Opinion
Index No. 907208-21
05-15-2023
In the Matter of the Application of Attorney Kenneth Puig and the Law Office of Kenneth Puig's Freedom of Information Law Request, Petitioners, For Judgment Pursuant to Article 78 of the Civil Practice Laws and Rules, v. New York State Police and Kevin P. Bruen, in his official capacity as New York State Police Superintendent, Respondents.
For Petitioners: The Law Office of Kenneth Puig By: Kenneth Puig, Esq. For Respondents: Letitia James, New York State Attorney General By: Mark J. Dolan, Esq., Assistant Attorney General
For Petitioners:
The Law Office of Kenneth Puig
By: Kenneth Puig, Esq.
For Respondents:
Letitia James, New York State Attorney General
By: Mark J. Dolan, Esq., Assistant Attorney General
Catherine E. Leahy-Scott, Acting Justice of Supreme Court
Petitioners Attorney Kenneth Puig and the Law Office of Kenneth Puig's Freedom of Information Law Request (collectively referred to as "Petitioner") commenced this proceeding pursuant to CPLR article 78 against Respondents New York State Police (NYSP) and Kevin P. Bruen, Superintendent of NYSP (collectively referred to as "Respondent") seeking (1) to compel Respondent to disclose "police disciplinary/misconduct records of active New York State Police Troopers assigned to Orange, Dutchess, and Ulster counties" pursuant to the Freedom of Information Law (FOIL) (see Public Officers Law art 6); (2) to compel Respondent to be "trained or retrained to comply with their obligations under [FOIL]"; and (3) an award of attorneys' fees and litigation costs (Verified Petition ¶ 1).
FACTS/PROCEDURAL HISTORY
The facts of this proceeding are set forth in this Court's previous Decision, Order and Judgment dated November 10, 2022, and entered November 17, 2022. In that Decision, Order and Judgment, this Court, as relevant here, denied the petition and dismissed the proceeding on the ground Petitioner's modified FOIL request for "police disciplinary/misconduct records of active New York State Police Troopers assigned to Orange, Dutchess, and Ulster counties" did not reasonably describe the records sought to enable Respondent to identify and locate the documents as is required under Public Officers Law § 89 (3) (a). Specifically, this Court determined that the description of the documents "by county" was insufficient for purposes of locating and identifying the documents based upon Respondent's representations that disciplinary records are maintained within the file of each individual employee; Respondent does not file, maintain or index employee records by what county within which they work; and Respondent is unable to search for disciplinary records based on the county a member is assigned to work because the personnel database utilized to query the work location of members does not include the ability to search by county. As this Court denied the release of the requested documents, the request for attorneys' fees and costs was also denied.
By Decision and Order dated and entered on January 19, 2023, the Appellate Division, Third Department modified the judgment "by reversing so much thereof as denied [P]etitioner's modified requests for records, counsel fees and costs" and remitted the matter to this Court for further proceedings (Matter of Puig v New York State Police, 212 A.D.3d 1025, 1027-1028 [3d Dept 2023]). The Third Department observed "that the three counties at issue in [P]etitioner's modified request are served by only two of [R]espondent's 11 troops-Troop F and Troop K" and troopers are assigned to work within a specific troop (id. at 1027). The Appellate Division held that "given that the records sought by [P]etitioner are confined to two identifiable troops,... the description in [P]etitioner's modified request was reasonable and sufficiently detailed to enable [R]espondent to locate and identify the requested records" (id.). However, the Third Department concluded that the issue of whether the request was unduly burdensome was a separate issue that was not fully developed on the record on appeal. Consequently, this matter was remitted to this Court "for a determination as to whether it would be unduly burdensome for [R]espondent to comply with [P]etitioner's modified request" and for reconsideration of whether Petitioner was entitled to counsel fees and costs under Public Officers Law § 89 (4) (c) (ii) (id.).
By Order dated February 21, 2023, this Court permitted the parties to submit supplemental briefs on the issues remitted. By electronic mail dated April 27, 2023, this Court permitted Respondent to submit a reply and, by letter dated May 2, 2023, this Court permitted Petitioner to submit a sur reply.
