Opinion
No. 100812/12.
01-21-2015
In the Matter of the Application of LOEVY & LOEVY, Petitioner. For a Judgment under Article 78 of the Civil Practice Law and Rules, v. NEW YORK CITY POLICE DEPARTMENT, Respondent.
Loevy & Loevy, Chicago, IL, Attorney for Petitioner law firm. NYC Police Dept Legal Bureau, New York, Attorney for Respondent.
Loevy & Loevy, Chicago, IL, Attorney for Petitioner law firm.
NYC Police Dept Legal Bureau, New York, Attorney for Respondent.
Opinion
DORIS LING–COHAN, J.
Petitioner Loevy & Loevy brings this CPLR Article 78 proceeding seeking a judgment aning the determination of respondent New York City Police Department (N.Y.PD) denying petitioner's request, pursuant to the New York Freedom of Information Law (Public Officers Law [POL] § 84 et seq. ) (FOIL), to obtain the file of a criminal investigation of a “cold case” murder investigation, which occurred more than 27 years ago. Petitioner also seeks an order, pursuant to POL § 87(2), directing NYPD to provide petitioner with the file, and for an award of attorneys' fees and costs, pursuant to POL § 89.
Prior to the submission of the within re-noticed petition, NYPD cross-moved to dismiss the petition which was denied by order of this court dated January 9, 2013 (motion sequence number 001). NYPD's subsequent motion to reargue such determination was denied, by order of this court dated October 10, 2013 (motion sequence number 002). NYPD has since served an answer to the verified amended petition, and petitioner has re-noticed the petition herein.
In this Article 78 proceeding, petitioner Loevy & Loevy is seeking to obtain the file from NYPD concerning a rape and homicide which occurred in 1987, which has never been solved. Petitioner claims that their client was wrongly convicted of the murder of another individual, and seeks this file in the hope that information will be retrieved which would help implicate the true perpetrator of the murder he was wrongfully convicted of, so that his name could be cleared.
As on the prior motions, NYPD claims here that the file is exempt from disclosure under POL § 87(2)(e)(i), as records compiled for law enforcement purposes which, if disclosed, would interfere with the investigation of the crime. NYPD takes the opportunity afforded by its answer to add further sections of the POL as allegedly applicable to exempt the file from disclosure, as described below.
NYPD also claims that petitioner is barred from obtaining any part of the file under Civil Rights Law § 50–b (1), as the records allegedly tend to identify the victim of a sex offense. NYPD maintains that Civil Rights Law § 50–b (1) is an absolute exemption to producing any part of a criminal investigation file under FOIL if a sex offense is involved in the crime.
In the previously submitted motions on this matter, NYPD defended its position with conclusory repetition of the statutory language in POL § 87(2)(e)(i), with no particulars as to how the records in this matter qualify for the exemption. In the first decision rendered on this matter (Matter of Loevy & Loevy v. New York City Police Dept., 38 Misc.3d 950 [Sup Ct, N.Y. County 2013] ), this court indicated that NYPD sought a “blanket exception” to the FOIL request based upon a particularly brief and conclusory affidavit from an NYPD officer, and found that NYPD's proof did not meet the agency's “significant burden to articulate a factual basis for the exemptions claimed.”Id. at 954.
On the motion to reargue and renew this court's first decision, NYPD produced a new affidavit from a police officer (Detective Autera), which attempted to bolster NYPD's initially weak showing of a need for an exemption, but NYPD was still unable to establish to this court that an exemption was warranted under POL § 87(2)(e)(i). In this court's order which denied NYPD's motion to reargue and renew, this court indicated that
“respondent has again failed to bring forward such facts as would indicate anything more than that the homicide is still unsolved, will remain open for however long it takes to solve, and that the file is updated every so often to check its status. These facts are no different from every other unsolved homicide investigation, and, if sufficient to bar a FOIL request, would effectively make all homicide investigation files off limits to Foil requests.”
Matter of Loevy & Loevy v. New York City Police Dept., 41 Misc.3d 1216(A), 2013 N.Y. Slip Op 51706(U), * 6 (Sup Ct, N.Y. County 2013). This court concluded that such a result was surely not the intent of the Court of Appeals in the case Matter of Lesher v. Hynes (19 NY3d 57 [2012] ). This court determined that NYPD had “failed to describe a situation where disclosure of this file would interfere with law enforcement investigations or judicial proceedings' “ (Matter of Loevy & Loevy v. New York City Police Dept., 41 Misc.3d 1216[A] ), as NYPD had only shown that it possessed a “cold case file in which no real active investigation is underway.” Id.
