Opinion
Index No. 601626/2022
05-15-2023
In the Matter of the Petition of Michael McDevitt, Petitioner, v. Suffolk County, SUFFOLK COUNTY RECORDS ACCESS OFFICER JACQUELINE. CAPUTI, in her individual capacity and official capacity, and SUFFOLK COUNTY POLICE DEPARTMENT, Respondents.
PETITIONER'S ATTORNEY The Law Office of Cory H. Morris By: Cory H. Morris, Esq. RESPONDENTS' ATTORNEY Suffolk County Attorney By: Leland S. Solon, Esq.
Unpublished Opinion
PETITIONER'S ATTORNEY
The Law Office of Cory H. Morris
By: Cory H. Morris, Esq.
RESPONDENTS' ATTORNEY
Suffolk County Attorney
By: Leland S. Solon, Esq.
HON. MAUREEN T. LICCIONE, A.J.S.C.
Upon the reading and consideration of NYSCEF documents 1 through 44 and 47 through 49, it is:
ORDERED AND ADJUDGED that the verified petition is granted, in part, to the extent that Respondents are directed to review each of the disciplinary records of the ten enumerated current or former members of the Suffolk County Police Department which resulted in findings that complaints against them were unsubstantiated, unfounded or which exonerated the members, identify those records or portions thereof that may be redacted or withheld as exempt, and provide the requested records to Petitioner within 45 days of service of this order and judgment with notice of entry via NYSCEF, subject to any redactions or exemptions pursuant to particularized and specific justifications for exempting each record or portions thereof. Any claimed redactions and exemptions from disclosure are to be documented in a manner that would allow for judicial review; and it is further
ORDERED AND ADJUDGED that the branch of the verified petition which seeks a declaratory judgment is dismissed; and it is further
ORDERED AND ADJUDGED that the verified petition is dismissed insofar as it is asserted against Jacqueline Caputi in her individual capacity and the caption is amended as indicated herein; and it is further
ORDERED AND ADJUDGED that the branch of the verified petition which seeks attorneys' fees and costs is denied; and it is further
ORDERED that the motion for an order permitting consideration of a proposed amicus curiae brief is denied.
This is a special proceeding pursuant to CPLR Article 78 by petitioner, Michael McDevitt (Petitioner), against the respondents, Suffolk County, Suffolk County Record Access Appeals Officer Jacqueline Caputi, in her individual and official capacities (Ms. Caputi), and the Suffolk County Police Department (SCPD) (collectively, Respondents or the County) (Motion Sequence No. 1). The County has filed and served, inter alia, a verified answer alleging objections in point of law and a certified return. Petitioner has replied and certain additional submissions on behalf of both parties were accepted into the record.
The verified petition (Petition) arises from a Freedom of Information Request (FOIL Request) made on behalf of Petitioner which sought personnel and other records of current and former members of the SCPD pursuant to which the County released over two thousand pages of documents (see Public Officers Law §§ 84-90). The Petition seeks a judgment directing respondent to release additional materials allegedly wrongfully withheld in derogation of FOIL. More specifically, the Petition seeks to annul Respondents' administrative determination to withhold disclosing investigative records of misconduct of ten current or former members of the SCPD which concluded that the allegations were unsubstantiated or unfounded or which exonerated the members under investigation and to compel their release (see CPLR 7803 [3]). Petitioner alleges that these ten SCPD members were "implicated, directly or indirectly as aiding and abetting specific violations of Petitioner's civil and Constitutional rights" in McDevitt v. Suffolk County et al., 2016-cv-04164.
"FOIL imposes a broad duty on government to make its records available to the public [and]... access to government records does not depend on the purpose for which the records are sought" (Matter of Gould v New York City Police Dep't, 89 N.Y.2d 267, 274 ([1996]); Matter of Bellamy v New York City Police Dep't, 59 A.D.3d 353, 355 [1st Dept 2009]).
The Petition also seeks declaratory relief as set forth in the wherefore clause of the Petition, paragraph E. Finally, Petitioner claims he is entitled to attorneys' fees and litigation costs pursuant to Public Officers Law § 89.
