Opinion
Index No. 201521/2022
01-05-2024
In the Matter of the Application of New York Civil Liberties Union, Petitioner, v. Suffolk County and Suffolk County Police Department, Respondents, For Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.
PETITIONER'S ATTORNEY KIRKLAND & ELLIS, LLP RESPONDENTS' ATTORNEY SUFFOLK COUNTY ATTORNEY By Lisa Azzato, Assistant County Attorney
PETITIONER'S ATTORNEY KIRKLAND & ELLIS, LLP
RESPONDENTS' ATTORNEY SUFFOLK COUNTY ATTORNEY
By Lisa Azzato, Assistant County Attorney
HON. MAUREEN T. LICCIONE, J.S.C.
Upon the reading and consideration of NYSCEF documents 1 through 97 it is:
ORDERED AND ADJUDGED that the petition (motion sequence no. 001) is granted, in part, to the extent that Respondents are directed to review each of the FOIL requests which are the subject of this proceeding in accordance with the requirements set forth herein on a rolling basis, beginning 30 days from service of this order and judgment with notice of entry via NYSCEF, subject to any redactions or exemptions authorized by statute; and it is further
ORDERED that Respondents shall provide a log to Petitioner justifying each claimed redaction and exemption from disclosure stating the specific statutory basis invoked in a manner that would allow for judicial review; and it is further
ORDERED that in the event Petitioner claims that exemptions or redactions are improper, the Court will conduct in-camera review of the unredacted records; and it is further
ORDERED that counsel for the parties are directed to appear on February 15, 2023 at 2:00 p.m., at the Alan Oshrin Supreme Court Courthouse, One Court Street, Court Annex, Part 78, Riverhead, New York to set a schedule for the rolling release of records; and it is further
ORDERED that the motion for leave to file an amicus brief (motion sequence no. 002) is denied.
This is a special proceeding by petitioner, the New York Civil Liberties Union (Petitioner or NYCLU), brought pursuant to Article 78 of New York's Civil Practice Law & Rules (CPLR) and Public Officers Law (POL) § 89 et seq (FOIL) against respondents the County of Suffolk and the Suffolk County Police Department (SCPD) (collectively Respondent or County). The petition seeks: (1) production of SCPD records which were withheld in response to the NYCLU's FOIL requests, subject to redactions permitted by FOIL; (2) reproduction of records which have been produced pursuant to the NYCLU's FOIL requests with written explanations justifying the redactions or, in the alternative, an in-camera review of the redacted records; and (3) attorney's fees and litigation costs as authorized pursuant to FOIL.
The County opposed the petition arguing that personal privacy exemptions under FOIL required the SCPD to withhold certain records and that its redactions of portions of others were proper. The County also argues that the repeal of Section 50-a does not apply retroactively to records created before passage of the repeal.
On November 28, 2022, the Suffolk County Police Benevolent Association (PBA) submitted a motion for leave to submit a proposed amicus curiae brief. The motion was unopposed. The proceeding was assigned to this part in or about November 2023.
Factual Background
Prior to its repeal in June 2020, New York Civil Rights Law § 50-a had generally excluded all police personnel records from disclosure. On the heels of the repeal, on September 15, 2020, the NYCLU submitted a letter to the SCPD which contained extensive FOIL requests covering records created over a twenty-year period and making conclusory statements predicting the conclusions that would be drawn from records it sought. The NYCLU requested 47 categories of records; and some requests had as many as 30 subcategories.
The purposes for which records are sought have no relevance to a legal determination as to whether the records are exempt from disclosure. "FOIL imposes a broad duty on government to make its records available to the public... access to government records does not depend on the purpose for which the records are sought" (Gould v New York City Police Dept, 89 N.Y.2d 267, 274 (1996); Bellamy v New York City Police Dept, 59 A.D.3d 353, 355 (1st Dept 2009).
Over the course of the ensuing year the SCPD produced responsive records. On October 15, 2021 the SCPD indicated that it was withholding all records of disciplinary proceedings where the complaints against officers were classified as unsubstantiated, unfounded, or exonerated (Withheld Records). While records of disciplinary proceedings which were classified as substantiated were released to the NYCLU, no particularized statements justifying the legal bases for redactions of portions of those records were provided (Redacted Records). The NYCLU timely appealed the October 15, 2021 partial denial to the County's FOIL appeals officer. The appeal was denied on November 30, 2021. In March 2022 the SCPD released additional records and the parties conferred. They agreed to further negotiate the potential production of the Redacted Records, and further stipulated that they would potentially litigate the issue of the Withheld Records. The parties further agreed to a tolling agreement dated March 30, 2022 by which they stipulated to extend the deadline for the NYCLU to commence an Article 78 proceeding challenging the County's denial of the administrative appeal.