This court further rejected NYPD's request to seal the file, pursuant to Civil Rights Law § 50–b, which is intended to protect the identities of victims of sex crimes, based on NYPD's failure to show good cause under 22 NYCRR 216.1(a). As a result of the foregoing, the court directed the Clerk of the motion support office to accept petitioner's Amended Petition, and the answer to the Amended Petition was deemed accepted as reflected in the court's computer records. Petitioner was directed to re-notice the matter, to which NYPD could respond. The matter is now back before the court.
In response to the re-notice of the Amended Petition, NYPD produces an answer with a further list of statutory exemptions which it now claims apply to bar the FOIL request. NYPD alleges that the records are exempt: (1) under POL § 87(2)(e)(i), as potentially interfering with the “open, active investigation of a rape and homicide” (First Affirmative Defense); (2) under POL § 87(2)(e)(ii), as potentially “depriv[ing] the People of an impartial adjudication and deprive the suspect who will eventually be charged with the crime a fair trial (Second Affirmative Defense); (3) under POL § 87(2)(a) and CRL § 50–b (1), because they “tend to identify the victim of a sex offense” (Third Affirmative Defense); (4) under POL § 87(2)(a) and 9 NYCRR 6150.4(b)(6), as containing criminal histories, or “rap sheets,” in that, allegedly, under 9 NYCRR 6150.4(b)(6), “public inspection and copying disclosure of all information contained in the criminal history file maintained by the Division of Criminal Justice Services” is exempt (Fourth Affirmative Defense); (5) under POL §§ 87(2)(b) and 89(2)(b), in that disclosure would “constitute an unwarranted invasion of privacy of the individuals mentioned therein” (Fifth Affirmative Defenses); (6) under POL § 87(2)(f), in that disclosure “could endanger the lives or safety of witnesses and the victim's family” (Sixth Affirmative Defense); (7) under POL § 87(2)(e)(iii), in that the “documents were prepared in the course of a criminal investigation and contain confidential information and identify confidential sources” (Seventh Affirmative Defense); (8) under POL § 87(2)(e)(iv), “in that the records were compiled for law enforcement purposes of which would reveal criminal investigative techniques or procedures” (Eighth Affirmative Defense; and (9) under POL § 87(2)(a), and CPLR 3101(b), in that “the communications between confidential witnesses and the government are subject to the public interest privilege” and that disclosure “would chill future witness cooperation with the police” (Ninth Affirmative Defense). NYPD further requests in camera examination of the file, if necessary (Tenth Affirmative Defense).
In its answer, NYPD also revisits several procedural arguments previously addressed by this court in the two prior decisions, having to do with NYPD's belief that this court improperly granted petitioner leave to amend the petition; that this court lacks subject matter jurisdiction because of the way the amended petition was filed; and a lack of personal jurisdiction. These objections have already been addressed and dismissed, and should not have been raised again in NYPD's answer. Their dismissal is law of the case, and they will not be addressed again.
In its answer, NYPD also annexes the same affidavit by Detective Daniel Autera which it had attached to its original response to the petition and motion to renew, which this court has previously found deficient. Significantly, no new affidavit has been provided.
As this court noted, quoting Matter of Lesher v. Hynes (19 NY3d at 67 ), “not ... every document in a law enforcement agency's criminal case file is automatically exempt from disclosure simply because kept there. The agency must identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories.' “ Matter of Loevy & Loevy, 38 Misc.3d at 954. As supported by Matter of Lesher v. Hynes (19 NY3d at 67 ), “the agency must ... fulfill its burden under Public Officers Law § 89(4)(b) to articulate a factual basis for the exemption.' “ Matter of Loevy & Loevy, 38 Misc.3d at 954.
NYPD has flooded this case with generalities taken verbatim from statutory language in the POL, as a basis for a finding that the file in this matter is off limits to any FOIL request. Nevertheless, NYPD has again not cited to a single fact which would make this case any different from any other unsolved “cold case” homicide. As with its first attempt to exempt the file, NYPD tries to raise a barrier that would bar all open criminal case files, without exception, from FOIL review. As previously noted, this cannot be the intent of the Legislature in enacting FOIL.
As previously decided, NYPD has not made the requisite showing under Matter of Lesher v. Hynes, or POL § 87(2)(e)(i), of entitlement to an exemption. NYPD merely asserts that disclosure would interfere with the investigation, while presenting no specifications of how disclosure of the file of a 27–year–old open case would be “premature.” Memorandum of Law, at 2.