The County alleges that the Petition should be dismissed because Petitioner failed to exhaust his administrative remedies and did not commence this proceeding timely. Respondents also argue that Petitioner's requests for declaratory relief in this Article 78 proceeding are subject to dismissal because neither a summons nor a complaint was served and filed .
This argument is presented in the Respondents' memorandum of law, but not in the affirmation of Michael Camacho in opposition to the Article 78 petition.
Respondents further assert that the individual claims against Ms. Caputi must be dismissed because she never was personally served, and because she was acting wholly within her official capacity as the FOIL officer when she responded to Petitioner's requests .
Similarly, this argument is presented only in the memorandum of law.
The County alternatively argues that the Petition must be denied because Petitioner is not entitled to the requested records, notwithstanding repeal of Civil Rights Law § 50-a, as they remain exempt from disclosure pursuant to Public Officers Law § 87 (2) (b), §89 (2-b) (a), §89 (2-b) (b), and County Law §308.4 as unwarranted invasions of personal privacy, are subject to redaction, or are required to be withheld, respectively.
Respondents further argue that Petitioner's request for attorneys' fees should be denied because Petitioner has not substantially prevailed or, in the alternative, that Respondents' rationale for denying the requests was "reasonable based on, inter alia, New York Committee on Open Government Advisory Opinions and relevant case law."
In addition to the underlying Article 78 proceeding, the National Police Accountability Project (NPAP or Movant) has made a motion for an order granting it leave to appear as amicus curiae in support of Petitioner (Motion Sequence No. 2). Respondents oppose the motion.
Background
Petitioner's attorney made the subject FOIL request by letter dated August 10, 2020 ("FOIL Request") addressed to the Suffolk County District Attorney, the Suffolk County Attorney, and the SCPD (NYSCEF Doc. Nos. 4, 5 and 23, A-1-4). The FOIL Request was received on August 12, 2020 and listed fourteen document requests. In addition to the personnel files of ten SCPD members, the FOIL Request also sought "[r]ecords of any documentation previously protected under Civil Rights Law §50-a", "[r]ecords of any Internal Affair Reports, exhibits, or attachments to such Internal Affair Unit ("IAU") Report or its equivalence" and "[a]ll records pertaining to any misconduct of a law enforcement officer inclusive of interviews" regarding each of the ten SCPD members listed above. The FOIL Request also sought the personnel file of an eleventh SCPD member, but did not seek previously protected § 50-a records, or IAU or misconduct records regarding him.
Thereafter, by letter dated August 19, 2020, the SCPD records information officer acknowledged receipt of the FOIL Request and noted that here "may be a delay of approximately (30) days associated with [the] request" (NYSCEF Doc. No. 23, A-5-6).
On February 17, 2021, the SCPD transmitted redacted copies of the personnel records of eleven officers. These records were sent to Petitioner's counsel's Florida office, rather than his office in Suffolk County (NYSCEF Doc No. 23 A-7) . The County's undisputed representation is that this transmittal consisted of 1,588 pages.
The letterhead on the FOIL Request listed only the Florida office address and not counsel's New York office (NYSCEF Doc. No. 4).
On March 16, 2021, Petitioner's counsel emailed an appeal, contending that the failure to provide the remaining requested documents was a constructive denial of his request (NYSCEF Doc. No. 23, A-8) .
The record does not indicate that counsel objected to the redactions.
On March 24, 2021, Ms. Caputi responded indicating that the SCPD was "still in the process of reviewing and compiling" responses to requests for records previously protected by Civil Rights Law §50-a, IAU records, and misconduct investigations. Ms. Caputi noted that she had "instructed the SCPD to act as quickly as possible" and cited limited staff due to the pandemic and the "unprecedented amount of requests similar to yours..." (NYSCEF Doc. No. 23, A-9-10). On April 23, 2021, Petitioner's counsel again emailed Ms. Caputi and requested the remaining documents.
On April 27, 2021, Ms. Caputi responded to counsel's email of April 23, 2021, and indicated that an additional four weeks would be necessary to prepare the SCPD's response (NYSCEF Doc. No. 23, A 11-12). On June 11, 2021 counsel corresponded with Ms. Caputi and noted that he still had not received the documents. On July 6, 2021, counsel and Ms. Caputi communicated by e-mail and Ms. Caputi asked for counsel's "continued cooperation" in allowing 2-3 more weeks for the documents to be sent.
