Legal Aid Socy. v. NYC POLICE

• Decision Date: 17 August 2000
• Citation: 713 N.Y.S.2d 3,274 A.D.2d 207
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of LEGAL AID SOCIETY et al., Respondents,<BR>v.<BR>NEW YORK CITY POLICE DEPARTMENT, Appellant.

274 A.D.2d 207

713 N.Y.S.2d 3

In the Matter of LEGAL AID SOCIETY et al., Respondents,

v.NEW YORK CITY POLICE DEPARTMENT, Appellant.

August 17, 2000.

Steven B. Wasserman of counsel (Michele Maxian, Legal Aid Society, attorney), for respondents.

Susan Rockford of counsel (Barry P. Schwartz on the brief; Michael D. Hess, Corporation Counsel of New York City, attorney), for appellant.

Sharon Y. Brodt of counsel (Richard E. Weill on the brief; Jeanine Pirro, District Attorney of Westchester County, attorney), for New York State District Attorneys Association, amicus curiae.

MAZZARELLI, ELLERIN, LERNER and FRIEDMAN, JJ., concur.

OPINION OF THE COURT

SULLIVAN, P. J.

Prior to 1996, relying on Matter of Scott v Chief Med. Examiner of City of N. Y. (179 AD2d 443, lv denied 79 NY2d 758, cert denied 506 US 891), the New York City Police Department routinely denied requests pursuant to the Freedom of Information Law ([FOIL] Public Officers Law §§ 84-90) for complaint follow-up reports as an exempt category of "intra-agency materials" under Public Officers Law § 87 (2) (g). Similarly, the Department also withheld police activity logs from FOIL disclosure on the ground that such documents were not agency records but were the personal property of the police officers who maintained them.

In 1996, the Court of Appeals held that "complaint follow-up reports are not categorically exempt from disclosure as intra-agency material and * * * activity logs are agency records subject to the provisions of FOIL." (Matter of Gould v New York City Police Dept., 89 NY2d 267, 273.) While stressing that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (supra, at 275), the Court noted that the Department "is entitled to withhold [records] under any * * * applicable exemption, such as the law-enforcement exemption" (supra, at 277), and that "to invoke one of the exemptions of section 87 (2), the agency must articulate `particularized and specific justification' for not disclosing requested documents [citation omitted]." (Supra, at 275.) Accordingly, it remanded the matter "to determine whether the Police Department can make a particularized showing that a statutory exemption applies to justify nondisclosure of the requested documents." (Supra, at 273.)

Petitioners, defendants in pending criminal prosecutions, brought this CPLR article 78 proceeding challenging the denial of their FOIL requests for records compiled by the New York City Police Department in connection with their prosecutions. The primary question on this appeal is whether, as the Supreme Court held in granting relief, such requests can be denied only upon a "prompt, detailed, fact-specific" reason for nondisclosure. In our view, there is no such requirement to exempt these records from disclosure under section 87 (2) (e) (i)^[1] of the Public Officers Law.

By letters dated May 12 through May 15, 1997 to the Police Department, petitioners Holloway, Jennings, Allendes and Umar, all of whom had criminal charges pending against them, made FOIL requests, through their Legal Aid Society defense attorneys, for documents relating to those charges, including complaint report worksheets, complaint follow-up reports, arrest reports, activity log entries and arrest photos.^[2] By letters dated May 20 through May 22, 1997, the Department, relying on Public Officers Law § 87 (2) (e) (i), denied the requests on the ground that release of the records "at this time would interfere with an on-going investigation or judicial proceeding." Holloway's request was denied on the additional ground that the information sought, if disclosed, would endanger the life or safety of another person (Public Officers Law § 87 [2] [f]). Petitioners sought administrative review, and when the Department failed to respond within the 10-day statutory period (Public Officers Law § 89 [4] [a]), they commenced this article 78 proceeding, arguing that the Department's "uniform, verbatim response to all FOIL applications * * * by criminal defendants awaiting trial" is contrary to the provisions of the Public Officers Law and that, pursuant to Matter of Gould v New York City Police Dept. (89 NY2d 267, supra), an accused's access to Police Department records under FOIL is unaffected by the discovery provisions of the Criminal Procedure Law.

