Opinion
17552 Index No. 100836/19 Case No. 2021–03350
03-21-2023
In the Matter of DIGITAL FORENSICS UNIT, LEGAL AID SOCIETY, Petitioner–Appellant, v. RECORDS ACCESS OFFICER, NEW YORK CITY POLICE DEPARTMENT, Respondent–Respondent.
Twyla Carter, The Legal Aid Society, New York (Benjamin S. Burger of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Julie Steiner of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Benjamin S. Burger of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Julie Steiner of counsel), for respondent.
Manzanet–Daniels, J.P., Singh, Kennedy, Shulman, JJ.
Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered August 26, 2021, denying the petition to compel respondent to disclose "all current NYPD rosters of officers (of all ranks) in all precincts" pursuant to the Freedom of Information Law (FOIL), granting respondent's cross motion to dismiss the petition, and dismissing this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The court committed no procedural error in granting respondent's cross motion to dismiss the petition. Initially, petitioner's contention that the court improperly considered the affidavit of respondent's Deputy Commissioner for Intelligence and Counterterrorism (the Miller affidavit) is unpreserved (see Islam v. City of New York, 111 A.D.3d 493, 494, 974 N.Y.S.2d 781 [1st Dept. 2013] ). In any event, respondent was entitled to submit the affidavit on its cross motion, and the court properly considered it in evaluating the merits of petitioner's claim (see Basis Yield Alpha Fund [Master] v. Goldman Sachs Group, Inc., 115 A.D.3d 128, 134–135, 980 N.Y.S.2d 21 [1st Dept. 2014] ; see also Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977] ).
The parties’ submissions established that respondent's denial of petitioner's FOIL request based on the public safety exemption was not "affected by an error of law" ( CPLR 7803[3] ; see also Public Officers Law § 87[2][f] ; Matter of Barry v. O'Neill, 185 A.D.3d 503, 505, 128 N.Y.S.3d 183 [1st Dept. 2020] ). Respondent satisfied its burden of showing that the requested information fell "squarely" within the exemption (see Matter of New York Comm. for Occupational Safety & Health v. Bloomberg, 72 A.D.3d 153, 158, 892 N.Y.S.2d 377 [1st Dept. 2010] ), by making a "particularized showing" that publicly releasing the information would create "a possibility of endangerment" to the safety of the public ( Matter of Empire Ctr. for Pub. Policy v. New York City Off. of Payroll Admin., 187 A.D.3d 435, 435, 133 N.Y.S.3d 5 [1st Dept. 2020] [internal quotation marks omitted], lv denied 36 N.Y.3d 906, 2021 WL 628252 [2021] ; see also Matter of Bellamy v. New York City Police Dept., 87 A.D.3d 874, 875, 930 N.Y.S.2d 178 [1st Dept. 2011], affd 20 N.Y.3d 1028, 960 N.Y.S.2d 343, 984 N.E.2d 317 [2013] ). As articulated in respondent's determination denying petitioner's FOIL request, the disclosure of the rosters of all the NYPD precincts could permit individuals intent on causing harm to deduce which precincts have less resources and manpower, and tailor their conduct by targeting those areas. Further, the Miller affidavit described the potential harm to police officers as well as their families from the publication of their full names. Whether petitioner intends to publish the information on a publicly available website is irrelevant to the applicability of the exemption since "access to government records does not depend on the purpose for which the records are sought" ( Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 274, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996] ; see also Matter of Bellamy v. New York City Police Dept., 59 A.D.3d 353, 355, 874 N.Y.S.2d 60 [1st Dept. 2009] ). Further, although respondent has since separately published the full names and precinct locations of NYPD officers, the court properly considered the record that was before the records access officer in 2019.
The advisory opinion of the Committee on Open Government concluding that the denial of the FOIL request was "unsupportable" is not binding, especially given that it did not address respondent's expressed concern regarding the risk to public safety arising from the exposure of the availability of police resources and manpower in the different precincts ( Matter of Buffalo News, Inc. v. Buffalo Enter. Dev. Corp., 84 N.Y.2d 488, 493, 619 N.Y.S.2d 695, 644 N.E.2d 277 [1994] ; Matter of Thomas v. New York City Dept. of Educ., 103 A.D.3d 495, 498, 962 N.Y.S.2d 29 [1st Dept. 2013] ).
Respondent's disclosure of disciplinary information on its website in response to the repeal of Civil Rights Law § 50–a (see Uniformed Fire Officers Assn. v. De Blasio, 846 Fed. Appx. 25, 29 [2d Cir. 2021] ) has no bearing on the propriety of the denial of petitioner's FOIL request, since respondent's creation of the online database occurred after the determination.
We have considered petitioner's remaining arguments and find them unavailing.