Opinion
Index No. 152896/2023 Motion Seq. No. 001
08-28-2023
THE LEGAL AID SOCIETY, Plaintiff, v. NEW YORK POLICE DEPARTMENT, SERGEANT JORDAN MAZUR Defendant.
Unpublished Opinion
MOTION DATE 03/28/2023
INTERIM DECISION + ORDER ON MOTION AND CROSSMOTION AND ORDER OF REFERENCE TO HEAR AND REPORT
KATHLEEN WATERMAN-MARSHALL, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,22, 23, 24, 25, 26, 27, 28, 29, 30, 31 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER).
Petitioner The Legal Aid Society ("Legal Aid") seeks an order, pursuant to Article 78, finding, inter alia, that respondents New York Police Department ("NYPD") and Sergeant Jordan Mazur ("Mazur") constructively denied its Freedom of Information Law ("FOIL") request, by failing to disclose the requested documents, and directing respondents to produce the requested documents. Respondents oppose and cross-move to dismiss the petition, contending that the petition is moot following their production of responsive documents.
Brief Background
Legal Aid seeks records from the NYPD's investigation of an early 1980's murder. It appears that Legal Aid represented the defendant convicted of this murder, post-conviction.
Legal Aid filed the subject FOIL request on July 9, 2021. NYPD did not substantively respond to the request and failed to meet several of its self-imposed production deadlines. By letter dated November 14, 2022, addressed to Mazur, the NYPD FOIL Record Access Appeals Officer, Legal Aid appealed the NYPD's "constructive denial" of its FOIL request. Mazur denied the appeal as premature. In March 2023, Legal Aid filed the instant Article 78 special proceeding. Thereafter, NYPD produced some responsive records and certified that it had completed a diligent search of its records.
Discussion and Conclusion
"FOIL imposes a broad duty on government to make its records available to the public," and "access to government records does not depend on the purpose for which the records are sought" (Gould v. New York City Police Dept., 89 N.Y.2d 267 [1996]). Consequently, records are presumed available to inspection and replication except for those narrow exceptions contemplated by Public Officers Law § 87(2) (id:, Matter of Fink v. Lefkowitz, 47 N.Y.2d 567 [1979]). A person denied access to a government record following a FOIL request and agency appeal is entitled to Article 78 review of such determination by the Supreme Court (Public Officers Law § 89[4][b]).
Where the government has denied a FOIL request it bears the burden of proving that the record falls into an enumerated exemption to disclosure; it must articulate its "particularized and specific justification" for doing so (Matter of Fink v. Lefkowitz, 47 N.Y.2d at 571; see also Gould v. New York City Police Dept., 89 N.Y.2d at 275; Public Officers Law § 89[4][b]). The Court is constrained to deny disclosure of records which fall within a FOIL exemption under the Public Officers Law (Abdur-Rashid v. New York City Police Department, 31 N.Y.3d 217, 225 [2018]). However, the Court retains the inherent authority to conduct an in-camera review of records the government intends to withhold (id)
Considering the procedural posture of this Article 78, namely respondents' cross-motion to dismiss, which contains a reservation of the right to answer, pursuant to CPLR § 7804, the Court first addresses the merits of respondents' cross-motion. Contrary to respondents' contention, the Petition is not rendered moot merely by respondents' production of certain responsive documents. Legal Aid's claim for attorney's fees survives, irrespective of the NYPD's belated document production (id:, Coleman v. New York City Police Dept., 282 A.D.2d 390, 392 [1st Dept 2001] ["Given the incomplete, belated response to the FOIL request ... the petition cannot be viewed as moot"]). Indeed, where a respondent has not timely responded to a petitioner's FOIL request, attorney fees remain properly awarded to a petitioner who has substantially prevailed in obtaining records, "whether by court order or by voluntary disclosure" (LTTR Home Care, LLC v. City of Mount Vernon, 179 A.D.3d 798 [2d Dept 2020]; see also Felici v. Nassau County Office of Consumer Affairs, 217 A.D.3d 765 [2d Dept 2023]).
As discussed, infra, respondents provided documents in response to petitioner's FOIL request following the filing of this Article 78 proceeding. However, it is beyond cavil that respondents' years long delay in providing the requested records exceeds the statutory response requirements (NY Pub. Off. §89 [3] et seq.). Given that documents were produced following the filing of this Article 78 proceeding, and for the reasons set forth below, the Court need not address Legal Aid's timeliness argument on this application, at this time.
Moreover, Legal Aid has established its entitlement to a hearing as to the diligence of the NYPD's search of its records. Where a petitioner can "articulate a demonstrable factual basis to support the contention that the requested documents existed and were within the entity's control" but such requested documents were not produced, the petitioner is entitled to a hearing on the issue of the search's diligence, notwithstanding the respondent's contention that a diligent search was performed (Matter of Oddone v. Suffolk County Police Dept., 96 A.D.3d 758 [2d Dept 2012] [internal citations omitted]).
Here, respondents produced responsive documents regarding the Crime Scene Unit (referred to as "CSU" by the parties), under CSU runs #2997, #2997A, and #2997B; however, respondents did not produce CSU documents for run #2985, as requested. As a practical matter, it is likely that NYPD kept records of CSU documents for run #2985, as it has produced similar records under different run numbers (id:, see also Gomez v. Fischer, 74 A.D.3d 1399 [3d Dept 2010]). Similarly, NYPD provided documents that reference a CSU run #4070, however, the records of CSU run #4070 were not disclosed. Where a responsive document is not provided but is referenced in other provided documents, the diligence of the search is placed in issue (Gomez at 1401, supra).
