Opinion
100262/2018
04-01-2019
In the Matter of the Application of Dion MCINTOSH, Petitioner, v. Jordan S. MAZUR, Record Access Appeals Officer New York City Police Department, Respondent.
The Court reviewed the following documents:
Petitioner's Order to Show Cause, dated February 21, 2018, with exhibits A through D;
Respondent's Notice of Cross-Motion to Dismiss and an Affirmation in Support of Cross-Motion to Dismiss, May 9, 2018, with exhibits 1 through 9 & appendices A through C;
Petitioner's Affirmation in Opposition, dated June 18, 2018, with exhibits A through K;
Respondent's Reply Affirmation in Support of Cross-Motion to Dismiss, dated July 17, 2018, with exhibit 10; and
Petitioner's Affirmation in Support of Opposition, post-marked February 26, 2019 (undated), with exhibits A and B.
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Dion McIntosh seeks to overturn the New York City Police Department's denial of his request for photographs of head injuries on the victim of a crime for which he was arrested, tried and convicted. The respondent police department opposes Mr. McIntosh's article 78 petition and cross-moves for dismissal.
Mr. McIntosh's Freedom of Information Law (FOIL) request, made on September 15, 2017, was denied by the department's access officer; he appealed on October 16, and that was denied by its appeals officer on October 25, 2017. A hearing on McIntosh's motion was held November 8, 2018 before Justice Carmen St. George, which included the following:
The Court: You submitted a letter to the FOIL bureau requesting eight original photograph's showing victim's injuries when taken at Mount Vernon Hospital by a detective of the 47th precinct.
Mr. McIntosh: Right... They put the pictures on a copied piece of paper and just copied it through the Xerox machine, so you can't see nothing [tr 4].
The Court: These are injuries that were on the victim within, apparently, a couple of hours after the attack -
Mr. McIntosh: Absolutely.
The Court: - - Where the victim was struck with a firearm over the front of their head ...Mr. McIntosh: This is the whole dispute, because this photo, right here, that was used, that, they took a couple hours after, was never used in my trial [tr 5]. They used photos that was taken five days later.
McIntosh went on to say that the earlier originals would have demonstrated that "She was never hit in the head with a weapon." [tr 6] Then a little later in the hearing:
The Court: I have those same [black and white] copies. It looks like some of them look like the victim.
Mr. McIntosh: Can you see injuries?
The Court: You can't make it out. These are very dark. And, then, there's - - it looks like articles of clothing. [tr14]
Mr. McIntosh: ... [T]hey can redact it any way possible. Just need to see the injuries ... That's the only thing I need. That's the only way I could prove my innocence, your honor. [tr.15-16]
Mr. McIntosh wrote on December 5, 2018 that the transcript of this hearing that was mailed to him was missing the even-numbered pages. He was subsequently sent a complete transcript and given until February 27, 2019 for any additional submission, which was the Affirmation post-marked February 26, 2019 that is listed above in the material reviewed by the Court.
The police department, at the agency level and in this proceeding, oppose Mr. McIntosh's petition on a number of grounds: a) for lack of jurisdiction; b) mootness; and c) as an unwarranted invasion of privacy under: federal law governing the confidentiality of medical records; section 50-b of the Civil Rights Law ; and the Public Officers Law. (The Freedom of Information Law is codified as Article 6 of the Public Officers Law, section 84 et seq ).
The Health Insurance Portability and Accountability Act (HIPAA), Pub. L.104-191.
HIPPA; Jurisdiction
Federal regulations promulgated under HIPAA permit the disclosure of otherwise protected medical information that is expressly authorized by court order ( 45 CFR § 164.512 [e] ).As for the jurisdictional issue, the police department contends that McIntosh failed to comply with the terms of the order to show cause that required service by March 22, 2018, mailing his papers on March 26. The department argues that the fact of incarceration may allow for a relaxing of procedural requirements, but such leeway is not to be granted where the time limits could have been satisfied, as in McIntosh's case (Matter of Hoyer v Coughlin , 179 AD2d 921, 3d Dept). Under the circumstances, the Court would exercise its authority under CPLR § 2004 to extend the time limit by four days.
Mootness
Respondent cites Matter of Fappiano v New York City Police Dept , 95 NY2d 738, which would block a second FOIL request for the same documents from a different agency. The papers are vague as to whether McIntosh ever got the color photos or a sufficiently clear set of black and white photos. As noted, Justice St. George observed that the black and white photographs were "very dark."
