Gould v. New York City Police Dept.

• Decision Date: 26 November 1996
• Citation: 653 N.Y.S.2d 54,89 N.Y.2d 267,675 N.E.2d 808
• Parties: , 675 N.E.2d 808, 25 Media L. Rep. 1104 In the Matter of Khalib GOULD, Appellant, v. NEW YORK CITY POLICE DEPARTMENT et al., Respondents. In the Matter of Harold SCOTT, Appellant, v. NEW YORK CITY POLICE DEPARTMENT, Respondent. In the Matter of Joseph F. DeFELICE ex rel., on Behalf of Christopher BARBERA, Appellant, v. NEW YORK CITY POLICE DEPARTMENT, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 54

653 N.Y.S.2d 54

89 N.Y.2d 267, 675 N.E.2d 808, 25

Media L. Rep. 1104

In the Matter of Khalib GOULD, Appellant, v. NEW YORK CITY POLICE DEPARTMENT et al., Respondents.

In the Matter of Harold SCOTT, Appellant, v. NEW YORK CITY POLICE DEPARTMENT, Respondent.

In the Matter of Joseph F. DeFELICE ex rel., on Behalf of

Christopher BARBERA, Appellant, v. NEW YORK CITY POLICE DEPARTMENT, Respondent.

Court of Appeals of New York.

Nov. 26, 1996.

Rosemary Herbert, E. Joshua Rosenkranz and Richard M. Greenberg, New York City, for appellant in the first above-entitled proceeding.

Steven B. Wasserman, Robert M. Baum, Daniel L. Greenberg and Laura R. Johnson, New York City, for appellant in the second above-entitled proceeding.

Joseph F. DeFelice, Kew Gardens, pro se.

Paul A. Crotty, Corporate Counsel of New York City (Margaret G. King and Barry P. Schwartz, of counsel), New York City, for respondents in first, second and third above-entitled proceedings.

Robert M. Baum, Steven B. Wasserman and Laura R. Johnson, New York City, for Legal Aid Society, amicus curiae in the first above-entitled proceeding

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Roseann B. MacKechnie, Virginia C. Modest and Thomas M. Ross, of counsel), for New York State District Attorneys Association, amicus curiae in the first, second and third above-entitled proceedings.

OPINION OF THE COURT

CIPARICK, Associate Judge.

The three separate proceedings on appeal all involve petitioners' efforts, pursuant to the Freedom of Information Law (FOIL), to obtain documents relating to their arrests from the New York City Police Department. In response to petitioners' FOIL requests, the Police Department furnished assorted documents to petitioners, but refused to disclose complaint follow-up reports (commonly referred to as DD5's) and police activity logs (commonly referred to as memo books). We hold that the complaint follow-up reports are not categorically exempt from disclosure as intra-agency material and that the activity logs are agency records subject to the provisions of FOIL. Consequently, we remit these proceedings to Supreme Court to determine whether the Police Department can make a particularized showing that a statutory exemption applies to justify nondisclosure of the requested documents.

I.

In Matter of Gould, 223 A.D.2d 468, 636 N.Y.S.2d 1009 attorneys for petitioner Khalib Gould submitted a FOIL request to the Police Department for all documents pertaining to his arrest and the related police investigation leading to his conviction for murder in the second degree and attempted murder in the second degree. In response, the Police Department furnished arrest, complaint and ballistic reports to Gould, but withheld complaint follow-up reports on the ground that the reports are exempt from FOIL production as intra-agency material and withheld police activity logs on the ground that the logs are the officers' personal property. Gould instituted a CPLR article 78 proceeding challenging the Police Department's decision, which was dismissed by Supreme Court. The Appellate Division unanimously affirmed.

In Matter of DeFelice, 226 A.D.2d 176, 640 N.Y.S.2d 536, petitioner Christopher Barbera, through his attorney, requested police reports relating to his 1993 arrest that led to his conviction for attempted murder in the second degree and assault in the first degree. The Police Department provided Barbera with complaint reports, property vouchers, and arrest reports, but refused to produce the requested complaint follow-up reports and activity logs. On Barbera's CPLR article 78 challenge, Supreme Court upheld the Police Department's action, finding that the complaint follow-up reports and activity logs are exempt intra-agency material. The Appellate Division unanimously affirmed.

