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 32538(U) October 16, 2013 Sup Ct, New York County Docket Number: 104004/12 Judge: Peter H. Moulton 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] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 40 B PRESENT: Hon. Peter H. Moulton Justice In the Matter of the Application of The Exoneration Initiative 104004/12 INDEX NO. MOTION DATE v. MOTION SEO. NO. _ __,Q_,'-),___ MOTION CAL. NO. - - - - - New York City Police Department The following papers, numbered 1 to ___ were read on this motion to/for - - - - - - - Papers Numbered Notice of Motion/Order to Show Cause - Affidavits- Exhibits Answering Affidavits - Exhibits - - - - - - - - - - - - Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - Cross-Motion: Yes No Upon the foregoing papers, it is ordered that the w (,.) i= (/') .., :::> 0 l- o w a: 0: w w LL 0: > ...I ...I :::> this Article 78 proceeding is decided in accordance with the ');lUU:n..i:J.eClSll;)J;l....lSSl~t~ti today's date. GME.N\ C\ert<. t.c'F\LE.0 J UO d 'oV the d nereon. 10 county OCf 1 8 i013 U ~n en\ere t nas not ~...., rved base f e must IAS :V.GT!'JN SUP?ORT CF:"l.CE ,.n\s \ud~me~ entf'J cannot repr~~ ~~ ~..i'{S ~;)fr·(~ME CO*J~.-:··CIV.1.L and not,ce o counse\ or a ··An.men\ C\et\(s ......---- ... ob\a\n e!'t~n at the J~ ap~r '" .,..,.-1416). ' ll ::u.ed ·-~. ~,._ / LL .... (,.) w Q. (/') w 0: ~ w <C "' ~ z 0 j:: 0 :ii! ~/~< J.S.C. Dated:_--"O""-'c._.t=o=b=er;...-:..1=6.._,-=2:..;::;0'"-"1-=3"------New York, New York PETER H. MOULTON ~ase Disposed 1. Check one: ......................................... . Disposition 2. Check as Appropriate: ....... Motion is: Granted Denied Other 3. Check if Appropriate: ........................ : Settle Order D D Do Not Post ----~-- D Non-Final Granted in Part Fiduciary Appointment Submit Order D Reference [* 2] Supreme Court: New York County UNFILED JUDGMENT Part 40B nt has ooHieen ~Ettl by Ule County Clerk In the Matter of the Application ~Ju~pmeof··~- ........ ~-........i1~h.\?f~ To anu nouce ....... J ~ ......... ap:::;: ~-q;:u .. obtain enby. oounse1 « a.dhorired J~ nut THE EXONERATION INITIATIVE, appear in person al the~~- Dft'k (Room - - - - -- - - -- --- - - - - - - --- -- - -- - - - -- - --:-:- -x .1418.). Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules, -against- Index No. 104004/12 THE NEW YORK CITY POLICE DEPARTMENT, Respondent. --------------------------------------x Peter H. Moulton, Justice In this Article 7 8 proceeding petitioner seeks to obtain records from the New York City Police Department ("NYPDu) pursuant to the state's Freedom of Information Law (Public Officers Law§ 84 et. seq., commonly referred to as "FOIL"). NYPD police investigation in Florida The records concern an concerning the murder in the Bronx of Gabriel Rodriguez by Elliot Lebron. attempted Neither Rodriguez nor Lebron are interested parties herein. Petitioner Exoneration Initiative is an organization that investigates, and, where appropriate, litigates claims of actual innocence on behalf of indigent incarcerated people. The Exoneration Initiative is currently investigating the conviction of Richard Rosario, who has been incarcerated since 1996 after being convicted of murder. In a prior Article 78 proceeding between the 1 [* 3] parties, this court ruled that the NYPD had improperly withheld records concerning Rosario that should have been disclosed under FOIL. (In Department, re Exoneration 39 Misc3d 962.) Initiative v New York City Police Those records concerned the police investigation into the murder that led to Rosario's conviction. In this proceeding petitioner seeks police records concerning a different crime, one not involving Rosario, that could potentially help determine Rosario's whereabouts in the relevant period. BACKGROUND By letter dated January 13, 2012, petitioner requested pursuant to FOIL four categories of documents relating to an NYPD investigation in Volusia County, Florida. Rosario has contended that he was in Florida at the time of the murder for which he was convicted. At the time of his conviction for murder, Rosario also pled guilty to a robbery charge. Petitioner asserts·that the records sought herein could demonstrate that Rosario was also in Florida at the time he was alleged to have committed the robbery. The NYPD sought further information concerning the request and petitioner responded in a letter dated February 14, 2012. 12, 2012, the NYPD' s pages of documents. Record Access Officer ("RAO") On April provided 21 Petitioner states that none of these documents 2 [* 4] was responsive to its request. Petitioner submitted a timely appeal to NYPD's Records Access Appeals Officers ("RAAO"). The RAAO denied the appeal in a letter dated June 15, 2012, which states in relevant part: The appeal is denied because the requested records are exempt from disclosure pursuant to [POL § 8 7 ( 2) (b) J since disclosure thereof would create an unwarranted invasion of personal privacy, and pursuant to [POL § 8 7 ( 2) ( f) because disclosure thereof could endanger the life or safety of any person. The letter added: " [ o] ther exemptions under FOIL also may apply." Petitioner thereupon brought this proceeding to reverse the determination of the RAAO and to compel the NYPD to disclose the relevant records. The NYPD answered the petition, asserting that the records are exempt from disclosure under FOIL. The records consist of seven pages of notes conducted by two NYPD detectives in Volusia County Florida in the.period March 2628, 1996, concerning the attempted murder of Rodriguez. The first four pages concern a detective's notes of what he was told by a witness who will be referred to herein as "witness 1." page contains the pedigree~ The fifth of two individuals, an address that is not attached to the name of any individual, and two brief sentences or sentence fragments which are unclear absent further context. The sixth and seventh pages concern a detective's notes of an interview of a second witness, referred to herein as "witness 2." 