Opinion
6564/2016
06-15-2017
In the Matter of the Application of Racca NELSON, Petitioner, for a Judgment Pursuant to the Provisions of Article 78 of the New York Civil Practice Law and Rules, v. POLICE DEPARTMENT OF DEPUTY COMMISSIONER LEGAL MATTERS, Jonathan David, Appeal Officer, Respondent.
Racca Nelson, Pro-se inmate. Deputy Commissioner, Legal Matters, New York City Police Department, One Police Plaza, Room 1406, New York, New York 10038.
Racca Nelson, Pro-se inmate.
Deputy Commissioner, Legal Matters, New York City Police Department, One Police Plaza, Room 1406, New York, New York 10038.
Paul Wooten, J.
Notice of Motion/ Order to Show Cause—Affidavits—Exhibits
Answering Affidavits—Exhibits (Memo)
Replying Affidavits (Reply Memo)
Motion sequence numbers 1 and 2 (respondent's cross-motion) are consolidated for purposes of disposition.
Before the Court is an Article 78 proceeding in the nature of a mandamus to compel brought by petitioner Racca Nelson (petitioner), pro se , an incarcerated inmate, seeking an Order compelling respondent to disclose certain records, pursuant to the Freedom of Information Law (FOIL), in connection with his arrest and conviction for murder in the second degree and attempted murder in the second degree (motion sequence 1). Also before the Court is a cross-motion by respondent for an Order denying the petition and dismissing the proceeding on the grounds that petitioner has failed to obtain personal jurisdiction over the respondent, and that the records sought by the petitioner are exempt from disclosure pursuant to New York Public Officers Law (POL) § 87(2)(e)(i) (motion sequence 2).
BACKGROUND
On September 22, 2015, petitioner made a FOIL request by letter for police reports and medical records concerning his arrest for murder in the second degree which took place on August 8, 2004 under Indictment Number 5127/2004 (see Petition, exhibit A). By letter dated October 29, 2015 and in another hand-delivered letter from his mother Dorothy Nelson dated November 5, 2015, petitioner sought access, pursuant to FOIL, relating to his arrest and criminal conviction under Indictment Number 5127/2004 in Kings County for murder in the second degree and assault and attempted murder. In his request, petitioner sought documents from March 15, 2002 until his arrest August 8, 2014 including police reports, audio statement, DD5 reports from detectives, complaint report, work sheet, memo book notes, medical reports, and triage records (see Notice of Cross–Motion, exhibit 1). By letter dated May 6, 2016, Records Access Officer (RAO) Richard Mantellino denied petitioner's request pursuant to POL § 87(2)(e)(i) on the basis that disclosure would interfere with law enforcement investigations or judicial proceedings (see id. , exhibit 3). According to respondent, petitioner's petition for a writ of habeas corpus was pending at that time. In the May 6, 2016 letter, petitioner was notified that he could appeal the RAO's denial in writing to Jonathan David, Records Access Appeals Officer (RAAO David). By letter dated May 20, 2016, petitioner sent a letter appealing the denial of his request (see id. , exhibit 4). In his letter, petitioner noted that he needs the requested items for "appeal perpose [sic]" since he is "currently fighting [his] case in the court of Appeals, and also have appeals pending in the U.S. District court, Eastern District of New York" (id. ). Again he requested audio statements, 911 report, ballistic reports, medical reports, triage record, memo book notes, and DD5 reports. By letter dated September 6, 2016, RAAO David denied petitioner's appeal pursuant to: 1) POL § 87(2)(e)(i) on the basis that disclosure would interfere with judicial proceedings, including for example, a criminal trial, appeal, a habeas proceeding or post-conviction motion; 2) POL §§ 87(2)(b) and 89(2) because disclosure would constitute an unwarranted invasion of privacy; 3) POL § 87(2)(f) because disclosure could endanger the life or safety of another person; 4) POL § 87(2)(e)(iii) because disclosure would reveal confidential information; 5) pursuant to POL § 87(2)(e)(iv) because disclosure would reveal non-routine criminal investigative techniques or procedures (see id. , exhibit 5).
According to respondent, it has no record of ever receiving this request for any records.
On December 9, 2016, Justice Ellen Spodek granted petitioner's application for an Inmate Reduce Filing Fee, pursuant to CPLR 1101(f), waiving the court filing fees. Petitioner filed an RJI and commenced the herein proceeding via Petition and Order to Show Cause (OSC). Petitioner is seeking to compel the respondent to disclose any and all materials or documents requested in his previous FOIL requests which were denied (see id. , exhibit 6). On December 12, 2016, Justice Marsha Steinhardt signed the OSC as drafted by the imprisoned pro se petitioner, including the service provision, which provided for personal service upon the respondent only. The OSC directed "let personal service of a copy of this order, and the petition and other papers upon which this order is granted, upon the respondent(s) on or before the 12th day of January, 2017 be deemed good and sufficient" (id. ). On December 30, 2016, petitioner served the within OSC and Verified Petition on the respondent by Certified First Class mail (see respondents' exhibit 7, dated and post paid envelop addressed to the respondent).
On January 19, 2017, respondent cross-moved to dismiss petitioner's proceeding, on the ground that: (1) petitioner has failed to obtain personal jurisdiction over the respondent, pursuant to CPLR 403(b), in that the petitioner failed to serve the respondent personally in accordance with the provisions of the OSC, but rather by mail; and (2) the records sought by the petitioner are exempt from disclosure pursuant to POL § 87(2)(e)(i), which prohibits the disclosure of law enforcement records where such disclosure would interfere with a pending judicial proceeding.
