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Plaintiff Brings Case Regarding Freedom of Information Act



This is a hybrid proceeding for relief under the Freedom of Information Law (“FOIL”), set forth in Article 6 of the Public Officers Law,§§ 84-90, and for related declaratory and mandamus relief. Petitioner/plaintiff asserts that the respondent/defendant Nassau County Police Department (“NCPD” or “respondent”) has violated FOIL by consistently failing to respond properly to legitimate requests for information and documents.

It seeks not only a vacatur of denials for certain information, but also a declaration by the Court that NCPD has engaged in a pattern and practice of refusing to obey the law, and a judgment in mandamus directing the NCPD to do what it is bound to do under FOIL. It also seeks a related direction ordering respondent, in effect, to certify to the Court annually that it is in compliance with the statute. Finally, petitioner seeks to recoup its costs, including legal fees, expended in its efforts to obtain the information sought.

The first, dated October 4, 2012, was a request for each “Field name” for each data field within an “incident tracking” system maintained by respondent. The request defined “Field name” as the label or identification of an element of a computer database, and would include a subject heading such as a column header, data dictionary, or record layout.

The petitioner took an administrative appeal from this “Field name” denial on February 13, 2013. The Commissioner of Police, upheld the denial by letter dated March 7, 2013, stating that “Information gathering and the means by which the NCPD classifies that information is an integral part of investigations your request is again denied.”

The second Newsday request is dated January 15, 2013. That request was for “arrest reports, police reports, case reports and any other publically releasable documents” involving four criminal cases, identified by the name of the person charged. This “four criminal cases” request was denied by letter dated February 21, 2013, the NCPD officer issuing the denial stating that it was based on Public Officers Law § 87(2)(b), “which exempts from disclosure records, which constitute an unwarranted invasion of personal privacy”.

The third Newsday request is dated February 15, 2013, and requested records indicating all monetary payments to confidential informants/cooperating witnesses from 2008 to 2012, including, if possible, date and method of payment, rather than an annual total, including ancillary paid expenses such as meals, housing and transportation. The request specifically noted that “we are clearly not seeking information that identifies individuals, simply the amount of public money that’s gone to informants and cooperating witnesses.”

By letter dated February 26, 2013 NCPD denied access to records regarding these confidential informant payments (“CI payments”), stating that it was doing so pursuant to Public Officers Law § 87 (2)(e)(iii) and (iv) and § 87(2)(f), because “the release of this information would endanger the safety of certain individuals and would reveal confidential information relating to criminal investigations and disclose investigative techniques and procedures.”

The request for the records was denied by way of a form dated May 1, 2012, which had checked as the reasons for denial under the Public Officers Law 1) the need for authorizations from persons involved in the incident, 2) exposure of criminal investigative technique or procedure, and, regarding E911 records, County Law § 308(4). Upon Newsday’s administrative appeal of May 22, 2012, Deputy County Attorney serving as the FOIL appeals officer for this appeal, remanded the request to NCPD “so that it may specifically identify and enumerate documents in its possession and articulate any exemption it may have as to a particular record.” Letter dated June 22, 2012.

Upon administrative appeal after remand, by letter dated September 20, 2012, NCPD notified Newsday that the County Attorney had requested that NCPD reconsider its second denial and, as a result, NCPD was producing documents, but redacted “in order to prevent an unwarranted invasion of personal privacy of certain individuals.”

Plaintiff challenged the redactions in an administrative appeal by letter dated January 29, 2013. It asked for unredacted pages so it might know the scene of an incident, defendant’s address and occupation, witnesses, arrestees or suspects regarding criminal incidents, persons against whom defendant had an order of protection, and the name of a DSS/CPS employee assigned to look into a matter. Plaintiff also challenged whether all documents concerning Defendant were produced, whether or not redacted.

The fifth and final request addressed in this proceeding was dated August 21, 2012 and sought the names of all sworn officers in the police department. The parties have resolved this request, albeit not without complaint from petitioner that it took more than a year to do so. Accordingly, the Court will not address it, except as it concerns the fee request.

