Journal Pub. Co. v. Office of Special Prosecutor

• Decision Date: 23 January 1986
• Parties: Application of the JOURNAL PUBLISHING COMPANY, Petitioner, For a Judgment Pursuant To Article 78 of the CPLR, v. The OFFICE OF the SPECIAL PROSECUTOR, Respondent.
• Court: New York Supreme Court

Page 919

500 N.Y.S.2d 919

131 Misc.2d 417

Application of the JOURNAL PUBLISHING COMPANY, Petitioner,

For a Judgment Pursuant To Article 78 of the CPLR, v. The OFFICE OF the SPECIAL PROSECUTOR, Respondent.

Supreme Court, New York County,

Extraordinary Special and Trial Term.

Jan. 23, 1986.

Pryor, Cashman, Sherman & Flynn, New York City (Nathaniel H. Akerman, of counsel), for petitioner.

Charles J. Hynes, Deputy Atty. Gen., and Sp. State Pros. by Jill K. Simon, Sp. Asst. Atty. Gen., Office of the Sp. Pros., New York City, for respondent.

DECISION AND ORDER

FELICE K. SHEA, Justice:

This CPLR Article 78 proceeding, brought to review the denial of a request made under the Freedom of Information Law (Public Officers Law, Art. 6) ("FOIL"), presents the question of whether tape recordings made in the course of a criminal investigation should be disclosed to a newspaper for use in defense of a libel action. Petitioner, The Journal Publishing Company, owns the Albuquerque Journal, a newspaper published and circulated in New Mexico. Respondent is the Special Prosecutor charged with investigating corruption in the New York City criminal justice system.

On March 11, 1985, petitioner made a FOIL request pursuant to Public Officers Law §§ 87(2) and 89(3) asking the Special Prosecutor for 37 tape recordings. Respondent granted access to portions of the tapes sought but denied the remainder of the request. Pursuant to § 89(4)(a) of the Public Officers Law, petitioner brought an administrative appeal. Respondent, citing statutory exemptions, affirmed the denial on the grounds that:

"(a) The records and statements requested were compiled for law enforcement purposes and if disclosed would (1) interfere with law enforcement investigations; (2) identify confidential sources and disclose confidential information relating to a criminal investigation; and (3) reveal criminal investigative techniques or procedures (P.O.L. § 87(2)(e)(i)(iii) and (iv); and

"(b) The records and statements requested are specifically exempted from disclosure by state or federal statutes (P.O.L. § 87(2)(d));

"(c) The records and statements, if disclosed would constitute an unwarranted invasion of personal privacy under the provision of Section eight-nine of this article (P.O.L. § 87(2)(c))."

The present application followed.

The tape recordings sought by petitioner were made in 1974 and 1975 by Ralph Grano, a deputy warden at the Tombs in New York City, in the course of an undercover investigation. The conversations recorded were with James Vincent Napoli, Sr., allegedly a high ranking organized crime figure, and others associated with him. The Department of Investigation, which supervised the investigation, does not resist disclosure and has furnished petitioner with 82 of the tapes made by Grano. The remaining tapes (37 according to petitioner, 39 according to respondent) are in the possession of the Special Prosecutor.

The libel suit against petitioner was brought by Bob Stover, former Chief of Police in Albuquerque. The alleged libel is a 1982 newspaper article published by the Albuquerque Journal in which Jerome Sternlieb ¹ is reported as saying that he was sent to Albuquerque in late 1976 or early 1977 by Napoli to familiarize himself with Napoli's business affairs in New Mexico so that Sternlieb might return later to oversee them. According to Sternlieb, Napoli had secret partnership interests with Jerry Apodaca, then Governor of New Mexico, and William Marchiondo, an Albuquerque attorney. Sternlieb claimed in the Journal article that Chief of Police Stover drove him around Albuquerque and pointed out Napoli's hidden business interests.

Petitioner submits that there is relevant evidence in the Grano tapes supporting the truth of Sternlieb's statements. Petitioner's attorney asserts that on December 18, 1984 he spoke with Ralph Grano and Grano recalled that Napoli or one of his associates stated in substance that Napoli "owns the Governor, the Chief of Police and the Attorney General in New Mexico" and that the tapes will show business dealings among Napoli, Marchiondo and former Governor Apodaca. Respondent does not dispute petitioner's claim that the undisclosed tapes corroborate Sternlieb's statements.

In Section 84 of FOIL, the legislature set forth its intention to allow maximum access to information, finding that:

"[A] free society is maintained when the government is responsive and responsible to the public and when the public is aware of governmental actions.... [I]t is incumbent upon the State ... to extend public accountability wherever and whenever feasible ... Access to ... information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality...."

