In the Matter of Perry Bellamy, Appellant,v.New York City Police Department, Respondent.BriefN.Y.January 11, 2013PERRY BELLAMY DIN: 87A6653 ElMIRA CORRECTIONAL FACILITY P.O. BOX 500 ElMIRA, NY 14902 SEPTEMBER 11~ ,2012 ~oi"l'"'-""'·'··"·~~~Wi~~~""""l":~''''''' f ~ CLERK OF THE COURT COURT OF APPEALS HALL 20 EAGLE STREET ALBANY, NY 12207-1095 Re: Perry Bellamy v. The New York City Police Department New York County Index No. 401463/98 Appellate Division Appeal Nos. 3997, 3997A Submission Pursuant to 22 NYCRR § 500.11 Dear Honorable Court: The instant submission is submitted~in accordance with this Court's determination and August 23, 2012 letter~ from Clerk Andrew W. Klein, .. directing Petitioner-Appellant, Perry Bellamy (hereinafter "Appellant"), to file ''written comments and arguments in letter form in support of appellant's position on the merits." BACKGROUND This appeal stems from Appellant's July, 1997 Freedom of Information Law ("FOIL") request to Respondent (or "NYPD") seeking access to records that might tend to support his actual innocence of the crime for which he stands convicted, and for which he is currently 27 years into a 15 years to life s§ntence. The FOIL request was inspired by the sworn affidavit of Assistant United States Attorney Leslie R. Caldwell, detailing substantial "evidence includ[ing] statements, sworn testimony and guilty pleas by others admitting involvement in the crime for which Bellamy was convicted, while exculpating Bellamy." May 1, 1997 Affidavit of Leslie R. Caldwell, _________ _ This_Article 78 peti tion, stemming from denial of access to certain records, has a rather extensive procedural history. After having been initially dismissed and reinstated by the Appellate Division (Bellamy v. NYCPD, 272 A.D .. 2d 120 [1st Dept. 2000]), the New York County Supreme Court twice ordered that Appellant be afforded access with limited redactions: once in resolution df the petition by order dated June 18, 2009; and, again in determining Respondent's motion to reargue by order dated November 13, 2009. In initially determining Respondent's subsequent appeal, the Appellate Division held that, because '~espondent failed to meet its burden of establishin~ that the documents at issue fall within an exemption from disclosure, the Supreme Court's determination was "unanimously affirmed." See, January 4, 2011 Decision and Order of Appellate Division, ________ _ However, by motion papers dated February 9, 2011, Respondent sought leave to reargue or leave to appeal to this Court. Due -1- / / .' to circumstances within Corrections, beyond Appellant's control, Appellant was unable to answer Respondent's motion papers. The Appellate Division granted the motion to reargue, "recalled and vacated" its previous order which had affirmed the lower court's judgment granting Appellant access, and "substituted" a "new decision and order ... therefor." See, 09/08/11 Order M-624 of the Appellate Division, First Dept., • The new order, simultaneously entered on 09/08/11, diametrically contrasted the order first entered, ~'urianimously reversed" the judgment of the lower court, and denied the Article 78 petition. Appellant moved to reargue and, in the alternative, for leave to appeal to this Court. Opposition and reply papers were submitted by the respective parties. And, by order dated July 17, 2012, the Appellate Division denied reargument, but granted Appellant permission to appeal to this Court, further certifying the question: ''Was the order of this Court, which reversed the otdeLoLthe Supreme Court, properly made?" Appellant himself filed and served notice of entry upon Respondent, and timely filed a Preliminary Appeal Statement, pursuant to 22,NYCRR § 500.9. The Court, by letter dated August 23, 2012, informed Appellant and Respondent that review in the instant format would be conducted. THE APPELLATE DIVISION IMPROPERLY VACATED AND REPlACED ITS INITIAL ORDER In essentially reversing its initial order, the Appellate Division relied exclusively upon two of the FOIL's withholding provisions: Public Officers Law ("POL") §§ 87(2)(b), 89(2)(b), asserting that disclosure would result in an unwarranted invasion of personal privacy; and, POL § 87(2)(f), disclosure that would endanger,the life or safety of any person. This determination was erroneous for the reasons set forth below. A. POL § 89(6) and