Opinion
Index No. 18-1851
05-18-2020
NEW YORK CIVIL LIBERTIES UNION, Petitioner, v. SUFFOLK COUNTY POLICE DEPARTMENT, Respondent.
PETITIONER'S ATTORNEY: NY CIVIL LIBERTIES UNION FDN, 125 BROAD STREET, 19TH FLR, NEW YORK, NY10004 RESPONDENT'S ATTORNEY: DENNIS M. BROWN, ESQ., 100 VETERANS MEM HWY, POB 6100, HAUPPAUGE, NY11788
PETITIONER'S ATTORNEY: NY CIVIL LIBERTIES UNION FDN, 125 BROAD STREET, 19TH FLR, NEW YORK, NY10004
RESPONDENT'S ATTORNEY: DENNIS M. BROWN, ESQ., 100 VETERANS MEM HWY, POB 6100, HAUPPAUGE, NY11788
Sanford Neil Berland, J.
Upon the reading and filing of the following papers in this matter: (1) Notice of Petition, dated April 9, 2018, and supporting papers, including Memorandum of Laws; (2) Verified Answer, dated June 11, 2018; (3) Administrative Return, dated June 11, 2018; (4) Affirmation in Opposition, dated June 11, 2018; (5) Reply, dated June 29, 2018, and supporting papers; (6) Sur-Reply, dated September 18, 2018, and supporting papers, including Memorandum of Laws; it is
ORDERED that Petitioner's Article 78 petition is referred to hearing, to be scheduled once the current constraints under the current health emergency are lifted, to determine whether, and the extent to which, the information requested in paragraphs 1, 2, 4, 5, 7, 9 and 10 of petitioner's August 1, 2017 FOIL request exist within respondent's custody and control and to determine whether sufficient factual bases support respondent's claimed exemptions to the disclosures sought in paragraphs 3, 6, and 8 of petitioner's August 1, 2017 FOIL request, pursuant to Public Officers Law § 87 ; and it is further
ORDERED that all parties, or their attorneys if they are represented by counsel, shall be required to appear for a conference to be conducted virtually by the Court on June 1, 2020 at 10:00 a.m.
This is a special proceeding commenced on April 9, 2018 by petitioner - the New York Civil Liberties Union ("NYCLU") — against the Suffolk County Police Department ("SCPD" or "the police department") for what petitioner alleges was respondent's belated and inadequate response to a Freedom of Information Law ("FOIL") request. Petitioner contends that the respondent's conduct in providing a delayed and incomplete response was arbitrary and capricious, that respondent should be ordered to make a complete response and that attorneys' fees and costs in bringing this proceeding should be awarded to petitioner pursuant to Public Officers Law § 89. Petitioner seeks review of respondent's response to the FOIL request and an order, pursuant to Article 78 of the CPLR, setting the matter down for a hearing to determine whether the requested documents exist and should be produced.
Background .
On August 1, 2017, petitioner, together with Latino Justice PRLDEF ("Latino Justice"), delivered a FOIL request to the respondent SCPD at one of its local precinct houses requesting ten categories of records related, inter alia , to the police department's current practices and policies involving the identification of individuals alleged to be "suspected gang members" and to communications between it, the Department of Immigration and Customs Enforcement ("ICE") or any other "branch" of the Department of Homeland Security ("DHS"), and the South Country Central School District ("SCCSD") , as follows:
The South Country Central School District, or "SCCSD," is the respondent in a special proceeding brought pursuant to CPLR Article 78 by LatinoJustice PRLDEF, a non-profit public-interest civil rights legal defense and education fund, to enforce a FOIL request that it had propounded jointly with the NYCLU seeking from the school district some of the same documents and other materials that have been requested by the NYCLU from the police department in the FOIL request that is the subject of the current petition. In the SCCSD matter, the court found that LatinoJustice PRLDEF had made a threshold factual showing "sufficient ... to warrant a hearing as to whether there exist, or existed, within the School District's control" materials responsive to the LatinoJustice PRLDEF-NYCLU FOIL request at issue in that matter ( LatinoJustice PRLDEF, Matter of, v. South Country Cent. Sch. Dist. , 61 Misc 3d 1210(A) [Sup Ct, Suffolk County 2018] ).
1. Documents sufficient to identify the number of individuals reported to or identified in collaboration with the SCPD as suspected gang members by the South Country Central School District and the race, ethnicity, country of origin, and age of each individual.
2. Any instructions, directives, or memoranda from the SCPD to the South Country Central School District regarding how to identify gang membership or gang activity.
3. All policies, procedures, training materials, or protocols, relating to information sharing with Immigration and Customs Enforcement ("ICE") or any other branch of the Department of Homeland Security ("DHS")
4. All contracts, memoranda of understanding, or agreements between the SCPD, ICE, or any other branch of DHS.
5. Documents sufficient to identify the number of individuals suspected or known to be gang members by the SCPD and the race, ethnicity, country of origin, and age of each individual.
6. All policies and procedures related to the SCPD's use of any gang list or database maintained by, or created in collaboration with, the SCPD.
7. Documents sufficient to identify the number of individuals whose identities the SCPD has shared with ICE or any other branch of DHS due to the inclusion in any gang list or database maintained by, or created in collaboration with, the SCPD.
8. All directives, orders, guidance, procedures, memoranda, rules, regulations, forms, and other statements of policy directing SCPD officers how to recognize gang membership or gang activity. This includes, but is not limited to, clothing, jewelry, hairstyle, shoes, tattoo, logos, makeup, symbols, graffiti tags, patterns, colors, symbols, hand gestures, songs, whistles, etc.
9. Any notices, letters, and proofs of service served on gang members or suspected gang members and associates regarding SCPD penalties for participation in a criminal street gang.
10. Documents sufficient to identify the number of times a Suffolk County Police officer was present in a meeting between a SCCSD employee and a minor student with and without the presence of the minor student's guardian or parent.
On August 21, 2017, the police department's designated Freedom of Information Officer ("FIO") wrote to both requesters, acknowledging receipt of their FOIL request, explaining that receipt and acknowledgment of the request was delayed because the request was submitted to a local precinct and indicating that because "the information sought will take some time to compile and will result in the collaboration of multiple department Commands," there would be a delay of between thirty and forty-five days before the SCPD could provide the requested records.
On October 30, 2017, having received neither any further communication from the police department nor a response to the FOIL request, NYCLU filed an administrative appeal from what it characterized as the "constructive denial" of its request. On November 17, 2017, Suffolk County's FOIL Appeals Officer ("FAO") acknowledged receipt of NYCLU's administrative appeal. Over the succeeding months, the FAO contacted counsel for the NYCLU to request extensions of time to respond to the FOIL request - first to December19, 2017, and then to January 19, 2018; to suggest that NYCLU resend the FOIL request to SCPD at its main headquarters - although petitioner had already done so, on August 22, 2017 - as well as to a different contact at the SCPD; followed up with petitioner to determine if it had received a response from the SCPD; and — on January 22, 2018 — scheduled a phone call. On April 9, 2018, having received neither any further communication from the appeals officer nor a response to the FOIL request, NYCLU commenced the current CPLR Article 78 proceeding by Notice of Petition.
The petition, initially returnable May 10, 2018, was adjourned on consent of the parties on several occasions to allow them to resolve, or narrow, the issues. Thereafter, by letter dated June 8, 2018, the FAO issued a "Determination" of petitioner's FOIL appeal, providing a single document in response to paragraph 3 of the request and claiming that exemptions apply to other documents responsive to that request and to the requests set forth in paragraphs 6 and 8, and that no documents exist or could be found after a diligent search responsive to any of the remaining requests - paragraphs 1, 2, 4, 5, 7, 9 and 10, which also, in the FAO's stated view, fail "reasonably to describe" the records sought. The letter also asserted, inter alia, that even if reasonably described documents did exist that were responsive to request paragraphs 1, 2, 4, 5, 7, 9 and 10, they would, in any event, be exempt from production under FOIL.
The original FAO left the employment of the Suffolk County Attorney's Office effective February 16, 2018, and sometime thereafter, her responsibilities as designated FAO were assumed by another Assistant County Attorney.
The current proceeding
The principal issue raised in this CPLR Article 78 proceeding is whether the FOIL Appeal Officer's belated determination letter and the SCPD's belated response moot this proceeding and, if not, whether the SCPD has sufficiently responded to the ten-paragraph August 1, 2017 FOIL request .
Petitioner also asserted claimed deficiencies in the certification provided by the respondent's FOIL Officer, which, among other things, omitted any reference to request paragraph 10 and included the seemingly categorical averment that "within the construction as to 'records' set forth" in Public Officers Law § 89[3][a], and based upon the FOIL officer's "review and inquiry," the SCPD "does not have possession of the requested records or that such records could not be found after diligent search as to requests number 1, 2, 4, 5, 7, and 9," notwithstanding the FAO's contention that those requests fail "reasonably to describe" the records sought. Subsequently, the respondent provided a certification amended to include request 10 among those requests for which responsive records were not in its possession or could not be found.
NYCLU contends that the minimal production provided by the SCPD in response to request paragraph 3 - a single document - and the SCPD's denial that it has any records whatsoever responsive to request paragraphs 1, 2, 4, 5, 7, 9, and 10, and no other non-exempt records responsive to requests 3, 6, and 8, are inconsistent with public statements made and documents promulgated both by the SCPD and by others, which indicate that further responsive materials that are not exempt from FOIL disclosure necessarily exist. On that basis, NYCLU argues that SCPD's response to the August 1, 2017 FOIL request must be deemed an impermissible denial of those requests by the SCPD, as the SCPD has not offered a basis for its denials sufficient to meet its burden, under the Freedom of Information Law, to justify depriving the petitioner access to governmental records that have been properly requested and which, petitioner asserts, must exist notwithstanding the SCPD's denials.