ARGUMENTS
In support of its contention that Petitioner's modified request is unduly burdensome, Respondent principally relies upon affirmations of Shannon M. Brundige, Esq., Assistant Counsel for NYSP. Ms. Brundige initially represents that there are 958 total employees assigned to Troops F and K as of March 1, 2023 (see Affirmation of Shannon M. Brundige, Esq. dated March 22, 2023 [Brundige II Aff] ¶ 4). Of those 958 employees, there are 868 troopers of all ranks (see id.).
Ms. Brundige indicates that since Petitioner's FOIL request and appeal were processed by NYSP, its personnel database system was updated to permit searches to identify stations or barracks physically located within a specific county (see id. ¶ 5). Ms. Brundige explains that "[e]ach NYSP Troop is made up of two to four zones and then numerous stations within those zones, with each specific station given a unique identifier consisting of the Troop, Zone, Station (TZS) code" (id.). Ms. Brundige compiled a list of all TZS with a physical address in one of the three counties subject to Petitioner's modified request and discovered Orange, Dutchess, and Ulster counties collectively contain 96 TZS with a total of 663 employees (id. ¶ 7). Of the 663 employees, 579 are sworn troopers of all ranks (see id.). Ms. Brundige qualifies these statistics by noting that they do not account for employees who may work in a different county at any given time or those personnel who may be transferred at any given time (see id. ¶¶ 7-8).
Ms. Brundige explains that disciplinary records are indexed by individual employee and, thus, a search for the records subject to Petitioner's modified FOIL request "would require an individualized and comprehensive review of personnel related files for all employees assigned to the locations identified by the [P]etitioner's modified request" (id. ¶ 12). Ms. Brundige estimates "[t]he scope of records pertaining to any specific matter can vary from as little as 20 pages up to hundreds of pages" (id. ¶ 10).
Ms. Brundige further maintains that once responsive documents are located, each record must be reviewed and evaluated to determine if it contains confidential, privileged, or exempt information subject to redactions (see id. ¶¶ 15-16). Ms. Brundige argues that given the "highly confidential nature of the files that would have to be reviewed for [P]etitioner's modified FOIL request,... it is not feasible to hire a third party vendor to perform the task of gathering and reviewing records responsive to the petitioner's request" (id. ¶ 31).
Respondent contends that it would be unduly burdensome to comply with Petitioner's modified FOIL request because it would have to "to manually search for, locate, and copy thousands of paper reports for the more than 500 troopers who work out of the three designated counties, spanning decades" (Resp's Memo of Law on Remittal, at 9; see Brundige Aff II ¶¶ 14, 19). Respondent also argues that Petitioner is not entitled to counsel fees and costs because even if Petitioner substantially prevails, NYSP had a reasonable basis for denying the records.
Petitioner contends that his modified request is not unduly burdensome. First, Petitioner clarifies that he is only seeking the disciplinary records of sworn troopers assigned to Orange, Dutchess, and Ulster Counties. Thus, Petitioner argues that his request is narrower than a request for records of the 4,500 sworn troopers statewide and the 868 sworn troopers assigned to Troops F and K (see Affirmation of Kenneth Puig, Esq., dated April 12, 2023 [Puig Aff] ¶¶ 5-7, 13). Petitioner also argues that Respondent's contention that a search for the requested disciplinary records would entail review of thousands of pages is speculative because there is no evidence that a search for said records was ever conducted (see id. ¶¶ 17-18). Lastly, Petitioner surmises that, based upon Ms. Brundige's affirmations, NYSP's disciplinary records are maintained electronically (see id. ¶¶ 23-25; Affirmation of Shannon M. Brundige, Esq., dated September 17, 2021 [Brundige Aff I] ¶ 8; see also Brundige Aff II ¶ 13 ["(m)ost records pertaining to recent personnel investigations commenced after the repeal of Civil Rights Law § 50-a are now being created or maintained electronically"]). Consequently, Petitioner reasons that because Respondent can identify troopers working in a particular troop within a particular county, they should be able to insert the trooper's name into its electronic database to ascertain whether there are any disciplinary records for the trooper. Indeed, Petitioner requests this Court order limited discovery and evidentiary hearing to determine what steps Respondent would be required to take to comply with Petitioner's modified FOIL request (see Puig Aff ¶¶ 49-53).