constitutional due process require,disclosure. Even if Respondents had met their bUrden of proof of entitlement to the relevant withholding provisions, Appellant was nonetheless entitled to access the withheld records. It has been Appellant's consistent position that the requested records contain exculpatory information. Because these materials contain information tending to exculpate Appellant of the crime for which he remains incarcerated, due process considerations required the records to be disclosed during the relevant criminal proceedings. See, Brady v. Maryland, 373 U.S. 83 (1963); U.S. Const., Amend. XIV; N.Y. Const., Art. 1 § 6. POL § 89(6) precludes utilization of FOIL's withholding provisions to circumvent Appellant's due process rights to access this exculpatory material. 'Nothing in this article shall be construed to limit or abridge any otherwise available right of access at law or in equity of any party to records." POL § 89(6). This unambiguous language plainly encompasses Appellant's "right of access" pursuant to Brady v. Maryland and due process protections. The Appellate Division's order reversing the lower court's decision fails to evidence any acknowledgment of this clear-cut right of Appellant to access the withheld records. Because these provisions preclude withholding in the ~nstant circumstances, the Appellate Division erroneously reversed the order -2- of the Supreme Court. Therefore, this Court should reverse the judgment of the Appellate Division, and reinstate the order of the Supreme Court requiring Respondent NYPD to disclose all of the withheld records with the names and substance of the statements of the interviewees intact. B. FOIL's legislative Declaration, combined with substantial public interests, additionally mandate disclosure. The FOIL begins with its "legislative Declaration," emphasizing that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible." POL § 84. "Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality." rd. The practical implications evidenced in this Legislative Declaration, Le., that prosecutorial and law enforcement agencies are required to "extend public accountability" in circumstances such as thes~where there is ample proof of a wrongful conviction, are axiomatic, and are as much a part of the statute as if they had been.expressly included. People ex rei. Huntingtonv. Crennan, 141 N.Y. 239 (1894). Not only is it entirely feasible for Respondent to "extend public accountability" in· this instance, but substantial public interests mitigate in favor of disclosure. "The statutory exemptions contained in the Public Officers Law [] strike a balance between the public's right to open government and the inherent risks carried b¥ disclosure of police files (see, e.g., Public Officers Law § 87[2][b], Le], [f])." Gould v. New York City Police Dept., 89 N.Y.2d 267, 278 (1996) (specifically citing the two withholding provisions involved here). Consideration of the public interests favoring disclosure "can be a remarkably effective device in exposing waste, negligence, and abuses on the part of the government; in short, 'to hold the governors accountable to the governed. "' Fink v. Lefkowitz, 47 N.Y.2d 567, 571 (1979), quoting National Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 u.s. 214, 242 (1978). . Because tax payer funds pay police and p~osecutorial personnel, the public has a vested interest in seeing that their hard-earned taxpayer dollars are not misused to fund frivolous, malicious, or otherwise unjust prosecutions or investigations. Additionally, the public has an interest in being informed whether any member(s) of its citizenry has/have been arrested, prosecuted, or convicted through use of false or perjurious evidence, or otherwise subjected to abuse of office or process so that some overzealous public official might advance his or her career. See, Capital Newspapers Div. of Hearst Corp. v. Burns, 109 A.D.2d 92, 94-95 (3d Dept. 1985), affirmed, 67 N.Y.2d 562, 565-566 (1986). Moreover, because District Attorneys are elected officials, voters have a right to know that such elected officials, and their subordinates, are properly discharging their designated duties, e.g., maintaining their duty of fair dealing to the accused. Cf., People v. Colon, 13 N.Y.3d 343, 349 (2009). The public further deserves assurances that no one should fall