In furtherance of this legislative purpose, "[p]ublic disclosure laws are to be liberally construed to allow maximum access to documents. Statutory exemptions are to be narrowly construed ..." Miracle Mile Associates v. Yudelson, 68 A.D.2d 176, 181, 417 N.Y.S.2d 142, app. den., 48 N.Y.2d 706, 422 N.Y.S.2d 68, 397 N.E.2d 758. The burden of demonstrating that material requested under FOIL is exempt rests upon a government agency asserting the exemption (P.O.L. § 89(4)(b); Matter of Westchester Rockland Newspapers, Inc. v. Kimball, 50 N.Y.2d 575, 580, 430 N.Y.S.2d 574, 408 N.E.2d 904; Hawkins v. Kurlander, 98 A.D.2d 14, 15, 469 N.Y.S.2d 820, appeal withdrawn, 62 N.Y.2d 804) and an agency "is required to articulate particularized and specific justification" to avoid disclosure. Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463.

The Freedom of Information Law makes government records presumptively available to the public without regard to the status, need, good faith or purpose of the applicant. Matter of Scott, Sardano & Pomeranz v. Records Access, 65 N.Y.2d 294, 296, 491 N.Y.S.2d 289, 480 N.E.2d 1071; Matter of Farbman v. New York City Health & Hospitals Corp., 62 N.Y.2d 75, 80, 476 N.Y.S.2d 69, 464 N.E.2d 437. A general public interest in disclosure need not be demonstrated and access to government records in aid of litigation, both against the government and against other individuals, frequently has been directed by the courts. See e.g., Dowling v. State of New York, 49 A.D.2d 982, 374 N.Y.S.2d 148; Matter of Bloomberg v. Hennessy, 99 Misc.2d 958, 417 N.Y.S.2d 593; Matter of Edward Dwyer, 85 Misc.2d 104, 378 N.Y.S.2d 894. See also Siegel, Practice Commentaries, McKinney's Cons. Laws, Book 7B, CPLR C 3101.25, Supp. (1986 p. 28). FOIL was enacted to give the public a right to documents explaining the bases of governmental decision making (P.O.L. § 84), but the records made available by statute need not have been used in the decision making process. Matter of Farbman v. New York City Health & Hospitals Corp., supra 62 N.Y.2d at 80, 476 N.Y.S.2d 69, 464 N.E.2d 437; Matter of Westchester Rockland Newspapers v. Kimball, 50 N.Y.2d 575, 581, 430 N.Y.S.2d 574, 408 N.E.2d 904. In short, FOIL gives a sweeping right to public records and only narrow grounds for resisting disclosure.

In opposition to the present application, the Special Prosecutor does not contend pursuant to Public Officers Law § 87(2)(e)(i), (iii) and (iv) that disclosure would interfere with law enforcement investigations, or that disclosure would reveal confidential sources and investigative techniques. He has apparently abandoned these bases for objection given to petitioner at the administrative level.

Respondent divides the 39 tapes in his possession into three categories. The first category contains 10 tapes (including 2 not on petitioner's list of 37) which were used in People v. "John Doe" ² and "Richard Roe" 2, a trial that resulted in acquittal of both defendants. The court file and all tapes were sealed pursuant to a court order dated December 12, 1979, although the order did not mention the disputed 10 tapes. The Special Prosecutor argues that the 10 tapes in the first category are exempt from disclosure under § 87(2)(a) of FOIL ³ because they were sealed pursuant to CPL 160.50(1)(c), a state statute which mandates sealing of all official records and papers upon termination of a criminal action by acquittal. Petitioner's position is that the 10 tapes used at the "Doe" and "Roe" trial are not exempt from disclosure because the order sealing the records of the trial is silent with regard to the tapes.

CPL 160.50(1)(c) mandates the sealing of "all official records and papers ... relating to the arrest or prosecution ... on file with ... any court, police agency or prosecutor's office ..." The Court of Appeals in Matter of Dondi, 63 N.Y.2d 331, 337, 482 N.Y.S.2d 431, 472 N.E.2d 281 characterized this provision as "broad and inclusive" and interpreted it to include "a tape recording that was integral to both appellant's arrest and his prosecution." To the extent that Matter of Hynes v. Karassik, 63 A.D.2d 597, 405 N.Y.S.2d 242, aff'd, 47 N.Y.2d 659, 419 N.Y.S.2d 942, 393 N.E.2d 1015 and Matter of Anonymous, 95 A.D.2d 763, 464 N.Y.S.2d 194 are to the contrary, they are no longer good law. The 10 tapes used at trial of "John Doe" and "Richard Roe" are thus subject to the sealing order.

CPL 160.50 was enacted to protect an accused person from the adverse effects of an arrest record when the ultimate result of criminal charges is exoneration. Matter of Anonymous, 95 A.D.2d 763, 464 N.Y.S.2d 194; Ciraulo v. Dillon, 108 Misc.2d 751, 438 N.Y.S.2d 972; Governor's Memorandum, 1976 N.Y.Legis.Ann. 408. The statute makes sealed records available only to the accused and, in limited circumstances, to enumerated public and law enforcement agencies. The statute does not contemplate unsealing for a purpose unrelated to the accused individual. Accordingly, there is no statutory authority permitting disclosure of sealed records to petitioner herein.

No court appears to have addressed the authority of a court to unseal the records of a trial in order to give access to a...