Westchester Rockland Newspapers, Inc. v. Mosczydlowski

• Decision Date: 11 July 1977
• Citation: 396 N.Y.S.2d 857,58 A.D.2d 234
• Parties: In the Matter of WESTCHESTER ROCKLAND NEWSPAPERS, INC., Appellant, v. Aloysius MOSCZYDLOWSKI, Clerk, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 857

396 N.Y.S.2d 857

58 A.D.2d 234

In the Matter of WESTCHESTER ROCKLAND NEWSPAPERS, INC., Appellant, v. Aloysius MOSCZYDLOWSKI, Clerk, et al., Respondents.

Supreme Court, Appellate Division, Second Department.

July 11, 1977.

McCarthy, Fingar, Donovan & Glatthaar, White Plains (Charles M. Feuer and Arthur D. Brennan, White Plains, of counsel), for appellant.

Eugene J. Fox, Corp. Counsel, Yonkers, for respondents.

Before MARTUSCELLO, J. P., LATHAM, COHALAN, RABIN and MOLLEN, JJ.

COHALAN, Justice.

On April 7, 1976 20-year-old Stephen Karagianis died while incarcerated in the Yonkers City Jail. The incident was widely reported in the press at the time. Immediately after the occurrence, the Internal Affairs Division of the Police Department investigated the death and its surrounding circumstances and prepared a comprehensive report thereon. This original report was eventually sent to the Corporation Council of the City of Yonkers. Copies thereof were also sent to Westchester County District Attorney, at the latter's request, and to the State Department of Correction. A summary of the report, prepared by the Corporation Counsel, was given to the press. Soon after, the District Attorney determined that there had been no evidence of anything of a criminal nature in the unfortunate incident.

Within a month of Karagianis's death, petitioner, the owner of the Herald Statesman newspaper, requested both the Corporation Counsel and the City Manager to supply it with a copy of the original police report. By letter dated May 3, 1976, the Corporation Counsel denied petitioner's request on the ground that civil litigation was anticipated and that material involved in litigation was not reachable under the Freedom of Information Law. This article 78 proceeding was served upon the city with respect to Karagianis's death; and, thereafter, a wrongful death action was commenced, charging assault, false arrest and imprisonment, and negligence, resulting in physical pain, mental anguish and Karagianis's death by hanging.

At Special Term respondents asserted that the original police report was exempt from disclosure under the Freedom of Information Law because (1) it was part of an investigatory file of the Police Department (see Public Officers Law, § 88, subd. 7, par. d), and (2) it constituted material prepared for litigation. As respects the latter claim, the Corporation Counsel averred, inter alia, that the report was material prepared for litigation and not discoverable by petitioner because "(a)s with all cases involving the City of Yonkers, the police report is sent to my office and is used in defense of the litigation."

Special Term held that the report was not now entitled to exemption from disclosure under paragraph d of subdivision 7 of section 88 "part of investigatory files compiled for law enforcement purposes" inasmuch as the District Attorney had already determined that there was no basis for criminal action. In short, that aspect of the investigation was closed. However, Special Term did uphold respondents' claim that the report constituted material prepared for litigation. It agreed that the CPLR does not restrict disclosure of records made public under the Freedom of Information Law merely because of pending litigation, but, applying the test of CPLR 3101 (subd. (d)), the court held that disclosure may be denied unless it can be shown that withholding the report would result in injustice or undue hardship. It found that no such injustice had been demonstrated and that, since publication of the report by petitioner's newspaper would allow the Karagianis plaintiffs to obtain indirectly what they could not obtain directly, the damage to respondents might far outweigh the benefit to petitioner if disclosure were granted. We reverse.

Material which is exempt from disclosure pursuant to subdivision (d) of CPLR 3101 because prepared solely for purposes of litigation is, in our view, similarly exempt from disclosure under the Freedom of Information Law (see Public Officers Law, § 88, subd. 7, par. a). The legislative intent, as embodied in the Freedom of Information Law (Public Officers Law, § 85) was to increase the understanding and participation of the public in government and to extend public accountability by giving the public unimpaired access to the records of government and its process of decisionmaking. Governmental material which is prepared solely for purposes of litigation is simply not the type of governmental record to which the public has now been given access.