To support its contention that the SCPD is necessarily in possession of non-exempt responsive records, NYCLU both submits and provides citations to a variety of published and otherwise publicly available materials - including a memorandum from the Administration for Children and Families' ("ACF's") Office of Refugee Resettlement ("ORR"); public statements by local law enforcement officials; newspaper and online articles; and emails from the FAO - that, it maintains, taken together demonstrate that additional documentation responsive to petitioner's enumerated FOIL requests exists in the custody of the SCPD.
In opposition, the SCPD, argues, first, that because the petition was brought prior to any FOIL response or determination by the SCPD, it was necessarily in the nature of mandamus to compel one and, thus, became moot when the FOIL Appeals Officer issued her determination letter, advising that as to most of the requests, it had identified no responsive documents, and, second, that as to the remaining requests, all but the single document it was producing were exempt from disclosure. Second, SCPD maintains that with respect to requests 1, 2, 4, 5, 7, 9 and 10, either no responsive records exist in its possession or "no records exist because the request is not reasonably described" - i.e., the SCPD is uncertain what records are being sought because the requests are vague or ambiguous or improperly require the SCPD to interpret the requests at its peril. Third, SCPD invokes the exemptions to disclosure afforded by Public officers Law § 87[2][b], [e][I], [iii], [iv] and [f] and § 89[2][b][2], on the basis that
to the extent that disclosure would enable a potential lawbreaker to tailor his or her activities in a manner that would enable that person or others to evade effective law enforcement of detection, which would otherwise interfere with an investigation or judicial proceeding, or which would endanger the safety or lives of individuals, or the privacy of any individual, the records may be withheld.
(Affirmation in Opposition ¶44.) Although the only "example" SCPD offers of a request that potentially trenches on the kind of information that these exemptions seek to protect, is request 3 — which, it argues, calls for records that, "if produced are likely to reveal criminal investigative techniques, procedures or information" shielded from disclosure by Public Officers Law § 87[2][e][iv] — the FOIL Appeals Officer's June 8, 2018 determination letter cites, or incorporates by reference citations to, one or more of the FOIL law- enforcement and privacy exemption provisions in response to each of the petitioner's FOIL requests.
Affirmation in Opposition, ¶45.
The police department's contentions, and the answering arguments and contentions of petitioner, will be addressed in turn.
Mootness .
The Court turns first to the question of whether the petition is moot. Although it is true that "[w]here a petitioner receives an adequate response to a FOIL request during the pendency of his or her CPLR Article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties" ( DeFreitas v. New York State Police Crime Lab , 141 AD3d 1043, 1044 [3d Dept 2016] ; see Cobado v. Benziger , 163 AD3d 1103, 1105 [3d Dept 2018] ), as petitioner correctly maintains, that is not the situation here. In contrast to DeFreitas v. New York State Police Crime Lab and Cobado v. Benziger , supra, where, during the pendency of the proceedings, the respondents fully complied with the petitioners' FOIL requests by producing responsive materials and withholding only demonstrably exempt records (see, e.g. , DeFreitas , supra , 141 AD3d at 1045 ), here the SCPD has provided only a single, nine-page document, and that in response to but one of the ten requests, and has interposed hypothetical assertions of exemption for any other materials it has, or might have, responsive to the request. Moreover, although the police department acknowledges that it has additional records responsive to three of the requests — specifically, requests 3, 6 and 8 — it offers no descriptive information whatsoever, generic or otherwise, of the records it is withholding, attempting in that way to shield not only its records, but also its claims of exemption from any meaningful scrutiny. As a result, the petitioner is challenging not only the untimeliness of the response, but also the adequacy of the document production and the appropriateness of the exemptions claimed. Moreover, petitioner is seeking, in addition to compliance with its requests, an award of attorneys' fees and costs pursuant to Public Officers Law § 89[4][c], which provides, in pertinent part, that "when the agency failed to respond to a [FOIL] request or appeal within the statutory time," 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 the court finds that the agency had no reasonable basis for denying access." Hence, even if the FOIL Appeal Officer's belated determination constituted an "adequate response" satisfying the FOIL request — and NYCLU contends that it does not — NYCLU would still have a justiciable claim for the assessment of attorney's fees and other litigation costs, precluding dismissal of its petition on mootness grounds (see Kohler-Hausmann v. New York City Police Dept. , 133 AD3d 437, 437-38 [1st Dept 2015] ). As the court wrote in Kohler-Hausmann v. New York City Police Dept. , supra :
Although petitioner effectively concedes that the merits of her petition are moot as a result of NYPD's voluntary disclosure, petitioner's claim for attorney's fees and other litigation costs is not moot (see Matter of New York State Defenders Assn. v. New York State Police, 87 AD3d 193, 195 [3d Dept 2011] [holding that "the voluntariness of ... disclosure is irrelevant to the issue of whether petitioner substantially prevailed in (a FOIL) proceeding," since "to allow a respondent to automatically forestall an award of counsel fees simply by releasing the requested documents before asserting a defense would contravene the very purposes of FOIL's fee-shifting provision" (internal quotation marks omitted) ]; Matter of Purcell v. Jefferson County Dist. Attorney, 77 AD3d 1328, 1329 [4th Dept 2010] [request for attorney's fees was not rendered moot by disclosure of documents, where agency "offered to produce the majority of the records sought by (the) petitioner if she agreed to withdraw her request for attorney's fees"]; Matter of Powhida v. City of Albany, 147 AD2d 236, 238-239 [3d Dept 1989] ).
(Kohler-Hausmann v. New York City Police Dept. , 133 AD3d at 437-38. See generally LTTR Home Care, LLC v. City of Mount Vernon , 179 AD3d 798, 800-01 [2d Dept 2020] ; Gedan v. Town of Mamaroneck , 170 AD3d 833, 834 [2d Dept 2019]
In Cobado v. Benziger , 163 AD3d 1103, 1105-06 [3d Dept 2018], the Third Department reached a similar result, holding that a determination that the merits of the petitioner's Article 78 petition, which challenged what he alleged was the constructive denial of his FOIL request, had been mooted by the respondent's adequate, albeit belated, response, did not moot his request for the fees and costs he incurred in prosecuting the proceeding:
However, our finding that this proceeding is moot does not preclude petitioner's request for associated "costs and fees" (see Matter of Kohler-Hausmann v. New York City Police Dept ., 133 AD3d 437, 437 [2015] ; Matter of Global Tel*Link v. State of NY Dept. of Correctional Servs ., 68 AD3d 1599, 1601 [2009] ), and we find that Supreme Court erred as a matter of law in concluding that the statutory prerequisites for such an award have not been met (see Matter of Madeiros v. New York State Educ. Dept ., 30 NY3d 67, 79 [2017] ). A court is authorized to award a petitioner "reasonable [counsel] fees and other litigation costs reasonably incurred" where he or she has "substantially prevailed" in the FOIL proceeding and, as relevant here, "the agency failed to respond to a request or appeal within the statutory time" ( Public Officers Law ' 89 [4] [c] [former (ii) ]; see Matter of Legal Aid Socy. v. New York State Dept. of Corr. & Community Supervision , 105 AD3d 1120, 1121 [2013] ). "A petitioner 'substantially prevail[s]' under Public Officers Law ' 89 (4) (c) when [he or she] 'receive[s] all the information that [he or she] requested and to which [he or she is] entitled in response to the underlying FOIL litigation' " ( Matter of Competitive Enter. Inst. v. Attorney Gen. of NY, 161 AD3d 1283, 1286 [2018], quoting Matter of New York State Defenders Assn. v. New York State Police , 87 AD3d 193, 196 [2011] ), regardless of whether "full compliance with the statute was finally achieved" in the form of disclosure, a certification that responsive documents were exempt from disclosure or some combination thereof ( Matter of Legal Aid Socy. v. New York State Dept. of Corr. & Community Supervision , 105 AD3d at 1122 ). Significantly, the voluntariness of an agency's disclosure after the commencement of a CPLR article 78 proceeding will not preclude a finding that a litigant has substantially prevailed (see Matter of Madeiros v. New York State Educ. Dept ., 30 NY3d at 79 ; Matter of Jaronczyk v. Mangano , 121 AD3d 995, 997 [2014] ; Matter of New York State Defenders Assn. v. New York State Police , 87 AD3d at 195-196 ).
In Cobado v. Benziger, the application for fees and costs was complicated by the fact that the petitioner — an inmate seeking documents from the State Police concerning a confidential informant who had been involved in the petitioner's criminal trial years earlier — rather than immediately pursuing an administrative appeal from the belated denial of his first FOIL request ostensibly on the grounds that he had not reasonably described the records he was seeking because he had not, among other things, provided the confidential informant's date of birth, administratively appealed that denial only after the respondent's records access officer failed to provide a timely response to the second request he had served, which supplied the confidential informant's date of birth. Only after the petitioner commenced his Article 78 proceeding did he receive a determination of his administrative appeal, providing him with some of the materials he sought but asserting that the remaining responsive documents were exempt from disclosure pursuant to Public Officers Law § 87[2][b][iii] and [iv]. The Supreme Court held that petitioner had not met the statutory requirements for an award of fees and costs pursuant to Public Officers Law § 89[4][c], but the Appellate Division disagreed and remitted the matter to the Supreme court to determine whether, in its discretion, such fees and costs should be awarded:
With respect to both of petitioner's FOIL requests, [the records access officer] failed to comply with the statutory time period permitted for acknowledging receipt of such requests and the dates certain she herself specified in her untimely acknowledgments (see Public Officers Law § 89 [3] [a] ). Further, petitioner did not receive a timely response to his administrative appeal (see Public Officers Law § 89 [4] [a] ). Although petitioner's administrative appeal was untimely as to his June 2015 request (see Public Officers Law § 89 [4] [a] ) and arguably preemptive as to his January 2016 request (see Public Officers Law § 89 [4] [b] ), it is undisputed that only after commencing this proceeding did petitioner receive a response to his requests, permitting him to finally obtain all of the documents to which he was entitled. Thus, under these circumstances, we find that respondents failed to comply with the statutory time frames and that petitioner ultimately substantially prevailed within the meaning of Public Officers Law § 89 (4) (c). Accordingly, Supreme Court erred in determining that the statutory prerequisites had not been satisfied (see Matter of Madeiros v. New York State Educ. Dept. , 30 NY3d at 79 ; Matter of Jaronczyk v. Mangano , 121 AD3d at 997 ; Matter of Legal Aid Socy. v. New York State Dept. of Corr. & Community Supervision , 105 AD3d at 1121-1122 ; Matter of New York State Defenders Assn. v. New York State Police , 87 AD3d at 195-196 ).
