Asian Am. Legal Def. & Educ. Fund v. N.Y.C. Police Dep't

• Decision Date: 06 May 2013
• Parties: ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, and Muslim Advocates, Petitioners, v. NEW YORK CITY POLICE DEPARTMENT, and Raymond Kelly, in his official capacity as Commissioner of the New York City Police Department, Respondents.
• Court: New York Supreme Court

41 Misc.3d 471
964 N.Y.S.2d 888
2013 N.Y. Slip Op. 23151

ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, and Muslim Advocates, Petitioners,
v.
NEW YORK CITY POLICE DEPARTMENT, and Raymond Kelly, in his official capacity as Commissioner of the New York City Police Department, Respondents.

Supreme Court, New York County, New York.

May 6, 2013.

[964 N.Y.S.2d 892]

Weil Gotshal & Manges, LLP, New York, attorney for the plaintiff.

NYC Police Dept./Legal Depart., New York, attorney for the defendant.

ALEXANDER W. HUNTER JR., J.

The application by petitioners for an order pursuant to CPLR Article 78, directing respondents to provide petitioners with records responsive to its September 21, 2011 letter request in accordance with New York's Freedom of Information Law (“FOIL”) as codified in Public Officers Law §§ 84–90, or in the alternative, for an in camera review of randomly selected responsive records, is denied in its entirety.

Petitioners seek to expand on a series of investigative articles published by the Associated Press ¹ alleging that respondent New York Police Department (“NYPD”) worked with the Central Intelligence Agency (“CIA”) to conduct a covert, domestic surveillance program that targeted Muslim individuals, inter alia, located inside and outside of New York City. The articles allege racial profiling and civil rights violations by respondents.

On September 21, 2011, petitioners, together with the Brennan Center for Justice at New York University Law School (a non-party to this action), submitted a FOIL request seeking information regarding record keeping and retention, policy guidelines and statistics pertaining to respondent NYPD's surveillance of Muslim individuals, businesses, and organizations throughout New York City and surrounding areas. The FOIL request consisted of four broad categories of records and 26 subcategories of records. In the instant action, petitioners request that the court only consider the subcategories of records numbered 12–13 and 16–26.

In a letter dated March 5, 2012, respondent NYPD denied the FOIL request on the grounds that (1) the requested records were not reasonably described; (2) the disclosure of the requested records would result in an unwarranted invasion of privacy; (3) the sought records were exempt pursuant to the law enforcement, public safety, and information technology assets and infrastructures exemptions; (4) the sought records were exempt pursuant to the inter and intra-agency materials exemptions; and (5) the records were exempt under state and federal statute. Responsive records were turned over to petitioners pertaining to the Administrative

[964 N.Y.S.2d 893]

Guide Procedure 322–27, issued June 1, 2005 (2 pages); Operations Order No.7, issued January 29, 2007 (6 pages); and Patrol Guide Procedure 212–72, issued December 28, 2004 (18 pages).

In a letter dated April 4, 2012, petitioners appealed the March 5, 2012 denial. Petitioners argued, inter alia, that FOIL required the NYPD to offer more than a bare recitation of the statutory exemptions in denying a FOIL request and that respondent NYPD should provide redacted records. In a letter dated May 18, 2012, respondent NYPD denied the appeal, elaborating on the reasons for the denial and applying the FOIL statute to the instant request.

Petitioners argue that (1) FOIL establishes a broad right of public access to agency records, including NYPD records; (2) the NYPD improperly denied the request in its entirety; (3) the requested records are not subject to complete non-disclosure under the law enforcement, privacy, public safety, or inter-agency exemptions; and (4) petitioners reasonably described all records. Respondents oppose petitioners' application and argue that the requested records were properly exempted from disclosure; the court should defer to respondents' law enforcement expertise, and petitioners did not reasonably describe all records. In reply, petitioners argue that respondents seek a blanket exemption that is not subject to judicial review; is unprecedented, and unwarranted, and that respondents must perform a search for responsive records.