Petitioner also argues he is entitled to counsel fees and costs because Respondent had no reasonable basis to deny his FOIL request.
DISCUSSION
Request for Discovery and Hearing
Petitioner argues that limited discovery and a hearing is necessary to discern how Respondent intends on complying with Petitioner's modified FOIL request (see Puig Aff ¶¶ 49-53). Petitioner suggests that Respondent must produce "an affidavit from the NYSP Records Access Officer or any NYSP employee stating that they have made a diligent attempt to locate the subject records and based on such an attempt or attempts that they have concluded that it would be unduly burdensome to continue to search for the records" (Puig Aff ¶ 21). Petitioner contends Ms. Brundige's affirmations lack probative value because they are conclusory, attorney affirmations that do not demonstrate how Respondent intends on producing the requested records.
"Discovery in a CPLR article 78 proceeding is governed by CPLR 408, pursuant to which trial courts have broad discretion in directing the disclosure of material and necessary information" (Matter of Cotazino v New York State Adirondack Park Agency, 214 A.D.3d 1137, 1140 [3d Dept 2023] [internal quotation marks and citations omitted]). In deciding whether to order discovery in an article 78 proceeding, the court "must balance the needs of the party seeking discovery against such opposing interest as expediency and confidentiality" (Matter of Bramble v New York City Dept. of Educ., 125 A.D.3d 856, 857 [2d Dept 2015]). Moreover, a court may order a hearing pursuant to CPLR 7804 (h) '"where it is impossible to determine the matter upon the submitted papers alone, to decide whether the administrative activity was sustainable" (Cotazino, 214 A.D.3d at 1141, quoting Matter of Ames v Johnston, 169 A.D.2d 84, 85 [3d Dept 1991]).
The Court finds that neither discovery nor a hearing is necessary for the resolution of this proceeding. As an initial matter, the Court disagrees with Petitioner's characterization of Ms. Brundige's affirmations as conclusory. Although Ms. Brundige is an attorney, she affirms that her affirmations are "based on [her] own personal knowledge; familiarity with NYSP's record keeping practices; involvement in processing... [P]etitioner's [FOIL] request; consultation with NYSP personnel about [P]etitioner's FOIL request and the existence of any responsive records; and review of [this proceeding]" (Brundige Aff I ¶ 2; Brundige Aff II ¶ 2; Reply Affirmation of Shannon M. Brundige, Esq., dated April 27, 2023 [Brundige Aff III] ¶ 3). Although Petitioner correctly notes that an affirmation of an attorney lacks probative value as a general matter (see Puig Aff ¶ 21 [collecting cases]), here, Ms. Brundige claims to have personal knowledge of NYSP's record keeping practices as it relates to Petitioner's modified FOIL request (see Matter of Jewish Press, Inc. v New York State Police, 207 A.D.3d 971, 973 [3d Dept 2022] [holding that an affirmation of NYSP's assistant counsel who had personal knowledge of NYSP's record-keeping practices and the petitioner's request was sufficient to support NYSP's contention regarding the ability to locate a specific record]; see also Beberman v Halbrecht, 105 A.D.2d 876, 877 [3d Dept 1984]; Russo Realty Corp. v Licari, 98 A.D.2d 745, 745 [2d Dept 1983]). Moreover, Ms. Brundige's affirmations detail how NYSP disciplinary records are indexed and stored and what measures Respondent must take to respond to Petitioner's modified FOIL request. In short, the record is sufficiently developed for this Court to determine whether compliance with Petitioner's modified FOIL request would be unduly burdensome absent the need of a hearing or limited discovery. Consequently, Petitioner's request for same is denied.
Conflict of Interest
Petitioner asserts that the Office of the New York State Attorney General has a conflict of interest in representing NYSP in this matter because the New York State Attorney General has an investigatory/prosecutorial role in complaints brought against NYSP for FOIL violations (see Puig Aff ¶ 44).