victim to wanton violations of their liberty interests (U.S. Const., Amend. V; N.Y. -3- Const., Art. 1 § 6), rights to due process and equal protection of the law (U.S. Const., Amend. XIV; N.Y. Const., Art. 1 §§ 6, 11; Brady v. Maryland, 373 U.S. 83), a fair trial, and the effective assistance of defense counsel (Le., free ofextrinisic interference via withholding of materials necessary to enable counsel to be effective) (U.S. Const., Amend., VI; N.Y. Const., Art. 1 §§ 2, 6). Even assuming that the duty imposed upon Respondent to extend public accountability by POL § 84 did not compel disclosure, these significant public interests in favor of disclosure should necessarily be found to greatly outweigh those reasons for withholding offered by Respondent. C. Respondent has failed to meet its burden of establishing entitlement to the claimed exemptions. Assuming, arguendo, that the aforementioned bases do not require that Appellant be afforded access to the records in question, Respondent has failed to meet the requisite '.'burden of proving" that the withheld records qualify for the asserted exemptions: "the agency involved shall have the burden of proving that such record falls within the Iwithholding] provisions" (POL § 89[4][b]), delineated in POL § 87(2), which are to be strictly construed. M. Farbman & Sons v. N.Y. City Health & Hospitals Corp., 62 N.Y.2d 75 (1984).-·- Respondent has offered no evidence in support of its claims of the applicability of POL § 87(2)(b) and (E), solely speculative assertions. And, notwithstanding Respondent's "burden of proving," plainly established by the unambiguous language of POL § 89(4)(b), the Appellate Divsion determined that a·withholding agency relying upon POL § 87(2)(f), because disclosure would allegedly endanger the life or safety of an some person(s), "need only demonstrate 'a possibility of endanger[ment]' in order to invoke this exemption" (Bellamy v. NYCPD, 87 A.D.3d 874 [1st Dept. 09/08/11], quoting Connolly v. N.Y. Guard, 175A.D.2d 372, 373 [3d Dept. 1996]). Significantly, there does not appear to be any Court of Appeals precedent tending to support this holding. The proposition that purely conclusory claims allegedly creating "'a possibility of endangerment "' may be found to satisfy Respondent's ''burden of proving" is not only counterintuitive, but flatly contrasts the Legislature's explicit imposition of the burden of proof upon all similarly situated withholding agencies. "Prove" is defined as follows: "To establish or make certain; to establish the truth of (a factor hypothesis) by satisfactory evidence." B. Garner, Black's Law Dictionary, at p.1345 (9th Ed. 2009). Thus, "more than" a ''wholly speculative proposition," i.e., a "possibility" that someone might be endangered, "is surely required to invoke the exception claimed by the respondents." Church of Scientology of N.Y. v. State, 61 A.D.2d 942, 943 (1st Dept. 1978), affirmed, 46 N.Y.2d906 (1979). -- Therefore, the Appellate Division's holding in this regard is contrary to better than three decades of its own precedent, as well as over thirty years of this Court's decisions:"'exemptions are to be narrowly construed, with the burden·resting on the a?ency to demonstrate that the requested material indeed qualifies for exemption (Matter of Rani v. State of New York De t. of Motor Vehicles, 79 N.Y.2d 106, 109 •.. ; see, Public Officers Law 894 b Gould v. NYCPD, 89 N.Y.2d 267, 275, also citing Fink v. Lefkowitz, 47 N.Y.2d at 571. -4- Moreover, in reversing the Supreme Court's order and denying the petition, the Appellate Division further held that "insofar as the documents mention individuals who did not provide information relied' upon during the investigation, that information is exempt from FOIL under the privacy exemption" (Bellamy v. NYCPD, 87 A.D.3d at 875, citing POL § 87[2][b]). This ruling essentially affords an automatic exemption for any infonnation regarding individuals who provided infonnation not utilized by the p)lice or prosecution. Beyond the fact that this holding entirely neglects discovery and due process provisio~s applicable to criminal proceedin&s, it fails to acknowledge FOIL's implicit provision for redaction (POL § 87[2J, "record or portions thereof"). Furthermore, it fails to evidence ,any consideration of the PJssible necessity for additional in-camera review to determine