Matter of Rodriguez v Johnson

[*1] Matter of Rodriguez v Johnson 2007 NY Slip Op 52086(U) [17 Misc 3d 1120(A)] Decided on October 23, 2007 Supreme Court, Bronx County Roman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2007
Supreme Court, Bronx County

In the Matter of the Application of Nelson Rodriguez, Plaintiff(s),

against

Robert Johnson, District Attorney Bronx County, E.F. Bernhardt, Foil Appeals Officer and Ada Moreira, for an Order Pursuant to Article 78 of Civil Practice Law and Rules, Defendant(s).



51675/2005

Nelson S. Roman, J.

Pursuant to this Court's Decision and Order, dated March 23, 2007, this Court directed respondents Robert Johnson District Attorney Bronx County (Johnson), Assistant District Attorney Moreira (Moreira) and, E.F. Bernhardt (Bernhardt), the Freedom of Information Law (FOIL) Appeals Officer for the Bronx County District Attorney's, to produce the Najarian/Sanchez videotaped statements recorded by respondent Bronx County District Attorney's Office for an in camera inspection to determine whether said tapes were properly withheld.

In its initial denial of petitioner's request for a copy of the Najarian/Sanchez video tape, respondent Moreira asserted three separate grounds. Respondent Moreira asserted disclosure would constitute an unwarranted invasion of personal privacy pursuant to Public Officer's Law (POL) §87(2)(b). Secondly, the request was denied pursuant to POL §87(2)(f) inasmuch as said disclosure would endanger the life or safety of the individuals at issue. Lastly, disclosure was denied pursuant to the public interest privilege enabling law enforcement agencies to deny requests for the disclosure of witnesses so as to encourage witnesses to come forward in the future. Following petitioner's initial request for and subsequent denial of a copy of the tape, petitioner appealed respondents denial pursuant to POL §89(4)(a). Said appeal was addressed to Bernhardt, the FOIL Appeals Officer at respondents' agency, who similarly determined that the videotapes were not subject to disclosure on the same grounds previously asserted.

In accordance with this Court's Decision and Order, respondents produced the subject tape for the purpose of the court conducting an in camera inspection. Upon a review of the Najarian/Sanchez videotape(s),[FN1] the Court determines that respondents failed to meet their burden to demonstrate that the tapes sought by petitioner were properly withheld pursuant to an [*2]exemption. Thus, the tapes should have been disclosed.

New York State FOIL as codified at POL §87 reads, in pertinent part as follows:1. (a) Within sixty days after the effective date of this article, the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article. (b) Each agency shall promulgate rules and regulations, in conformity with this article and applicable rules and regulations promulgated pursuant to the provisions of paragraph (a) of this subdivision, and pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the availability of records and procedures to be followed, including, but not limited to: i. the times and places such records are available; ii. the persons from whom such records may be obtained, and iii. the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record, except when a different fee is otherwise prescribed by statute. 2. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:

(a) are specifically exempted from disclosure by state or federal statute; (b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article; (c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations; (d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise; (e) are compiled for law enforcement purposes and which, if disclosed, would: i. interfere with law enforcement investigations or judicial proceedings; ii. deprive a person of a right to a fair trial or impartial adjudication; [*3] iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures; (f) if disclosed could endanger the life or safety of any person; (g) are inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policy or determinations; iv. external audits, including but not limited to audits performed by the comptroller and the federal government; or (h) are examination questions or answers which are requested prior to the final administration of such questions. (i) if disclosed, would jeopardize an agency's capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures; or (j) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-a of the vehicle and traffic law.

FOIL, thus, allows the public the means by which to attain information concerning the operations of State government. Fink v. Lefkowitz, 47 NY2d 567 (1979). The rationale underpinning FOIL is "that the public is vested with an inherent right to know and that official secrecy is an anathematic to our form of government. Id. at 571. Access to government records does not depend on the purpose for which said documents are sought and disclosure is not precluded by the CPL, Gould v. New York City Police Department, 89 NY2d 267 (1996), or the CPLR, Cornell University v. City of New York Police Department, 153 AD2d 215 (1st Dept. 1989);M. Farbman & Sons, Inc. v. New York City Health and Hospitals Corp., 62 NY2d 75 (1984). The public's right to obtain information and access the inner workings of the State government, however, is not limitless. Id. The legislature in recognizing the need to keep certain matters confidential, carved out eight statutory instances when, if the governmental agency so demonstrates, information will not be subject to disclosure under FOIL. M. Farbman & Sons, Inc. v. New York City Health and Hospitals Corp., 62 NY2d 75 (1984); Fink v. Lefkowitz, 47 NY2d 567 (1979); Johnson v. New York City Police Department, 257 [*4]AD2d 343 (1st Dept. 1999); Kheel v. Ravitch, 93 AD2d 422 (1st Dept. 1983). The instances and types of documents not subject to disclosure are enumerated in POL §87(2).

