Matter of O'Donnell v New York City Police Dept.
Annotate this CaseDecided on July 14, 2017
Supreme Court, New York County
In the Matter of George O'Donnell, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
against
New York City Police Department, and William Bratton, in his official capacity as Commissioner of the New York City Police Department, Respondents.
101416/16
For Petitioner:
Daniel McGuinness, Esq.
Perlmutter & McGuinness, PC
260 Madison Ave., Suite 1800
New York, NY 10016
212-679-1990
For Respondents:
Steven Drennen, Esq.
Zachary W. Carter, Esq.
NYC Corporation Counsel
Lawrence Byrne
Deputy Comm'r, Legal Matters
One Police Plaza, Rm. 1406
New York, NY 10038
646-61—5400
Barbara Jaffe, J.
By notice of petition and verified petition, petitioner brings this CPLR article 78 proceeding to challenge respondents' alleged denial of his Freedom of Information Law (FOIL) [*2]request, and pursuant to Public Officers Law (POL) § 89, for an order granting him attorney fees. By notice of cross motion, respondents move for an order dismissing the proceeding. Petitioner opposes.
I. BACKGROUND
In the early morning hours of April 5, 1993, three burglars set off an alarm inside a building on East 57th Street in Manhattan. Petitioner and Billon, his canine partner, tracked down the burglars. Bags of diamonds were recovered. Petitioner and Billon were lauded in the media as heroes. As the father of two and grandfather of five, petitioner's seeks any and all records pertaining to the crime, the investigation of it, and the arrests in order that he may "share [with his children and grandchildren] the details . . ." (Petition [Pet.]).
By letter dated May 15, 2016, petitioner sought the arrest records of the burglars, along with "any and all" UF-61s, property vouchered, DD-5s or other official records prepared by law enforcement officers in connection with the arrest and investigation of the charges, transcripts of 911 calls or radio transmissions, itemized vouchers, diagrams or photographs, and communications with entities or outside agencies related to the arrest or investigation. He named 16 officers involved in the arrest, seven others whom he knew to have sent or received related documents, and five units likely to have documentation. (Pet., Exh. F).
By reply dated June 23, 2016, respondent NYPD produced three arrest reports redacted pursuant to POL § 87(2)(b) and (f). (Pet., Exh. H). By letter dated July 6, 2016, and addressed to the NYPD Records Access Appeals Officer, petitioner appealed and sought a written explanation of respondents' failure to produce other records. (Pet., Exh. I). On September 1, 2016, petitioner commenced the instant proceeding. (Pet.).
II. CONTENTIONS
Petitioner alleges that respondents' failure to respond to his FOIL request is arbitrary and capricious and an abuse of discretion. Thus, pursuant to CPLR 7806, petitioner seeks a judgment directing respondents to comply with their duty to perform an adequate search for the records he requested and disclose all responsive records, and awarding him attorney fees and reasonable litigation costs pursuant to POL § 89. (Pet., and accompanying exhibits).
Respondents cross move for an order denying the petition and dismissing the proceeding, arguing that having commenced the proceeding during the pendency of his administrative appeal of the denial of petitioner's FOIL request, petitioner did not demonstrate that he had exhausted his administrative remedies which is a condition precedent to commencing a CPLR article 78 proceeding. They nonetheless attach a letter dated October 13, 2016, from their Records Access Appeals Officer (RAAO) advising that petitioner's appeal was granted and that pursuant to a diligent search within the Midtown North Precinct, Major Case Squad, Crime Scene Unit, Criminal Records Section, Property Clerk Division, and Photo Unit, additional records were located and therein attached. Most of the other records, he adds, if created, would in the Major Case Detective Squad file but multiple squad boxes stored in and shipped to Manhattan from Watertown, New York, were searched and no records were found. Respondents thus maintain that having conducted a diligent search and furnished petitioner with whatever records were in their possession, his request is moot. (Affirmation of Steven Drennen, Esq., in Support of Cross-Motion to Dismiss, dated Oct. 13, 2016, Exh. 5).