Nor has NYPD convinced this court that disclosure of the file would “reveal confidential sources and information,” under POL § 87(2)(e)(iii). Memorandum of Law, at 8. POL § 87(2)(e)(iii) exempts records compiled for law enforcement purposes which would “identify a confidential source or disclose confidential information relating to a criminal investigation[.]” In order for the confidential source to be exempt, the agency must show that “the circumstances give rise to the clear inference' “ that anonymity was assumed under the circumstances. Matter of Exoneration Initiative v. New York City Police Dept., 39 Misc.3d 962, 967 (Sup Ct, N.Y. County 2013), affd as mod 2014 N.Y. Slip Op 00728 (1st Dept 2014), quoting Matter of Johnson v. New York City Police Dept., 257 A.D.2d 343, 348 (1st Dept 1999).
In the present case, NYPD has not even claimed that there are any confidential sources or confidential information concerning the requested file. There is, in fact, no specific indication that there are any witnesses at all. Thus, NYPD's parroting of the statute does not warrant an exemption under POL § 87(2)(e)(iii).
NYPD seeks to exempt the file under POL § 87(2)(e)(iv), which exempts information that would “reveal criminal investigative techniques or procedures, except routine techniques and procedures.” It is meant to defeat a FOIL request which would “furnish the safecracker with the combination to the safe.” Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 573 (1979).
NYPD maintains that the file contains non-routine investigatory techniques, because “the investigation of a rape and homicide where the perpetrator has alluded [sic] apprehension for over twenty years is hardly routine.” Memorandum of Law, at 10. However, the passage of time does not, in and of itself, establish that non-routine investigative practices are involved. If anything, it illustrates that the routine investigative techniques and procedures have not produced the desired results, in this “cold” case dating from 1987. Thus, no exemption is justified under this section of POL.
NYPD also relies on the application of POL § 87(2)(b), which exempts information which, “if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article”. POL § 89(2)(b) contains a list of seven types of records or items disclosure of which would be considered as an unwarranted invasion of privacy. The list includes, as examples, employment, medical and credit histories, or employment references (id., at [i] ); lists of names and addresses “if such lists would be used for solicitation or fund-raising purposes” (id., at [iii] ); and “disclosure of information of a personal nature” which, if disclosed “would result in economic or personal hardship” to any person, when the information is “not relevant to the work of the agency requesting or maintaining it.” Id., at (iv).
NYPD has failed herein and in the prior motions, to produce an affidavit of a person with knowledge of the records in issue who states that there is any information which falls within any of the categories listed in POL § 89(2)(b), but instead, merely indicates in its memorandum of law, that the records contain such personal information as “photocopies of credit cards, bank cards, and a social security card of multiple individuals,” as well as “documents containing a list of named individuals and their respective social security numbers.” Memorandum of Law, at 15. NYPD admits that this information “is not relevant to the work of the NYPD.” Id. POL § 89(2)(b) “does not [however] create a blanket exemption” to the production of documents (Matter of Thomas v. New York City Dept. of Educ., 103 AD3d 495, 497 [1st Dept 2013] ), and allows for production of documents “when identifying details are deleted.” Id. There is no reason why NYPD cannot simply delete any alleged personal details when it produces the file.
NYPD also argues that the production of the statements of nontestifying witnesses should be protected as confidential, citing Matter of Johnson v. Hynes (264 A.D.2d 777 [2d Dept 1999] ) and Matter of Esposito v. Rice (67 AD3d 797 [2d Dept 2009] ). In Matter of Esposito, discussing the production of a file following a criminal trial, the Court noted that “the statements of nontestifying witnesses are confidential and not disclosable under FOIL.' “ Id. at 797, quoting Matter of Johnson v. Hynes, 264 A.D.2d at 777.
In this case, as there has been no trial, there has been no witness testimony. All the cases cited by NYPD are distinguishable because in each case it cited, the petitioner was the actual subject of the criminal investigation for which the file was sought and a trial had been held, unlike here, where petitioner seeks the file to clear their client's name in another case. Nonetheless, any witness statement that does “identify a confidential source or disclose confidential information relating to a criminal investigation” is not subject to disclosure, pursuant to POL 87(2)(e)(iii), and shall not be provided.
NYPD also argues that “criminal history records and rap sheets,' which are generated by the New York Division of Criminal Justice Services” are not disclosable, relying on Matter of Williams v. Erie County Dist. Attorney (255 A.D.2d 863 [4th Dept 1998] ). Memorandum of Law, at 14. While this is a statement of the law, its applicability here has not been shown. NYPD has not even stated, much less produced an affidavit, that any documents in the file were, in fact, “compiled by the [New York] Division of Criminal Justice Services.” See Matter of Williams v. Erie County Dist. Attorney, 255 A.D.2d at 864. Therefore, these types of documents, not so generated, are discoverable under FOIL.
