Opinion
May 6, 1999
Appeal from the Supreme Court, New York County (Franklin Weissberg, J.).
Officer DeLuca, while off duty, was shot in the head at close range in a bar in Brooklyn. Before the shooting, DeLuca had been drinking and gambling with other off-duty police officers. DeLuca survived the shooting, but allegedly suffered substantial brain injuries. Petitioners, who are his parents and the law firm representing them, made a FOIL request to respondents for copies of all documents relating to the incident. Respondents provided a number of documents to petitioners but withheld other documents and redacted material from yet other documents. The Supreme Court directed respondents to provide those documents and information which respondents had refused to disclose in response to the FOIL request. The court directed that the documents be furnished within 20 days after the officer submitted to an interview by the NYPD or the respondents received medical records sufficient to establish that Officer DeLuca cannot be interviewed.
Disclosure of the withheld information might interfere with the respondents' open investigation of the incident given the possibility that Officer DeLuca will be interrogated at some point in the future. The information is exempt from disclosure under Public Officers Law § 87 (2) (e) (i). Thus, as pointed out by respondents, if Officer DeLuca is interviewed, he may provide information, that may provide a basis for further investigation along lines of inquiry not heretofore pursued. Thus, the conditional order of the Supreme Court incorrectly assumed any future interview of DeLuca would not give rise to such new information and would be the end of the investigation, thereby terminating any threat of "interference" with a law enforcement investigation. Likewise, the record is devoid of any competent medical evidence as to the condition of Officer DeLuca. Accordingly, we reverse the judgment and dismiss the petition, without prejudice to renew, after the NYPD either interviews Officer DeLuca or receives sufficient medical evidence to establish his incapacity to be interviewed. Upon the occurrence of either of these events, respondent NYPD must either close the investigation or submit sworn statements that Officer DeLuca's interview furnished new information which is being actively followed up.
Concur — Nardelli, J. P., Wallach, Lerner and Rubin, JJ.