The governmental decisions and actions which become the subject of litigation may well be within the public realm; but material prepared solely with reference to the government's posture in that legal proceeding is not. In the latter situation there are no longer any considerations of public participation or accountability to support a general "right to know". Stated another way, the purpose of the Freedom of Information Law is to lift the cloak of secrecy from those records of government which are part of the governmental process. When, however, the government assumes the role of a litigant, entirely different rules apply to both the government and its adversary. Records prepared by the government solely with respect to its actual or contemplated status as a litigant are not records of governance and the public can have no greater right of access thereto than the party with whom the government is engaged in such litigation. Furthermore, where the Legislature has intended that governmental records be disclosed without regard to the status of the governmental unit as a litigant, it has specifically so stated (see Public Officers Law, § 66-a (police accident reports)). Here there is no such specific declaration.

Matter of Burke v. Yudelson, 81 Misc.2d 870, 368 N.Y.S.2d 779, affd. 51 A.D.2d 673, 378 N.Y.S.2d 165, which is cited as the leading case (it is also the only case) holding that the CPLR disclosure restrictions are not incorporated into the Freedom of Information Law, is totally inapposite. Burke dealt with the common-law privilege for official information, not the exemption for material prepared for litigation. Indeed, the material there sought was specifically found to have been prepared for purposes other than particular litigation (81 Misc.2d, at p. 875, 368 N.Y.S.2d, at p. 785).

Nevertheless, respondents can find no comfort in the exemption of material prepared for litigation from the ambit of the Freedom of Information Law for the subject police report does not qualify as material prepared solely for such purpose. Rather, it had multiple purposes which included, inter alia, enabling the District Attorney to determine whether any crime or offense had been committed by anyone and enabling the Police Department, itself, to determine whether any of its personnel were guilty of breach of duty and whether its procedures were adequate to prevent any recurrence. It may also be said that this investigation was conducted in the regular course of official police business. Since all of these nonlitigation purposes do not, by themselves, constitute independent grounds for exemption, the report cannot be deemed exempt from disclosure pursuant to subdivision (d) of CPLR 3101 (see, e. g., Kandel v. Tocher, 22 A.D.2d 513, 256 N.Y.S.2d 898). Hence, guidance must be sought from other portions of the Freedom of Information Law to determine whether this report is subject to disclosure in whole or in part.

It must be recalled that records of law enforcement agencies have traditionally been exempted from public disclosure (see, e. g., Matter of Dillon v. Cahn, 79 Misc.2d 300, 302, 359 N.Y.S.2d 981, 983; Scott v. County of Nassau, 43 Misc.2d 648, 252 N.Y.S.2d 135; see, also, Matter of Cherkis v. Impellitteri, 307 N.Y. 132, 120 N.E.2d 530). The Freedom of Information Law recognizes the unique factors at work in continuing to exempt from disclosure investigative files compiled for law enforcement purposes (Public Officers Law, § 88, subd. 7, par. d) and, for example, limiting mandatory disclosure of other items where disclosure would be inappropriate because of the law enforcement community's particular needs (see Public Officers Law, § 88, subd. 1, par. g). As to other items or records which are specifically cited as subject to disclosure, only police blotter and booking entries (Public Officers Law, § 88, subd. 1, par. f) are clearly referable to the law enforcement records category. The subject report is not such a record. Nor is it a police accident report within the meaning of section 66-a of the Public Officers Law. Rather, it is akin to an intra- or inter-agency memorandum within the contemplation of the Federal Freedom of Information Act (U.S.Code, tit. 5, § 552(b)(5)), upon which our law is generally patterned, or is, perhaps, a final agency opinion on the facts and circumstances surrounding the death of an individual while in police custody, within the contemplation of the State Law (Public Officers Law, § 88, subd. 1, par. a). So viewed, the competing interests at bar are best satisfied by directing disclosure of only so much of the subject report as represents purely factual matter, with the names of police officers and jail personnel deleted (see Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119; Moore-McCormack Lines v. I. T. O. Corp. of Baltimore, 508 F.2d 945 (CCA 4th, 1974)). Although our law does not specifically deal with intra- or inter-agency memoranda, its Senate sponsor, State Senator Ralph J. Marino, has stated that it is anticipated such memoranda will be treated in the same manner under State law as they are treated under Federal law (Marino, The New York Freedom of Information Law, 43 Fordham L.Rev. 83, 86-87 (Oct. 1974)).

We, therefore, have reversed the judgment and remand to Special Term with instructions that it examine the subject report in camera and direct disclosure of...