The County had denied the NYCLU's appeal with respect to the Withheld Records by asserting that they were exempt from disclosure because their release would "constitute[] an unwarranted invasion of the personal privacy of the officers" (NYSCEF Doc No. 46) and cited the personal privacy exemptions in FOIL (POL 87 [2]) as well as Committee on Open Government (COOG) Advisory Opinions 17195 (July 27, 2020) and 19785 (March 19, 2021) as justification. The County also denied the appeal with respect to the Redacted Records noting that:
"some of the records contain medical information of a private nature concerning police officers, and in other instances private individuals who were victims of crimes or otherwise injured parties. Redactions were made to protect the identities, addresses, dates of birth or other private information of witnesses to crimes or other persons present at crime scenes. Redactions include details about private individuals' personal encounters or interactions with other private individuals that resulted in the police being called. The personal privacy of the subjects of the reports outweighs the interest of the public in access to that information. Some such reports involved instances of domestic violence, harassment, and similar situations between private individuals"(NYSCEF Doc No. 46). The County, however, did not correlate itemized redactions to specified justifications. The parties apparently were unable to reconcile their differences as outlined in the stipulation and tolling agreement. This proceeding ensued.
Article 78 Proceeding / Motion Sequence No. 001
On November 22, 2023 the Appellate Division Second Department, reversed an Article 78 judgment by Supreme Court, Nassau County, and ruled that "records concerning unsubstantiated complaints or allegations of misconduct are not categorically exempt from disclosure as an unwarranted invasion of personal privacy" and that the Nassau County Police Department was required to disclose such records, "subject to redactions with particularized and specific justification[s]" (Matter of Newsday, LLC v Nassau Cnty Police Dept, No. 2021-08455, - N.Y.S.3d -, 2023 WL 8102717, at *3 [2d Dept 2023]). This ruling was in accordance with those of the First and Fourth Departments (Matter of New York Civ. Liberties Union v New York City Dept. of Corr. 213 A.D.3d 530, 530-531 [1st Dept 2023]), [POL 87 (2) "does not create a categorical or blanket exemption from disclosure for unsubstantiated complaints or allegations of uniformed officers' misconduct... [d]ocuments concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details"]; (Matter of New York Civ. Liberties Union v City of Syracuse, 210 A.D.3d 1401, 1404 [4th Dept 2022]) [POL 87 (2) (b) "'does not... categorically exempt... documents from disclosure'" even where a FOIL request concerns release of unsubstantiated allegations or complaints against police officers"]).
Since police misconduct records are not categorically exempt, "[i]n order to invoke the personal privacy exemption... respondents must review each record responsive to petitioner's FOIL request and determine whether any portion of the specific record is exempt as an invasion of personal privacy and, to the extent that any portion of a law enforcement disciplinary record concerning an open or unsubstantiated complaint of...officer misconduct can be disclosed without resulting in an unwarranted invasion of personal privacy, respondents must release the non-exempt, i.e., properly redacted, portion of the record to petitioner" (City of Syracuse, 210 A.D.3d at 1404-1405).
In denying the administrative appeals the County invoked general reasons why it considered portions of the Redacted Records to be exempt from disclosure, but never linked a particular justification to a specific portion of a Redacted Record. To the extent that the SCPD "relied upon exemptions" it was obligated to articulate "a particularized and specific justification for [any] such denial" (Matter of Newsday, LLC v Nassau Cnty. Police Dept), citing POL 87 [2]); see Matter of Lockwood v Nassau Cnty Police Dept, 78 Misc.3d 1219 (A) [Sup Ct, Nassau Cnty, 2023] [claimed redactions required to be "documented in a manner that allows for review by the Court"]).
It bears noting that several the Redacted Records contain invalid exemptions including the blocking of information in public records such as court pleadings, notices of claims, the name of a bureau chief in the County Attorney's Office and even newspaper articles (see e.g., NYSCEF Doc No. 8, APP000216 and APPOOO237; NYSCEF Doc No. 10, APP000297, APP000299). These obviously improper redactions raise questions as to the appropriateness of all the redactions. Consequently, each redaction must be reexamined, and each statutory justification must be itemized.