The fee-shifting provision contained within Public Officers Law § 89 (4) (c) was intended "to 'create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL' " (Matter of New York Civ. Liberties Union v. City of Saratoga Springs, 87 AD3d 336, 338 [2011], quoting Senate Introducer's Mem in Support, Bill Jacket, L 2006, ch 492 at 5; see L 2006, ch 492, § 1; Matter of Legal Aid Socy. v. New York State Dept. of Corr. & Community Supervision, 105 AD3d at 1122 ). However, the decision of whether to award counsel fees and/or other litigation costs still lies within the discretion of the trial court (see Public Officers Law § 89 [4] [c] [former (ii) ]; Matter of Madeiros v. New York State Educ. Dept. , 30 NY3d at 79 ; Matter of Saxton v. New York State Dept. of Taxation & Fin. , 130 AD3d 1224, 1225-1226 [2015] ; Matter of Rose v. Albany County Dist. Attorney's Off. , 111 AD3d 1123, 1127 [2013] ). Accordingly, we remit the matter to Supreme Court for a determination as to whether, in its discretion, petitioner is entitled to counsel fees and/or litigation costs and, if so, to calculate the reasonable amount of any award (see Matter of Madeiros v. New York State Educ. Dept. , 30 NY3d at 80 ).
( Id. , 163 AD3d at 1106-07.)
In any event, in this case and at this juncture, it cannot be said that the petition is moot on the merits, for — and as is discussed at length in the sections that follow - petitioner has made a colorable showing that additional responsive materials exist for which adequate assertions of exemption have yet to be proffered by the respondent. Moreover, even if that were not the case or if further proceedings fail to reveal that there are additional responsive materials within respondent's custody and control, petitioner's application for fees and costs pursuant to Public Officers Law § 89 [4] [c] for respondent's failure to provide any response to petitioner's FOIL request and administrative appeal until after this proceeding had been commenced would still remain justiciable and require the court's determination.
Non-responsive/insufficient response .
In support of its contention that SCPD is in possession of materials responsive to its FOIL requests that SCPD has neither provided nor identified with the particularity necessary in order to invoke any claimed exemption, NYCLU both cites and tenders as exhibits to its petition and supporting papers materials that, it contends, document SCPD's deep and active engagement in what may broadly be described as anti-gang initiatives and related activities. These include, among other things, receiving, developing and sharing information about gangs, their activities and their alleged membership, including information provided by School Resource Officers, or "SROs," that is, Suffolk County police officers who are stationed within certain Suffolk County secondary schools, including both Bellport High School and Brentwood High School; investigating and surveilling young people and other persons who are alleged or suspected to be gang members and determining, among other things, whether those individuals can be apprehended for direct criminal acts in which they allegedly have engaged or meet criteria sufficient to cause them to be labeled gang members for law enforcement and immigration purposes; acting in coordination, cooperation and/or collaboration with other local, state and federal law enforcement agencies and immigration authorities, including the United States Immigration and Customs Enforcement ("ICE") and United States Homeland Security Investigations ("HSI") arms of the federal Department of Homeland Security ("DHS"), and participating in such joint local-federal initiatives as "Operation Matador," with HSI and ICE Enforcement and Removal Operations ("ERO"), and "Operation Community Shield," with HSI; and educating the public, parents and school officials and employees about gangs and gang activity, including sharing with school officials — but not the general public — the criteria it uses to label a child or an adult as a gang member.
Among the materials which are provided or cited in support of NYCLU's petition are the following:
1. The United States District Court's decision in Saravia v. Sessions , 280 F Supp 3d 1168, 1177-78 [ND Cal 2017] , affd sub nom. Saravia for A.H. v. Sessions , 905 F3d 1137 [9th Cir 2018], which, among other things, addresses the due process and statutory rights of non-citizen minor high school students who had previously entered the United States as asylum-seeking unaccompanied alien children ("UAC") and, following initial periods of detention and evaluation, had been released into the custody of parents or guardians in Suffolk County. Years later, three of these children — "A.H.," "F.E." and "J.G.," by then in high school, but still minors - were rearrested in Suffolk County by ICE agents participating in the execution of "Operation Matador" — a joint operation of ICE, HSI, ERO and the Nassau and Suffolk County Police Departments — based upon "allegations of gang affiliation from local law enforcement officers" ( id ., 280 F.Supp.3d at 1178 ). Pursuant to the requirements of the Trafficking Victims Protection and Reauthorization Act, 8 USC § 1232 (the "TVPRA"), each of the petitioner-children was transferred into the custody of the Department of Health and Human Services' Office of Refugee Resettlement ("ORR"), which then transported each of them to detention facilities across the United States, with one child ending up, at least as of the time of the District Court's ruling, in a juvenile facility in California, another in Tacoma, Washington and a third in Lincolndale, New York following a period of detention in a facility in California. The District Court held, inter alia , that each of the petitioners had been deprived of his right to a hearing before an immigration judge promptly following his rearrest and prior to being transported to a facility far distant from both his home and the place of his arrest:
See Exhibit 4 to the Affirmation of Stefanie D. Coyle, dated April 9, 2018 (the "-oyle Affirmation").
Although current ORR procedures-the right to challenge a finding of dangerousness in a Flores[ ] bond hearing, the right to challenge a placement under the Administrative Procedure Act, and regular review by ORR to determine the appropriate security level-may be adequate for an unaccompanied minor first arriving in the country, they appear inadequate to protect against the risk of minors being erroneously taken away from their sponsors by federal agents through a program like Operation Matador. It's not clear, for instance, that the sponsor with an interest in the minor's release could participate in any of the government's existing processes, or that the result of a successful challenge to the basis for the minor's rearrest and detention would be an immediate return to the sponsor already deemed suitable.
In the absence of a prompt adversarial hearing of the type other rearrested noncitizens receive, there is a serious risk that minors who were appropriately placed with sponsors, in accordance with the TVPRA and the Flores settlement agreement[ ], will-after rearrest on the basis of insufficiently substantial allegations of gang affiliation-erroneously be placed into ORR custody, and without an opportunity to obtain prompt relief. As the Ninth Circuit has recognized, "[d]etermining whether an individual is an active gang member presents a considerable risk of error. The informal structure of gangs, the often fleeting nature of gang membership, and the lack of objective criteria in making the assessment all heighten the need for careful factfinding." Vasquez v. Rackauckas, 734 F.3d 1025, 1046 (9th Cir. 2013). As the evidence regarding A.H., F.E., and J.G. shows, DHS sometimes makes an inference of gang membership from conduct, clothing, or associations that are far from unequivocal evidence of that conclusion. For instance, F.E. was classified as a gang member because he wrote "503," the country code for El Salvador, in his school notebook, and because he +had been seen associating with known gang members at school and in the community..... As a direct result of DHS's inference, F.E. was arrested and taken to a secure facility in another state. Although he has since been stepped down, five months later he remains in an ORR facility and not in his mother's care. Moreover, Defendant Cardall (the local official in charge of the facility in Yolo County) has asserted that evidence regarding allegedly gang-affiliated minors sent to that facility was often insufficient, and that the Yolo County Probation Department concluded it did not have just cause to detain most of these minors.....
The record does not show that the current procedure permits the necessary adversarial factfinding process to occur close enough in time to the minor's arrest, thus making it significantly more likely that the minor will be sent across the country to a secure facility without sufficient evidence of dangerousness. In that event, the secure placement would not be reasonably related to a legitimate government purpose. See Hernandez, 872 F.3d at 990 (citing Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491 ). And it would fly in the face of the requirements of the TVPRA and Flores decree that the child be in the least restrictive setting that is in his best interest. 8 U.S.C. § 1232(c)(2)(A) ....
Nor will these procedural protections impose any significant burden on the federal government. In fact, the process required by this ruling, which is similar to the process provided to noncitizens rearrested after release on bond, seems less cumbersome than attempting to subject these minors to a process that was designed for a different situation (namely, the situation where a minor is first picked up by the federal government after coming across the border and before a suitable caretaker has been identified). To the extent the procedural protections required by this ruling impose some additional burden, this burden is reasonable in light of the government's asserted interests in public safety and welfare, including the welfare of the minor. First, this safeguard will enhance, rather than hinder, the government's capacity to act in the child's best interest by ensuring that the child is placed in the least restrictive setting appropriate to his needs and the needs of the community. Second, adopting an additional procedural safeguard that will reduce the risk that a child is erroneously removed from a sponsor's custody and placed into a taxpayer-funded juvenile detention facility will in no way negatively impact the government's interest in public safety. If the government adduces sufficient credible evidence of gang-related conduct during the hearing, the child will be placed into appropriate ORR custody.
