Matter of Oddone v Suffolk County Police Dept.

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Matter of Oddone v Suffolk County Police Dept. 2013 NY Slip Op 32479(U) October 3, 2013 Supreme Court, Suffolk County Docket Number: 2036/2011 Judge: Jones Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO.: 2036-2011 SHORT FORM ORDER SUPREME COURT- STATE OF NEW YORK I.A.S. PART 10 SUFFOLK COUNTY Present: HON. JOl~N CQpy J.J. JONES, JR. JusHce ---------------------··-----------------------------------X In the Matter of the Application of ANTHONY ODDOJf..JE, Petitioner, -againstSUFFOLK COUNTY POLICE DEPARTMENT, STEVE LEVY as Suiffolk County Executive, CHRISTINE MALA!FI as Suffolk County Attorney, and CHRI$TOPHER GATTO as FOIL Appeals Offic~~r, W ACHTELL, LIPTON, ROSEN & KATZ By Marc Wolinsky, Esq. Attorneys for Petitioner 51 West 52"d Street New York, NY 10019 SUFFOLK COUNTY ATTORNEY By Elaine Barraga, Esq. Attorneys for Respondents H. Lee Dennison Building JOO Veterans Memorial Highway P.O. Box 6100 Hauppauge, NY 11788-0099 Respondents. ---------------------- --·-··-------------~-----------------X By prior order of the court dated January 11, 2013, the application of the petitioner, Anthony Oddone, ["the petiti on~r" or "Oddone"], for an order pursuant to CPLR 23 07 for the issuance of subpoenas to the Custodian of Re1cords, Suffolk County Police Department, and Detective Richard Higgins calling for the production of !records at a hearing, to the extent that they were described in the Freedom of Information Act ["FOJ[A"], request filed by the petitioner on June 16, 2010, was granted. The instant disjpute concerns documents that the Suffolk County Attorney's Office, the attorney for the Suffolk County Pqlice Department, ["the County Attorney"], contends are exempt from disclosure under certain provisioris of PUB. OFF. LAW § 87. With the parties' consent, the Court conducted an in camera review of do~uments withheld by the County Attorney from its supplemental Freedom of Information Law ["FCIIL"] production. Pun. OFF. LAW § 87, entitled "Access to agency records", contains exemptions from disclosure codified in, inter alia, p!aragraph 2, subsections (b ), ( e) [iv], and (g) upon which the County Attorney relies to withhold document8 generated by the Suffolk County Police Department. The documents concern the investigation, prosecu1iion, and conviction of the petitioner in connection with the death of Andrew Reister in the early morning hours of August 7, 2008, in Southampton, Suffolk County. The underlying events giving rise to this special proceeding and its history have been fully set forth in the prior decision of the [* 2] Oddone v Suffolk County! Police, et al. Page -2- Index Number: 2036-2011 Court dated January 111, 2013, and the decision of the Appellate Division Second Judicial Department (People v. Oddone, A.D.3d 868, 932 N.Y.S.2d 149 [2d Dept. 2011]), and will not be repeated here except to inform the ipstant decision. sp The petitioner pommenced a related Article 78 proceeding against the Office of the Suffolk County District Attorney entit~ed, In the Matter ofthe Application ofAnthony Oddone, Petitioner, against Suffolk County District Attorrjey 's Office, Thomas Spota as Suffolk County District Attorney, Steve Levy as Suffolk County Executive, Ch~istine Mala.fl, as Suffolk County Attorney, and Christopher Gatto, as FOILS Appeals Officer, under Index !No. 14955/2011. That proceeding also sought to compel disclosure of similar information in respon~e to the petitioner's FOIL request on the Suffolk County District Attorney dated January 14, 2011. T~e FOIL request there was almost identical to the FOIL request in the instant proceeding. The proce~ding against the District Attorney resulted in disclosure of approximately 750 pages of documents, many c~f them duplicates, and many of them redacted. In this proccedling, the petitioner has provided the Court with the 745 pages of documents disclosed in the Article 78 again~t the District Attorney. The respondent, through the County Attorney, has likewise provided the Court w~th 346 pages of documents that it contends are exempt from the petitioner's FOIL request. The parties h;~ve agreed to in camera review and comparison of the documents provided by the District Attorney and the County Attorney, respectively, in an effort to address the claimed