Matter of Kohler-Hausmann v New York City Police Dept.

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[*1] Matter of Kohler-Hausmann v New York City Police Dept. 2014 NY Slip Op 50037(U) Decided on January 13, 2014 Supreme Court, New York County Hunter Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2014
Supreme Court, New York County

In the Matter of the Application of Issa Kohler-Hausmann, Petitioner,

against

New York City Police Department, and Raymond Kelly, in his Official Capacity as Commissioner of New York City Police Department, Respondents.



100759/2013

Alexander W. Hunter Jr., J.



The application of petitioner for an order pursuant to CPLR Article 78, compelling respondents to provide petitioner with records responsive to her July 16, 2012 letter request in accordance with the Freedom of Information Law ("FOIL") as codified in Public Officers Law ("POL") § 84, et seq., is denied and the proceeding is dismissed without costs and disbursements to either party. The cross-motion by respondents to dismiss the petition is granted.

In a letter dated July 16, 2012, petitioner filed a written request for statistics concerning complaints, arrests, and summons data compiled by respondent New York City Police Department ("NYPD") precincts (the "FOIL request"). Petitioner requested that the records be categorized as follows: (I) criminal complaints; (II) felony arrests; (III) misdemeanor arrests; and (IV) summons issued annually for the years 2000 to 2011. Petitioner requested that the records be sub-coded as follows: (1) seven major felony offenses; (2) seven non-major felony offenses; (3) misdemeanor offenses; and (4) violation offenses.

By letter dated August 1, 2012, the record access officer ("RAO") of NYPD acknowledged receipt of the FOIL request. The RAO stated that it was necessary to assess the potential applicability of exemptions set forth in FOIL and to determine whether the records could be located. The RAO estimated that the review would be completed within twenty business days. By letters dated August 29, 2012, November 1, 2012, and December 11, 2012, the RAO notified petitioner that her FOIL request was still pending and that petitioner should not consider the letters a denial of her FOIL request.

By letter dated March 14, 2013, petitioner stated that unless she receives access to the records sought, she would consider her FOIL request constructively denied. By letter dated April 8, 2013, petitioner appealed the denial of her FOIL request. [*2]

By letter dated April 30, 2013, the records access appeals officer ("RAAO") informed petitioner that the RAO had neither granted nor rejected her FOIL request and that her appeal was premature. The RAAO remanded the matter back to the RAO for further processing and to provide a determination by June 14, 2013.

On May 23, 2013, petitioner commenced the instant special proceeding. Petitioner avers that: (1) NYPD has previously disclosed much more nuanced records than the records sought in the instant proceeding; (2) there is neither a good faith legal question nor a good faith logistical impediment to promptly providing the requested data; and (3) NYPD is estopped from offering any new reasons for its failure to comply with the FOIL request.

By letter dated July 17, 2013, the RAO issued a determination on the FOIL request. The RAO granted access to category (I) and partial access to category (IV). The RAO denied access to categories (II), (III), and a portion of category (IV), as it was determined that NYPD did not possess or maintain records responsive to those categories. The letter informed petitioner of her right to administratively appeal the determination, in writing, within 30 days of the date of the decision.

By letter dated July 23, 2013, petitioner stated that because there was a pending Article 78 proceeding seeking review of the denial of her FOIL request, that her administrative remedies were exhausted and there was no legal need for her to file an appeal. However, petitioner stated that in the "unlikely circumstances a court would deem your July 17, 2013 letter an agency determination...I hereby "appeal" the denial of categories II and III of the request." (Affirmation in Opposition to Respondents' Cross-Motion to Dismiss, exhibit G).

Respondents cross-move to dismiss the petition on the grounds that: (1) the petition fails to state a claim; (2) the matter is moot; and (3) respondents are not required to create a record in response to a request for information. Respondents aver that although NYPD publishes historical citywide complaint data on its website, NYPD precincts categorize arrest records according to the penal code sections and subdivisions that suspects are charged with committing.

Petitioner opposes the cross-motion to dismiss on the grounds that: (1) the letter from NYPD dated July 13, 2013 is immaterial to the procedural posture or subject matter jurisdiction of this court; (2) there is no obligation to exhaust administrative remedies where in doing so advances no legal or substantive interest; (3) the data requested is not a new record; and (4) the contentions of respondents regarding attorney's fees are inaccurate.

Pursuant to CPLR 7801, a proceeding under Article 78, "shall not be used to challenge a determination which is not final or can be adequately reviewed by appeal to a court or to some other body or officer ." It is also well established that, " one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law This doctrine furthers the salutory [sic] goals of relieving the courts of the burden of deciding questions entrusted to an agency preventing premature judicial [*3]interference with the administrators' efforts to develop, even by some trial and error, a co-ordinated, consistent and legally enforceable scheme of regulation and affording the agency the opportunity, in advance of possible judicial review, to prepare a record reflective of its expertise and judgment' " Watergate II Apartments v. Buffalo Sewer Authority, 46 NY2d 52 (1978). Prior to any determination of the FOIL request by the RAO or a final appeal determination by the RAAO, litigation is premature. See Tellier v. New York City Police Dept., 267 AD2d 9 (1st Dept. 1999).

In the case at bar, petitioner commenced the instant proceeding prior to the July 17, 2013 determination by the RAO. Where the RAO has yet to either grant or deny a FOIL request due to ongoing efforts to determine the accessibility of records, there is no constructive denial. See Matter of Advocates for Children of New York, Inc. v. New York City Dept. of Educ., 101 AD3d 445 (1st Dept. 2012). At the time the instant proceeding was commenced, there was no final agency denial of access to responsive records. Accordingly, the application of petitioner is premature and denied.

The application of petitioner is deemed moot to the extent that respondents provided petitioner with records responsive to her FOIL request during the pendency of the proceeding. See Matter of Babi v. David, 35 AD3d 266 (1st Dept. 2006); Braxton v. Commr., NY City Police Dept., 283 AD2d 253 (1st Dept. 2001); Tellier, 267 AD2d at 10. After a diligent search for records responsive to categories (II), (III), and a portion of (IV), NYPD certified that it did not possess or maintain those records. Accordingly, the obligations of NYPD under FOIL have been met. See Reubens v. Murray, 194 AD2d 492, 581 (1st Dept. 1993).

Accordingly, it is hereby,

ADJUDGED that the petition is denied and the proceeding is dismissed without costs and disbursements to either party. The cross-motion by respondents to dismiss the petition is granted.

Dated:January 13, 2014

ENTER:

________________________

J.S.C.