall squarely within an exemption to disclosure." (New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d 153, 158 [1st Dept 2010].) To invoke exemptions under Public Officers Law § 87 (2), an agency must articulate "particularized and specific justification for not disclosing requested documents." (Gould v New York City Police Dept., 89 NY2d 267, 275 [1996].) If a 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." (Id.) A court performing an in camera inspection may "balance the right of access against the agency's interest in nondisclosure." (DJL Rest. Corp. v Dept. of Bldgs. of City of New York, 273 AD2d 167, 169 [1st Dept 2000].)

Based on respondent's answer, the court is unable to determine whether the undisclosed documents fall entirely within the scope of the asserted exemptions. The court therefore conducted an in camera review of the undisclosed Intelligence Division documents, which consists of 163 pages and one compact disc. Respondent alleges that the documents are exempt under Public Officers Law § 87 (2) (b), (e) (iii), (e) (iv), (f), (g), and § 89 (2). Petitioner alleges that law-enforcement exemptions do not apply here because petitioner is seeking personal records, not records pertaining to broad counterterrorism investigations. The requested records, however, are from the Intelligence Division's counterterrorism investigation. That petitioner seeks his personal records is irrelevant in light of the nature of this investigation.

Under Public Officers Law § 87 (2) (e) (iii), agency records are exempt from a FOIL request if the records were compiled for law-enforcement purposes and their disclosure would "identify a confidential source or disclose confidential information relating to a criminal investigation." Here, the documents identify confidential sources and information about petitioner and other persons of interest from respondent's investigation. The documents include non-testifying witnesses' statements and personal information of those witnesses. Disclosing this information could jeopardize the effectiveness of NYPD's undercover programs, harm the NYPD's ability to protect the identities of undercover officers and informants, and have a "chilling effect upon the public's willingness to report leads or other information of investigative value." (Asian Am. Legal Defense and Educ. Fund v New York City Police Dept., 964 NYS2d 888, 895 [Sup Ct, NY County 2013], affd 125 AD3d 531 [1st Dept 2015].) Accordingly, respondent properly withheld the requested records under this exemption.

Under Public Officers Law § 87 (2) (e) (iv), agency records are exempt from a FOIL request if the records were compiled for law enforcement purposes and their disclosure would "reveal criminal investigative techniques or procedures, except routine techniques and procedures." Although not dispositive, whether investigative techniques are nonroutine is indicated by "whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel." (Fink v Lefkowitz, 47 NY2d 567, 572 [1979].) Widely used and time-tested undercover operations "have been adjudged non-routine." (Asian Am. Legal Defense, 964 NYS2d at 895.) Here, disclosing the documents would allow the public to identify the tradecraft, modes of operation, and methods the Intelligence Division uses in counterterrorism investigations. With access to this information, violators will be able to anticipate the avenues of inquiries that the Intelligence Division would adopt in future investigations and evade detection. Accordingly, respondent properly withheld the requested records under this exemption.

Under Public Officers Law § 87 (2) (f), agency records are exempt from a FOIL request if [*3]their disclosure "could endanger the life or safety of any person." The responding agency "need only demonstrate a possibility of endangerment' in order to invoke this exemption." (Matter of Bellamy v New York City Police Dept., 87 AD3d 874, 875 [1st Dept 2011], quoting Matter of Connolly v New York Guard, 175 AD2d 372, 373 [3d Dept 1991].) Here, the documents contain the Intelligence Division's methods and operations. Disclosure could enable terrorists to exploit respondent's methods of investigation. The documents also contain the personal information about the members of the public who cooperated with respondent's counterterrorism investigation. Disclosing this information could endanger the life and safety of the persons identified as cooperators. Respondent sufficiently demonstrated that a possibility exists that disclosing the documents would endanger the public. Accordingly, respondent properly withheld the requested records under this exemption.

Under Public Officers Law § 87 (2) (b) and 89 (2), records are exempt from a FOIL request if its disclosure "would constitute an unwarranted invasion of privacy." An unwarranted invasion of privacy includes disclosing the information provided in § 89 (2) (b) (i) — (vii). Whether disclosing information constitutes an unwarranted invasion of personal privacy is " measured by what would be offensive and objectionable to a reasonable person of ordinary sensibilities.'" (Asian Am. Legal Defense, 964 NYS2d at 896, quoting Matter of Dobranski v Houper, 154 AD2d 736 [3d Dept 1989].) Here, the documents contain names, home addresses, birthdates, home and business phone numbers, social security numbers, and descriptions of the witnesses and persons of interest whom the NYPD investigated. Disclosing this information would constitute an unwarranted invasion of personal privacy under § 89 (2) (b). Accordingly, respondent properly withheld the requested records under this exemption.

Under Public Officers Law § 87 (2) (g) (ii), inter-agency or intra-agency instructions to staff that does not affect the public are exempt from a FOIL request. Respondent's documents include instructions to the NYPD officers that do not affect the public. Accordingly, respondent properly withheld the requested records under this exemption.

Under Public Officers Law § 87 (2) (i), records are exempt from a FOIL request if disclosure 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." The documents include sensitive search results from the NYPD database. Accordingly, respondent properly withheld the requested records under this exemption.

Pages 67-74 are copies of petitioner's parking-violation tickets. Petitioner should have received these documents before respondents towed petitioner's van. They are not exempt under § 87 (2) (iv) and 87 (2) (b). Respondent must produce these pages to petitioner after redacting the responding officer's personal information. Pages 79-82 and 144-147 contain information from public Web sites and therefore are not exempt under § 87 (2) (i) and (iv). Item 164, a compact disc containing video information about petitioner, is a public video that petitioner made and is not exempt under § 87 (2) (iv). Page 88 is an image captured from that video and is also not exempt.

Pages 67-74, 79-82, 88, 144-147 of the documents and item 164 of the documents are not exempt under the Public Officers Law. Respondent shall redact the personal information from those pages as appropriate and produce those pages and the item to petitioner.

III. Attorney Fees

The court denies petitioner's request for attorney fees. Public Officers Law § 89 (4) (c) (i) and (ii) provides that a court in a proceeding for FOIL request may assess against the agency [*4]involved reasonable attorney fees and other litigation costs that petitioner reasonably incurred when petitioner substantially prevails and "when (i) the agency had no reasonable basis for denying access; or (ii) the agency failed to respond to a request or appeal within the statutory time."

Here, 145 out of 164 documents that petitioner seeks are exempt from the FOIL request. Respondent is ordered to produce only 18 documents. Petitioner has not substantially prevailed in this proceeding and is not entitled to attorney fees.

Accordingly, it is hereby

ORDERED and ADJUDGED that the petition is granted only to the extent that respondent shall produce pages 67-74, 79-82, 88, 144-147 and item 164 to petitioner within ten business days, in accordance with this opinion; and it is further,

ORDERED that respondent must serve a copy of this order with notice of entry on all parties and the County Clerk's office, which is directed to grant the petition in part and deny it in part.

This is the court's decision and order.

Dated: July 8, 2016

J.S.C.