The County's argument that the repeal of Section 50-a should not be applied retroactively is unavailing for two reasons. First, the County did not deny the NYCLU's administrative appeal on that basis. "[J]udicial review of [a FOIL] administrative determination is limited to the grounds invoked by the agency" (Lockwood v Nassau Cnty. Police Dept, 78 Misc.3d 1219 [A]) and "the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis" (Matter of Madeiros v New York State Educ. Dept, 30 N.Y.3d 67, 74 [2017]).
Second, and more important, the Appellate Division Second Department specifically rejected this contention in Matter of Newsday, LLC v Nassau Cnty. Police Dept ("[b]y their nature, FOIL requests seek records that were generated prior to the request date. In amending the Public Officers Law to provide for the disclosure of records relating to law enforcement disciplinary proceedings, the Legislature did not limit disclosure under FOIL to records generated after June 12, 2020, and we will not impose such a limitation ourselves"]).
Attorney's Fees and Litigation Costs
The NYCLU has requested an award of attorney's fees and litigation costs pursuant to POL 89 (4) (c). That section provides that a court has the discretion to assess fees and litigation costs reasonably incurred by a petitioner which has substantially prevailed in an Article 78 proceeding challenging a denial of access where the respondent failed to respond to a request or appeal within the statutory time. The same section mandates that a court shall assess such fees and costs where a petitioner has substantially prevailed, and the court finds that the agency had no reasonable basis for denying access.
An award of attorney's fees is premature at this juncture and will be considered at the conclusion of the rolling release of records and based upon the appropriateness of the redactions and exemptions proffered by the SCPD.
In accordance with the foregoing, the petition is granted, in part, as ordered herein.
PBA Motion for Leave to File an Amicus Curiae Brief / Motion Sequence No. 002.
As noted above, the PBA has moved for leave to file an amicus curiae brief. The proposed brief sets forth its opposition to the release of misconduct complaint records. In so doing the PBA relies upon Supreme Court cases decided prior to the Appellate Division decisions in Matter of Newsday, LLC v Nassau Cnty. Police Dept, Matter of New York Civ. Liberties Union v City of Syracuse and Matter of New York Civ. Liberties Union v New York City Dept. of Corr., all of which held that there is no wholesale exemption of police disciplinary records where the complaints against officers were found to be unsubstantiated or where the officers were exonerated. Notably, nothing these Appellate Division rulings countenanced the release of unredacted disciplinary records (e.g., Matter of New York Civ. Liberties Union v City of Syracuse, 210 A.D.3d 1401,1404 [4th Dept 2022]) ["Documents concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details"]; Matter of New York Civ. Liberties Union v New York City Dept. of Corr. 213 A.D.3d 530 -531[1st Dept 2023][Documents concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details"]). This trial court is bound to follow these Appellate Division precedents.
The CPLR does not set a standard for allowing amicus briefs. The governing caselaw, however, consistently has held that "the function of an 'amicus curiae' is to call the court's attention to law or facts or circumstances in a matter... that might otherwise escape its consideration; it is a privilege and not a right" (Columbus Monument Corp. v City of Syracuse, 73 Misc.3d 967, 971 [Sup Ct, Onondaga Cnty [2021], quoting Kruger v Bloomberg, 1 Misc.3d 192, 768 N.Y.S.2d 76 (Sup Ct, NY Cnty, 2003] and Kemp v Rubin, 187 Misc. 707 [Sup Ct, Queens Cnty, 1946]).
Courts considering motions for leave to file an amicus brief review "whether the application[ ] is timely; (2) whether [it] states the movant's interest in the matter and includes the proposed brief; (3) whether the parties are capable of a full and adequate presentation of the relevant issues and, if not, whether the proposed amici could remedy this deficiency; (4) whether the proposed brief[ ] identif[ies] law or arguments that might otherwise escape the court's consideration or would otherwise be of assistance to the court; (5) whether consideration of the proposed amicus brief[ ] would substantially prejudice the parties; and (6) whether the case involves questions of important public interest" (Columbus Monument Corp. v City of Syracuse, 73 Misc.3d at 971, citing Anschutz Exploration Corp. v Town of Dryden, 35 Misc.3d 450, 454, [Sup. Ct., Tompkins Cnty 2012]). Here, the parties are capable of making a full presentation. The proposed brief does not present legal argument that might be overlooked, particularly because by virtue of its timing it relies upon superseded Supreme Court decisions. Accordingly, it is not of assistance to the Court. The motion for leave to file the proposed amicus brief is denied.
The parties' and movant's remaining contentions are either without merit or are unnecessary to this determination.
The foregoing constitutes the decision and partial judgment of the Court.