In its answer, the Department asserted that, upon further evaluation, it had determined that certain documents, i.e., the arrest reports (redacted) of Holloway, Allendes, Umar and Jennings, the arrest photos of Holloway, Umar and Jennings, and the property clerk's invoice with respect to Umar, no longer posed a danger to any person or to any judicial proceedings and would be made available.

The Department asserted, however, that the complaint report worksheet and complaint follow-up informational reports requested by petitioner Jennings were exempt from disclosure since they contained witness identifying details as well as summary statements from witnesses who had not given courtroom testimony. Disclosure of this information, the Department asserted, would interfere with a judicial proceeding, constitute an unwarranted invasion of privacy, endanger the life and safety of the witnesses identified therein and violate the public interest privilege. Additionally, disclosure of the complaint follow-up report would reveal confidential information relating to a criminal investigation or nonroutine investigatory techniques. The Department offered to make all the documents claimed to be exempt from disclosure available to the court for in camera review.

Petitioners thereafter moved to amend the petition to request certification of a class to be defined as persons with pending criminal cases who apply to the Police Department under FOIL for records relating thereto, to reflect themselves as class representatives and for specific systemic relief as to procedures to be used by the Police Department to respond to such requests, including a declaratory judgment that "members of the * * * class are entitled to receive * * * an individualized review and a specific response to their applications for agency records as provided by FOIL" and various forms of injunctive relief directing the Police Department to process FOIL requests in a specified manner.

In a supplemental affirmation filed prior to the Department's answer to the amended petition, petitioners noted that at or around the time of their motion for class certification, the Department had voluntarily discontinued its use of a form rejection letter and had instituted new procedures, which included an initial response acknowledging receipt of the application requesting access to certain records, informing the applicant that the records must be located and reviewed to assess the applicability of the exemptions from disclosure set forth in FOIL and that the review would be completed within 120 days, and advising the applicant that he or she may appeal "this decision" within 30 days of the date of the letter.

In their submissions to the court, petitioners argued that the Police Department's new procedures were "strictly cosmetic" in that "the new procedures simulate a process of individualized deliberation with respect to the class, but mask a continuation of the old policy[,] first delaying and then denying any access to information gathered by the police while criminal cases are pending." They further argued that the 120-day review period grossly exceeds the mandatory 15-day limitation for a FOIL response (43 RCNY 1-05 [d]) and would exceed the life expectancy of most criminal prosecutions, thereby effectively denying FOIL access to the proposed class.

In its answer to the amended petition, the Department reiterated the history of its responses to petitioners' FOIL requests and asserted mootness as to those documents not exempt from FOIL disclosure and already furnished to petitioners. The Department argued that since petitioners' original requests and its denials thereof were made prior to the institution of the revised procedures, petitioners lacked standing to challenge the revised procedures. In addition, in opposing class certification, the Police Department argued that the governmental operations rule mandated denial of the request for class action certification.

Petitioners subsequently moved to amend the petition further to add, as additional petitioners, Garcia, Hari and Haggerty, to whose FOIL requests, processed under its revised procedures, the Department had allegedly improperly responded. The Department's answer explained that any denial of access with respect to the three proposed petitioners was based on consultation with the appropriate prosecutor who advised that release of the records would interfere with the ongoing criminal case. The Department also noted that its response letter advising that it would make a final determination on a FOIL request within 120 days was a standard response, not just one applicable to an applicant with a pending criminal case.

The Supreme Court granted petitioners' amended petition for class certification and for declaratory and injunctive relief. It found that granting the motion to add the three new petitioners cured any petition defect with respect to mootness or standing. It rejected the Department's argument that class certification was inappropriate by virtue of the governmental operations rule, finding that the Department was unwilling to follow Matter of Gould v New York City Police Dept. (89 NY2d 267, supra), concluding that the matter was "one of those rare cases where the continued and obvious resistance on the part of governmental officials to follow the mandate of the law makes class certification appropriate." The court held that to justify nondisclosure or redaction there must be a "prompt, detailed, fact-specific reason * * * by an individual within the Department who has personally located and identified the documents and has...