Opinion
Index No. 159132/2021
12-06-2022
NYP Holdings, Inc.,CRAIG MCCARTHY, Petitioner, v. New York City Police Department, DERMOT F. SHEA, POLICE BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, Respondent.
Petitioners: Jeremy Chase and Lindsey Cherner, Davis Wright Tremaine LLP City Respondents: Brian McCaffrey, Corporation Counsel, City of New York Police Benevolent Association: Matthew Daly, Golenbock, Eiseman, Assor, Bell and Peskoe LLP
Unpublished Opinion
Petitioners: Jeremy Chase and Lindsey Cherner, Davis Wright Tremaine LLP City Respondents: Brian McCaffrey, Corporation Counsel, City of New York
Police Benevolent Association: Matthew Daly, Golenbock, Eiseman, Assor, Bell and Peskoe LLP
Arlene P. Bluth, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 6, 7, 22, 23, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 were read on this motion to/for ARTICLE 78 -FOIL.
The petition to direct respondents to produce the requested information pursuant to a Freedom of Information Law ("FOIL") request is granted as described below. The cross-motion to dismiss by the New York City Police Department ("NYPD") is denied.
Background
Petitioners contend that respondents ignored or refused to produce records in response to 144 separate FOIL requests seeking disclosure about police disciplinary records for certain police officers. Petitioners include the publisher of the New York Post and a reporter at the paper.
Petitioners contend that on June 12, 2020 (two and a half years ago), petitioner McCarthy filed 140 FOIL requests for all disciplinary records related to specific police officers for the NYPD. Respondent NYPD acknowledged the requests on June 17, 2020 and asserted it would respond by October 28, 2020. Petitioner McCarthy later submitted four more requests (three on June 18, 2020 and another on June 25, 2020).
Petitioners point out that these FOIL requests were made right after the State of New York repealed Civil Rights Law § 50-a (commonly referred to as Section 50-a), a statute that required that police officer personnel records be kept confidential. They also note that the U.S. Court of Appeals for the Second Circuit issued a stay in a related case and that put the underlying FOIL proceedings on hold in early 2021. However, in March 2021, the Second Circuit vacated the stay.
Petitioners allege that as of August 2021, the NYPD had only issued determinations for 17 of the 144 requests. With respect to the requests that were addressed, petitioners insist that the NYPD denied each in full on the ground that it would constitute an unwarranted invasion of personal privacy (an exemption to the disclosure presumption under FOIL). Petitioners admit that they received a single disciplinary record for a single officer in June 2021 that contained significant redactions.
Petitioners argue that because Section 50-a is repealed, now the NYPD has an obligation to produce the records sought in the subject FOIL requests. They insist that the NYPD has taken an impermissibly narrow view of the phrase "disciplinary record" to exclude complaints and records about unsubstantiated claims, which is contrary to Section 50-a's repeal. They argue that the records do not fall with the privacy exemption and that the failure by the NYPD to even address the remaining 116 FOIL requests constitutes a constructive denial sufficient to form the basis of this proceeding.
Respondent NYPD cross-moves to dismiss on the ground that it intends to produce only substantiated complaints against the 144 officers for which petitioner seeks records pursuant to a partial agreement with petitioner. It insists the instant proceeding is therefore moot. The NYPD asserts that it should not have to produce the remaining records for unsubstantiated disciplinary records because it would constitute an unduly burdensome exercise. The NYPD stresses that it "takes no position in this cross motion on the issue of whether unsubstantiated complaints should be withheld on privacy grounds" (NYSCEF Doc. No. 36, ¶ 38).
Respondent the Police Benevolent Association of the City of New York ("PBA") submits opposition to the petition and similarly argues that the FOIL requests at issue are overly burdensome. It also argues that disclosure of unsubstantiated and pending complaints against police officers is not required under FOIL because certain exemptions apply. The PBA contends that a FOIL Committee (part of the State Committee on Open Government) opined that the repeal of Section 50-a does not require the disclosure of unsubstantiated or pending disciplinary records.
The PBA argues that the privacy exemption applies because to disclose these records would constitute an unwarranted invasion of officers' privacy. It points to inter alia a Supreme Court case in Onondaga County in which the court held that the repeal of 50-a did not require disclosure of unsubstantiated claims. The PBA also cites to other exemptions including the safety exemption, the law enforcement exemption, as well as the inter-intra agency exemption.
New York Civ. Liberties Union v City of Syracuse, 72 Misc.3d 458 [Sup Ct, Onondaga County 2021]). As will be discussed below, the Fourth Department reversed this decision.
In reply, petitioners point out that the NYPD's opposition asserts no FOIL exemptions, does not contest Section 50-a's retroactivity, and does not insist it conducted a diligent search. Petitioners maintain that the NYPD did not sufficiently justify its claim that disclosure would be unduly burdensome. However, they contend that they are willing to meet and confer about a mutually agreeable disclosure schedule. Petitioners claim that only the NYPD can assert FOIL exemptions and that the PBA cannot do so on their behalf. They also dispute the exemptions cited by the PBA.
