Davenport v New York State Dept. of Fin. Servs.

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Davenport v New York State Dept. of Fin. Servs. 2023 NY Slip Op 33980(U) November 9, 2023 Supreme Court, New York County Docket Number: Index No. 160242/2021 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 160242/2021 [FILED: NEW YORK COUNTY CLERK 11/09/2023 04:36 P~ NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/09/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. LYLE E. FRANK Justice ----------------------------------------------------------------- ----------------X JONATHAN W. DAVENPORT, INDEX NO. MOTION DATE Plaintiff, 11M 160242/2021 11/08/2023 001 MOTION SEQ. NO. - V - NEW YORK STATE DEPARTMENT OF FINANCIAL SERVICES, LINDA A. LACEWELL DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29, 30,31, 32, 33, 34, 35, 36, 37, 38, 39,40,41,42,43 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) Upon the foregoing documents, Petitioner's Article 78 Petition is denied. 1 Petitioner, Jonathon Davenport, brought this action against Respondents, New York State Department of Financial Services ("DPS") and Lina Lacewell, in her official capacity as Superintendent of the New York State Department of Financial Services, for a judgment pursuant to Article 78 of the CPLR. On August 7, 2020, Petitioner submitted the Request to the Records Access Officer of DPS pursuant to the Freedom oflnformation Law ("FOIL") for all documents related to DFS's investigation of Deutsche Bank AG, Deutsche Bank AG New York Branch, and Deutsche Bank Trust Company of the Americas' involvement with Danske Bank A/S's Estonian Branch. DPS, in a letter dated April 26, 2021, denied the Request in its entirety based on N.Y. Public Officers Law ("POL")§ 87(2)(a) and N.Y. Banking Law§ 36(10). Petitioner now seeks an order to compel DPS to disclose the records requested in its possession under FOIL. 1 The Court would like to thank Madison Huberman for her assistance in this matter. 160242/2021 DAVENPORT, JONATHAN W. vs. NEW YORK STATE DEPARTMENT OF FINANCIAL SERVICES ET AL Motion No. 001 [* 1] 1 of 4 Page 1 of4 INDEX NO. 160242/2021 [FILED: NEW YORK COUNTY CLERK 11/09/2023 04:36 P~ NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/09/2023 Article 78 of CPLR N.Y. POL Section 89( 4)(b) provides that "a person denied access to a record in an appeal determination ... may bring a proceeding for review" of the agency's determination after exhausting available administrative remedies. A petitioner may seek judicial relief on a FOIL request after exhausting administrative remedies if the proceeding is "commenced within four months after the determination to be reviewed becomes final and binding on the petitioner." Murphy v. N YS. Educ. Dep 't, Office of Prof'! Discipline, 534 N.Y.S.2d 70, 73 (1st Dep't 1989); CPLR § 217(1). Additionally, exemptions from FOIL disclosure are carefully circumscribed and "narrowly interpreted so that the public is granted maximum access to the records of government." Matter of Grabel! v. NY City Police Dep 't, 996 N.Y.S.2d 893, 898 (2014), aff'd as modified, 139 A.D.3d 477 (1st Dep't 2016). To meet the burden of demonstrating that the requested material falls squarely within a FOIL exemption, the agency must articulate "a particularized and specific justification for denying access." Capital Newspapers Div. ofHearst Corp. v. Burns, 67 N.Y.2d 562, 566 (1986). N.Y. POL § 87(2)(a) provides that an agency is not required to make a record available for public inspection or copying if the records or portions of it "are specifically exempted from disclosure by state or federal statute." Here, Respondents have a particularized and specific justification for denying access. Pursuant to NYBL § 36(10), "all reports of examinations and investigations, correspondence and memoranda concerning or arising out of [a DPS superintendent examination and investigation] ... shall not be subject to subpoena and shall not be made public unless" the superintendent believes that "the ends of justice and the public advantage will be sub served by the publication thereof. NYBL § 36(10), therefore, explicitly prohibits the disclosure of all 160242/2021 DAVENPORT, JONATHAN W. vs. NEW YORK STATE DEPARTMENT OF FINANCIAL SERVICES ET AL Motion No. 001 [* 2] 2 of 4 Page 2 of 4 [FILED: NEW YORK COUNTY CLERK 11/09/2023 04:36 P~ NYSCEF DOC. NO. 44 INDEX NO. 160242/2021 RECEIVED NYSCEF: 11/09/2023 records reviewed, created by, or otherwise within the control of DFS in connection with an investigation or examination under this Section. Petitioner seeks records that came into DFS's possession via its correspondence with Deutsche Bank concerning DFS's investigation and inquiry. Respondent denied Petitioner's original request for the documents stating that the requested records that were transmitted by Deutsche Bank to DFS were related to a DFS regulatory investigation. Therefore, the records constitute correspondence concerning or arising out of an investigation and are required to be kept confidential and exempt from disclosure under NYBL § 36(10) unless the Superintendent believes that disclosure would serve the ends of justice. Here, the Superintendent did not abuse her disclosure when not providing the requested documents. The Superintendent may only disclose protected documents based on a finding that disclosure is in the public interest. However, the public interest weighs strongly against disclosure in this case. Additionally, Respondent does not have to disclose the documents as there is an exemption to FOIL if documents "are specifically exempted from disclosure by state or federal statute" as they are here. N.Y. POL§ 87(2)(a). Redacted disclosure cannot be compelled if the records are exempt from disclosure pursuant to POL§ 87(2)(a). See Matter ofNY Civ. Liberties Union v. NY City Police Dep 't, 32 N.Y.3d 556 (2018). Since the records requested exempt from disclosure under NYBL § 36(10) which falls in the categorical exemption ofN.Y. POL§ 87(2)(a), disclosure of the records in some partial form or a piecemeal production of parts of the investigation records cannot be compelled. Accordingly, it is hereby ADJUDGED that Petitioner's Article 78 Petition is denied. 160242/2021 DAVENPORT, JONATHAN W. vs. NEW YORK STATE DEPARTMENT OF FINANCIAL SERVICES ET AL Motion No. 001 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 160242/2021 !FILED: NEW YORK COUNTY CLERK 11/09/2023 04:36 PM! NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/09/2023 11/9/2023 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: LYLE E. FRANK, J.S.C. ~ CASE DISPOSED GRANTED 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 160242/2021 DAVENPORT, JONATHAN W. vs. NEW YORK STATE DEPARTMENT OF FINANCIAL SERVICES ET AL Motion No. 001 [* 4] 4 of 4 OTHER REFERENCE Page4 of 4

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