By letter dated July 12, 2021, the SCPD transmitted 500 pages of disciplinary records for the ten officers listed in the FOIL Request, which were received by counsel's Florida office on August 6, 2021 (NYSCEF Doc. No. 23, A-13-15). The letter enclosing the documents indicated that the records were redacted in accordance with "Public Officers Law Section 87 2(b) (disclosure would constitute an unwarranted invasion of personal privacy) and Sections 89 2-b (a) & 89 2-b (b) (mandatory redactions of police disciplinary records)." The transmittal letter also indicated that "any records regarding any 9-1-1 calls have been redacted completely or withheld pursuant to County Law Section 308.4."Finally, the transmittal letter indicated that the portions of the FOIL Request "involving disciplinary records in which the allegations of misconduct have been classified as 'Unsubstantiated', 'Unfounded' or 'Exonerated'" were "denied pursuant to Public Officers Law Section 87 2 (b) in that disclosure would constitute an unwarranted invasion of personal privacy (please see Committee on Open Government, FOIL Advisory Opinion 19775 [7/27/2020] and FOIL Advisory Opinion 19785 [3/19/2021]" (NYSCEF Doc. No 23, A-13-14).
Counsel for Petitioner appealed the partial denial on September 21, 2021 via e-mail. The appeal noted his contention that the documents were delivered to his Florida office, which was utilized "by appointment only," and generally unstaffed. Petitioner alleges that the documents were scanned and sent to him "earlier [in September]," but gave no definite date (NYSCEF Doc. No. 23A-16-17).
The September 21, 2021 appeal of the partial denial of requested documents was dismissed by Ms. Caputi via e-mailed letter dated September 29, 2021. The letter indicated that the appeal was dismissed pursuant to Public Officers Law § 87 (2) (b) and cited the FOIL Advisory Opinions noted above as the reasons the appeal was dismissed on the merits (NYSCEF Doc. No. 23, A-16-17). Notably, the appeal was not dismissed on timeliness grounds or any substantive grounds other than Public Officers Law § 87 (2) (b).
The Instant Proceeding
This proceeding was commenced on January 29, 2022 and, after several adjournments on consent of all counsel, was fully submitted on April 5, 2022 to the Supreme Court Justice previously assigned. The record indicates that after this submission date and between May 26, 2022 and December 30, 2022, Petitioner e-filed seven unauthorized submissions (NYSCEF Doc. Nos. 32-38). Counsel for Respondents corresponded with the Supreme Court Justice formerly assigned objecting to the post return date submissions (NYSCEF Doc. No. 39).
The proceeding was transferred to this Court via Administrative Order No. 03-23 dated January 13, 2023 (NYSCEF Doc. No. 40). Immediately thereafter, on January 25, 2023, all counsel were notified of a conference before this newly assigned court to be held via Microsoft Teams on February 23, 2023. (NYSCEF Doc. No. 41). It was agreed during the conference that the County would have an opportunity to respond to the Petitioner's various post return date submissions on or before March 27, 2023 (NYSCEF Doc. No. 42). Thereafter, on March 18, 2023, the County filed and served its memorandum of law responding to Petitioner's seven submissions (NYSCEF Doc. No. 44). Once both parties were afforded due process and a full opportunity to be heard with their supplemental submissions, this proceeding was marked fully submitted on a new return date of April 12, 2023.
On the morning of the conference, at 6:15 a.m., Petitioner's counsel sent the undersigned an unauthorized e-mail copied to the County attorney, containing additional legal arguments, which was delivered to the undersigned's portable device. The submission was rejected and is not part of the record.
It also was agreed at the conference that, upon receipt of the County's submission, Petitioner would have one week to request an opportunity to respond by contacting chambers and to establish a briefing schedule (NYSCEF Doc. No. 42). Instead of abiding by the agreement, Petitioner submitted an unauthorized memorandum of law ten days after the County's submission was posted via NYSCEF. That memorandum of law was rejected and is not part of the record (NYSCEF Doc. No. 45-47).
