Opinion
100220/16
07-21-2016
In the Matter of the Application of Darrin McGhee, Petitioner, For a Judgment Under Article 78 of the Civil Practice Law and Rules, v. New York City Police Department, Commissioner Bill Bratton, and City of New York, Respondents.
For petitioner, self-represented: Darrin McGhee, No.15A3076 For respondents: Vincent Verdi, Esq. Zachary W. Carter Corporation Counsel One Police Plaza, Rm. 1406 New York, NY 10038 646-610-5400
For petitioner, self-represented: Darrin McGhee, No.15A3076 For respondents: Vincent Verdi, Esq. Zachary W. Carter Corporation Counsel One Police Plaza, Rm. 1406 New York, NY 10038 646-610-5400 Barbara Jaffe, J.
By order to show cause and verified petition dated February 17, 2016, petitioner brings this article 78 proceeding to challenge respondents' denial of his Freedom of Information Law (FOIL) request. By notice of cross motion dated May 3, 2016, submitted without opposition, respondents move for an order dismissing the proceeding.
I. BACKGROUND
On July 7, 2015, petitioner was convicted of second-degree murder and criminal possession of a weapon in New York County, and is currently incarcerated at Great Meadow Correctional Facility. During the course of discovery at his trial, petitioner received from the New York District Attorney's Office (DANY) redacted copies of certain "DD-5 reports, UF-[61] reports, [the] felony complaint, sprint reports, radio runs, color photos, autopsy/medical reports, witness statements, depositions, [and] police memobook notes." (Pet., ¶ 5). On July 14, 2015, petitioner filed a notice of appeal, now pending in the Appellate Division, First Department. (Affirmation of Vincent Verdi, Esq., dated May 3, 2016 [Verdi Aff.], Exh. 1).
By letter dated November 2, 2015, petitioner submitted a Freedom of Information Law (FOIL) request to NYPD seeking unredacted copies of all documents related to his criminal investigation and conviction. (Id., Exh. 2).
By letter dated November 20, 2015, an NYPD records access officer denied petitioner's request on the ground that disclosure of the records would interfere with "law enforcement investigations or judicial proceedings." (Id., Exh. 3). By letter dated December 4, 2015, petitioner appealed the determination, asserting that NYPD's denial was conclusory and lacking evidentiary support. (Id., Exh. 4). By letter dated December 30, 2015, an NYPD records access appeals officer reiterated the agency's basis for denial, also citing exemptions set forth in the Public Officers Law § 87(2)(b), (e)(iii), (e)(iv), and (f). (Id., Exh. 5). II. DISCUSSION A. Contentions
In support of his application, petitioner contends that respondents have failed to unequivocally articulate a basis for withholding the documents sought and that consequently, their denial is arbitrary and capricious, and constitutes a deprivation of his due process rights. While he admits that he received records from DANY during discovery, he alleges that NYPD failed to release Brady and Rosario materials or other records in unredacted form. (Pet.).
In support of dismissal, respondents argue that as the release of records would interfere with petitioner's pending appeal, their blanket denial is appropriate and that they are not required to articulate a basis for the exemption of each document. They claim that the various categories of documents sought by petitioner are "replete with information about the crime committed," and that his request is calculated to circumvent criminal discovery procedures, as he seeks documents that were appropriately withheld during pre-trial discovery. They also contend that to the extent that petitioner seeks disclosure of documents already provided to him by another agency, the proceeding is moot. (Verdi Aff.). B. Analysis 1. Mootness
Where a petitioner has received records from an agency through a FOIL request or other discovery device, subsequent FOIL requests to a different agency for the same documents are deemed academic. (Eg, Matter of Fappiano v New York City Police Dept., 95 NY2d 738, 749 [2001]; Matter of Khatibi v Weill, 8 AD3d 485, 486 [2d Dept 2004]). While petitioner concedes that he still possesses certain records produced by DANY during his criminal trial, to the extent that he now requests unredacted versions of records and records he believes were never disclosed, this proceeding is not academic. 2. Law enforcement exemption
Generally, all agency records are presumptively available for public access and inspection unless they fall within one of several categories of exemption. (Public Officers Law § 87[2]; Matter of New York State United Teachers v Brighter Choice Charter Sch., 15 NY3d 560, 563 [2010]). To rely on an exemption, the agency "must articulate particularized and specific justification for not disclosing requested documents." (Matter of Gould v New York City Police Dept., 89 NY2d 267, 275 [1996] [internal quotation marks omitted]; Matter of Sell v New York City Dept. of Educ., 135 AD3d 594, 596 [1st Dept 2016]).