STANDARD
"A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government" (Matter of Gottlieb v. City of New York , 129 AD3d 724, 725 [2d Dept 2015] ). The standard of judicial review in the instant matter is whether the determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" ( CPLR 7803[3] ; see also Matter of Scherbyn v. Wayne–Finger Lakes Bd. of Coop. Educ. Servs. , 77 NY2d 753, 758 [1991] ; Matter of Gottlieb , 129 AD3d at 725 ). " ‘An arbitrary determination is one that is without a sound basis in reason, and is made without regard to the facts’ " (Matter of Hollander v. Suffolk County Dept. of Social Services , 140 AD3d 1064, 1065 [2d Dept 2016], quoting Matter of Gottlieb , 129 AD3d at 725 ). "[T]he interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if that interpretation is not irrational or unreasonable" ( Matter of Gaines v. New York State Div. of Hous. & Community Renewal , 90 NY2d 545, 548–549 [1997] ; see also Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County , 34 NY2d 222, 231 [1974] ). "Courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise" ( Peckham v. Calogero , 12 NY3d 424, 431 [2009] ; see Matter of Deerpark Farms, LLC v. Agricultural and Farmland Protection Bd. of Orange County , 70 AD3d 1037, 1038 [2d Dept 2010] ).
"FOIL ‘expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies’ " ( Matter of Berger v. New York City Dept. of Health & Mental Hygiene , 137 AD3d 904, 906 [2d Dept 2016], quoting Matter of Capital Newspapers Div. of Hearst Corp. v. Burns , 67 NY2d 562, 565 [1986] ). "FOIL requires that state and municipal agencies ‘make available for public inspection and copying all records,’ subject to certain exemptions" (Matter of Ortiz v. Zugibe , 144 AD3d 919, 920 [2d Dept 2016], quoting Matter of Madera v. Elmont Pub. Lib. , 101 AD3d 726, 727 [2d Dept 2012], quoting Public Officers Law § 87[2] ; see Matter of Data Tree, LLC v. Romaine , 9 NY3d 454 [2007] ). FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted (see Matter of Berger , 137 AD3d at 906 ; Public Officers Law § 87[2] ; Matter of Capital Newspapers Div. of Hearst Corp. , 67 NY2d at 565 ; Matter of New York Times Co. v. New York State Dept. of Health , 243 AD2d 157, 159 [3d Dept 1998] ). "Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" ( Matter of Ortiz , 144 AD3d at 920 ; see Public Officers Law § 89[5][e] ). Thus, the standard of review on a CPLR article 78 proceeding challenging an agency's denial of a FOIL request is much more stringent than the lenient standard generally applicable to CPLR article 78 review of agency actions (see Matter of Berger , 137 AD3d at 906 ).
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" (also see Lesher v. Hynes , 19 NY3d 57 [2012] ). 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 (see McGhee v. New York City Police Dept. , 52 Misc 3d 1211[A], 2016 NY Slip Op 51112[U] [Sup Ct, NY County 2016] ; Matter of Pittari v. Pirro , 258 AD2d 202 [2d Dept 1999] ).
DISCUSSION
Petitioner's OSC made pursuant to CPLR 403(b) required petitioner to effectuate personal service upon a respondent, or if such service is impractical, include in the application to the Court for an alternative method of service, pursuant to CPLR 308(5). He failed to include an alternative method of service. Thus, petitioner's failure to comply with the personal service provisions of the OSC would normally require denial of his petition as this Court would not have obtained jurisdiction over the respondent (see Matter of Rotanelli v. Board of Elections of Westchester County , 109 AD3d 562, 562 [2d Dept 2013] ["the method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with"]; Codrington v. Citimortgage, Inc. , 118 AD3d 843 [2d Dept 2014] ).
Here, however, petitioner is a pro se incarcerated inmate, in a secure correctional facility, who was granted a waiver for costs and court filing fees. Unlike other litigants, he cannot travel, has limited access to communication or fiscal resources. There is no evidence that he even has the means to effectuate personal service on the respondent. Moreover, respondent concedes that it was timely served by Certified First Class Mail, within the time frame set forth in the OSC, and was not prejudiced by the certified mail service. Accordingly, the Court finds mail service was proper and jurisdiction has been established (see Matter of Mandala v. Jablonsky , 242 AD2d 271 [2d Dept 1997] [Pro se prisoner's failure to comply with service provisions of order to show cause did not support dismissal of his special proceedings under Article 78] ).
However, as to the merits of the petition, respondent correctly contends that the arrest records sought by petitioner are exempt from disclosure under Public Officers Law § 87(2)(e)(i) as disclosure of said records would interfere with the pending criminal proceeding against petitioner (see Matter of Legal Aid Socy. v. New York City Police Dept. , 274 AD2d 207, 214 [1st Dept 2007] ).
CONCLUSION
For these reasons and upon the foregoing papers, it is,
ORDERED that petitioner's Article 78 petition is denied and the proceeding is dismissed, without costs or disbursements to respondent (motion sequence 1); and it is further,
ORDERED that the portion of respondent's cross-motion seeking to dismiss the proceeding on the basis that petitioner has failed to obtain personal jurisdiction over the respondent, pursuant to CPLR 403(b), is denied; and it is further,
ORDERED that the portion of respondent's cross-motion seeking to dismiss the proceeding on the basis that the records sought by the petitioner are exempt from disclosure pursuant to POL § 87(2)(e)(i), is granted, and this proceeding is hereby dismissed without costs or disbursements to respondent; and it is further,
ORDERED that counsel for respondent shall serve a copy of this Order, with Notice of Entry, upon the petitioner and the Clerk of the Court who is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.