The department points to correspondence from the Office of the Bronx District Attorney to McIntosh in 2009 and 2017. There were two letters from the DA's office in 2009. The first, dated August 27, was an acknowledgment that having received McIntosh's check, the requested documents were enclosed. On September 15, the records access officer wrote: "Enclosed please find the 2 pages of photos absent from the initial enclosure of documents. These are the only photos depicting the victim's injuries that were found in the trial folder." (Resp Affirm, exh 8).
On June 7, 2017, a Bronx assistant district attorney wrote back to petitioner:
"[Y]ou have requested, copies (in color) of the eight (8) photos taken showing the victim's injuries at Mount Vernon Hospital under property clerk's invoice K929032, in security envelope C251171.
"Your request has been denied because our records indicate that it is duplicative. Our records indicate that the photographs you requested were forward[ed] to you in August of 2009. Our records further indicate that you made the same request in March of 2013, which was denied as duplicative." (Id. , exh 9).
If the photos supplied by the Bronx DA's office were poor black and white xeroxes, McIntosh has not raised that issue until this petition; if in color or a clear black and white print, then he has come back on the same request. Dion McIntosh has thus failed to make a sufficient showing to overcome the contention that his Article 78 petition is moot.
Privacy
Section 87(2) of the Public Officers Law exempts from disclosure information that would constitute an unwarranted invasion of personal privacy as defined in § 89(2), although disclosure may be allowed if identifying details are deleted (§ 89.2[c][i] ). In any event, records that are "specifically exempted from disclosure by state or federal statute" are not subject to FOIL ( § 87[2][a] ).
To that end, subdivision one of section 50-b of the Civil Rights Law protects from disclosure any "report, paper, picture, photograph, court file or other documents" which identify the victim of a sex crime. An accused is, of course, entitled to information that would aid his defense; the next subdivision provides that subdivision one is "not to be construed to prohibit disclosure of information to ...[a]ny person charged with the commission of [a sex] offense against the same victim ...". See Matter of Mackenzie v Seiden , 106 AD3d 1140 (3d Dept).
Moreover, subsequent to conviction and imprisonment, a convicted defendant has the right to vacate his judgment or prove his innocence (Article 440 of the Criminal Procedure Law, section 8-b of the Court of Claims Act ; 42 USC § 1983 ). There is no bar to an individual seeking information to prove his innocence on less than all of the charges he was convicted of; for example, to shorten his sentence or keep him off a sex offender registry.
With that said, the facts do not support the petition. It was already day two of her kidnapping, when McIntosh struck his victim on the head when she was in his vehicle:
"On May 19, 2001, at around 8:30 p.m., in Connecticut, defendant lured the 16-year-old victim into his automobile, and over the course of the next three hours drove to various locations in that state, raped her at gunpoint three times and forced her to orallly copulate him They remained in a parking lot until 6:00 a.m. the next day, then drove to a gas station and a store in Westchester, and eventually went to defendant's mother's house in the Bronx. The victim begged to be set free, promising that she would not tell the police what had happened because she herself was a parole absconder, but defendant refused. That night, defendant directed the victim to get back into his SUV; inside, he struck her in the head with his gun, causing her to lose consciousness. When she awoke, defendant was strangling her with a cord around her neck, and she passed out again.
"At approximately 10:40 p.m., a police sergeant saw a vehicle in a parking lot in the Bronx with its lights flashing and horn beeping. As the sergeant approached, defendant, who was standing next to the car, fired a shot at him and ran. During the ensuing chase, defendant fired four or five more times, but was soon apprehended in a creek. Police officers returned to defendant's vehicle, where they found the victim, unconscious and with a sweatshirt string tied around her neck." [ People v McIntosh , 53 AD3d 1, 3, lv denied 11 NY3d 833 ].
See also McIntosh's petition for a writ of habeas corpus (McIntosh v Conway , 2016 WL 6135659 [SD NY], certificate of appealability denied 2017 WL 5564527 [2d Cir] ).
Petitioner cannot surmount the privacy barrier. His request is unfocused and general. McIntosh says pictures of the victim's head injuries would "prove my innocence" without narrowing it to something specifically related to the head injury ; nor did McIntosh advance any non-conclusory argument as to what clearer photos would show.
Petitioner has failed to show, as is required in an Article 78 challenge, that the determination of Jordan S. Mazur, the records access appeal officer, was beyond his jurisdiction, arbitrary and capricious or an abuse of discretion.
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NOW, therefore, in view of the foregoing,
IT IS ORDERED, that motion no. 001, petitioner Dion McIntosh's challenge to the denial of his Freedom of Information Law request, is denied; and
IT IS FURTHER ORDERED, that respondent's cross-motion to dismiss Mr. McIntosh's petition is granted.
The Clerk of the Court is directed to enter judgment accordingly.