3 [* 5] Neither witness 1 nor witness 2 testified in the ensuing criminal prosecution in New York state. DISCUSSION FOIL agencies. public, imposes a broad Government statutory duty of records are exemptions disclosure to upon government "presumptively open" disclosure are to the "narrowly construed," and the agency must articulate a "particularized and specific justification" Liberties Union v for nondisclosure. City of Schenectady, (New York 2 NY3d· 657, Civil 661 [2004] [citing Gould v New York City Police Dep't, 89 NY2d 267, 274, 275] (1996] [internal quotations omitted].) The NYPD first argues that disclosure of the seven pages is barred by POL§ 87(2) (f), which provides that g9vernment 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. (See Matter of Bellamy v New York City Police Dep't, 87 AD3d 874, 875 [1st hand, Dep' t 2011], aff' d 20 NY3d 1028 On the other [2013].) there is no comprehensive prohibition on 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 [1st Dep't 1999].) The NYPD has carried its burden to 4 show that there is a [* 6] possibility that witnesses 1 and 2 could would be endangered by the unredacted release of the detectives' notes. The danger would be posed not by Rosario, but potentially by another individual. The last two pages, concerning witness 2, are exempt f'rom disclosure in their entirety for this reason. With redaction, a portion of the detective's notes does not pose any risk to witness 1. The portion redact~d pursuant to POL§ 87(2) (f) begins on the last line of page two, and includes all of pages,3, 6 and 7. The NYPD next argues that the detective's notes fall within the privacy exemption because they would "constitute an unwarranted invasion of personal privacy" and therefore should be barred by POL §§ 87 (2) (b), 89 (2) (b). Section 89 (2) (b) states: (b) an unwarranted invasion of personal privacy includes, but shall not be limited to: (I) disclosure of employment, medical credit histories or personal references applicants for employment; or of (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 for solicitation or fund-raising purposes; (iv) disclosure of information of a p~rsonal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; (v) disclosure of information of a personal nature reported in confidence to an agency and 5 [* 7] not relevant agency; to the ordinary work of such information of a personal nature contained in a workers' compensation record, except as provided by section one hundred tena o.f the workers' compensation law; or (vi) disclosure of electronic contact information, such as an email address or a social network username, that has been collected from a taxpayer under section one hundred four of the real property tax law. Under the Court of Appeals' decision in Matter of Data Tree, LLC v Romaine (9 NY3d 454, 462-3 [2007]) the burden of proof rests solely on the NYPD to demonstrate an unwarranted invasion of privacy. The NYPD is correct that a portion of the notes falls within subsection (iv), as disclosure "would result in personal hardship to the subject party and such information is not relevant" to the Exoneration Initiative's stated purpose in seeking the records: establishing Rosario's whereabouts during the period in question. The court redacts this personal unnecessarily embarrass witness 1. information, which could The portion redacted pursuant to POL§§ 87(2) (b) and 89(2) (b) begins on the seventh line of page 2 at the word "while" and continues to line 13 up to the word "me." Next, the NYPD argues that the seven pages are exempt under POL§ 87{2) (e) (i "compiled disclosure for ). law would That section states that requests for records enforcement "identify a purposes" may 'be confidential 6 source denied or where disclose [* 8] confidential information relating to a criminal investigation." There is nothing in the record before the court indicating that witness 1 was given an explicit assurance of confidentiality. Rather, the NYPD asserts that witness 1 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 points to the fact that witness 1 provided information of a personal nature, infQrmation that the court found above should be redacted, and that this gives rise to an inference of confidentiality. more difficult to obtain The NYPD argues that it will be eyewitnesses' cooperation if their statements, name and 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 "the § 87 (2) (e) (iii). circumstances give promise was assumed." rise However, to the the agency must show that clear inference (Johnson, supra, 257 AD2d at 348.) that such Here the NYPD has not provided facts that could give rise to the inference of an assumed promise of confidentiality. While witness 1 gave certain personal information, he or she also gave other information that might have been necessary during a criminal trial. Witnesses questioned during a attempted murder investigation may potentially be called to take the stand at a criminal trial. 