It's also worth recalling that this ruling applies only to situations where the government arrests a noncitizen minor without probable cause to believe he committed a crime. If there is probable cause to believe the minor actually committed a crime, local law enforcement may arrest him and charge him with the crime. Furthermore, federal immigration agents may arrest noncitizens for committing federal felonies. See 8 U.S.C. § 1357(a) .... But if federal agents choose to rearrest a minor based on something short of that-such as allegations of gang involvement or other changed circumstances that would warrant detention notwithstanding ORR's prior determination that the minor should be placed with a sponsor-any cost of providing a prompt hearing before an immigration judge is far outweighed by the benefit of protecting against erroneous deprivation of liberty.
See footnote 8, infra.
Reno v. Flores , 507 US 292, 113 S Ct 1439, 123 L Ed 2d 1 [1993]. The settlement agreement entered into in that matter following the Supreme Court's decision requires, among other things, that juveniles arrested on suspicion of being deportable and who are detained pending hearing pursuant to 8 CFR § 242.24, or who are not after hearing released to their parents, close relatives or legal guardians, must be placed in juvenile care facilities that meet or exceed state licensing requirements for the provision of services to dependent children and that they be kept "in the least restrictive setting that is in [their] best interest" ( Saravia v. Sessions , 280 F Supp 3d at 1199 [ND Cal 2017], affd sub nom. Saravia for A.H. v. Sessions , 905 F3d 1137 [9th Cir 2018] ). A copy of the Flores settlement agreement is annexed to the Coyle Affirmation as Exhibit 2.
( Saravia v. Sessions , 280 F Supp 3d 1168, 1198-200 [ND Cal 2017], affd sub nom. Saravia for A.H. v. Sessions , 905 F3d 1137 [9th Cir 2018] (internal record citations omitted)). Among other things, the Saravia court granted the preliminary injunction sought by the original petitioner-plaintiff, A.H., including requiring a prompt hearing before a neutral decisionmaker, on notice to the minor and sponsor, within seven days of the arrest in the jurisdiction in which the minor was arrested or lives, as well as his motion for preliminary certification of a class of similarly situated noncitizen minor children who came to the United States as unaccompanied minor children, who were previously detained in ORR custody and then released by ORR to a sponsor and who have been or will be rearrested by DHS on the basis of a removability warrant on allegations of gang affiliation ( id. , 280 FSupp3d at 1202 ). The Ninth Circuit affirmed the District Court's ruling ( 905 F3d 1137 (2018) ).
2. Michael E. Miller, "MS-13 is "taking over the school,' one teen warned before she was killed ," The Washington Post , March 9, 2018 , reporting brutal killings and other acts of extreme violence in the Brentwood community and quoting a Suffolk County Police Department Deputy inspector and the Suffolk County District Attorney and former Police Commissioner, as follows:
See Exhibit 3 to the Coyle Affirmation.
"We're providing the best, safest environment we can, working with the school district," said Suffolk County Police Deputy Inspector John M. Rowan.
* * *
"Timothy Sini, the Suffolk County district attorney and former police commissioner who's made a name for himself combating MS-13, said schools are in a "tough spot."
"They are educators and caretakers. They are not police," he said. "-ut they are with the kids all day long, so they are often in the best position to see who's having problems. Who's throwing gang signs. Who's writing things in their notebook that indicate gang activity."
Sini said Suffolk County law enforcement shares its criteria for labeling someone a gang member with schools but not the public.
"Some of it's obvious. Some of it's not," he said. "And this is when activists get nervous. If a kid is wearing white Adidas, does that mean he's a gang member? No, of course not. But the bottom line is that I could look at a pair of sneakers on a kid right now and tell you whether it's an indicator of gang membership. That's a fact."
Petitioner cites the Miller Article as indicating that "SCPD shares a written policy for identifying students who may be gang members with schools" (see Petitioner's Reply Memorandum, June 29, 2018, at 3, emphasis supplied); although the statement attributed to the then District Attorney and former SCPD Police Commissioner in the article does indicate that the SCPD's gang-member-labeling criteria are shared by the SCPD with "schools," it does not indicate which schools have been made privy to those criteria received such criteria nor the method or modality by which such information was or is communicated.
(Id. )
3. Jessica Formoso, "Lawyer: ICE nabs students over unfair MS-13 label ," August 2, 2017, Fox 5 News report , quoting the then Police Commissioner Sini as stating that a "[s]chool resource officer is a police officer - they work for the Suffolk County Police Department ... [a]ny intelligence that the school resource officer is developing about a particular student will be shared with the rest of the department ...."
Petitioner's Reply in Support of the Verified Petition, dated June 29, 2018, at 3 fn. 4.
See also Sarah Gonzalez, "MS-13 Gang Crackdown Relies on 'Questionable' Evidence From Schools ," WNYC News report, August 7, 2017, reporting and quoting statements by the then Suffolk County Police Commissioner, the Special Agent In Charge for Homeland Security Investigations in New York and a spokesman for the Brentwood School District, as follows:
The spokesman for one school district, Felix Adayeye with the Brentwood School District, said it does not share student suspension information with police because of a federal law called the Family Educational Rights and Privacy Act, which protects the privacy of student records. But he pointed out that school resource officers, who are employed by the police department, are inside schools.
"School resource officers do not have access to student information, but they do have access to students," Adeyeye said. "And they do observe quite a few things."
WNYC asked Suffolk County Police Commissioner Timothy Sini how school suspensions ended up in the hands of immigration officials.
"There are a number of ways," Sini said. "And kudos to school resource officers for being diligent."
Police said they believed there were about 400 confirmed MS-13 gang members in Suffolk County. But they cannot arrest people just for being in a gang - they have to be suspected of committing a crime.
As a result, Sini said, a police officer is assigned to closely watch individual suspected gang members and wait for them to commit any petty offense. If a suspected gang member is in the country without proper documents, police notify immigration officials.
Homeland Security launched "Operation Matador" this past May, after the murdered teens on Long Island were found hacked to death by machetes. The effort is focused on eradicating MS-13 in New York and Long Island, said Angel Melendez, the Special Agent in Charge for ICE's Homeland Security Investigations in New York. The name of the operation refers to a bull fight.
"The third stage is when "el Matador' comes in to finish," Melendez said. "And that's our commitment, to finish."
He said he was confident everyone they detained or arrested or identified as gang members were MS-13 - even if a judge wasn't convinced.
Id. (www.wnyc.org/story/ms13-gang-police-crackdown-schools/, cited in Swept Up in the Sweep: The impact of Gang Allegations on Immigrant New Yorkers , NYIC, CUNY School of Law & INRC, at p. 35, n. 281 (2018). See generally People ex rel. Wells v. DeMarco , 168 AD3d 31 [2d Dept 2018], discussed in fn. 15, infra .
4. Governor's Office, "Governor Cuomo Deploys New Gang Violence Prevention Unit to Top 10 High-Risk Suffolk County Schools to Crack Down on MS-13 Gang Violence and Recruitment," Press Release , September 13, 2017, announcing the creation of a "Gang Violence Prevention Unit" composed of state troopers working "closely with the Suffolk County Police Department to launch an "Educate the Educators' partnership [to] ... provide resources to ... teachers" to train them to identify the "warning signs of gang activity ...."
Petitioner's Reply in Support of the Verified Petition, dated June 29, 2018, at 4 fn. 5.
5. James Ramsay, "When an Immigrant Gets Arrested in Suffolk County, " March 2, 2017, WNYC News report , quoting the then Suffolk County Police Commissioner as stating that after ICE has been informed by Suffolk County Police of an arrestee of uncertain immigration status,
Petitioner's Reply in Support of the Verified Petition, dated June 29, 2018, at 3 fn. 2.
They'll come back with information rather quickly as to what their intentions are ...." Sometimes they'll send over an administrative warrant and ask us to hold that person.
In People ex rel. Wells v. DeMarco , 168 AD3d 31 [2d Dept 2018], the Appellate Division, Second Department, held that "New York statutory law does not authorize state and local law enforcement officers to effectuate arrests pursuant to ICE administrative detainers and arrest warrants," which are not issued by a judge or court and are not returnable in a court, nor do common law principles or federal statutes authorize state or local law enforcement officers to make such civil immigration arrests (id. , 168 AD3d at 42-47 ). Further, although pursuant to 8 USC § 1357 [g][10][B], part of the federal Immigration and Nationality Act, "any officer or employee of a State or political subdivision of a State" may "cooperate with the [Secretary of DHS] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States" even in the absence of a so-called "287[g]" formal agreement authorizing state and local officers to perform the functions of federal immigration officers under the direction of the Secretary of the Department of Homeland Security, this provision for voluntary cooperation cannot be read as "authoriz[ing] state and local law enforcement officers to undertake actions not allowed them by state law" ( People ex rel. Wells v. DeMarco , supra , 168 AD3d at 47-52 ). The court noted that in Lunn v. Commonwealth, 477 Mass 517, 78 N.E.3d 1143 :
the Supreme Judicial Court of Massachusetts examined the same issues presented in the case sub judice on similar facts. The court held that the informal cooperation provision - Section 1357(g)(10) - does not confer "authority on State and local officers to make arrests pursuant to civil immigration detainers, where none otherwise exists" under state law (citing Lunn v. Commonwealth , 477 Mass at 535, 78 N.E.3d at 1158 ). The court reasoned that "[i]n those limited instances where the [Immigration and Nationality Act] affirmatively grants authority to State and local officers to arrest, it does so in more explicit terms than those in § 1357(g)(10)" (477 Mass at 536, 78 NE3d at 1159 ).