exemption of the remaining docum~nts that have not already been disclosed by either the District Attorney or the respondent here, the ~uffolk County Police Department. As the parties' uspected, the Court's in camera review and comparison of both sets of documents revealed that many cd the documents withheld by the County Attorney under a claimed exemption have already been disclose by the District Attorney in the other Article 78 proceeding. The issue here is whether the Police D partment's remaining withheld documents are exempt from disclosure pursuant to PUB. OFF. LAW§ 87 2). In a letter fromlthe County Attorney to petitioner's counsel dated June 6, 2013, the County Attorney has categorized the wf thheld documents into thirteen groups. They are as follows: Line-up Reports and information, CAD R\eports from SHVPD [Southampton Village Police Department], Subpoenas, Cobleskill PD docuu1ents, Independent Ins Docs, SHVPD Photo spreads, Associates Personal, Royal Canadian Mounted Pplice records, Search Warrant documents, SUNY Cobleskill Police documents, Probation records, O~done Personal Documents (facebook, e-justice), SCPD [Suffolk County Police Department] Reports. !The documents within these categories or files have been reviewed by the Court in camera. By letter to ther Comi dated July 15, 2013, the petitioner has agreed to drop any challenge to the claimed exemptions i4 eight of the thirteen categories, with the caveat that the Court confirms upon its in camera review that thfe County Attorney's characterization of the documents in the eight categories is accurate. The petition¥ maintains his challenge to the claimed exemptions in the following five categories: Independent Insurancei documents, Associates Personal, Royal Canadian Mounted Police records, Oddone Personal Documents tfacebook, e-justice), and SCPD Reports. The documents in the five remaining categories number a tc~tal of 156 pages. [* 3] Oddone v Suffolk Count~ Police. et al. Page -3- Index Number: 2036-2011 The Court stajis with the general proposition that public records are presumptively open to the public, unless they f~Ul under one of the enumerated exemptions listed in PUB. OFF. LAW § 87(2). "Exemptions are to b narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articula ing a particularized and specific justification for denying access." Matter of Capital Newspapers Div. of earst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665 (1986), citing Matter if Farbman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 80, 476 N.Y.S.2d 69, 464 .E.2d437 (1984);Matterof Finkv. Lefkowitz, 47N.Y.2d 567, 571 , 419N.Y.S.2d 467, 393 N.E.2d 463 1979). ry of as-yet undisclosed documents is labeled "Independent Insurance documents". st of forty-nine pages of uncertified, unsigned, and unsworn transcripts of five iews taken by law enforcement personnel between August 22, 2008 and March 9, ents that the Court has before it, at least four of the transcribed interviews are from called as witnesses at the petitioner's criminal trial. The first categ The documents cons recorded witness inte 2009. From the docm individuals who were ; By letter from he Suffolk County FOIL Appeals Officer to petitioner's counsel dated June 6, 2013, the County Attorney c aims an exemption from disclosure of these transcribed interviews pursuant to PUB. OFF. LA w § 87 (2)( ). That exemption covers inter-agency or intra-agency materials which are not statistical or factual t bulations or data; instructions to staff that affect the public; final agency policy or determinations; exter al audits, including but not limited to audits performed by the comptroller and the federal government. ! Blanket ex~mr tions for particular types of documents are inimical to FOIL's policy of open · government (Gould v New York City Police Dept., 89 N .Y.2d 267, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996], citing Matter~if Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 569, 505 N.Y.S.2d 576. 