A few days after the Petition was filed, on January 31, 2022, Movant filed and served a motion for an order permitting it to appear amicus curiae together with a proposed brief (NYSCEF Doc. Nos. 10 and 11) (Motion Sequence No. 2). The County opposed the motion (NYSCEF Doc. No. 25).
Motion Sequence No. 1
The County's Arguments for Dismissal of the Petition
Respondents did not move to dismiss the Petition but raised objections in point of law in the answer pursuant to CPLR 7804 (f). Since the County's arguments for dismissal of the Petition potentially are dispositive, they will be considered first.
The County contends that the Petition should be dismissed because Petitioner did not exhaust his administrative remedies and failed to commence this proceeding timely. In support of this application, Respondent claims that the 30-day period for appealing the denial of a FOIL request pursuant to Public Officers Law § 89 (4) (a) ran 30 days from September 18, 2020. The County posits this theory because its August 19, 2020 acknowledgment letter indicated that the County would respond to Petitioner's FOIL request in 30 days, which meant by September 18, 2020. The County argues that because it provided no documents by that date, Petitioner's administrative appeal should have been brought within thirty days of September 18, 2020, or by October 19, 2020. On this basis, the County asserts that Petitioner's September 21, 2021 administrative appeal was untimely under Public Officers Law § 89 (4) (a) and as a result, Petitioner failed to exhaust his administrative remedies.
Notably, however, and as detailed above, the County provided documents to Petitioner pursuant to the August 10, 2020 FOIL Request on February 17 and August 6, 2021. It was not until the August 6, 2021 cover letter and transmittal of documents were received by him that Petitioner finally learned which documents were being withheld so that he could determine whether to appeal. Respondents should not benefit from their delay.
More important, the County did not dismiss Petitioner's administrative appeal on the now alleged untimeliness basis (NYSCEF Doc. No. 8). "'[J]udicial review of [a FOIL] administrative determination is limited to the grounds invoked by the agency' and 'the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis'" (Matter of Madeiros v New York State Educ. Dep't, 30 N.Y.3d 67, 74 [2017], quoting Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758 [1991]). Accordingly, the Petition will not be dismissed for the failure to exhaust administrative remedies.
The County also contends that the Petition should be dismissed because Petitioner's September 21, 2021 FOIL administrative appeal was untimely. The County asserts that the administrative appeal had to be brought within 30 days of September 6, the date the second batch of documents was delivered to counsel's Florida office.
Public Officers Law § 89 (4) (a) provides that "any person denied access to a record may within thirty days appeal in writing such denial." The statute is silent as to when the 30-day period begins to run. Given the lack of statutory guidance and since it is undisputed that counsel actually received and reviewed the documents sometime after they were delivered to an unstaffed Florida office on September 6, 2021, it is unclear when the 30-day period began to run. Accordingly, there is insufficient information to determine whether the administrative appeal was untimely. The Petition will not be dismissed on the basis of the timeliness allegations.
Respondent Ms. Caputi contends that the proceeding should be dismissed insofar as it alleged against her in her personal capacity. She first argues that personal jurisdiction was not obtained against her because she was not personally served. That contention, however, is not raised as an objection in point of law in the answer as required under CPLR 7804 (f). More important, it is belied by the stipulation among the parties in which Respondents waived all defenses based upon personal jurisdiction (NYSCEF Doc. No. 29) in exchange for an extension of time to answer (Donaldson Interiors, Inc. v F.J. Sciame Constr Co., Inc., 188 A.D.3d 816, 817 [2d Dept 2020] ["(A)n open-court stipulation is an independent contract between the parties... and will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability" and "(a) covenant of good faith and fair dealing is implicit"] (internal quotation marks and citations omitted)].
Next, Ms. Caputi argues that since she was at all times acting in her official capacity, she cannot be sued individually. Since there is no allegation that she acted for personal reasons, the Petition must be dismissed insofar as it is asserted against Ms. Caputi personally (Danner-Cantalino v City of New York, 85 A.D.3d 709, 710 [2d Dept 2011] ["where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment" (internal quotation marks and citation omitted]). Accordingly, the caption is amended as follows:
In the Matter of the Petition of MICHAEL MCDEVITT, Petitioner,
For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,
-against-
SUFFOLK COUNTY, SUFFOLK COUNTY RECORDS ACCESS OFFICER JACQUELINE. CAPUTI in her official capacity, and SUFFOLK COUNTY POLICE DEPARTMENT, Respondents.