People ex rel. Wells v. DeMarco , supra , 168 AD3d at 51. Thus, although "[w]here a formal agreement is in place, state and local officers become de facto immigration officers competent to act on their own initiative (see City of El Cenizo, Texas v. Texas, 890 F.3d at 179-180 )," which is "something that they cannot otherwise do (see Arizona v. United States, 567 U.S. at 410, 132 S.Ct. 2492 )," the "provision for informal cooperation does not allow for unilateral enforcement activity by local officers" (id. 168 AD3d at 51 ).
Other times, they'll make it clear that that person's not a priority, and we should follow the normal course.
6. US Immigration and Customs Enforcement, "Local partnerships key to transnational gang investigations - Operation Raging Bull ," November 16, 2017 , describing the ongoing success of "Operation Raging Bull," a strategic initiative undertaken by ICE-HSI with support from a number of federal and international law enforcement agencies against transnational criminal street gangs, targeting "dangerous gang members and others providing financial support to gang leadership in El Salvador," and the key roll played by local law enforcement, including the Suffolk County Police Department, in one of that operation's phases, "Operation Matador":
See Petitioner's Reply in Support of the Verified Petition, dated June 29, 2018, at 3, fn. 3.
In May of 2016, after several months of unprecedented violence, it was evident that there was a serious problem with the proliferation of MS-13 and other transnational criminal gang activity in Long Island, New York. Although criminal arrests of gang members were being made, homicides in the area continued. It was clear that law enforcement was not going to be able to arrest their way out of the problem. This issue required a proactive approach, instead of being reactive and waiting for the crime to be committed.
As a result, Operation Matador was launched on May 9, 2017. HSI, using its unique immigration authorities that are essential in combatting transnational criminal organizations, teamed up with other agencies within the U.S. Department of Homeland Security (DHS), creating a DHS unified front. This team worked closely with the Suffolk County Police Department, Nassau County Police Department and the New York City Police Department creating several components to this operation.
Within the first 30 days, law enforcement personnel arrested 39 MS-13 members. To date, approximately 342 arrests have been made to include 183 MS-13 members and associates.
HSI has committed great resources to this fight. There is an entire team that is solely responsible for identifying gang members. Once identified, arrest teams are deployed to locate and arrest these members. "We are taking them off the streets one by one, debriefing them and exploiting any information disclosed. We push all of it through our intelligence components and back into our investigations," said Molina.
Local law enforcement partners provide actionable intelligence which is critical in the targeting of gangs and their membership for enforcement actions. HSI special agents use intelligence gathered from surge operations to pursue complex criminal enterprise investigations and federal prosecutions.
"The Suffolk County Police Department is committed to eradicating MS-13 from our communities, and that would not be possible without close collaboration with our law enforcement partners in HSI," said Suffolk County Police Commissioner Timothy D. Sini. "Through strategic targeting of gang members, focusing on known hot-spot locations frequented by gang members and sharing intelligence with our fellow law enforcement agencies, we have continued our successful efforts to remove MS-13 members from our streets."
The ICE press release also noted that
The outreach in schools and community centers, along with educating the local communities on who they can report to if they're approached by MS-13, helps law enforcement personnel at all levels fight these criminal enterprises.
As reported in a Department of Homeland Security News release published on June 20, 2017, in written testimony to the House Committee on Homeland Security, Subcommittee on Counterterrorism and Intelligence, ICE HSI's Assistant Special Agent-in-Charge New York described the impetus for, and the inter-jurisdictional composition and multi-pronged strategy underlying, Operation Matador as follows:
.... In response to the recent spate of extreme violence perpetrated by MS-13, HSI New York initiated Operation Matador (OPMAT). This interagency DHS endeavor is designed to combat the proliferation of MS-13 recruitment, membership, and criminal activity.
The framework underlying OPMAT integrates various missions - enforcement, interdiction, intelligence, border security, and ultimately, public safety.
OPMAT is able to disrupt MS-13 through five key attributes:
1. Intelligence gathering;
2. Actionable lead development;
3. Targeted enforcement;
4. Criminal and Racketeer Influenced and Corrupt Organization (RICO) investigation development; and
5. Community outreach to at-risk youth in the affected cities.
As a result of this ongoing operation, to date, HSI has made 35 criminal and administrative arrests; 30 of them are known or suspected MS-13 members. It bears repeating that our law enforcement partners are crucial to OPMAT0's success, including the Nassau County Police Department, Suffolk County Police Department, and the New York Police Department (NYPD).....
"Written testimony of ICE Homeland Security Investigations Special Agent-in-Charge New York Angel Melendez for a House Committee on Homeland Security, Subcommittee on Counterterrorism and Intelligence field hearing titled Combating Gang Violence on Long Island: Shutting Down the MS-13 Pipeline ," DHS New Release, June 20, 2017.
A subsequent ICE News Release, "Joint Operation nets 24 transnational gang members, 475 total arrests under Operation Matador , dated March 29, 2018, likewise emphasized the joint local-federal structure of Operation Matador and other regional and national anti-gang initiatives and provided updated statistics for the operation:
Operation Matador, operating under the U.S. Department of Homeland Security (DHS) Transnational Organized Crime Initiative (DHS TOCI), was launched by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) New York along with ICE Enforcement and Removal Operations (ERO). This joint initiative is comprised of HSI special agents, ERO deportation officers and the ICE Office of Principal Legal Advisor (OPLA); U.S. Customs and Border Protection (CBP); U.S. Citizenship and Immigration Services (USCIS), and state and local law enforcement partners to include Suffolk County Police Department (SCPD), Nassau County Police Department (NCPD) and the Hempstead Police Department. The DHS TOCI is responsible for identifying, interdicting and investigating a wide variety of transnational border crime with a concentration on MS-13 gang activity.
* * *
Operation Matador results since May 2017
A total of 475 individuals were arrested during this ongoing enforcement effort, most of which were confirmed as gang members and affiliates. The most prominent gangs with arrests during this operation were MS-13 with 274 arrests and the 18th street gang with 15 arrests. This operation yielded 227 total criminal arrests and 248 administrative arrests.
* * *
Nassau County accounted for 210 arrests, the largest number of arrests during this operation to date, but DHS TOCI personnel conducted enforcement actions in multiple communities throughout Long Island, New York City and the Hudson Valley area.
Ninety-nine individuals arrested during this operation crossed the border as unaccompanied minors, all of which were confirmed as MS-13 gang members. 64 individuals arrested during this operation obtained Special Immigrant Juvenile Status (SIJ) after entering the country, all of which were confirmed as MS-13 gang members. Of the 99 UACs, 64 had SIJ status.
Of those arrested during this ongoing operation, 65 have been ordered released from ICE detention by an immigration judge. 4 have been re-arrested for local criminal charges.
It is important to note that not all evidence is presented before an immigration judge for a detention hearing. Some evidence is withheld in order to safeguard the integrity of law enforcement's investigative techniques and protect concurrent or future investigations.
Some of the individuals arrested during the enforcement action will be presented for federal prosecution for re-entry after deportation, a federal felony. Those not being criminally prosecuted will be processed for removal from the country. Individuals who have outstanding orders of deportation, or who returned to the United States illegally after being deported, are subject to immediate removal from the country on federal charges. The remaining arrestees are entered into immigration proceedings and will go before an immigration judge. To date, a total of 70 have received a final order of removal issued by an immigration judge and have been removed from the United States to their home countries.
* * *
Operation Matador in New York is conducted under the auspices of the national gang enforcement effort, Operation Community Shield.
About Operation Community Shield and MS-13
As part of Operation Community Shield HSI has effected nearly 5,000 criminal arrests and more than 3,200 civil immigration arrests of MS-13 leaders, members and associates, including criminal arrests for Racketeering Influence Corrupt Organizations (RICO), Violent Crime in Aid of Racketeering (VICAR) and gang conspiracy violations investigated by HSI New York, HSI Long Island, HSI Baltimore, HSI DC, HSI Charlotte, HSI Newark, HSI Boston, HSI San Francisco, HSI San Jose, HSI Los Angeles, HSI Detroit, HSI Nashville, HSI Houston, and our state and local law enforcement partners.
(Id. ) See also "Operation Matador nets 39 MS-13 arrests in last 30 days ," ICE News Release, June 14, 2017, which, among other things, describes the strategic place and historical context for Operation Matador and also provides a statistical precis for the success of ICE-HSI's twelve-year effort, in collaboration with federal, state and local law enforcement agencies, to address both gang violence and gang financial activity, as follows:
Operation Matador is the latest example of ICE's ongoing efforts, begun in 2005 under Operation Community Shield to target violent gang members and their associates, eradicate the violence they inflict upon our communities and stop the cash flow to transnational organized crime groups. Since 2005, HSI special agents working in conjunction with federal, state and local law enforcement agencies have made more than 47,000 gang-related arrests.
(Id. )
7. Flyer: "Community Forum - What you Should Know - What We Can Do ," South Country Central School District, noticing a forum, to be held in the Bellport Middle School auditorium on April 20, 2017, as follows: "Together with the Suffolk County Police Department, the South Country Central School District will be hosting a forum to address the recent news regarding gang activity and the tragic events involving two of our students."
See Exhibit 5 to the Coyle Affirmation.
8. South Country Central School District Code of Conduct , which at page 9, Section III(13) recites that "The wearing of any combination of clothing which law enforcement agencies currently consider gang related (these may change) is prohibited."
See Exhibit 6 to the Coyle Affirmation.
9. "Defendant's Response to Court's Request for Updated Proposed Redactions," filed in Saravia v. Sessions , 17-CV-03615-VC (ND Cal.) , Exhibit A, Information Memo Re: "Community Safety Initiative for Unaccompanied Alien Children Program ," Department of Health and Human Services, Administration for Children and Families ("ACF"), Office of Refugee Resettlement, dated August 16, 2017, among other things announcing a recent "policy change" by the Office of Refugee Resettlement ("ORR") "to allow notification of local authorities when UAC ['unaccompanied alien children'] from secure and staff secure facilities are released in their communities"; revealing that "ORR field staff is integrating with local anti-gang task forces," including the "interagency anti-gang task force on Long Island," in order to "strengthen partnerships with law enforcement and stay informed about MS-13 and other gang activity in their areas"; and advising that:
See Coyle Affirmation, Exhibit 7.