FOIL records sought from an agency may also be subject to a non-enumerated exemption to disclosure known as the public interest privilege. Huston v. Turkel, 236 AD2d 283 (1st Dept. 1997); Sanchez v. City of new York, 201 AD2d 325 (1st Dept. 1994). Said privilege protects statements made by a witness to the District Attorney's Office from disclosure under the theory that disclosing such information would dissuade witness from coming forward and cooperating in the future. Id. Such a privilege however is qualified not absolute. Id. As such, said information may be disclosed upon demonstration of a compelling and particularized need for access. Id.

An agency may not withhold information simply because it refuses to do so. The burden rests on the agency from whom FOIL disclosure is sought to demonstrate that the information requested is exempt by virtue of the enumerated categories. Fink v. Lefkowitz, 47 NY2d 567 (1979). In order to meet the requisite burden, the agency must specifically particularize why the documents sought are exempt from disclosure and if necessary submit said documents to the court for an in camera inspection. Id. Only if the material requested falls squarely within one of the enumerated exceptions will disclosure be barred. Id.

With respect the tapes withheld, respondents herein relied on three exemptions for its failure to disclose them. Two exemptions are statutory and one is premised on public policy. Respondents withheld the tapes pursuant to POL §87(2)(b), which bars disclosure if it would constitute an unwarranted invasion of personal privacy, POL §87(2)(f), which bars disclosure if it would endanger the life or safety of the individuals at issue and lastly, disclosure was denied pursuant to the public interest privilege enabling law enforcement agencies to deny requests for the disclosure of witnesses so as to encourage witnesses to come forward in the future.

A review of the subject tapes reveals that two individuals, identified as Najarian and Sanchez, at their own request, met with members of the Bronx District Attorneys Office for the purpose of providing information concerning evidence previously proffered at a criminal trial which resulted in petitioner's ultimate conviction. Najarian and Sanchez came forward after petitioner's second trial and conviction. Najarian and Sanchez's statements can only be characterized as favorable to petitioner and could have assisted petitioner had the statements been available at the time of trial. More specifically, the relevant statements are exculpatory in nature and calls into question the veracity of the prosecution's purportedly key witness.

Respondents' assertion that they failed to provide petitioner with a copy of the tapes because disclosure would constitute an unwarranted invasion of privacy is unavailing. What constitutes an unwarranted invasion of personal privacy for purposes of FOIL is measured by what would be offensive and objectionable to a reasonable person of ordinary sensibilities. Pennington v. Clark 16 AD3d 1049, reargument denied 19 AD3d 1185 ( 2005). Such determination requires balancing the competing interests of public access and individual privacy. Id. The tapes herein do not disclose the identity of any confidential witness, informant or confidential source of information. Nor do the tapes disclose any other confidential information. Thus, respondents have failed to demonstrate the tapes should be withheld pursuant to POL § 87(2)(b). [*5]

Similarly, respondents' assertion that the tapes should be withheld pursuant to POL § 87(2)(f) because such disclosure would endanger the life or safety of the individuals at issue is unavailing. The public-safety exemption of POL § 87 (2)(f) requires a particularized showing (See, Matter of Gould v. New York City Police Dept., 89 NY2d 267 (1996). It can not be based on mere speculation. Pennington v. Calabrese, 2002 WL 31885409.

The tapes reveal that petitioner was purportedly tried and convicted for murder and attempted murder. As previously stated, Narjarian and Sanchez proffered information which bears on the veracity of the prosecution's purported "key witness" and other exculpatory information. The tapes do not identify nor provide any information concerning the victims or any of the other witnesses. In as much as the statements provide information which tends to exonerate petitioner, it can not be said that the videotaped statements pose a public safety concern. See, Matter of Johnson v. New York City Police Dept., 257 AD2d 343, 348 appeal dismissed 94 NY2d 791. Lastly, respondents' other basis for not disclosing is unsupported. While the courts have clearly allowed for the withholding of documents/information on public policy reasons, to encourage witnesses to come forward in the future. Such basis is inapplicable herein. Moreover, in as much as the tapes call into question evidence proffered in support of petitioner's conviction, there is a compelling reason to disclose said tapes. Accordingly, it is

ORDERED that respondents provide petitioner with a copy of the Najarian/Sanchez videotaped statements within sixty (60) days hereof. It is further

ORDERED that prior to disclosure, respondents redact the addresses and/or locations of any and all witnesses, if given or provided. It is further

ORDERED that respondents serve a copy of this Order, with Notice of Entry, upon petitionervia certified mail within twenty-one (21) days hereof.

This constitutes this Court's decision and Order.

Dated :October 23, 2007

Bronx, New York

________________________________Nelson S. Roman, J.S.C. Footnotes

Footnote 1:The Najarian/Sanchez tape consist of four video tapes.