As Respondent aptly notes (Resp's Reply Memo of Law on Remittal, at 8), the New York State Attorney General's Office "is obligated to prosecute, defendant and control all legal business of state agencies" (Matter of Morgan v New York State Dept. of Envtl. Conservation, 9 A.D.3d 586, 587 [3d Dept 2004]; see Executive Law § 63 [1]). Courts have recognized that although the Attorney General has the authority to commence civil actions to enforce state laws or protect the public interest (see Executive Law § 63 [8], [15]), said authority does not create a conflict of interest in matters involving a private citizen's enforcement of private rights (see Matter of Cliff v Vacco, 267 A.D.2d 731, 732 [3d Dept 1999] ["(i)n light of (the Attorney General's) clear statutory obligation to represent the State employees named as respondents in the two prior proceedings, and in the absence of any basis to conclude that (the Attorney General) possessed a corresponding duty to represent (the) petitioner in those proceedings, we discern no circumstances giving rise to an inherent conflict of interest"], lv denied 94 N.Y.2d 762 [2000]; see also Waldman v State of New York, 140 A.D.3d 1448, 1449 [3d Dept 2016]). The Court notes that NYSP does not raise any issue with the New York State Attorney General's Office representing it in this proceeding (see Matter of Grzyb v Constantine, 182 A.D.2d 942, 943 [3d Dept 1992], lv denied 80 N.Y.2d 755 [1992]). Consequently, Petitioner has not demonstrated an inherent conflict of interest requiring the disqualification of the Attorney General's Office as counsel for Respondent.
Unduly Burdensome
"To promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public" (Matter of Abdur-Rashid v New York City Police Dept., 31 N.Y.3d 217, 224 [2018], rearg denied 31 N.Y.3d 1125 [2018]; see Public Officers Law § 84). Public Officers Law § 89 (3) (a) provides:
"An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article"
(see also Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218 A.D.2d 494, 499 [3d Dept 1996] [an agency cannot "evade the broad disclosure provisions of FOIL by merely asserting that compliance could potentially require the review of hundreds of records"]). However, "agency staff are not required to engage in herculean or unreasonable efforts in locating records to accommodate a person seeking records" (Comm on Open Govt FOIL-AO-18949 [2012]). "The statutes and case law thus require an agency relying on the volume of a request to, first, establish that the request is unduly burdensome and, second, establish that an outside service cannot be utilized to comply with the request" (Matter of Time Warner Cable News NY 1 v New York City Police Dept., 53 Misc.3d 657, 670 [Sup Ct, NY County 2016]).
"While advisory opinions from the Committee on Open Government are not binding authority, they may be considered to be persuasive based on the strength of their reasoning and analysis" (Matter of Pflaum v Grattan, 116 A.D.3d 1103, 1105 n * [3d Dept 2014] [internal quotation marks and citation omitted]).
Courts addressing the disclosure of police disciplinary records following the repeal of Civil Rights Law § 50-a have expressed an unwillingness to require police agencies to hire third-party vendors to comply with requests for production of said records (see The Legal Aid Soc. v Records Access Officer, New York City Police Dept., 2023 NY Slip Op 31283[U], *4 [Sup Ct, NY County 2023] ["(t)his Court will not interfere in (the) Respondent's internal findings that the task at hand can only be performed in house"]; Matter of New York Civ. Liberties Union v New York State Police, Sup Ct, Albany County, Apr. 14, 2023, Savona, J., Index No. 905020-22, *13 ["the option of hiring a third party to conduct such an exercise is wholly inappropriate in this situation"]). Nevertheless, courts have clarified that a police agency's contention that "their own data bases and software programs being slow, outdated, and overly complicated is not a valid excuse for claiming over burden" (e.g. The Legal Aid Soc., 2023 NY Slip Op 31283[U], *4).
In The Legal Aid Society, the Court held that the petitioner's modified FOIL request for disciplinary records for substantiated allegations of New York City Police officer misconduct from January 1, 2015 to March 1, 2023 and for unsubstantiated allegations of misconduct from January 1, 2018 to March 1, 2023 was not unduly burdensome. In so holding, the Court stated it:
"cannot overstate the importance of [the] Respondent recognizing the new reality created by the legislature determination to eliminate Civil [R]ights Law 50-a. There is a clear and vital public interest in such information being made available within the confines of necessary redactions per related legal requirements. Although sympathetic to the reality that providing such information places a tremendous burden on a Respondent, who already has numerous responsibilities, at the same time such a burden does not rise to the level wherein providing the records may be ignored. It is not overly burdensome." (The Legal Aid Soc., 2023 NY Slip Op 31283[U], * 4).