The Petition seeks a judgment "declaring that Respondents'[sic] cannot unilaterally designate, the respondent police cannot police itself, police misconduct records in such a manner to exempt these records from exemption based upon, among other things, the conspiracy and conviction of former SCPD Police Chief James Burke and the former Suffolk County Prosecutor, Thomas Spota" (NYSCEF Doc. No. 1 ¶ E of the Wherefore clause). Notwithstanding this unclear request, declaratory relief cannot be granted on these pleadings. Petitioner has failed to file a complaint or a hybrid petition/complaint or a summons (see Matter of New York Times Co. v City of NY Police Dept, 103 A.D.3d 405, 407 [1st Dept 2013]; CPLR 304; CPLR 306-b; Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book; 7B, CPLR 7804:5). Accordingly, to the extent the Petition seeks declaratory relief, it is dismissed.
"A primary difference between CPLR Article 78 proceedings and declaratory judgment actions is the presence or absence of a judicially-imposed remedial order. In a declaratory judgment action, the court does not direct a party to do an act or refrain from doing an act. In a declaratory judgment action, the court merely declares the prevailing party's rights with respect to the matter in controversy for the purpose of guiding future conduct..." (Matter of Dandomar Co., LLC v Town of Pleasant Valley Town Bd, 86 A.D.3d 83, 89 [2d Dept 2011] quoting Siegel, NY Prac. § 436, at 738 [4th ed.]; CPLR 3001). "By contrast, in a CPLR article 78 proceeding, the court affirmatively directs a party, if unsuccessful, to perform an act or refrain from doing so" (id.; see News 12 Co. v Hempstead Pub Schs Bd. of Educ., 52 Misc.3d 479, 482-483 [Sup Ct, Nassau County, 2016]. "A proceeding pursuant to CPLR article 78 is designed to compel, prohibit, or review the action of a body, officer, or corporation in the performance of its duties" (Matter of Levine v Bd of Educ of City of New York, 186 A.D.2d 743, 745 [2d Dept 1992], Iv denied 81 N.Y.2d 710 [1993]).
The Article 78 Claims for Relief
Public Officers Law § 87 (2) (a) requires public agencies to disclose records unless they are "specifically exempted from disclosure by state or federal statute." Prior to its repeal, effective June 12, 2020, former Civil Rights Law §50-a provided such a statutory exemption for all law enforcement personnel records. As a result of the repeal such records no longer fall within the ambit of § 87 (2) (a). However, Public Officers Law § 87 (2) (b) remains in effect and provides that any agency may deny access to records which "if disclosed would constitute an unwarranted invasion of personal privacy."
As noted above, Respondents dismissed Petitioner's administrative appeal challenging Respondents' determination to withhold disciplinary records classified as unsubstantiated, unfounded or exonerated pursuant to Public Officers Law § 87 (2) (b) and cited Committee on Open Government, FOIL Advisory Opinion 19775 [7/27/2020] and FOIL Advisory Opinion 19785 [3/19/2021]" (NYSCEF Doc. No 23, A-13-14). These two advisory opinions on which the administrative appeal dismissal relied directed that notwithstanding the repeal of Civil Rights Law §50-a, law enforcement disciplinary records involving unsubstantiated or unfounded complaints could be withheld pursuant to the personal privacy provisions of Public Officers Law § 87 (2) (b).