“The statutorily stated policy behind FOIL is to promote [the] people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations.” Matter of Washington Post Co. v. New York State Ins. Dept., 61 N.Y.2d 557, 564, 475 N.Y.S.2d 263, 463 N.E.2d 604 (1984) (internal quotations omitted); seePublic Officers Law § 84. FOIL is to be “liberally construed,” and its exemptions are to be “narrowly interpreted.” Newsday, Inc. v. Sise, 71 N.Y.2d 146, 150, 524 N.Y.S.2d 35, 518 N.E.2d 930 (1987); Matter of Capital Newspapers v. Whalen, 69 N.Y.2d 246, 252, 513 N.Y.S.2d 367, 505 N.E.2d 932 (1987). “The legislature in recognizing the need to keep certain matters confidential, carved out statutory instances when, if the governmental agency so demonstrates, information will not be subject to disclosure under FOIL.” M. Farbman & Sons, Inc. v. New York City Health and Hospitals Corp., 62 N.Y.2d 75, 476 N.Y.S.2d 69, 464 N.E.2d 437 (1984); Fink v. Lefkowitz, 47 N.Y.2d 567, 419 N.Y.S.2d 467, 393 N.E.2d 463 (1979); Johnson v. New York City Police Department, 257 A.D.2d 343, 694 N.Y.S.2d 14 (1st Dept.1999); see Matter of Rodriguez v. Johnson, 17 Misc.3d 1120(A), 851 N.Y.S.2d 73, 2007 N.Y. Slip Op. 52086(U) (Oct. 23, 2007). “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.” Hanig v. State Dept. of Motor Vehs., 79 N.Y.2d 106, 110, 580 N.Y.S.2d 715, 588 N.E.2d 750 (1992) (citing Matter of Federation of N.Y. State Rifle & Pistol Clubs v. New York City Police Dept., 73 N.Y.2d 92, 96, 538 N.Y.S.2d 226, 535 N.E.2d 279 [1989] ).

Respondents properly denied access to records responsive to requests numbered 12–13 and 16–26 as the records or portions thereof were “compiled for law enforcement purposes and which, if disclosed, would: (i) interfere with law enforcement investigations or judicial proceedings; [or] (iii) identify a confidential source or disclose confidential information relating to a criminal investigation; or (iv) reveal criminal investigative techniques or procedures.”

[964 N.Y.S.2d 894]

SeePublic Officers Law § 87(2)(e)(i), (ii), and (iii).

Records compiled for law enforcement purposes may be withheld if “disclosure while a case is pending would generally interfere with enforcement proceedings.” Lesher v. Hynes, 19 N.Y.3d 57, 67, 945 N.Y.S.2d 214, 968 N.E.2d 451 (2012). It is the agency's burden to “articulate a factual basis for the exemption” by identifying “generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of the categories of documents.” Id.;seePublic Officers Law § 89(4). It is not necessary to “detail the manner in which each document sought would cause such interference” because “the assertion that disclosure would interfere with an ongoing law enforcement investigation [is] a sufficiently particularized justification for the denial of access to [the] records.” Lesher, 80 A.D.3d 611, 612, 914 N.Y.S.2d 264 (2nd Dept.2011); see also Pittari v. Pirro, 258 A.D.2d 202, 206, 696 N.Y.S.2d 167 (2nd Dept.1999) (whereby “a generic determination could be made that disclosure under FOIL would cause interference.”); Matter of Whitley v. New York County Dist. Attorney's Off., 101 A.D.3d 455, 955 N.Y.S.2d 42 (1st Dept.2012) (rejecting argument that respondents were required to set forth particularized findings about whether an exemption applied to each responsive document).

Respondents have met their burden in identifying generic documents for which the law enforcement exemption is claimed. Respondents identified raw, unevaluated field reports, derivative reports, intermediate reports, and end user reports that were compiled for law enforcement purposes that are exempt from disclosure. (Cohen affirmation, ¶ 23). These highly detailed and factual reports tend to be both “source and methods revealing” documents. (Cohen affirmation, ¶¶ 25–28). Respondents also met their burden by describing generic risks posed by disclosure, including identification of sources, disclosure of the size and capabilities of the NYPD undercover program, and disclosure of the tradecraft, policies, modes of operation, and methods used by the NYPD. (Cohen affirmation, ¶ 25). Given the high level of detail in these reports, “it makes it relatively easy to connect strands of information, which in turn, provides a factual basis from which the identity of sources, methods, and capabilities can be determined.” (Cohen affirmation, ¶¶ 26–27).

Although petitioners argue that the law enforcement exemption does not apply to completed investigations, disclosure may be withheld provided that there exists an “unusual circumstance,” including the prospect that disclosure might compromise a related case. Lesher, 19 N.Y.3d at 68, 945 N.Y.S.2d 214, 968 N.E.2d 451. Even a...