Additionally, this Court is guided by Matter of New York Civ. Liberties Union v New York State Police, Sup Ct, Albany County, Apr. 14, 2023, Savona, J., Index No. 905020-22, where the Court ordered the disclosure of significantly more disciplinary records than are at issue here. In that case, the petitioner sought, as relevant here, disciplinary records of all employees from January 1, 2000 through September 15, 2020, which covered approximately 12,000 NYSP employees. Notably, NYSP relied upon the same representations from Ms. Brundige that it presents in this proceeding. Specifically, Ms. Brundige affirmed, as she does in this matter, that the request was unduly burdensome because records are indexed by individual employees, are stored at various locations, and include confidential information which would require review and redaction by specific personnel with appropriate security clearance making the hiring of a third-party vendor inappropriate (see Matter of New York Civ. Liberties Union, Index No. 905020-22, at 10-12).
Although the court concluded that the request was unduly burdensome and that the hiring of a third-party vendor to produce the disciplinary records was "wholly inappropriate" (id. at 13), it nevertheless directed NYSP to disclose disciplinary records "on a rolling basis" (id. at 14). Specifically, the court observed that NYSP had provided the petitioner with a spreadsheet of employees subject to complaints during the requested 20-year period. The court determined that it was these employees whose files NYSP must search to comply with the petitioner's request for disciplinary records. Despite acknowledging that not all complaints lead to disciplinary records and not all disciplinary records are a prompted by a complaint, the court reasoned that this spreadsheet which was "hundreds and hundreds of pages long" effectively narrowed the 12,000 employees covered by the request for disciplinary records (see id.). In short, the court held that NYSP was required to produce the disciplinary records of those individuals identified in the 514-page spreadsheet with the understanding that the petitioner would not receive disciplinary records from all incidents which gave rise to a complaint as those terms were independent of one another.
Moreover, on December 21, 2021, after this Court issued its initial Decision, Order and Judgment dismissing this petition, Respondent produced a spreadsheet to the Federal Public Defender's Office of the Northern District of New York in response to a request for "a copy of any spreadsheet records such as Excel, or other database that the New York State Police keeps of police discipline over the past 10 years, to include officer's name, rank, misconduct charges, discipline imposed and all other categories your (NYSP) agency maintains."
The Court concludes that the production of these spreadsheets by Respondent in response to other, similar FOIL requests indicates that it has identified or, at the very least, has the ability to identify active NYSP troopers subject to discipline. Respondent's submission upon remittal indicates that it can identify those troopers working in Orange, Dutchess, and Ulster counties by utilizing the TZS code for stations within these respective counties (see Brundige Aff III ¶ 18 ["the updated personnel database now permits NYSP to search for and identify employees working in a particular county and/or Troop"]). The Court finds that it would not be unduly burdensome for Respondent to search the spreadsheets and other relevant records and databases to determine which, if any, of the 579 active sworn officers working in the 94 TZS in Orange, Dutchess, and Ulster counties were subject to discipline. This would potentially further narrow the ultimate number of individual files NYSP would be required to search to respond to Petitioner's modified request.
Moreover, the fact that Respondent may need to search the files of each individual officer identified as having a disciplinary history to respond to Petitioner's modified request does not render said request unduly burdensome (see NYP Holdings, Inc. v New York City Police Dept., 77 Misc.3d 1211 [A], 2022 NY Slip Op 51191[U], *3 [Sup Ct, NY County 2022] ["(s)imply asserting that because records for 144 officers are sought it must be an undue burden is not a compelling argument. It could be that some officers have no (or very few) records to disclose"]). Additionally, Respondent's representation that the scope of the records may "vary from as little as 20 pages up to hundreds of pages" (Brundige Aff II ¶ 10) does indeed appear speculative absent any proof that a search consistent with Petitioner's modified request was conducted, and disciplinary records have been located.