Respondents also did not provide any microfiche-based records, despite Legal Aid's uncontroverted assertion that it is NYPD's practice to store older records in its Criminal Records Review Unit in microfiche form and that NYPD has provided such microfiche-based records in other FOIL actions brought by Legal Aid. Finally, NYPD failed to provide responsive documents which are known to exist including, but not limited to, wiretapped conversations of Ms. Jameal and statements Ms. Jameal provided to police. The existence of these documents cannot genuinely be disputed, as the wiretaps and statements requested are referred to in, and/or comprise, the prosecuting District Attorney's file. Of note, it does not appear, based upon the record before this Court, that these documents were withheld on the basis that disclosure was prohibited as a sealed criminal record or posed a threat to the safety of any person (see e.g. Pub. Off. Law §§ 87[2][b], 89[2][b]; CPL § 160.50; see NYSCEF Doc. No. 16 at ¶ 24, respondents' affirmation, reciting material withheld pursuant to statutory exemption). It is inescapable, under these circumstances, that Legal Aid is entitled to a hearing before a JHO on the limited issue of whether NYPD performed a diligent search of its records (id; Matter of Oddone, supra), and dismissal of the Petition on the basis that a diligent search has been conducted is, at best, premature.
Having determined that the instant proceeding is not rendered academic by respondents' production of responsive documents and having further determined that a hearing as to the diligence of respondents' search is required, the Court need not address, at this time, those portions of respondents' cross-motion which assert statutory exemptions to disclosure under the Public Officers Law §§ 87(2)(b) and 89(2)(b) as well as CPL § 160.50(1)(c).
Decision is reserved on the Petition, following the submission of the Special Referee/JHO's report. To the extent that Legal Aid seeks attorney's fees on this application, decision is likewise reserved until completion of proceedings before the Special Referee/JHO. However, as noted above, disclosure of FOIL material more than a year after a FOIL request, and in response to the FOIL request or filing an Article 78 proceeding, militates in favor of finding that Legal Aid has substantially prevailed within the meaning of the statute and, consequently, is entitled to attorney's fees.
Accordingly, it is
ORDERED that the cross-motion is denied without prejudice to renew as to statutory exemption claims, including exemptions related to criminal histories and autopsy records, following a hearing on the diligence of respondents' FOIL search and respondents filing of their answer; and it is further
ORDERED that, pursuant to CPLR § 7804, respondents shall file an answer to the petition within five days of this decision and order, such time to answer shall not be extended by the parties, any stipulation purporting to adjourn respondents' time to answer shall be a nullity absent order of the Court otherwise; and it is further
ORDERED that the diligence hearing shall occur before a Special Referee/JHO, as below; and it is further
ORDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be designated to hear and report to this court on the following individual issues of fact, which are hereby submitted to the JHO/Special Referee for such purpose:
1. Whether respondents performed a diligent search, as required by FOIL, Public Officers Law § 84 et. seq., in response to petitioner's July 9, 2021 Foil request;
2. Any issue raised in respondents' answer, upon stipulation by the parties; and it is further
ORDERED that the powers of the JHO/Special Referee shall not be limited beyond the limitations set forth in the CPLR; and it is further
ORDERED that this matter is hereby referred to the Special Referee Clerk for placement at the earliest possible date upon the calendar of the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are posted on the website of this court), shall assign this matter at the initial appearance to an available JHO/Special Referee to hear and report as specified above; and it is further
ORDERED that counsel shall immediately consult one another and counsel for petitioner shall, within 15 days from the date of this Order, submit to the Special Referee Clerk an Information Sheet (accessible at the "References" link on the court's website) containing all the information called for therein and that, as soon as practical thereafter, the Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter upon the calendar of the Special Referees Part; and it is further
ORDERED that on the initial appearance in the Special Referees Part the parties shall appear for a pre-hearing conference before the assigned JHO/Special Referee and the date for the hearing shall be fixed at that conference; the parties need not appear at the conference with all witnesses and evidence, unless directed otherwise the Special Referee Part, Special Referee, or JHO; and it is further
ORDERED that, except as otherwise directed by the assigned JHO/Special Referee for good cause shown, the trial of the issue(s) specified above shall proceed from day to day until completion and counsel must arrange their schedules and those of their witnesses accordingly; and it is further
ORDERED that counsel shall file memoranda or other documents directed to the assigned JHO/Special Referee in accordance with the Uniform Rules of the Judicial Hearing Officers and the Special Referees (available at the "References" link on the court's website) by filing same with the New York State Courts Electronic Filing System (see Rule 2 of the Uniform Rules); and it is further
ORDERED that any motion to confirm or disaffirm the Report of the JHO/Special Referee shall be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform Rules for the Trial Courts; and it is further
ORDERED that, unless otherwise directed by this court in any Order that may be issued together with this Order of Reference to Hear and Report, the issues presented in any motion identified in the first paragraph hereof shall be held in abeyance pending submission of the Report of the JHO/Special Referee and the determination of this court thereon.
ORDERED that decision on the petition is reserved following submission of the Special Referee/JHO's report; and it is further
ORDERED that any renewed motion to dismiss shall be filed contemporaneously with the motion to confirm or disaffirm the Special Referee/JHO's report.