what redactions might satisfy those concerns referenced by the Appellate Division. '\hat constitutes an unwarranted invasion of personal privacy is measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities." Humane Society of the U.S. v. Fanslau, 54 A.D.3d 537, 538 (3d Dept. 200). The burden of proof imPJsed by POL § 89(4)(b) requires "the party seeking exemption [to] present specific, persuasive evidence" that the withheld material in fact qualifies for the specified exemption(s). Markowitz v. Serio, 11 N.Y.3d 43, 51 (2008). Here, the "NYPD has not alleged that anyone was promised anonymity in exchange for his cooperation" (Cornell University v. NYCPD, 153 A.D.2d 515, 517 [1st Dept. 1989]). Thus, the individuals in question "understood or reasonably should have understood, that the words spoken were destined for public disclosure." The N. Y. Times Co. v. City of N. Y. Fire Dept., 4 N. Y . 3d 477, 488 (2005). "Any of the witnesses could have been called to testify at a criminal trial .... Therefore, there,is no basis in the record to deny disclosure" (Cornell, supra). "The fact that [an] individual may [] be a nontestifying witness does not render his name exempt from disclosure" (Greene v. Hynes, 3 Misc.3d 1120[A] [Sup.Ct. Kings County 2004]). Therefore, not only is the Appellate Division's ruling in this regard counterintuitive, as evidence not relied upon by the police and prosecution is often precisely the sort of evidence sought by criminal defendants, but it is also contrary to ample ~ommon law precedent. Even if this Court were to determine that disclosure would result in an invasion of privacy, it must be additionally assessed ''whether any invasion of privacy here is 'unwarranted' by balancing the privacy interests at stake against the public interest[s] in disclosure of the information." N.Y. Times, supra, 4 N.Y.3d at 485. Whereby, Appellant respectfully offers the previously discussed public interests mitigating in supPJrt of disclosure. See, pp.3-4, above. The Appellate Division's determination fails to evidence any such counterbalancing analysis. "[T]he best inference is that the Department 'intended, and the interviewees knew or should have known, that the words spoken in the interviews would become a public record." N.Y. Times, supra, 4N.Y.3d at 489. -5- Thus, the information ordered by the Supreme Court to be left intact "constitute[s] general information that the public has a right to uncover and the disclosure of such does not amount to an unwarranted invasion of personal privacy" (Humane Society, supra, 54 A.D.3d at 538). See also, Captial Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 570. . D. Respondent has failed to establish that an adequate search for responsive records has been conducted. POL § 89(3)(a) explicitly requires that Respondent agencies certify that a diligent search has been conducted for all responsive records. Here, notwithstandin~ the Appellate Division's order upon remand (Bellamy v. NYCPD, 272 A.D.2d 120 List Dept. 2000]), specifically directing Respondent to demonstrate that a diligent search had been conducted for all of the records requested by Appellant, to date, Respondent has failed to ever address eight separate categories of records identified in Appellant's FOIL request: "2. Booking Arrest Worksheet ... 5. Complaint Follow-up (UF5; PD 313-081) 6. Crime Incident Data Sheet (PD 313-152c) 7. Arrest Invest. Report 8. 'Supp. Arrest Invest. Report.' 12. Activity Log 13. Case Invest. Reports ... 16. Detective Individual Care Log Reports" (Bellamy, 272 A.D.2d at 120-121). Not only has Respondent continuously neglected to certify that the requisite search for these records has been conducted, but the affidavit of Respondent's Records Access Officer, meant to provide the requisite certification, raises several other questions. For example, the affidavit avers that "the only place that· the[J [responsive] documents are likely to be found is ... in the 113th Precinct." With respect to Appellant's request for production of '~equest[s] for Lab Exam," Respondent's assertion that such records might only be found at the precinct seems disingenuous, as such records should clearly be maintained at Respondent's laboratory facility. While the affidavit raises numerous other questions, Appellant will here only belabor the Court with one more. It seems to .. be a