The Court is mindful that production of the requested records subject to Petitioner's modified request "will not be a same-day task" (NYP Holdings, Inc., 2022 NY Slip Op 51191[U],*4). Thus, consistent with decisions of other courts regarding this issue, this Court finds that disclosure should be on a rolling basis (see The Legal Aid Soc., 2023 NY Slip Op 31283[U], *4; Matter of New York Civ. Liberties Union, Index No. 905020-22, *14; NYP Holdings, Inc., 2022 NY Slip Op 51191[U], *4). Thus, upon review and appropriate redaction in accordance with statute, Respondent shall provide Petitioner all documents responsive to his modified request commencing 30 days from the filing of this order and judgment and continuing until all such documents have been provided. The parties are encouraged to confer and agree to a reasonable production schedule not inconsistent with this decision, order and judgment.
Attorneys' Fees
A court may award attorneys' fees and litigation costs to a petitioner who "substantially prevailed" in a proceeding seeking disclosure under FOIL and upon a finding "that the agency had no reasonable basis for denying access" (see Public Officers Law § 89 [4] [c] [ii]).
Courts have routinely denied requests for attorneys' fees and costs in article 78 proceedings seeking police disciplinary records under FOIL following the repeal of Civil Rights Law § 50-a (see e.g. Matter of New York Civ. Liberties Union v City of Syracuse, 210 A.D.3d 1401, 1406-1407 [4th Dept 2022]; Matter of New York Civ. Liberties Union v New York State Police, Index No. 905020-22, 14-15; Matter of New York Civ. Liberties Union v New York City Dept. of Corr., 2022 NY Slip Op 31113[U], *4 [Sup Ct, NY County 2022], affd 213 A.D.3d 530 [1st Dept 2023]; NYP Holdings, Inc., 2022 NY Slip Op 51191[U], *4). As the Fourth Department recognized in City of Syracuse, because these proceedings involve "a novel interpretation of legislation that both repealed a statute and enacted new provisions to a longstanding statutory scheme, it cannot be said that [the] respondents 'had no reasonable basis for denying access' to the records at issue (211 A.D.3d at 1406, quoting Public Officers Law § 89 [4] [c]; accord Matter of New York Civ. Liberties Union v New York City Dept. of Corr., 213 A.D.3d 530, 531 [1st Dept 2023]). This Court is cognizant of the litany of cases surrounding the disclosure of police disciplinary records following the repeal of Civil Rights Law § 50-a and believes that Respondent denied Petitioner's modified FOIL request in good faith and in the absence of any controlling authority on the novel issue. Accordingly, the request for attorneys' fees and costs are denied.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that the petition is GRANTED only insofar as directing Respondent to produce police disciplinary/misconduct records of active New York State Police Troopers assigned to Orange, Dutchess, and Ulster counties commencing 30 days from the filing of this order and judgment and continuing until all such documents have been provided subject to appropriate statutory redactions; and it is further
ORDERED and ADJUDGED that the petition is otherwise DENIED.
The Court considered the following papers in rendering this Decision and Judgment:
(1) Notice of Verified Petition, dated August 13, 2021.
(2) Verified Petition, dated August 13, 2021, with attachments.
(3) Answer, dated September 22, 2021.
(4) Respondent's Memorandum of Law in Opposition, dated September 22, 2021.
(5) Affirmation of Shannon M. Brundige, Esq., dated September 17, 2021, with attachments.
(6) Verified Reply Affirmation of Kenneth Puig, dated October 6, 2021.
(7) Order, dated February 21, 2023.
(8) Respondent's Memorandum of Law on Remittal, dated March 23, 2023.
(9) Affirmation of Shannon M. Brundige, Esq., dated March 22, 2023.
(10) Affirmation of Kenneth Puig, Esq., dated April 12, 2023, with attachments.
(11) Respondent's Reply Memorandum of Law on Remittal, dated April 27, 2023.
(12) Reply Affirmation of Shannon M. Brundige, Esq., dated April 27, 2023.
(13) Letter from Kenneth Puig, Esq., to the Court, dated May 2, 2023, with attachment.
(14) Court's Letter, dated May 2, 2023.
(15) Sur Reply Affirmation of Kenneth Puig, Esq., dated May 11, 2023, with attachments.