496 N. ~.2d 665). To invoke one of the exemptions of§ 87(2), the agency must articulate "particularized and s ecific justification" for not disclosing requested documents (Matter of Fink v. Lefkowitz, 47 N.Y2d ~ 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). Although the · ames and statements of witnesses who did not testify at trial need not necessarily be disclosed under f( IL, (see Matter of John H. v. Goord, 27 A.D.3d 798, 800, 809 N.Y.S.2d 682 [3d Dept. 2006]; Matter o Carnevale v. City ofAlbany, 68 A.D.3d 1290, 1292, 891N.Y.S.2d495 [3d Dept. 2009] ). it appears th t at least four of the interviews were conducted of witnesses who testified at the petitioner' s criminal rial. The County Attorney has failed to provide a "particularized and specific justification" for not isclosing the transcribed statements of trial witnesses. The transcripts of trial witnesses are subject l' disclosure under FOIL (Gould v. New York City Police Dept., 89 N.Y.2d at 277; McCrory v. Village o Mamaroneck, 34 Misc.3d 603, 623 , 932 N .Y.S.2d 850 [N.Y. Sup. 2011]) . The County Attorney is di cted to provide the petitioner with copies of the transcripts of the interviews of any witnesses who testifie~ at the petitioner's criminal trial within twenty days of the entry date of this Order. 1 The second category of documents labeled "Oddone Personal Documents (facebook, e-justice)", consists of twenty-foul pages which the County Attorney contends are exempt pursuant to PUB. OFF. LA w § 87 (2) (b) and (2) (g, respectively. Section (2) (b), the privacy exemption, exempts information that, if disclosed, would cons itute an unwarranted invasion of personal privacy under the provisions of§ 89 (2) [* 4] Oddone v Suffolk Coun1 Police, et al. Page -4- Index Number: 2036-2011 ! (b) (MacKenzie v. Se en, 106 A.D.3d 1140, 964 N.Y.S.2d 702 [3d Dept. 2013)). That section lists several types of information hat would be considered an unwarranted invasion of personal privacy if disclosed, but does not encomp ss the information sought in petitioner's FOIL request. This list, however, is not exclusive (see Matte of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v. Mills, 74 A.D.3d 1417,1418, 904 N.Y.S .2d 512), and a determination of whether disclosure of the information at issue ould amount to an unwarranted invasion of personal privacy requires balancing the private interests at st e against the public interest in access to such information (see Matter ofNew York Times Co. v. City of .Y. Fire Dept., 4 N.Y.3d 477, 485, 796 N.Y.S.2d 302, 829 N.E.2d 266 (2005]; Matter ofEdwards v. New York State Police, 44 A.D.3d 1216, 1216, 843 N.Y.S.2d 729 [3d Dept. 2007]). I Ji The first eight pages of the Oddone Personal Documents category comprise a comprehensive report about the petitioner i eluding his personal information, addresses, registered motor vehicles, criminal record, possible assoc ates and relatives and their identifying information including social security numbers and dates of birth. T the extent that pages four through eight contain personal identifying information about individuals oth ·r than the petitioner, including their social security numbers and dates of birth, the Court agrees that the such identifying information is exempt under the privacy exemption; the names, addresses, social sec ity numbers and dates of birth of the individuals described in the report as "possible associates and relati es" should be redacted before the eight page report is produced by the County Attorney. Otherwise, he eight page "Comprehensive Report" must be disclosed (Pue. OFF. LA w § 89 (2) (b); Prall v. New Yo City Dept. of Corrections, 40 Misc.3d 940, --- N.Y.S.2d ----, 2013 WL 2501750 [N.Y.Sup. 2013], citi g Scott, Sardano & Pomeranz v. Records Access Officer of City ofNew York, 65 N.Y.2d 294, 480 N.E 2d 1071 (1985]). The County ttorney has failed to articulate a "particularized and specific justification" for not disclosing the eight p ge document entitled "Comprehensive Report'', based on the alternate exemption relied on, the inter-ag ncy/intra-agencyexemption as stated in the County Attorney's letter to petitioner's counsel dated June 2013. The report primarily contains what purports to be factual data about the petitioner. Blanket e mptions are inimical to the purposes behind F.O.I.A. (Thomas v. New York City Dept. of Educ., 103 .D.3d 495, 962 N.Y.S.2d 29 [1st Dept. 2013]; New York State Defenders Ass'n v. New York State Poli e, 87 A.D.3d 193, 927 N.Y.S.2d 423 [3d Dept. 2011]). The report, as redacted due to privacy concerns, ust be disclosed (see Matter of Molloy v. New York City Police Dept. , 50 A.D.3d 98. 100- 101 , 851 N . .S.2d 480 [1st Dept. 2008]; Kwasnik v. City of New York , 262 A.D.2d 171 , 691 N.Y.S.2d 525 [1st D t. 1999]). 