Matter of Exoneration Initiative v New York City Police Dept.
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Matter of Exoneration Initiative v New York City Police Dept. 2013 NY Slip Op 30546(U) March 15, 2013 Supreme Court, New York 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 312112013 [* 1] - SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. Peter H. Moulton PART 4 0 B The following papers, numbered I to were read on this motion tolfar Papers Numbered Notice of MotionlOrder to Show Cause Answering Affidavits Dated: / Exhibits - Exhibits / New York, New York .J.S.C. MOULTO ON 1 ......................................... f' Appropriate: .......eo dM n i . I Check one: . 2. Check -Affidavits- 3. Check if Appropriate: ......................... KCaseD i s p o s e d 2 a Settle Order Do Not Post Non-Final Disposition 0 Granted in Part 0 Submit Order 0Fiduciary Appointment UNFlLED JUDGMENT r] Other [ 1 Reference 1 This judgment has not been entered by the Countv Clerk and noti& o entry cannot be served based herein. To f obtain entry, counsel or authorized representative must appear in person a the Judgment C e k sDesk (Room t lr' 141B). [* 2] Petitioner, For a Judgment under A r t i c l e 78 of the C i v i l Practice Law and Rules, Index No. 102688/12 -against- THE N E W YORK CITY POLICE DEPARTMENT, Respondent. Rosario. 1 [* 3] BACKGROUND By letter dated November 18, 2011, petitioner requested Pursuant to FOIL four categories of documents relating to Rosario' s arrest for the murder of George Collazo. by the NYPD's Record Access Officer This request was denied ("RAO") in a letter dated December 1, 2011. The RAO denied access to the records pursuant to Public Officers Law 5 8 7 ( 2 ) ( f ) on the ground that information contained in the requested records would endanger t h e life or safety of witnesses to the crime. Petitioner timely took an administrative appeal of the denial. By letter dated February 24, 2012, the NYPD's Appeals Officers ("RAAO") Records Access remanded the matter to the RAO to search for the requested records. The February 2 4 t h letter also states: That part of your appeal which concerned redactions made to a record that you included with your November 1 8 , 2 0 1 1 FOIL request will be separately addressed in an appeal determination after a search for the requested arrest records, included [sic] the redacted record that you provided, is included. Petitioner waited and heard nothing from the NYPD. After submitting a letter inquiry to the NYPD, and receiving no reply, petitioner brought this Article 7 8 proceeding. Petitioner seeks to reverse the determination of the RAAO and to compel the NYPD to disclose the relevant records concerning Rosario: The NYPD responded by moving to dismiss the petition, arguing, inter alia, that petitioner had 2 failed to exhaust its [* 4] In a decision dated administrative remedies. July 12, 2012, familiarity with which is assumed, this court denied respondent's motion to dismiss the petition. With respect to the exhaustion argument, the NYPD the court held that had disregarded the deadlines for agency decision imposed by FOIL, and that petitioner could treat this delay as a constructive denial. (POL §§ 89 (4)(a), ( b ) .1 The NYPD subsequently submitted an answer to the petition and petitioner replied to the answer. On August 16, 2012, the NYPD released ,27 pages of documents responsive explanation to as petitioner's to why it request. did not The NYPD previously provides release no these documents. The NYPD continues to withhold all or part of three pages of documents relating to a non-testifying witness whom the parties refer to as "passerby. '' Passerby allegedly observed an altercation p r i o r to the shooting, and described to the police the shooter, his accomplice, and the vehicle used by the perpetrators to leave t h e scene. Petitioner asserts that passerby's account corroborates premeditated and committed by someone who knew the victim. These facts, if established, would appear to contradict the People's theory at Rosario's criminal trial, which was that Rosario killed C o l l a z o after a random altercation. 3 As noted above, passerby did [* 5] arguments, DISCUSSION FOIL imposes a broad duty of disclosure upon government agencies. Government records are "presumptively open" to the public, statutory construed, specific exemptions to disclosure are "narrowly and the agency must articulate a '\particu1arized and justification" Liberties Union v C i t v of for nondisclosure. (New York Schenectadv, 2 ~ y 3 d 6 5 7 , 661 Civil [2004] [citins Gould v New York Citv Police DeD't, 89 NY2d 267, 274, 2751 [ 1 9 9 6 1 [internal quotations omitted].) six. 4 [* 6] The NYPD first argues that complete disclosure of the three passerby pages is b a r r e d by POL 5 8 7 (2)(f), which provides that government records may be withheld if their disclosure "could endanger the life or safety of any person." Courts have held that the agency must only demonstrate a possibility of endangerment to invoke this exemption. (a Matter of Bellamy v New york C i t v Police Dep't, 87 AD3d 874, 875 [ I s t Dep't 2 0 1 1 1 , aff'd 2 0 NY3d 1 0 2 8 /20131.) On On the other hand, there is no comprehensive prohibition the disclosure of police records concerning information provided by witnesses. (See Matter of Johnson v New York City Police Dep't, 257 AD2d 343, 348 [lst Dep't 1 9 9 9 1 . ) The NYPD has not carried'its burden to show that there is a possibility that passerby would be endangered by the release of the three pages. Passerby was not a witness who offered trial testimony that led to Rosario's