As is made clear in the legislative declaration, the Freedom of Information Law is intended to open the workings of government to the public, including through a free press, which is cast as the public’s representative for that purpose. Public Officers Law § 84. To effect this purpose, the statutory scheme is comprehensive and at its core presumes that governmental records are available for review.

Further, given the arguments made on this proceeding, it is worth noting that, as a general matter in Article 78 review, a court should not evaluate arguments and proof that were not raised or presented at the administrative level. Nevertheless, the Court will address such arguments here, both because of the alleged potential effect of release on the confidentiality rights of third parties, and because petitioner has commenced a hybrid proceeding that blurs the line between Article 78 and a declaratory judgment action. In any event, these arguments do not change the result.

In view of the foregoing well-established law, it is apparent to this Court that the denial of access to the records requested was not adequately supported by the respondent, and that the petition should be granted for that reason, to the extent indicated.

In denying the “field names” records NCPD provided no explanation or proof that disclosure of this information would have the consequences that would fall within the stated statutory exemptions. Rather, it did no more than restate the statutory language.

However, while these statements are made upon the affiant’s “training and experience as First Deputy Commissioner”, he does not claim to be an information technology expert, and the obviously hearsay statements attributed to ITU personnel are inadmissible. Before a court could accept them, these contentions clearly require expert proof of how a security breach could occur if the requested data were released, and none is offered. The absence of such proof is particularly conspicuous here since ITU personnel are employees of NCPD. Under these circumstances, this Court cannot find that the respondent has shown that the “field names” information in the incident tracking system as sought by petitioner falls within Public Officers Law § 87(2)(e)(iv), as claimed. Thus, resort to this exemption is inadequate.

Agencies of government may be required to produce records that contain both information that may be withheld under a statutory exemption and other information that is not so protected, with redaction of the former. A blanket refusal based on the “mixed” nature of requested documents cannot be countenanced. Id. Accordingly, respondent is directed to produce the requested documents, redacted to protect the names of undercover officers.

Importantly, respondent does not provide any reason as to why a careful redaction of details regarding such payments, revealing only the payment information requested, still would fail to protect the individuals involved and would lead to a disclosure of identities. Although respondent correctly cites authority to the effect that even the possibility that safety could be compromised can be a sufficient grounds for withholding records, there still must be a showing of such possibility, and here there is nothing but conclusory statements.

Initially, the Court rejects respondent’s resort to County Law § 308(4). That section shields only those records of calls made to an emergency 911 system, not all 911 records generally. As exemptions are to be narrowly construed, NCPD was not entitled to redact or withhold records except those which were of the calls themselves.

Further, given the undisputed notoriety and public interest in the Brewer case, respondent’s reliance on a line of cases denying on privacy grounds inmates’ access to witness information that concerned only their own matters is misplaced.

As there is no showing of safety concerns in the Brewer matter and, with regard to privacy, no demonstration that revealing the names would fall within one of the examples of “unwarranted invasion of personal privacy” set forth in Public Officers Law § 89(2)(b), the Court must balance public interest against more generalized privacy concerns.

The Court also notes that in its opposing memorandum respondent presents supporting arguments only with regard to third parties, addressed in the preceding paragraph, and the identification of a CPS/DSS worker involved in a matter affecting the family. As to the latter, this must be disclosed as it concerns the performance of a public employee in his or her job, which is of legitimate public interest generally, as well as in this particular case.

To the extent respondent relied on those sections of FOIL that refer to interference with pending or future investigations, revealing investigative techniques, or compromising officer safety, there has been no showing as to how production of the records sought would cause the negative effect cited. The Court therefore cannot find that an exemption under the statute has been satisfied.

In this case the petitioner has substantially prevailed, as this Court has not upheld any of the denials of access issued by the respondent and has directed remedial action. Further, in almost all cases there was no reasonable basis for the denials, and in several instances respondent did not articulate any reason, let alone a reasonable one, in support of its stated position.

As no affirmation of services or other proof is offered by petitioner or its counsel regarding the proper amount of fees, a hearing is required.

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