1 Five pages ot the category of documents entitled " Oddone Personal Documents (facebook, ejustice)". comprise ar port generated by the Southampton Village Police Depai1ment upon the petitioner's arrest on August 7, 008, including his identifying information, arrest record, criminal history, and a response from an inq ry to the Federal Bureau oflnvestigation. The County Attorney has failed to provide a "pai1icularized an specific justification" for not disclosing the report obtained by the SHVPD concerning the pet[ti ner. Thus, the subject report is not exempt (Gould v. New York City Police Dept., 89 N.Y.2d 267, 653 .Y.S .2d 54, 675 N.E.2d 808 [1 996]). ii I, The final elevln pages in the category entitled "Oddone Personal Documents (face book, e-justice)", are copies of pages fr m the petitioner's Face book account which do not appear to be blocked by privacy settings and were prin ed on August 28, 2008. The first two pages appear to be the petitioner's Home Page 1 r: ii [* 5] Oddone v Suffolk County Police, et al. Index Number: 2036-2011 Page -5- on Facebook on Aug st 28, 2008. Those pages are not exempt and must be provided in the absence of a "particularized and sp 'cific justification" for not disclosing them. The remaining nine pages contain a list of the petitioner's "F cebook friends" and their photographs. The Court determines that these pages are not exempt under the personal privacy exemption. While there is no specific case on point, at least one court has concluded i the context of a discovery dispute concerning a litigant's Facebook account, that information posted in the] open on social media accounts are freely discoverable and do not require court orders to disclose the 1 (Fawcett v. Altieri, 38 Misc.3d 1022, 1027, 960 N.Y.S.2d 592 [N.Y.Sup. 2013]). The privacy exempti n is not needed to protect that which is literally accessible to the world to view. The third cate ory of documents is entitled, "Associates Personal" and consists of 14 pages of documents that are no : related to Anthony Oddone in the sense that they contain factual information about other individuals. Th County Attorney has claimed exemptions from disclosure based upon Pue. OFF. LAW § 87 (2) (b) [p ivacy], (2) (g) [inter-agency or intra-agency], and (e) (iv) [would reveal criminal investigative techniq es or procedures]. Upon an in camera review the Court finds that these pages are exempt from disclosu e based on Pue. OFF. LAW§ 87 (2) (b), (2) (g), and (e) (iv). The fourth cat gory of documents claimed to be exempt consists of thirteen pages of documents obtained from the Ro al Canadian Mounted Police which the County Attorney claims are exempt from disclosure based upo Pue. OFF. LAW § 2 (b) [privacy exemption], and 2 (g) [inter-agency and intraagency records]. The :ourt has reviewed these documents and agrees with the County Attorney that they fit within the exempti n for 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, i eluding but not limited to audits performed by the comptroller and the federal government (PUB. 0 F. LAW § 87 [2] [g]). The final cate each of which has alr thereby making the p Vance, 39 Misc.3d 1 ory of documents is entitled "SCPD Reports" and consists of 56 pages of documents, dy been disclosed to the petitioner in the production made by the District Attorney ·titioner's FOIL challenge in this proceeding academic (see Matter of Espiritu v. 14[A], *4, 2013 WL 1715514 [N.Y. Sup.]). in the remaining eight categories are as described by the County Attorney with one exception. Page 62 the category denominated "Cobleskill PD Docs" is a hand-written note dated "8/22/08 1200 hrs" s mped "Police Department County of Suffolk, N.Y." The note shall be disclosed within twenty days o entry of this Order. Based upon ti ~ foregoing, the County Attorney is directed to provide the described documents to counsel for the petitio er within twenty days of entry of this Order. Counsel for the parties are directed to appear at a conferenc : on October 30, 2013, at 10:30 AM on the Fourth Floor of the Arthur M. Cromarty Court Complex locat at 210 Center Drive, Riverhead, New Y .0'fk 11901, to resolve any remaining issues. / .· / /1 . /\ c..,;fi.;1,.~J '/ J30N. I 1 DATED: CHECK ONE: [ ] 'INAL DISPOSITION / ¢ [ X ] NON-FINAL DISPOSITION

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