ORR is in direct contact with Suffolk County, NY, Police Commissioner Sini. In the case of Suffolk County, New York, the ORR Director has been in personal contact with Suffolk County Police Commissioner Timothy Sini on a number of occasions. ORR has assisted Suffolk County Police with their investigation of MS-13 members by providing information on who, among gang suspects identified by local police, have come through the ORR UAC Program. The Suffolk County commissioner in turn has agreed to inform ORR whether gang involvement began before, during, or after time in ORR care, if that information surfaces during local investigations. ORR is working to inform Suffolk County of releases of UAC into that community. Following the President's speech about MS-13 at the Suffolk County police academy on July 28 [2017], the Commissioner was quoted in a Fox News report describing response from ORR as "encouraging."
(Id. at [4] (emphasis in original).)
Discussion .
As pertinent to the current petition, these and other publicly available materials support the petitioner's contention, first, that the SCPD, in the performance of its duties and through, among other things, relationships with school and school district personnel, school programming in which it participates and the presence of its SROs in a number of high schools in Suffolk County, seeks out and collects information concerning gang activity and gang affiliation, in general, and MS-13 activity and affiliation, in particular, and, second, that through, among other things, the nexus of joint, collaborative, coordinated and other operations, initiatives and programs in which it participates along with various other local, state and federal law enforcement and immigration agencies, it shares information it has collected, including information concerning gang activity and gang affiliation, in general, and MS-13 activity and affiliation, in particular. Further, if the statements attributed to SCPD officials and other law enforcement and immigration personnel are accurate, one explicit purpose of such information sharing by SCPD is to afford federal immigration personnel grounds for apprehending, detaining and pursuing immigration-law proceedings that may lead to the pursuit of deportation proceedings against individuals, including minor children enrolled in Suffolk County schools, whom the SCPD has labeled as, or suspects are, members of, or are otherwise affiliated with, gangs, including MS-13, but whom the SCPD cannot itself arrest or detain , and such information sharing by the SCPD has led to the arrest and detention of minor children enrolled in Suffolk County schools and others by federal immigration personnel.
See, e.g., Suffolk County Charter § C13-6, "General Duties of Police Department," which provides as follows:
It shall be the duty of the Police Department to preserve the public peace, prevent crime, detect and arrest offenders, protect the rights of persons and property and enforce all laws and ordinances applicable to the County.
See also id. , § C13-1, which provides, in pertinent part, that
.... Within the County, the County Police Department and members thereof shall exercise all rights, privileges, duties and responsibilities of peace officers and law enforcement officers, as provided in the Penal Law, the Code of Criminal Procedure nd other laws of the state and County.
Because, perhaps among other reasons, SCPD lacks the requisite reasonable or probable cause to believe that those individuals have committed state or federal offenses or crimes (see generally People ex rel. Wells v. DeMarco, supra , 168 AD3d at 43 (New York law does not permit local law enforcement officers to effectuate arrests pursuant to non-judicial ICE administrative detainers and arrest warrants; immigration violations that subject the violator to deportation and not a fine or term of imprisonment do not provide a basis for warrantless arrests under New York law)).
It may well be that the SCPD's and the other agencies' assertions — whether self-generated or as reported by others — overstate both the extent and the efficacy of their joint and separate efforts to, among other things, root out and deter gang-related criminal activity and to disrupt and discourage gang recruitment. At this juncture, however, apart from a number of not necessarily informative categorical denials, or denials "of knowledge or information sufficient to form a belief," pleaded in response to several broad and compound allegations of the petition , there is nothing currently in the record that runs counter to the inference that petitioner seeks to have the court draw from their submissions, that the SCPD is necessarily in possession of records responsive to petitioner's FOIL request that it has neither produced nor properly claimed are exempt from production to petitioner.
For example, Paragraph 18 and Paragraph 20 contain allegations of "the existence of a strong relationship and information-sharing" and a "clear collaboration," respectively, between the respondent police department and the South Country Central School District, but both paragraphs of the petition are clouded by other averments that render the police department's response to them ambiguous. The same is true of the police department's response to Paragraphs 21 and 22 of the petition, which refer, respectively, to the police department's "relationship with federal immigration authorities" and ORR's statement in the 2017 "information Memo" — i.e. , Exhibit 7 to the Coyle Affirmation, discussed in text, supra — concerning assistance ORR states it has provided to the SCPD "with their investigation of MS-13 members ...."
Particularly given the great deal of care and attention the police department maintains, publicly, it devotes to investigating and surveilling those students and other individuals whom its school resource officers, or others, have identified as suspected of gang-affiliation before it determines that those students meet its criteria for labelling as gang members and reports its determinations to the federal authorities with whom and with which it is coordinating, collaborating, partnering and/or sharing information — particularly with respect to those students it is unable itself to arrest for want of evidence of specific criminal acts on their part — it is virtually inconceivable that the SCPD would have no tangible record reflecting the flow of information it has developed or otherwise obtained concerning these young people, its assessment of that information and its sharing of that information with governmental entities and their agents and employees. Likewise, it is virtually inconceivable, particularly given its reported public statements, that the SCPD has not performed, and memorialized or otherwise maintained records of, statistical and other analyses of information reflecting its investigation, assessment, determination and reporting and/or prosecution of individuals alleged and/or determined by it to have gang affiliation. While police departments in certain circumstances, founded upon legitimate law enforcement needs, have been afforded latitude in neither admitting nor denying whether they have engaged in particular activities or collected specific forms of data (see Abdur-Rashid v. New York City Police Dept ., 31 NY3d 217 [2018] ; see generally Asian Am. Legal Defense and Educ. Fund v. New York City Police Dept. , 125 AD3d 531, 531-32 [1st Dept 2015] ), here the SCPD has been anything but circumspect about its efforts, even if it has kept certain details — e.g ., the criteria it uses before labeling a student as a gang member — out of the public eye even while sharing some of those details with outsiders, including teachers and other school officials. In any event, the materials submitted and cited by petitioner provide a more than ample factual basis for its contention that the SCPD has in its custody or under its control material that is responsive to the August 1, 2017 FOIL request .
It should be noted that at the time the NYCLU submitted its petition, it did so on the grounds that the respondents' failure to provide any documents responsive to the August 1, 2017 FOIL request after eight months constituted a constructive denial of the request. Accordingly, it tailored its legal brief to fit that theory. After the petition was filed, the parties took time to narrow the issues, resulting in the FAO issuing a determination with respect to the August 1, 2017 FOIL request. Thereafter, the respondent, somewhat surprisingly, opposed the petition on the grounds that its FAO's determination rendered the petition moot. As discussed infra , the good faith effort by the parties to narrow the issues in this proceeding does not render the petition moot. However, the petitioner's burden has, in some respects, changed. No longer does it need to show that the respondent constructively denied its FOIL request; rather, its burden is to " 'articulate a demonstrable factual basis to support [the] contention that the requested documents existed and were within the [entity's] control' " ( Matter of Oddone v. Suffolk County Police Dept ., 96 AD3d 758, 761 [2d Dept 2011], quoting Matter of Gould v. New York City Police Dept , 89 NY2d 267 [1996] ). The petitioner has, for the most part, adjusted its legal briefing accordingly.
Notwithstanding the petitioner's more than sufficient factual showing, the SCPD argues that any inference that additional records may exist is overcome by the SCPD Freedom of Information Officer's certification that a diligent search was conducted and that no further responsive records exist, and that in any event, the FOIL request does not reasonably describe the records petitioner is seeking and even if it did, the information requested is neither searchable nor retrievable from the SCPD database. Thus, in addition to continuing broadly to maintain that it has no responsive records beyond the single document it has provided, the police department also contends that paragraphs 1, 5, 7, and 10 of the FOIL request fail reasonably to describe the records sought — because each uses the phrase "documents sufficient to identify," which the police department claims is unclear and requires the reviewer to "use their subjective interpretation and opinion to guess what may or may not be responsive" (see Affirmation in Opposition, ¶¶33-34) — and that although none of the materials requested in those paragraphs of the FOIL request or in paragraphs 2, 4, and 9 exist, if such records did exist, they would be exempt from disclosure pursuant to Public Officers Law §§ 87 (2)(e)(i-iv), 87 (2)(f) and 87 (2)(b) because of the hypothetical likelihood that such materials would, inter alia , reveal criminal investigative techniques (see Affirmation in Opposition, ¶45), interfere with law enforcement investigations or judicial proceedings (id., ¶49), identify confidential sources (id., ¶52), endanger life and safety (id., ¶53), and constitute an unwarranted invasion of personal privacy (id., ¶54).
Plainly, the police department does not wish to reveal to the petitioner the full details of how it goes about combating criminal gangs and gang activity or what the full effects of its anti-gang strategy and tactics have been, even as it seeks to assure the public that it is doing everything possible to thwart criminal gang activity and is achieving great success in doing so. Just as plainly, however, although the Freedom of Information Law is not intended, nor is it to be administered, to frustrate or inhibit the formulation and implementation of effective law enforcement policies and practices, it is not intended to grant a law enforcement agency "carte blanche" to shield everything it does from public scrutiny (see Fink v. Lefkowitz , 47 NY2d 567, 571 [1979].)