In opposition to the cross motion, petitioner argues that notwithstanding respondents' [*3]certification that additional responsive records cannot be located despite a diligent search, he is entitled to a hearing based on his knowledge that many documents were created and exist which have not been produced, such as the online booking system arrest worksheets. He alleges that by virtue of his prior service as a police officer and his perusal of the records produced thus far, he believes that additional documents exist and are in respondents' possession. In support, he attaches redacted copies of online booking sheets which he obtained after reviewing an unspecified court file, claiming that those records are evidence that a diligent search had not been conducted. He also alleges that there must exist a voucher for the gloves recovered, a lab report relating to the gloves, a followup report to the lab report, and a voucher for the recovered diamonds. Added to those records are documents connecting the arrests to prior burglaries and pertinent communications with other agencies, the existence of which was revealed to him by a detective at the time of the arrest and contemporary official memoranda and news reports. Petitioner also observes that pursuant to a request for such records made to the Federal Bureau of Investigation (FBI), he learned that 1,443 pages of potentially responsive records were in that agency's possession. (Affidavit of George O'Donnell in Support of the Motion to Inspect, dated Nov. 21, 2016).
Based on these records, petitioner disputes respondents' assertion that a diligent search was conducted, and in response to respondents' claim that the proceeding is moot, observes that as they failed, within 10 business days of receipt of his appeal, to "fully explain in writing . . . the reasons for further denial, or provide access to the record sought," his appeal was constructively denied (POL § 89[4][a], [b]). (Affirmation of Daniel A. McGuinness, Esq., in Response to Respondents' Motions and in Support of Petitioner's Request for a Hearing and In Camera Review, dated Nov. 21, 2016). He asks for an in camera review of redactions to the records referencing nontestifying witnesses, and maintains that having substantially prevailed in this proceeding, in that he obtained additional documents from respondents by commencing it, he is entitled to attorney fees. (Id.).
In reply, respondents argue that one's obligation to await a final agency determination is not negated by the agency's failure to respond timely to a request, and allege that their delay was not unreasonable given the age of the records and scope of the search required. They dispute petitioner's contention that additional records may be discovered as without "concrete" basis, and offer the affidavit of their Records Access Appeals Officer who attests to "the complete and exhaustive search for records related to the 1993 burglary." (Reply Affirmation in Support of Cross-Motion to Dismiss of Steven Drennen, Esq., dated Dec. 19, 2016, Exh. 6).
Respondents also allege that in 2009, they received official approval to dispose of case files containing records such as those sought by petitioner, and offer in support the affidavit of their Commanding Officer of respondent New York City Police Department's Office of Management Analysis and Planning. (Id., Exh. 7). Thus, to the extent that records were destroyed, they claim that they are no longer in their possession, and to the extent that they were not destroyed, they claim that a diligent search was conducted without result beyond what had been produced. Attached to counsel's affirmation are the records, now unredacted except as to addresses, relating to the nontestifying witnesses, although they argue that petitioner's request for an in camera inspection of the redactions is premature. (Id., Exh. 8).
In objecting to an award of attorney fees, respondents deny that petitioner substantially [*4]prevailed or that they unduly delayed in responding to petitioner. "[C]onsidering the volume of the requests and appeals received, the agency's installation of a new Appeals Officer, the age of the records that were being requested, and the number of units involved," they maintain that their determination of petitioner's appeal in less than two months was not unreasonable. They also argue that as petitioner's purpose in seeking the records relates solely to his desire to share them with his family, no issue is presented that would be of significant interest to the general public, which they contend constitutes a reason for denying fees. (Id.).
III. ANALYSIS
A. Exhaustion of administrative remedies
In Matter of New York Times Co. v The City of New York Police Dept., the Court held that the petitioners' administrative remedies had been exhausted when the respondent "constructively denied their timely internal appeal of the denial of their request for the crime incident database by failing to respond to the appeal within the statutorily mandated 10-day period." (103 AD3d 405, 406 [1st Dept 2013], lv denied 21 NY3d 930; Council of Regulated Adult Liquor Licensees v City of New York Police Dept, 300 AD2d 17, 18 [1st Dept 2002], citing Matter of Floyd v McGuire, 87 AD2d 388, 390 [1st Dept 1982], lv dismissed 57 NY2d 774).
