N.Y. Civil Liberties Union v. City of Syracuse

• Decision Date: 05 May 2021
• Docket Number: 002602/2021
• Citation: 72 Misc.3d 458,148 N.Y.S.3d 866
• Court: New York Supreme Court
• Parties: In the Matter of the Petition of NEW YORK CIVIL LIBERTIES UNION, Petitioner, v. CITY OF SYRACUSE and Syracuse Police Department, Respondents.

72 Misc.3d 458

148 N.Y.S.3d 866

In the Matter of the Petition of NEW YORK CIVIL LIBERTIES UNION, Petitioner,

v.CITY OF SYRACUSE and Syracuse Police Department, Respondents.

002602/2021

Supreme Court, Onondaga County, New York.

Decided on May 5, 2021

Caitlin Elizabeth Feeney, Esq., Michael Lacovara, Esq., Plaintiff

John G. Powers Esq., Defendant

Gerard J. Neri, J.

On March 18, 2021, Petitioner New York Civil Liberties Union ("NYCLU") filed a Petition (NYSCEF Doc. No. 1) with a Notice of Petition (NYSCEF Doc. No. 2) seeking to compel Respondents to release certain documents pursuant to Public Officers Law ("Public O.") § 84 et seq. , commonly known as the Freedom of Information Law ("FOIL"), and are now seeking enforcement via Article 78 of the CPLR for an order of mandamus. The Parties requested a brief adjournment of the matter (NYSCEF Doc. No. 25), which was granted and the matter was placed on the Court's calendar for April 29, 2021 (NYSCEF Doc. No. 26). On April 14, 2021, Respondents answered the Petition (NYSCEF Doc. No. 36) and moved to dismiss the Petition (NYSCEF Doc. No. 27, et seq. ).

Petitioner alleges that on September 15, 2020, it submitted a FOIL request to the Syracuse Police Department ("SPD") seeking, inter alia , disciplinary records, records relating to the use of force, records relating to stops/temporary detentions/field interviews, complaints about misconduct, immigration-related enforcement, Syracuse Citizen Review Board Records, records concerning diversity in ranks, and additional policies and agreements (the "FOIL Request", NYSCEF Doc. No. 5). On September 23, 2020, Respondents acknowledged receipt of the FOIL Request and stated that "our initial estimate is that the collection, review, and redaction of these records will require one (1) year from the date of this letter" (the "Acknowledgment", NYSCEF Doc. No. 6). In November 2020, the Parties met concerning the FOIL Request, whereat Respondent allegedly committed to a "rolling production of documents partially responsive to the Request" (see Petition, NYSCEF Doc. No. 1, ¶2). In a letter dated November 17, 2020, Respondents denied that portion of the FOIL Request seeking disciplinary records related to complaints not yet substantiated (NYSCEF Doc. No. 7). Petitioner alleges this denial is unlawful and is the focus of this proceeding (see Petition, NYSCEF Doc. No. 1, ¶3). Petitioner alleges Respondents’ partial denial contravenes the plain language of the recent repeal of Civil Rights Law ("CRL") § 50-a (ibid at ¶6).

Petitioner notes that under FOIL, government records are "presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public O. § 87(2)" ( Gould v. New York City Police Dep't , 89 N.Y.2d 267, 274–75, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996] ). Petitioner asserts that the repeal of CRL § 50-a "commands the disclosure of all disciplinary records, regardless of status or disposition" (see Memorandum of Law, NYSCEF Doc. No. 3, p. 5). Petitioner alleges that the Legislature considered and rejected a narrower version of the CRL § 50-a repeal which would have limited the release of documents to substantiated claims (see S.4213). Petitioner notes that Public O. § 89 was also amended to create limited disclosure shields for certain personal information relative to police officers (see e.g. Public O. §§ 89(2-b) and 89(2-c)).

Petitioner argues that Respondents’ interpretation of Public O. § 87(2)(b) would nullify the repeal of CRL § 50-a. Petitioner points to comments made during the debate of the bills it was proffered that the intent was specifically to look at the process, not just the results, of disciplinary proceedings (see NY Senate, Floor Debate, 243rd NY Leg., Reg. Sess. 1805-06 (June 9, 2020)). Petitioner further alleges that other courts have rejected Respondents’ interpretation (see Schenectady PBA v. City of Schenectady , 2020 WL 7978093, at 4, 2020 N.Y Misc. LEXIS 10947, at 12-13 [Sup. Ct. Schenectady Cty. 2020]. ; see also Buffalo Police Benevolent Ass'n., Inc. v. Brown , 69 Misc.3d 998, 134 N.Y.S.3d 150, 154 [Sup. Ct. Erie Cty. 2020] ). Petitioner urges the Court to grant the relief sought.

Petitioner further argues it is entitled to attorneys’ fees. Petitioner notes the Court:

"may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, and when the agency failed to respond to a request or appeal within the statutory time; and (ii) shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access" (Public O. § 89(4)(c)).

Petitioner asserts that SPD has invoked a "personal privacy" exemption that was specifically rejected by the Legislature and therefore the denial was done without a reasonable basis.