In Fink , the seminal case on the balance that must be struck between the public's right to governmental transparency, on the one hand, and law enforcement's frequent need to cloak aspects of its work in order successfully to perform its duty to detect and deter criminal activity and to protect the public, the issue was whether withheld portions of an internal "operations manual" compiled by a special prosecutor appointed by the governor to investigate "rampant corruption" in the nursing home industry, which addressed confidential methods for investigating nursing home fraud, were required to be disclosed pursuant to the Freedom of Information Law. The trial court ordered production of the manual, holding that it constituted "instructions to staff that affect members of the public" (former Public Officer Law § 88(1)(e)) and was not "part of investigatory files compiled for law enforcement purposes" exempt from disclosure pursuant to former Public Officer Law § 88(7)(d). On appeal by the Special Prosecutor, after he had voluntarily produced the first three of the manual's five chapters and a portion of the fourth chapter and the Legislature had reenacted the Freedom of information Law, the Appellate Division held that all but four and one-half pages of the withheld portions of the manual were exempt from disclosure. Both sides appealed to the Court of Appeals, which affirmed so much of the Appellate Division order as the petitioner had appealed and modified the portion of the order that Special Counsel had appealed to allow him to withhold a number - but not all - of the pages of the manual that the Appellate Division had held he was required to produce. In so doing, the Court of Appeals noted, first, the necessity for weighing the role of the governmental information that is sought against the "purpose and operation" of the Freedom of Information Law, and, second, the burden that must be carried by the governmental agency in order to claim exemption from disclosure:
Crucial to the determination of this case is an appreciation of the function of the documents petitioner seeks in the context of the purpose and operation of the Freedom of Information Law. That act, of course, proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government. Thus, the statute affords the public the means to attain information concerning the day-to-day operations of State government. By permitting access to official information long shielded from public view, the act permits the electorate to have sufficient information in order to make intelligent, informed choices with respect to both the direction and scope of governmental activities (see Public Officers Law, § 84 ). Moreover, judicious use of the provisions of the law can be a remarkably effective device in exposing waste, negligence and abuses on the part of government; in short, "to hold the governors accountable to the governed" ( NLRB v. Robbins Tire & Rubber Co., 437 US 214, 242 ).
But while the Legislature established a general policy of disclosure by enacting the Freedom of Information Law, it nevertheless recognized a legitimate need on the part of government to keep some matters confidential. To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered ( Public Officers Law, § 87, subd 2 ). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the court for in camera inspection, to exempt its records from disclosure (see Church of Scientology of NY v. State of New York, 46 NY2d 906, 908 ). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld.
Fink v. Lefkowitz , supra , 47 NY2d at 571 (emphasis supplied). Fink v. Lefkowitz continues to provide the standard an agency must meet in order to withhold its records from FOIL disclosure (see, e.g. , Madeiros v. New York State Educ. Dept. , 30 NY3d 67, 74 [2017], quoting Matter of West Harlem Bus. Group v. Empire State Dev. Corp. , 13 NY3d 882, 885 [2009], quoting Matter of Fink , 47 NY2d at 571 ); New York Times Co. v. Dist. Attorney of Kings County , 179 AD3d 115, 121 [2d Dept 2019] ; Grabell v. New York City Police Dept. , 139 AD3d 477 [1st Dept 2016] ).
The First Department's decision in Grabell v. New York City Police Dept. , supra , is particularly instructive with respect to the distinction the courts of this state have drawn between the strategic, logistical and operational information that law enforcement agencies may legitimately protect from disclosure under Public Officers Law § 87(2) and, conversely, those documents and things that the public have a right to access. In Grabell , the petitioner, a journalist, sought documents relating to the New York City Police Department's "Z-backscatter" vans, the mobile x-rays units used by the department as part of its counterterrorism operations to scan vehicles and buildings for explosives, drugs and "other materials," exposing both occupants and bystanders to some amount of ionizing radiation. The department denied the entirety of petitioner's FOIL request under Public Officers Law § 87(2)(e)(iv), on the ground "that such law enforcement records, if disclosed, would reveal criminal investigative techniques or procedures," and under § 87(2)(g), on the ground that some of the information sought also constituted exempt intra-agency data and information "which is deliberative and pre-decisional in nature," and the petitioner's administrative appeal was denied (see Grabell v. New York City Police Dept. , 47 Misc 3d 203, 206-07 [Sup Ct 2014], rev'd, 139 AD3d 477 [1st Dept 2016] ). The petitioner then commenced an Article 78 proceeding against the police department in Supreme Court challenging the wholesale denial of his request, which the Supreme Court granted in large part, directing that the department produce, with certain redactions four categories of materials:
(a) reports of past deployments of the vans that are not related to any ongoing investigation; (b) policies, procedures and training materials regarding the vans; (c) records sufficient to disclose the total number and aggregate cost of vans purchased by or for NYPD; and (d) tests or reports regarding the radiation dose or other health and safety effects of the vans
(139 AD3d at 483). The police department appealed, and the Appellate Division reversed in part, holding that the Supreme Court had erred in directing disclosure of the first three categories of records, as the police department had, through its submissions, and "in light of the ongoing threat of terrorism," satisfied its burden, laid down by the Court of Appeals in Gould, supra, to justify withholding those records from disclosure under both the law enforcement - Public Officers Law § 87 [2][e][iv] — and public safety - Public Officers Law § 87 [2][f] — exemptions:
NYPD has articulated a "particularized and specific justification for not disclosing" these records (Matter of Gould v. New York City Police Dept., 89 NY2d 267, 275, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996] [internal quotation marks omitted] ). NYPD submitted an affidavit of Richard Daddario, NYPD's Deputy Commissioner of Counterterrorism, who averred that the vans are a highly specialized and nonroutine technology used to combat terrorism in New York City. Daddario explained that in light of the ongoing threat of terrorism, releasing information describing the strategies, operational tactics, uses and numbers of the vans would undermine their deterrent effect, hamper NYPD's counterterrorism operations, and increase the likelihood of another terrorist attack.
Daddario further explained that disclosing information about the locations in which NYPD has used the vans in the past, as well as the times and frequency of their deployment, would allow terrorists to infer the inverse, namely, locations and times when NYPD does not use them, and would permit a terrorist to conform his or her conduct accordingly. Daddario's affidavit provides a sufficient basis for finding the records exempt under both the law enforcement and public safety exemptions (see Matter of Asian Am. Legal Defense, 125 AD3d at 532, 5 N.Y.S.3d 13 [disclosure of NYPD Intelligence Division documents containing sensitive information about the unit's methods and operations would identify nonroutine investigative techniques, could potentially be exploited by terrorists, and would create a possibility of endangerment to life] ).
( 139 AD3d at 478-79.) As to the fourth category of withheld records, however, those relating to "tests or reports regarding the radiation dose or other health and safety effects of the vans," the Appellate Division held that the police department had not made the showing necessary to justify withholding those records and that the Supreme Court had, therefore, properly directed that they be disclosed to the petitioner:
The court, however, properly directed NYPD to disclose tests or reports regarding the radiation dose or other health and safety effects of the vans. Daddario's affidavit does not explain how general health and safety information about the van's radiation could be exploited by terrorists. Nor does Daddario sufficiently articulate how revealing the dosage of the radiation used by the vans would allow terrorists to tailor their conduct so as to thwart detection. Further, as petitioner points out, information about the safety risks of backscatter technology is already widely available to the public. Thus, release of NYPD's records containing health information about the vans would neither reveal nonroutine investigatory techniques or procedures, nor endanger public safety.
( Grabell v. New York City Police Dept. , 139 AD3d 477, 478-79 [1st Dept 2016].)
The FIO's Certification .
As noted above, SCPD argues that any inference that additional records may exist is overcome by the SCPD Freedom of Information Officer's certification that a diligent search was conducted and that no further responsive records exist. However, although mere speculation that documents may exist is insufficient to support a challenge to the failure to release information in the face of an agency's contrary certification ( Corbin v. Ward , 160 AD2d 596 [1st Dept 1990] ), a hearing may be ordered where, as here, the party requesting the records "can 'articulate' " - and here, it has done so quite eloquently and fulsomely — " 'a demonstrable factual basis to support [the] contention that the requested documents existed and were within the [agency's] control' " ( Matter of Oddone v. Suffolk County Police Dept ., 96 AD3d 758, 761 [2d Dept 2011], quoting Matter of Gould v. New York City Police Dept , supra ; see also Abdur-Rashid v. New York City Police Dept ., 31 NY3d 217, 222 [2018] ; Oddone v. Suffolk County Dist. Attorney's Off ., 2013 WL 2256301, at 3 [Sup Ct, Suffolk County 2013] ). Thus, courts have found a factual basis sufficient to support the petitioner's entitlement to a hearing on the issue of whether an agency has improperly failed to release requested information, despite a certification on behalf of the agency that no further responsive materials exist, in a wide variety of situations, as for example where the district attorney's office had interviewed 70 witnesses during the course of a criminal investigation but provided notes of only eighteen interviews, the investigating officer used a six-inch binder of documents to refresh his recollection when he testified at trial but only 88 pages ultimately were provided to petitioner and those did not even include the full complement of materials that had been produced to the petitioner in his earlier criminal trial pursuant to People v. Rosario , 9 NY2d 286 [1961], cert. denied , 368 US 866 [1961] ( Matter of Oddone v. Suffolk County Police Dept ., supra ; see also Oddone v. Suffolk County Dist. Attorney's Off ., supra ) (contention that no notes were taken during investigation and preparation for trial in which 31 witnesses testified for the prosecution "simply not credible"); where an inmate-petitioner proffered a paper trail with respect to the preservation of 911 tapes that the police department-respondent denied existed and offered newspaper articles questioning the conduct of two officers assigned to the case ( Wagstaffe v. David , 26 Misc 3d 1229(A) [Sup Ct, New York County 2010] ); and where the police-department respondent released video footage of various police officers at a protest but denied petitioner's FOIL request for logs, after-action reports, photographs or other information of or identifying those officers ( Freewheels Bicycle Defense Group, Inc. v. New York City Police Dept ., 2008 WL 9721654, at 2 [Sup Ct, New York County 2008] ) ("In addition, it is reasonable to expect that, at the very least, overtime records and radio tapes relating to the event were generated. Their purported absence also requires an explanation.").