Petitioners emphasize that they are willing to limit their FOIL requests "to substantiated and unsubstantiated claims, regardless of date or retirement status, against the 144 named police officers, but exclude 'technical infractions' as defined in POL § 86(9), records of complaints pending at the time of disclosure, or any personal private information ("PPI") as described in paragraph 12 of the NYPD's opposition" (NYSCEF Doc. No. 44 at 3).
Discussion
"To promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public. The statute is based on the policy that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government. Consistent with the legislative declaration in Public Officers Law § 84, FOIL is liberally construed and its statutory exemptions narrowly interpreted. All records are presumptively available for public inspection and copying, unless the agency satisfies its burden of demonstrating that the material requested falls squarely within the ambit of one of the statutory exemptions. While FOIL exemptions are to be narrowly read, they must of course be given their natural and obvious meaning where such interpretation is consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL" (Abdur-Rashid v New York City Police Dept., 31 N.Y.3d 217, 224-25, 76 N.Y.S.3d 460 [2018] [internal quotations and citation omitted]).
As an initial matter, the Court observes that the NYPD only raises one objection to petitioner's requests in its cross-motion: that the disclosure of such records would be unduly burdensome. Although the Court permitted the PBA to intervene in this proceeding, that does not mean that the PBA may assert exemptions to FOIL that are not asserted by the NYPD. It is undoubtedly an agency's obligation to disclose or withhold records according to its view of the request and justify why it may withhold certain records. For whatever reason, the NYPD expressly stated that it was not seeking a FOIL privacy exemption nor did it make arguments about other exemptions (or issues such as retroactivity). It would be wholly inappropriate for this Court to permit an intervenor to raise arguments not asserted by the agency. The PBA is certainly entitled to amplify the arguments raised by the NYPD but it cannot force petitioners to respond to arguments about issues that the NYPD waived or failed to assert altogether.
The Court finds that the NYPD failed to sufficiently justify its claim that the requested documents are so burdensome as to constitute a basis to deny petitioners' FOIL requests. Simply put, it did not meet its burden to show that it is wholly unable to disclose the records due to the volume of the records at issue. The fact is that petitioners want records for only 144 officers and agreed to limit their requests as indicated above.
The NYPD's assertion that Tax IDs are required is inapposite as petitioners observe that such identifying information is not publicly available. Plus, petitioners maintain that they are happy to work with the NYPD to identify a particular officer if an issue arises.
More broadly, the NYPD failed to submit any specific evidence for why locating these records would be so burdensome. There is no indication that the NYPD conducted a search for some of the records at issue and identified a substantial number of records that could justify a burdensome argument. Simply asserting that because records for 144 officers are sought it must be an undue burden is not a compelling argument. It could be that some officers have no (or very few) records to disclose. Without a detailed explanation of the size of the disclosure, the Court cannot credit the NYPD's assertion that to respond would be a "Herculean task."
However, the Court observes that petitioners contend that 127 of the officers included in the FOIL requests are listed in the New York City District Attorneys' Officers Police Adverse Credibility List.
Moreover, if petitioner had made 30 separate requests, each for five officers, and submitted each request once a week, NYPD would have a hard time claiming any of those individual requests were burdensome. Just because petitioner made the 144 individual requests in a short period of time does not magically transform it into a "Herculean task." Clearly, had NYPD started working on the requests, even if it started working on it after the March 2021 stay expired, the request would have been completely fulfilled long ago.
As noted above, it is the NYPD who has the burden to establish that an exemption applies. Here, for instance, nothing was submitted from a records officer to explain how the request would be so burdensome. Instead, the NYPD claimed, without any support for how that number was reached, that it would take eight months to retrieve the documents and include the proper redactions. Even if that were the case, that is not a reason to deny the request. If it were, an agency would be permitted to arbitrarily claim it would take too long to produce records and avoid its obligations entirely under FOIL.
To be sure, petitioners seek records for 144 specific officers. The disclosure of the files for those officers will not be a same-day task. And the Court recognizes that Section 50-a was only repealed a few years ago, which means that the NYPD has not previously had to routinely disclose these types of records. But that does not mean the NYPD can simply choose which records it can disclose (here, it suggests it should only be directed to provide substantiated complaints). Petitioners have expressed a willingness to work with the NYPD on a mutually agreeable schedule for disclosure and to narrow the disciplinary records they seek. As the NYPD suggests in its opposition, disclosure should be on a rolling basis.
The Court recognizes that the NYPD cites record resignations and the COVID-19 pandemic as reasons for why it will likely take a long time to fully respond. Certainly, that assertion suggests that the NYPD be afforded ample time to fully respond. But that argument does not justify a blanket denial of records that must ordinarily be disclosed under FOIL. Therefore, the petition is granted to the extent that the NYPD must disclose all substantiated and unsubstantiated disciplinary records for the 144 officers (in accordance with petitioners' narrowed request) on a schedule to be worked out by the parties. Given the parties' apparent willingness to cooperate, the Court declines to arbitrarily set a schedule for disclosure. However, either party may make a future application if necessary.