7 [* 9] Often it is information impossible necessary to to know prove which the witnesses People's, case will have until the investigation is concluded and the District Attorney prepares for trial. It is unlikely that anyone knew at the time witness 1 gave his/her statement to the police whether witness l's testimony at trial would be necessary to prove an element . of the District Attorney's case. For these reasons, the court finds that the NYPD did not establish that there was any implicit promise of confidentiality made to witness 1. Finally, the NYPD argues that the records are exempt from disclosure pursuant to POL § 87 (2) (a), which provides that an agency may deny access to records that "are specifically exempted from disclosure by state or federal statute." CPLR 3101 (b), which provides that The NYPD invokes "upon objection of a person entitled to assert the privilege, privileged matter shall not be obtainable" in disclosure. The privilege asserted by the NYPD is the "public interest privilege" which protects confidential communications between 'public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged. [Citations omitted.] The justification for the privilege is that the public interest might otherwise be harmed if extremely sensitive material were to lose this special shield of confidentiality. (Matter of World Trade Center Bombing Litigation, 8 93 NY2d 1, 8 [* 10] [1999].) Respondent does not establish that the privilege applies to witness 1' s statements because, as discussed above, it has not shown that they are confidential. The NYPD may not rely on an assertion of a "blanket exemption." Rather it must establish "with some specificity" that (Espiritu v Vance, the Misc3d privilege applies to a , 2013 WL 1715514.) document. The NYPD has not carried that burden. In sum, the NYPD shall provide the following portions of the seven pages of documents it withheld from petitioner: 1. The rst page in its entirety, including witness l's pedigree information. 2. The first seven lines of page two, up to and including the words "w/ him." 3. Page 5 in its entirety. The petition seeks attorneys' fees pursuant to POL Under that provision, where a petitioner prevailed" a court "may" assess attorneys' § 89 (4) (c). ha~ "substantially fees and litigation costs against an agency in two circumstances: i. the agency had denying access; or no reasonable basis for ii. the agency failed to respond to a request or appeal within the statutory time. The NYPD did have a reasonable basis for not disclosing the majority of the seven pages at issue. 9 Therefore the court declines [* 11] to award attorneys~fees pursuant to subsection (i). The NYPD did not strictly comply with the time limits set forth in FOIL for its response, and it apparently initially provided 21 pages of non-responsive documents, so subsection (ii) is applicable. However, the award of attorneys' fees is discretionary even where the statutory prerequisites arE satisfied. (See Matter of New York Civil Liberties Union v City of Saratoga Springs, 87 AD3d 336, 338.) The court determines that an award of $2000 toward petitioner's expenditure of attorneys fees is warranted under the facts of this case. Respondent's delays were not justified, but they were not egregious, and, as noted above, the NYPD had a good faith basis for withholding more than half of the seven pages in question. The court does not consider whether the withheld documents are of interest to the public at large and declines to follow decisions that continue to impose that requirement in Matter of determining whether to award attorneys' fees. Rodriguez v Fisher, 36 Misc3d 1241[A] .) The legislature excised (ha....,_ that requirement from POL§ 89(4) (c) in a 2006 amendment. As the legislature went to the trouble to amend the statute, the court will not engraft the severed language back onto the statute. 10 [* 12] CONCLUSION For the reasons set forth above, IT IS ORDERED and ADJUDGED that the NYPD's decision to withhold the seven pages of documents inspected by the court in camera is annulled in part; and it is ORDERED and ADJUDGED that the NYPD shall provide petitioner with the following portions the seven pages inspected by the court in camera, within twenty days of service of this order with notice of entry: 1. The first page in its entirety, including witness l's pedigree information. 2. The first seven lines page two, up to and including the words "w/ him." 3. Page 5 in its entirety; and it is ORDERED and ADJUDGED that respondent shall pay petitioner $2000 in reasonable attorneys fees. This constitutes the Order and Judgment of the Court. DATED: October 16, 2013 A.J.S.C. HON. PmER R. MOULTON SUPREME COURT JUSTICB , ~···~ ...··· [* 13]
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