Here, in view of the substantial documentary record tendered by the petitioner and recounted at length above, it is virtually inconceivable, if not entirely improbable, that the SCPD did not have and has not maintained any records, beyond a single, nine-page set of procedural provisions, that constitute, document, reflect or otherwise bear on its many efforts to address gangs and gang-related activity in Suffolk County and in Suffolk County schools and that are responsive to the requests in paragraphs 1, 2, 4, 5, 7, 9, and 10 of petitioner's August 1, 2017 FOIL request.
Respondent's claimed exemptions .
The SCPD claims disclosure exemptions with respect to the requests set forth in paragraphs 3, 6, and 8 of petitioner's August 1, 2017 FOIL request, as follows:
Paragraph 3. Respondent contends that the requested documents are "likely to reveal criminal investigative techniques, procedures, or information" that "assist law enforcement in identifying dynamics of gang organization, recognition of gang members, and techniques to confirm gang association" and that disclosure would "interfere with ongoing law enforcement investigations and judicial proceedings" and showcase "the size and capabilities of law enforcement programs," thereby creating "a substantial likelihood that individuals could evade detection," frustrating "the goals of effective law enforcement" and risking the safety of witnesses and informants, and that such documents are therefore exempt from disclosure pursuant to Public Officer's Law § 87 (2)(e)(i), § 87(2)(e)(iii), § 87 (2)(e)(iv), § 87 (2)(f) and § 87 (2)(b) .
Paragraph 6. Respondent incorporates by reference its contentions with respect to request paragraph 3 and adds that the documents requested in paragraph 6 would "likely reveal information which would allow individuals to avoid or defeat detection" and that such documents are therefore exempt from disclosure pursuant to Public Officer's Law § 87 (2)(e)(i), § 87 (2)(e)(iii), § 87 (2)(e)(iv), § 87(2)(f) and § 87 (2)(b).
Paragraph 8. Respondent incorporates by reference its contentions with respect to request paragraphs 3 and 6 for the assertion that such documents are therefore exempt from disclosure pursuant to Public Officer's Law § 87 (2)(e)(i), § 87 (2)(e)(iii), § 87 (2)(e)(iv), § 87 (2)(f) and § 87 (2)(b) .
Respondent's last contention is that disclosure "would constitute an unwarranted invasion of personal privacy" and is therefore exempt from disclosure pursuant to Public Officers Law § 87 (2)(b). This boilerplate contention seems wholly unrelated to the types of documents requested in paragraph 3.
The respondent has, with respect to request paragraph 8, articulated that revealing its "policies, procedures, training materials, and protocols" could make gang members "aware of the methods used to identify gangs" and "evade detection." However, the respondent has gone no further and fails explicitly to connect generic kinds of documents that would be responsive to request paragraphs 3 and 6 to generic risks of their disclosure.
Petitioner argues that the respondent has failed to articulate a "particularized and specific justification" for not disclosing the requested documents and that, as such, respondent's claims of exemption actually constitute a "blanket invocation of statutory exemptions[.]" Petitioner further contends that even if some of the records responsive to the requests are exempt, they should not be withheld in their entirety, should be redacted to the extent appropriate, should be examined in camera if necessary and the non-exempt portions should be disclosed, and that the claimed exemptions should be articulated in a privilege log or "Vaughn" index.
An agency may deny access to records or portions thereof that "if disclosed would constitute an unwarranted invasion of privacy" ( Public Officer's Law § 87(2)(b), and if compiled for law enforcement purposes, if disclosed would "interfere with law enforcement investigations or judicial proceedings" ( Public Officer's Law § 87(2)(e)(i) ), "identify a confidential source or disclose confidential information relating to a criminal investigation" ( Public Officer's Law § 87(2)(e)(iii) ), "reveal criminal investigative techniques or procedures, except routine techniques and procedures" ( Public Officer's Law § 87(2)(e)(iv) ), and "if disclosed could endanger the life or safety of any person" Public Officer's Law § 87(2)(f) ).
In interpreting these provisions, courts have recognized that "the purpose of [FOIL] is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution" ( Madeiros v. New York State Educ. Dept ., 30 NY3d 67, 77 [2017], quoting Fink v. Lefkowitz , 47 NY2d 567, 572 [1979] ). "FOIL was not designed to assist wrongdoers in evading detection or, put another way, "to furnish the safecracker with the combination to the safe' " ( Abdur-Rashid v. New York City Police Dept ., 31 NY3d 217, 226 [2018], rearg denied , 31 NY3d 1125 [2018], quoting Fink v. Lefkowitz , supra ). Accordingly, records otherwise responsive to a FOIL request are exempt from disclosure where they "could potentially endanger the safety of witnesses, invade personal rights, and expose confidential information of non-routine police procedures" (Matter of Gould v. New York City Police Dept ., 89 NY2d 267, 278 [1996] ).
"In the event that access to any record is denied ... the agency involved shall have the burden of proving that such record falls within the provisions of" Public Officers Law § 87(2) ( Public Officers Law § 89(4)(b) ). As courts have further clarified, the agency must "articulate a factual basis for the exemption under FOIL" by "identify[ing] the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents" ( Lesher v. Hynes , 19 NY3d 57, 67 [2012] ; see ( Abdur-Rashid v. New York City Police Dept ., supra ). The agency's burden may be met, for example, by offering affidavits explaining "in extensive detail how disclosing the information sought ... would imperil its ongoing counterterrorism" ( Abdur-Rashid v. New York City Police Dept ., supra at 235), identifying "categories of records" sought to be withheld, such as correspondence with other law enforcement agencies consisting of crime summaries and witness information, and articulating that disclosure would interfere with ongoing law enforcement proceedings ( Lesher v. Hynes , supra [emphasis supplied] ), identifying types of records sought to be withheld, such as reports compiled for law enforcement purposes, and articulating that disclosure would reveal non-routine "source[s] and methods" and "the size and capabilities of the NYPD undercover program" (Asian Am. Legal Defense and Educ. Fund v. New York City Police Dept ., 41 Misc 3d 471, 476 [Sup Ct 2013], aff'd , 125 AD3d 531 [1st Dept 2015] ). "Indicative, but not necessarily dispositive, of whether investigative techniques are nonroutine is whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel" ( Fink v. Lefkowitz , supra at 572; see Asian Am. Legal Defense and Educ. Fund v. New York City Police Dept ., supra ). "The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprised of the nonroutine procedures by which an agency obtains its information" ( Fink v. Lefkowitz , supra ).
Clearly, there is a powerful and salutary interest that both the public and the police department share in deterring criminal gang activity and in investigating, prosecuting and punishing it when it occurs. On the other hand, "documents contain[ing] primarily statistical information concerning [ ] law enforcement history ... [to the extent] not relevant to any current or future investigation"( Council of Regulated Adult Liq. Licensees v. City of New York Police Dept ., 300 AD2d 17, 18 [1st Dept 2002] ), and records that "articulate the agency's understanding of the rules and regulations it is empowered to enforce" and" merely clarify procedural or substantive law" ( Fink v. Lefkowitz , supra ) would generally not be exempt from disclosure.
At least at this juncture, the respondent's submissions insufficiently articulate the factual bases it is seeking to invoke in support of the exemptions it is claiming under FOIL, in the first instance by failing clearly to identify in generic terms, or by category, the kinds of documents it seeks to withhold as well as the generic forms or classes of risks it believes would be posed by their disclosure. In some similar situations, the courts have directed in camera review of the materials at issue. "Although there is no language in the statute authorizing the procedure, New York courts have interpreted FOIL to permit in camera review of sensitive or confidential materials when the court deems such a procedure appropriate or necessary in a particular case to test the legitimacy of a claim of confidentiality or to oversee the redaction process in cases where portions of a record are subject to disclosure" ( Abdur-Rashid v. New York City Police Dept ., supra ). "Even heavily redacted documents will contain strands of information that can still be used to decipher sources, methods, and capabilities" ( Asian Am. Legal Defense and Educ. Fund v. New York City Police Dept ., supra [internal quotations omitted]; see generally Gedan v. Town of Mamaroneck , 170 AD3d 833, 834-35 [2d Dept 2019] ) ("on the record before this Court, it cannot be determined whether the GAR model material falls wholly or only partially within that exemption .... Accordingly, we remit the matter to the Supreme Court, Westchester County, to permit an in camera inspection to determine what, if any, information within the GAR model falls outside the FOIL exemption")). Whether such a review is necessary or appropriate here, however, requires further development of the record.
Accordingly, and for all of the foregoing reasons, the court finds that the petitioner has demonstrated sufficient factual bases to warrant a hearing as to whether there exist, or existed, within the SCP D's control materials responsive to request paragraphs 1, 2, 4, 5, 7, 9, and 10 of petitioner's August 1, 2017 FOIL request, which the SCPD has neither provided to petitioner nor proffered a justification for not providing, and further, directs that such hearing will extend, as well, to hearing receivable evidence with respect to the exemptions from the disclosure sought by paragraphs 3, 6 and 8 of petitioner's August 1, 2017 FOIL request. Petitioner's prayer for the award of attorneys' fees pursuant to Public Officers Law § 89(4) is reserved pending such hearing.
A conference in accordance with the foregoing will be held before the undersigned on June 1, 2020 at 10:00 a.m., such conference to be conducted virtually.
The foregoing constitutes the decision and order of the Court.