Remaining Issues
As noted above, the Court finds that the PBA is not permitted to raise arguments that were abandoned by the NYPD. It is anathema to a FOIL proceeding where a Court must only evaluate the administrative record below and the arguments raised by an agency based on that record in the subsequent Article 78 litigation.
However, the Court observes that the Fourth Department recently reversed (in part) a lower court case cited by the PBA. In New York Civ. Liberties Union v City of Syracuse (2022 NY Slip Op 06348 [4th Dept 2022]), the Fourth Department found that the asserted FOIL exemptions, including the personal privacy exemption, did not justify a categorical withholding of unsubstantiated law enforcement disciplinary records (id. at *2). In other words, although the PBA cites to various trial courts in support of its claims that certain FOIL exemptions apply here, an appellate court has now rejected those assertions.
The Court stresses that the lower court case was still good law when it was cited by the PBA.
Aside from the fact that it is binding on this Court, the above-cited decision employs a straightforward application of the law. "The bill repealing former Civil Rights Law § 50-a also made several amendments to FOIL concerning disciplinary records of law enforcement agencies. Of particular relevance here, Public Officers Law § 86 was amended by adding subdivisions (6) and (7), defining law enforcement disciplinary records and a law enforcement disciplinary proceeding" (id.) [internal quotations and citations omitted]). Public Officers Law § 86(6) provides that:
"'Law enforcement disciplinary records' means any record created in furtherance of a law enforcement disciplinary proceeding, including, but not limited to:
(a) the complaints, allegations, and charges against an employee;
(b) the name of the employee complained of or charged;
(c) the transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing;
(d) the disposition of any disciplinary proceeding; and
(e) the final written opinion or memorandum supporting the disposition and discipline imposed including the agency's complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee."
"'Law enforcement disciplinary proceeding' means the commencement of any investigation and any subsequent hearing or disciplinary action conducted by a law enforcement agency" (Public Officers Law § 86[7]).
The clear definitions provided above suggest only one interpretation. That all disciplinary records, whether they are substantiated or unsubstantiated, are subject to disclosure under FOIL and respondents cannot categorially withhold these records. The statute does not make a distinction between substantiated and unsubstantiated disciplinary records and, in fact, expressly included examples of records that would be part of both a substantiated and an unsubstantiated claim. This Court cannot rewrite a clear and unambiguous statute to create an exception for unsubstantiated records. The legislature was more than capable of excluding certain categories of records from disclosure under FOIL and it did not.
The Court also finds that petitioners are not entitled to legal fees or costs. As the Fourth Department observed in the case cited above "Inasmuch as this proceeding at this stage concerns a novel interpretation of legislation that both repealed a statute and enacted new provisions to a longstanding statutory scheme, it cannot be said that respondents had no reasonable basis for denying access to the records at issue" (NYCLU, 2022 NY Slip Op 06348 at *4).
Summary
The Court observes that the issues in this proceeding were significantly narrowed by the NYPD's opposition. It agreed to provide disciplinary records for the 144 officers in situations where the complaints were substantiated and raised only a burdensome argument with respect to the unsubstantiated disciplinary records. The Court finds that the NYPD did not meet its burden for that exemption and must turn over those records on a rolling basis, preferably on a mutually agreeable schedule with petitioners.
While the PBA was certainly entitled to intervene-its members have an interest in this case-that does not mean that it was permitted to cite exemptions on behalf of the NYPD and it did not cite any binding case law for that proposition.
To the extent that the NYPD attempted to "reserve its right" to file an answer, the Court finds that there is little reason to permit it to file an answer. "[W]here a respondent moves to dismiss a CPLR article 78 petition and the motion is denied, the court shall permit the respondent to answer, upon such terms as may be just. We have indicated, however, that a court need not do so if the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer" (Matter of Kickertz v New York Univ., 25 N.Y.3d 942, 944 [2015]).
Here, there is no question that the facts are fully presented in the numerous filings and lengthy briefs submitted by the parties. There is no dispute over the facts: petitioner submitted certain FOIL requests, the NYPD denied the requests and now cross-moves to dismiss on the ground that to respond would be unduly burdensome. Moreover, the NYPD observed that it was aware of the personal privacy exemption argument and expressly chose to take no position on it or cite to any other FOIL exemption in support of the cross-motion to dismiss. On this record, it is unclear what permitting the NYPD to answer would accomplish other than drag out this case even further. The Court observes that this special proceeding was commenced in October 2021 but was delayed month after month due largely to the NYPD's repeated assertion that it had key personnel out (see e.g., NYSCEF Doc. No. 30). The Court declines to let this proceeding drag out even longer.
Accordingly, it is hereby
ORDERED that the petition is granted to the extent that respondent the New York City Police Department must disclose substantiated and unsubstantiated disciplinary records for the 144 police officers identified in the subject FOIL requests; and it is further
ORDERED that the parties are directed to meet and confer to determine a reasonable disclosure schedule and, if a schedule cannot be agreed to, then a future motion may be made; and it is further
ORDERED that petitioners are not entitled to legal fees at this time; if another application is necessary, then attorney fees may be awarded.