Respondents answered and generally denied (see Answer, NYSCEF Doc. No. 36). Respondents further move to dismiss the petition pursuant to CPLR §§ 7804(f) and 409(b) (NYSCEF Doc. No. 27, et seq. ). Respondents assert that the repeal of CRL § 50-a did not result in a change of FOIL resulting in police officers being treated less favorably than other public employees (see Affirmation, NYSCEF Doc. No. 28, ¶¶3-4). Respondents note the repeal did not change, let alone mention Public O. § 87(2)(b), the personal privacy exemption (ibid at ¶5, see also L 2020, ch. 96). Respondents cite numerous cases where courts determined that Public O. § 87(2)(b) required unsubstantiated records to be shielded (see Western Suffolk Bd. of Co-op. Educ. Servs. v. Bay Shore Union , 250 A.D.2d 772, 773, 672 N.Y.S.2d 776 [Second Dept. 1998] ; LaRocca v. Bd. of Educ. , 220 A.D.2d 424, 427, 632 N.Y.S.2d 576 [Second Dept. 1995] ; Santomero v. Board of Educ. , 2009 WL 6860644 [Sup. Ct. Westchester Cty. 2009] ; Herald Company v. School District of City of Syracuse , 104 Misc. 2d 1041, 430 N.Y.S.2d 460 [Sup. Ct. Onondaga Cty. 1980] ). Respondents also point to an Advisory Opinion ("AO") from the Committee on Open Government which similarly found Public O. § 87(2)(b) affords public employees, including police officers, certain privacy protections in regards to "unsubstantiated and unfounded complaints" (see AO 19775, NYSCEF Doc. No. 31). Respondents also point to the floor debate of the repeal of CRL § 50-a which they claim supports their position (see Assembly Floor Debate, June 9, 2020, NYSCEF Doc. No. 29, pp. 60, 170, 176, & 211).

Respondents argue the cases cited by Petitioner are irrelevant to the issues at bar. The Committee on Open Government reviewed the same cases proffered by Petitioner and dismissed them as not being on point (see AO 17985, NYSCEF Doc. No. 32). Respondents urge the Court grant deference to the Committee on Open Government's interpretation of the relevant statutes (see Forsyth v. City of Rochester , 185 A.D.3d 1499, 129 N.Y.S.3d 220 [Fourth Dept. 2020] ). Respondents proceed to distinguish the Petitioner's proffered cases from the facts at issue.

Respondents also argue that Petition failed to preserve the issue as they did not take an administrative appeal (see Ayuso v. Graham , 177 A.D.3d 1389, 1390, 114 N.Y.S.3d 547 [Fourth Dept. 2019] )). Respondents allege that Petitioner only appeals two issues: a) whether the SPD's response was deficient because it did not fully articulate the reasons for the denial; and b) whether the repeal of CRL § 50-a mandated disclosure of all police disciplinary records regardless of the existence of other applicable FOIL exemptions. Respondents argue any challenge to SPD's application of Public O. § 87(2)(b), outside of the Petitioner's argument concerning the repeal of CRL § 50-a, was waived.

Respondents argue that their denial of Petitioner's FOIL request was reasonable in light of Respondents’ reliance on the opinion from the Committee on Open Government, thus, Petitioner is not entitled to an award of attorneys’ fees and costs.

Petitioner replies and notes the singular issue before the Court concerns "SPD's categorical refusal to produce enforcement disciplinary records if those records relate to complaints that were not substantiated or remain open" (Memorandum of Law, NYSCEF Doc. No. 40, p. 1). Petitioner further asserts: "All the NYCLU seeks is to hold the SPD to the strictures of FOIL in a manner consistent with (a) the text and structure of the statute, (b) other recent court decisions, and (c) the "Advisory Opinion" that the SPD invokes repeatedly" (ibid ). Petitioner asserts Respondents have taken an overbroad approach to Public O. §§ 87(2)(b) and 89(2) (ibid at p. 2). Petitioner relies on opinions from courts which are not binding upon this Court to substantiate their opinion (see e.g. People v. Herrera , No. CR-004539-20NA, 2021 WL 1247418, at *5 (N.Y. Dist. Ct. Apr. 5, 2021) ). Petitioner argues that the privacy exceptions of Public O. § 87 do not exist in a vacuum but must be read in concert with Public O. § 89. Petitioner further argues that Public O. § 89 defines the scope of the privacy exception (Memorandum of Law, NYSCEF Doc. No. 40, p. 6).

Petitioner further argues that the cases cited by Respondents are irrelevant to the matter at hand and "misdirection" (ibid at. p. 7). Petitioner argues that Herald Co. v. School Dist. of City of Syracuse was decided based upon the exceptions in Public O. § 87(2)(a) and (g), not Public O. § 87(2)(b) (ibid at p. 8 ; see also Herald Co. at 1045-1047, 430 N.Y.S.2d 460 ). The court in Herald Co. specifically declined to "determine whether the records sought would constitute an unwarranted invasion of privacy if disclosed" ( Herald Co. at 1047, 430 N.Y.S.2d 460 ). Petitioner also argues that the...