conviction. Instead, the three pages reviewed by the c o u r t demonstrate that passerby may have information that helps Rosario as he attempts to prove his innocence. As the First Department has stated, \'the disc1osure of information that tends to exonerate a criminal defendant would not be likely to present any apparent danger to the witness from whom it was derived." (Johnson, supra, 257 A D 2 d at.349.) This fact distinguishes cases that have denied access to government records because disclosure could give rise to endangerment. F o r example, there is no allegation that R o s a r i o was engaged in gang-related 5 [* 7] activity at the time Collazo was killed (cf.Bellamv, supra, 87 AD3d 874) [where case involved gang-related murder ordered from prison of parole officer, non-testifying witness statements exempt from disclosurel), and passerby did not give inculpatory evidence at Rosario's Dep't 2 0 1 1 1 trial (cf. Whitfield v Bailey, 80 AD3d 417 [First [petitioner who "had a history of violence" may not obtain address of witness who testified against him at crimina1 trial] . ) A second document that was produced to petitioner with a partial redaction, the first page of four non-passerby documents, also arguably falls within POL 5 8 7 ( 2 ) ( f ) . That one-page document contains a statement of Jose D i a z , a food cart vendor present on the night of the murder who testified on the prosecution's case. This statement was produced to petitioner, but with redactions of Diaz' home address and phone number. Diaz' name was not redacted from the copy of this document given to petitioner, since he was known to Rosario from the trial. Certainly, the safety of a testifying prosecution witness will in many instances warrant the redaction under FOIL of his address and phone number from a statement given to police. However, in this case Diaz might also have exculpatory information that would help Rosario. After his direct appeal was d e n i e d , Rosario brought an unsuccessful habeas corpus petition in federal' court. Both the Magistrate Judge and the Federal District Court Judge who reviewed 6 [* 8] Rosario's habeas corpus petition noted that D i a z did not identify Rosario at trial, but rather gave testimony concerning the altercation that l e d to C o l 1 a z o ' s murde\r. (Rosario v E r c o l e , 582 F Supp2d 541, 546, 20101, cert. denied 561 [ S D N Y 20071, aff'd - us -I 601 F3d 118 [2d C i r . 131 S . Ct 2901.) D i a z stated that he thought he could identify the men involved in the altercation, but he did not identify Rosario in the courtroom. Given that he was present on the night of the murder, and that he did not l i n k Rosario to the murder, the NYPD has not carried its burden to demonstrate that Diaz would be endangered by the release of his 1996 address and phone number. The NYPD next argues that the passerby records are exempt from disclosure pursuant to POL 5 8 7 ( 2 ) (e)(iii). That section states that requests f o r records "compiled f o r law enforcement purposes" may be denied where disclosure would "identify a confidential source or disclose confidential information relating to a criminal investigation. I ' There is nothing in the record before the court indicating that passerby was given an explicit assurance of confidentiality. Rather, the NYPD asserts that passerby gave information to the police under an implicit assurance of anonymity and that disclosure of his/her statement and personal information would violate that implicit assurance. The NYPD argues that it w i l l be more difficult to obtain eyewitnesses' cooperation if their statements, name and 7 [* 9] address become known at a later date through FOIL. The NYPD is correct that courts have not required an explicit assurance of anonymity before a witness' statement will be exempt under POL 8 7 ( 2 ) (e)(iii). § However, t h e agency must show that "the circumstances give rise to the clear inference that such promise was assumed." (Johnson, suDra, 257 A D 2 d a t 348.) Here the NYPD has not provided any factual predicate -- other than the fact that the passerby was questioned investigation -- in the context of a murder that could give rise to the inference of an assumed promise of confidentiality. This fact, standing alone, is not enough to establish an "assumed" promise of confidentiality. If the legislature wished to exempt from FOIL disclosure all statements made by non-testifying witnesses investigations, it could have done so. in homicide It did not c a r v e out so broad an exception, Witnesses questioned during a murder investigation may potentially be called to t a k e the stand at a criminal trial. Often it is impossible to know which witnesses will have information necessary to prove the People's case until the ' investigation is concluded and the District Attorney prepares for trial. Passerby's statements were made at the outset of the investigation, and it is unlikely that anyone knew at the time passerby gave his/her statement to the police whether passerby's testimony at trial would be necessary to prove an element of the District Attorney's case. 8 [* 10] 8 9 ( 2 ) (b). Section 8 9 ( 2 ) (b) states: an unwarranted invasion of personal privacy includes, but shall not be limited to: (b) (i) disclosure of employment, medical or credit histories or persona1 references of applicants f o r employment; (ii) disclosure of items involving the medical or personal records of a client or patient in a medical facility; (iii) sale or release of lists of names and addresses if such lists would be used f o r solicitation or fund-raising purposes; ( i v ) disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the woqk of the agency requesting or maintaining it; ( v ) disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work 0.f such agency; (vi) information of a personal nature contained in a workers' compensation record, except as provided by section one hundred tena of the workers' compensation l a w ; o r 9 [* 11] (vi) disclosure of electronic contact information, such as an email address o r a Social network username, that has been collected from a taxpayer under section one hundred f o u r of the real property tax law, The NYPD argues that it must make o n l y a prima facie showing that disclosure might constitute an unwarranted invasion of privacy, and that the burden then shifts to petitioner to demonstrate that the public interest outweighs the individual s privacy rights. This burden-shifting procedure has been rejected by the C o u r t of Appeals in Matter of Data Tree, LLC v Romaine (9 NY3d 454, 462-3 [ZOO71 . ) Under that case, the burden of proof rests solely on t h e NYPD to demonstrate an unwarranted invasion of privacy. The NYPD has failed to carry that burden with respect to passerby s pages, and with respect to the redacted information contained on the remaining four pages. The NYPD cites none of the enumerated examples of unwarranted invasions of personal property set forth above. Instead, it: invokes the possibility that future witnesses to crimes might decline to cooperate with the NYPD if they know that their names and addresses, and the content of their statements to police, might be revealed at Some later d a t e pursuant to FOIL. The NYPD argues that for this reason, the witness information contained in the Seven pages reviewed in camera should be protected from disclosure. This argument expands the unwarranted invasion of privacy exception to a breadth where FOIL is eclipsed. 10 If this argument [* 12] were correct, then no witness information would ever be available pursuant to FOIL from the NYPD under any circumstances. The legislature struck a different balance in FOIL. It did not impose a blanket prohibition on the disclpsure of witness testimony and identifying information. C i t v of Albany, (a Matter 68 AD3d 1290 [3rd Dep't 20091 . ) of Carnevale v Instead, as discussed above, it limited o r prohibited disclosure to particular situations such as those discussed above: where there is an explicit or implicit assurance of confidentiality by the police, or where disclosure might endanger a witness. The f i r s t of the four non-passerby pages, containing Jose Diaz' address and phone number, is discussed above. The redactions on the other non-passerby pages are of names of individuals, and fragmentary information about the individuals, written in what appear to be police notebooks. It is unclear how, or even whether, these names are relevant to this investigation. As there is nothing in the record to indicate that this redact'ed information is barred from disclosure by F O I L , these pages should be produced in unredacted form, In its cover letter accompanying the seven pages discussed herein, the NYPD argues that a police officer's tax registry number that appears on one of the passerby documents should be redacted as kt would be an invasion of the officer's privacy. The NYPD states that t h i s number is u s e d for internal pUrpOSeS, but does not 11 [* 13] explain how the disclosure of the number could compromise the officer s privacy. In any event, the number already appears in the partially redacted pages in petitioner s possession attached to the petition as exhibit 6, along with the officer s name. For the reasons stated the court holds that a l l . seven pages of documents should be produced in unredacted form to petitioner pursuant to FOIL. As the prevailing party, petitioner is entitled to seek reasonable legal fees pursuant to 8 9 ( 4 ) (c)(i) and (ii). The court notes that it held in the July 12, 2012 decisipn that the NYPD failed to follow statutory time frames in responding to petitioner s FOIL requests. The NYPD s late production o f 27 pages of documents does not excuse its failure to timely respond to petitioner s requests. (a Matter of New York State Defenders Ass n v New York S t a t e Police, 87 AD3d 193 [3rd Dep t 20111 , ) CONCLUSION For the reasons set forth above, IT IS ORDERED and ADJUDGED that the NYPD s decision to withhold, in whole or in part, the seven pages of documents inspected by t h e court in camera is annulled; and it is ORDERED and ADJUDGED that the N Y P D shall p r o v i d e petitioner with unredacted copies of all seven pages of documents inspected by the court in camera, within twenty days of service of this order 12 [* 14] w i t h n o t i c e of e n t r y ; and i t i s ORDERED AND ADJUDGED t h a t On A p r i l 2 2 , 2 0 1 3 , a t 2 : 1 5 pm a t 111 C e n t r e S t r e e t , Room 6 2 3 , t h e parties s h a l l a p p e a r for a h e a r i n g concerning whether petitioner should be awarded reasonable a t t o r n e y s ' fees a s t h e p r e v a i l i n g p a r t y , and if s o , i n what amount. I f a party i s u n a b l e t o appear on t h a t day, the parties shall confer and provide a l t e r n a t e d a t e s t o t h e c o u r t . T h i s c o n s t i t u t e s t h e O r d e r a n d Judgment of t h e C o u r t . DATED : March 15, 2013 A. J . S , C . UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice cd entry cannot be served based hereon. To obtain entry, counsel or authorized representative must amear in person at the Judgment Clerk's Desk (Room 1410). 13
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