In the months after Respondents' September 21, 2021, dismissal of Petitioner's appeal, the Appellate Division ruled that Public Officers Law § 87 (2) (b) "'does not... categorically exempt... documents from disclosure'" even where a FOIL request concerns release of unsubstantiated allegations or complaints (Matter of New York Civ. Liberties Union v City of Syracuse, 210 A.D.3d 1401, 1404 [4th Dept 2022]), quoting Matter of Police Benevolent Assn. of NY State, Inc. v State of New York, 145 A.D.3d 1391, 1392 [3d Dept 2016]). Since police misconduct records are not categorically exempt,
"[i]n order to invoke the personal privacy exemption... respondents must review each record responsive to petitioner's FOIL request and determine whether any portion of the specific record is exempt as an invasion of personal privacy and, to the extent that any portion of a law enforcement disciplinary record concerning an open or unsubstantiated complaint of...officer misconduct can be disclosed without resulting in an unwarranted invasion of personal privacy, respondents must release the non-exempt, i.e., properly redacted, portion of the record to petitioner"City of Syracuse, 210 A.D.3d at 1404-1405).
The Appellate Division First Department issued a similar ruling in Matter of New York Civ. Liberties Union v New York City Dept. of Corr. (213 A.D.3d 530, 530-531 [1st Dept 2023]), and held that
"Public Officers Law § 87 (2) does not create a categorical or blanket exemption from disclosure for unsubstantiated complaints or allegations of uniformed officers' misconduct [d]ocuments concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details."
Although the Appellate Division, Second Department has not issued any rulings on these issues, the precedents of the Fourth and First Departments are to be followed unless the Court of Appeals or the Second Department pronounces a contrary rule (see Mountain View Coach Lines, Inc. v Storms, 102 A.D.2d 663 [2d Dept 1984]).
Petitioner's Demand for Attorneys' Fees and Costs
" 'A court is required to award the petitioner reasonable counsel fees and other litigation costs reasonably incurred where the petitioner has substantially prevailed and the court finds that the agency had no reasonable basis for denying access'" (Matter of Prisoners' Legal Servs of NY v New York State Dept of Corr & Community Supervision, 211 A.D.3d 1382, 1383 [3d Dept 2022], quoting Matter of Cohen v Alois, 201 A.D.3d 1104, 1107 [3d Dept 2022]; see Public Officers Law § 89 [4] [c] [ii]). "'A pertinent consideration in determining whether an agency had a reasonable basis for denying a FOIL request is whether the agency reasonably claimed the records were exempt from disclosure under Public Officers Law § 87 (2), although the denial may still have been reasonable even if the records are ultimately deemed not to be exempt'" (id., quoting Matter of Vertucci v New York State Dep. of Transp, 195 A.D.3d 1209, 1210 [3d Dept 2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 917 [2022]).
As noted above, Respondents relied upon advisory opinions of the Committee on Open Government to deny access to the records in question and to dismiss Petitioner's appeal. Their administrative determinations were made prior to the Appellate Division rulings mandating disclosure with appropriate redactions. Since this proceeding "concerns a novel interpretation of legislation that both repealed a statute and enacted new provisions to a longstanding statutory scheme, it cannot be said that respondents had no reasonable basis for denying access to the records at issue" (New York City Dept of Corr., 213 A.D.3d at 531, citing Public Officers Law § 89 [4] [c]; City of Syracuse, 210 A.D.3d at 1406).
Accordingly, the subject records are to be produced to the Petitioner, subject to redaction, as ordered above.
Motion Sequence No. 2
Movant, a national organization based in New Orleans, Louisiana, proposes to submit a brief referencing twenty newspaper articles, other publications, law review articles and public statements (NYSCEF Doc. No. 12, pp i-ii), all advocating the nationwide goals of enhanced police transparency and accountability. The instant disciplinary records are mentioned only by way of Movant's conclusory assertion that they might be destroyed during the pendency of this proceeding (NYSCEF Doc. No. 12, p 7).
Since the portions of the Petition seeking release of the disciplinary records sought have been granted, amicus curiae relief is unnecessary to this determination. Moreover, the purposes for which documents are sought does not determine governmental responsibilities under FOIL. Indeed, although the New York "FOIL imposes a broad duty on government to make its records available to the public... access to government records does not depend on the purpose for which the records are sought" (Matter of Gould v New York City Police Dept., 89 N.Y.2d 267, 274 [1996]; Matter of Bellamy v New York City Police Dept., 59 A.D.3d 353, 355 [1st Dept 2009]).Accordingly, the motion for amicus curiae relief is denied.
The parties' remaining contentions are either without merit or are unnecessary to this order and judgment.