In Matter of Scott, 225 A.D.2d 338, 638 N.Y.S.2d 612, petitioner Harold Scott, in a series of FOIL requests, sought Police Department documents relating to his 1983 arrest and subsequent conviction for rape and homicide. In response to the latest of these requests, the Police Department refused to produce police activity logs and interviews of witnesses who had testified at Scott's criminal trial on the ground that the documents are exempt from disclosure under FOIL and further informed Scott that all other responsive documents had been provided to him in response to prior FOIL requests. On Scott's subsequent CPLR article 78 challenge, Supreme Court upheld the Police Department's refusal to produce the activity logs, but ordered the Department to disclose the interview reports. As to Scott's request for additional documents which the Police Department certified it did not possess, Supreme Court denied the petition concluding that Scott only speculated that these documents existed. On Scott's appeal, the Appellate Division unanimously affirmed, holding that police activity logs are exempt intra-agency material and that the Police Department's certification sufficed to establish the nonexistence of other records. This Court granted leave to appeal in all three proceedings.

II.

To promote open government and public accountability, the FOIL imposes a broad duty on government to make its records available to the public (see, Public Officers Law § 84 [legislative declaration] ). Moreover, access to government records does not depend on the purpose for which the records are sought. We recognize that petitioners seek documents relating to their own criminal proceedings, and that disclosure of such documents is governed generally by CPL article 240 as well as the Rosario and Brady rules. However, insofar as the Criminal Procedure Law does not specifically preclude defendants from seeking these documents under FOIL, we cannot read such a categorical limitation into the statute (see, Public Officers Law § 87[2][a]; accord, Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 N.Y.2d 75, 81, 476 N.Y.S.2d 69, 464 N.E.2d 437 [absent an express provision or unequivocal legislative intent so indicating, CPLR article 31--the civil litigation disclosure article--is not a statute specifically exempting public records from disclosure under FOIL] ). ¹

All government records are thus presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87(2). To ensure maximum access to government documents, the "exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption" (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750; see, Public Officers Law § 89[4][b] ). As this Court has stated, "[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" (Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463).

In keeping with these settled principles, blanket exemptions for particular types of documents are inimical to FOIL's policy of open government (accord, Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 569, 505 N.Y.S.2d 576, 496 N.E.2d 665). Instead, to invoke one of the exemptions of section 87(2), the agency must articulate "particularized and specific justification" for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S.2d 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437).

Despite these principles, the courts below relied on the case of Matter of Scott v. Chief Med. Examiner of City of N.Y., 179 A.D.2d 443, 577 N.Y.S.2d 861, lv denied 79 N.Y.2d 758, 584 N.Y.S.2d 446, 594 N.E.2d 940, cert denied 506 U.S. 891, 113 S.Ct. 259, 121 L.Ed.2d 190 as establishing a blanket exemption from FOIL disclosure for complaint follow-up reports and police activity logs. We conclude that this was error and hold, first, that the complaint follow-up reports are not entitled to a blanket exemption as intra-agency material, and, second, that the police activity logs are agency "records" available under FOIL. In addition, we hold that the Police Department adequately established the nonexistence of other documents requested by petitioner Scott. Accordingly, we reverse in Gould and DeFelice, modify in Scott, and remit in all three proceedings for Supreme Court to determine, upon an in camera inspection if necessary, whether the Police Department can make a particularized showing that any claimed exemption applies.

A.

A complaint follow-up report is a form document on which a police officer "report[s] additional information concerning a previously recorded complaint" (New York City Police Dept Patrol Guide § 108-8). The courts below held that the Police Department properly withheld these reports under the intra-agency exemption, which provides that an "agency may deny access to records or portions thereof that: * * * are inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policy or determinations; or iv. external audits" (Public Officers Law § 87[2][g] ). Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree.

Initially, we note that one court has suggested that complaint follow-up reports are exempt...