In Point VI of its Memorandum of Law, NYPD claims that the file contains undiscoverable records, under POL § 87(2)(f). POL § 87(2)(f) “permits an agency to deny access to records that, if disclosed, would endanger the life or safety of any person. The agency in question need only demonstrate a possibility of endanger[ment]' in order to invoke this exemption [internal citation omitted].” Matter of Bellamy v. New York City Police Dept., 87 AD3d 874, 875 (1st Dept 2011), affd 20 NY3d 1028 (2013). Bellamy involved the disclosure under FOIL of a file in a gang-related homicide, where the need to protect individuals was patent. Again, here, NYPD invokes a blanket denial of access to the entire file based on a single POL section. However, NYPD has failed to detail why any person would be endangered by disclosure of the file, dating back to 1987. It has not produced an affidavit attesting to, or even stated any “possibility of endangerment” in its memorandum of law, and, consequently, this section of POL is not available to bar petitioner from obtaining any part of the file.
NYPD seeks to exempt the photographs which show the victim's body, generally citing POL § 87(2)(b), on the ground that disclosure of these photographs would be an “unwarranted invasion of personal privacy to the victim and [her] family.” Memorandum of Law, at 13. This court agrees with the court in Matter of Edwards v. New York State Police, (44 AD3d 1216 [3d Dept 2007] ), that production of photographs of the victim “are of no significant interest to the public ...”, allowing for the withholding of these documents. Id. at 1217. Petitioner's alleged interest in the photographs does not weigh in favor of production of such photographs, without redaction. Thus, any photographs which show the victim's body, shall be exempt from disclosure, unless the body can be redacted from the photograph.
For example, the actual depiction of the victim can be redacted digitally or manually, by blocking it from view and substituting it with a hand or computer-drawn sketch of the outline of the figure. The crime photos of the layout of the crime scene with the image of the body removed, may be helpful to petitioner's investigation, as it may depict, inter alia, how the body was found.
NYPD relies heavily on its argument that petitioner is absolutely barred from obtaining any part of the file whatsoever, under POL § 87(2)(a) and New York Civil Rights Law (CRL) § 50–b (1), because the file contains records which tend to identify the victim of a sex offense. CRL § 50–b(1) states, as pertinent, that
“[n]o report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies [a victim of a sex offense] shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim except as provided in subdivision two of this section.”
Petitioner has not claimed that any part of CRL § 50–b (2) applies.
Nothing in FOIL, however, suggests such a drastic barrier, which would ensure that no member of the public could ever obtain a complete police file on any case involving a sex offense. If the Legislature intended such a result, surely it would have so legislated and tailored FOIL, to bar such release.
If NYPD is to protect any document from disclosure under CRL § 50–b (1), it has to make a “particularized showing that the statutory exemption from disclosure ... applies to all the records petitioner seeks [emphasis added].' “ Matter of McKenzie v. Seiden, 106 AD3d 1140, 1142–1143 (3d Dept 2013), quoting Matter of Karlin v. McMahon, 96 N.Y.2d 842, 843 (2001). Once it has been proven that a document tends to identify the victim of a sex offense, that document is not obtainable under FOIL. Production of a redacted version of the document will not cure the infirmity. See Matter of Karlin v. McMahon, 96 N.Y.2d at 843.
In this matter, NYPD has made no particularized showing that any particular document tends to identify the victim, although it seems likely that some of the documents may. Thus, in accordance with the above, an in camera review shall be conducted to determine if: (1) any documents in the file tend to identify the victim; and (2) any photographs show the victim's body.
Accordingly, it is
ORDERED that the petition is granted to the extent that all documents held by respondent New York Police Department shall be supplied for in camera review, in accordance with the above decision, to be supervised and determined by a Special Referee, in accordance with CPLR 3104 ; and it is further
In accordance with the above, the documents may be redacted as to personal details, such as credit card, bank account and social security numbers.
ORDERED that within 60 days of entry of this order, petitioner shall serve a copy of this order upon respondent and the Special Referee Clerk (Room 119M), for the placement of this matter on the Referee's calendar; and it is further
ORDERED that within 20 days of assignment of a Special Referee, or at the schedule of the Special Referee, respondent NYPD shall make the requested discovery available for in camera review and all parties shall supply the Special Referee with the previously submitted papers on this motion, along with a copy of this decision and the assigned Special Referee shall, consistent with this decision, determine which, if any, documents identify the victim, and any photographs that show the victim's body and cannot be redacted to remove the actual depiction of the victim's body from the photo (either digitally or manually, as provided above), and, any witness statement that “identif[ies] a confidential source or disclose[s] confidential information relating to a criminal investigation”, pursuant to POL 87(2)(e)(iii) ; upon such determination, such documents/photographs will not be obtainable under FOIL.