Public Officers Law § 87(2)(e)(i) exempts information compiled for law enforcement purposes, the disclosure of which would "interfere with law enforcement investigations or judicial proceedings." The exemption is based on the risk that such disclosure would have a chilling effect on a pending prosecution, would create a substantial likelihood of delay in a pending criminal proceeding, or would interfere with criminal discovery rules. (Matter of Pittari v Pirro, 258 AD2d 202, 206-207 [2d Dept 1999], lv denied 94 NY2d 755). "Proceedings" have been deemed to include pending appeals. (Eg, Matter of Whitley v New York County Dist. Attorney's Off., 101 AD3d 455, 455 [1st Dept 2012]; Matter of Moreno v New York County Dist. Attorney's Off., 38 AD3d 358, 358 [1st Dept 2007], lv denied 9 NY3d 801).
While the agency need not specify the potential risk posed by disclosure for each and every document requested, it must
identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents. . . . [T]he agency must still fulfill its burden under Public Officers Law § 89(4)(b) to articulate a factual basis for the exemption.(Matter of Lesher v Hynes, 19 NY3d 57, 67 [2012]; see also Matter of Law Offs. of Adam D. Perlmutter, PC v New York City Police Dept., 123 AD3d 500, 501 [1st Dept 2014]).
In Lesher, the District Attorney satisfied his burden under section 87(2)(e)(i) as he identified categories of documents, such as correspondence, time lines, and witness statements, and the harm their disclosure would cause by "prematurely tipping the District Attorney's hand." (19 NY3d at 67-68). An allegation that the disclosure of certain documents could lead to "witness tampering or enabling the perpetrator to evade detection" was held sufficient to sustain the District Attorney's burden of establishing a "generic" risk or harm in Matter of Loevy & Loevy v New York City Police Department. (139 AD3d 598, 599 [1st Dept 2016]).
Here, by contrast, although respondents describe generic categories of records, they do not identify, even generically, the attendant risks that disclosure would pose to any future proceedings. (See also Matter of Law Offs. of Adam D. Perlmutter, PC, 123 AD3d at 500-501 [NYPD's claim that documents sought were commonly requested in DWI cases, many of which were pending in NYC, did not identify "generic risks posed by disclosure"]). Consequently, respondents may not rely on Pubic Officers Law § 87(2)(e)(i).
Petitioner's alleged motive in pursuing his FOIL request is irrelevant. (See generally Matter of New York State Rifle & Pistol Assn., Inc. v Kelly, 55 AD3d 222, 225 [1st Dept 2008] [petitioner's motive only relevant if "intended use of the requested material would run afoul of the FOIL exemptions"]).
Respondents' additional grounds for denial are conclusory, devoid of detail, and thus insufficient to justify their reliance on the exemptions. (See eg, Matter of Prall v New York City Dept. of Corr., 129 AD3d 734, 736 [2d Dept 2015] [respondent's conclusory assertion of economic hardship insufficient to justify reliance on exemption]). III. CONCLUSION
Accordingly, it is hereby
ORDERED and ADJUDGED, that the petition is granted to the extent that respondents' determination dated December 30, 2015 affirming NYPD's denial of petitioner's FOIL request is annulled and vacated, and the matter is remanded to NYPD to render a determination consistent with this decision and serve same on petitioner within 30 days of the date of this order; and it is further
ORDERED, that petitioner may, within 30 days of receipt of NYPD's new determination, submit in writing to the court his objections thereto and serve same on respondents, and this proceeding (index No. 100220/16) will be deemed renewed and respondents shall have 20 days therefrom to serve an answer or cross-move to dismiss the proceeding. ENTER: __________________________ Barbara Jaffe, JSC DATED: July 21, 2016 New York, New York