Consequently, absent a timely response to petitioner's appeal, this proceeding was properly commenced.
B. Mootness
Respondents demonstrate that a diligent search was performed and that they received approval to destroy records in cases such as the one in issue. While they do not prove that the records were actually destroyed, given the diligent search, this proceeding is moot. (See Matter of Davidson v The Police Dept of the City of New York, 197 AD2d 466, 466 [1st Dept 1993]; Matter of Newton v Police Dept. of City of New York, 183 AD2d 621, 623, 624 [1st Dept 1992] [proceeding moot even where respondent did not respond within statutory period; "where the relief being sought is supplied during the pendency of litigation, the matter becomes moot"], citing Matter of Pordum v Nyquist, 42 NY2d 958 [1977]). That other records must have existed in 1993 does not disprove the diligence of respondents' search, and the FBI's retention of such records is irrelevant.
As respondents have provided the unredacted records relating to nontestifying witnesses, there is no need for an in camera inspection.
C. Attorney fees and costs
Petitioner's request for an award of attorney fees and costs is not moot. (See Matter of Kohlman-Hausmann v New York City Police Dept., 133 AD3d 437, 438 [1st Dept 2016] [although merits moot, award of attorney fees and costs not moot], and cases cited therein).
"The award of attorney's fees is intended to 'create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL'" (Acme Bus Corp. v County of Suffolk, 136 AD3d 896, 898 [2d Dept 2016], quoting Matter of New York Civ. Liberties Union v City of Saratoga Springs, 87 AD3d 336, 338 [3d Dept 2011], quoting Senate Introducer Mem. in Support, Bill Jacket, L. 2006, ch. 492, at 5). The legislative goals are implemented by POL § 89(4)(c), which permits the court in a FOIL proceeding to:
assess against such agency involved, reasonable attorney's fees and other litigation costs [*5]reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, when:i. the agency had no reasonable basis for denying access; orii. the agency failed to respond to a request or appeal within the statutory time.Entitlement to attorney fees in a FOIL matter depends first on whether the petitioner substantially prevailed in the litigation. In Matter of New York State Defenders Assn v New York State Police, the Court observed even though the respondents' disclosure of records upon the petitioner's commencement of the proceeding without the need for judicial intervention is a factor in considering whether an award of attorney fees may be appropriate,
the "voluntariness" of such disclosure is irrelevant to the issue of whether petitioner substantially prevailed in this proceeding. Indeed, to allow a respondent to automatically forestall an award of counsel fees simply by releasing the requested documents before asserting a defense would contravene the very purposes of FOIL's fee-shifting provision.(87 AD3d 193, 195-196 [3d Dept 2011]). Thus, the Court held that the petitioner substantially prevailed, solely by virtue of having received all of the information it had sought and to which it was entitled. (Id.).
Here, notwithstanding petitioner's extensive delay in seeking the records and the ensuing effort expended in locating them, respondents do not deny that they conducted additional searches as a result of petitioner's commencement of this proceeding. As petitioner thereby received the records he sought, he substantially prevailed in the litigation. (See Acme Bus Corp., 136 AD3d at 897 [inasmuch as petitioner eventually received documents it sought, it "substantially prevailed"], and cases cited therein). As respondents concededly failed to respond to petitioner's appeal within the statutory time, he has demonstrated his entitlement to attorney fees and costs. Accordingly, it is hereby
ORDERED and ADJUDGED, that the petition is denied and the proceeding is dismissed; and it is further
ORDERED and ADJUDGED, that petitioner's request for an award of costs, disbursements, expenses, and attorney fees is granted and severed, and petitioner is directed to submit to the court the pertinent invoices and information regarding the reasonableness of the fees, and to submit to the clerk an appropriate bill of costs to be taxed by the clerk.
DATED: July 14, 2017
New York, New York
Barbara Jaffe, JSC
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