cormnon practice of the NYPD to assert that it has turned over its only copies of the requested records to the appropriate prosecutorial office. If it is in fact so that Respondent is in the habit of relinquishing its sole copy of its own records, the NYPD is not only wasting; taxpayer dollars, but is also operating in such a manner as to undermine its own investigatory efforts by failing to maintain the information and evidence gathered as a result of its investigations. Because such a practice would naturally be counterproductive, irrational, and fiscally irresponsible, Appellant submits that he is entitled to the inference that the NYPD is utilizing the fact that it clearly must turn over the fruits of its investigation to the prosecution to withhold records that it would otherwise be required to disclose pursuant to the FOIL. Thus, in addition to access to the ~ontested records, Appellant contends that he should -6- · ' .. be entitled to an order requiring Respoj]dent to conduct and certify further search for all of the records sought in his FOIL ,request. CONCLUSION WHEREFORE, it is respectfully requested that an order issue reversing the Appellate Division's denial of access, affording Appellant the access ordered by the Supreme Court, further requiring Respondent to conduct an exhaustive search for the requested records, and for any such other, further, or alternative relief as the Court may deem just and proper. Dated: September 11, 2012 Elmira, New York cc: Corporation Counsel Respectfully submitted, e,87A6653 Elmira C.F., Box 500 Elmira, NY 14902-0500 -7- ', ... #2 ORIGINAL AFlFWA vn OF SElRVliiCE STATE 0lB' NEW YOlRK ) )S5.: COUNTY 0lB' CHEMUNG) Description of documents', 500.11 Submission I, Perry Bellamy , being duly sworn, depose and say; I am over 111e age of eighteen (18) years old and a competent witness; On sept~ 201~, I placed accurate, correct and true copies of the above described documents in a properly addressed envelope and filled out the necessary forms to have New York State, Depalilrtent of Correctional Services' employee(s) at the Elmira Correctional Facility in Elmira, NY, to either use my free legal mail postage, anthorize the advancement of funds, or use funds from my prisoner inmate account to purchase U,S, Mail postage and affix same to said envelope and, then place same in the care and control of said'DOCS employee(s) io process and mail the aforementioned documents by the'U,S. · .... ··· .. ··-·---.. -"PoslarServi:ceViafirsITlassU;S:1V1llijto .. thtiot!uwtng':-, .'--------------.---... ---- Clerk of the Court Court of Appeals Hiill 20 Eagle Street Albany, NY 12207-1095 Corporation Counsel 100 Church Street New York, NY 10007 Attn: Sharyn Rootenberg and declare under penalty of perjury that the Salne is accurate, correct and tme as stated upon information and belief, and as to 1110se matters, I believe them to be true, Su~'ibed and swum to before me tltis 1~ ayof sept[cJf:jll 12, " '=t\ )J7Q~ Nota ' 'ublic U TAMMY l. HICKEY Notary Public, State of New York No. 01 H!6199026 Qualified in Steuben Courrty~ I':L. Commission EXPires Jan. 12,~' V lamy # 87A6653 Elmira Correctional Facility Box 500 Elmira, NY 14902-0500 FOI'II1 #65 10/25/2012 10:52 212-340-0571 PETER TOM CORRECTED ORDER - September 14. 2012 At a Term of the Appellate Division of the s~preme Court held in and for the First Judicial Department in the county of New York on July 17, 2012. PAGE 02 Present: Hon. Peter Tom, Justice Presiding, Karla Moeltowitz Helen E. Freedman Rosalyn H. Richter Sallie Manzanet-Daniels, -----------------·-········------------x In re Perry Bellamy, Petitioner-Respondent, ·against- The New York City Police Department, Respondent·Appellant. -------··-·-····················--····-X JUstices. 101-4995 Index No. 401463/98 Petitioner-respondent having moved for reargument of or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court entered on September 8, 2011 (Appeal Nos. 3997 and 3997Al, and for an enlargement of time to file certain documents with respect to said appeal, Now, ~pon reading and filing the papers with respect to the motion, and d~e deliberation having been had thereon, It is ordered that the motion, to the extent it seeks reargument, is denied. So much of the motion which seeks leave to appeal to the Court of Appeals is granted, and this Court, pursuant to CPLR 5713, certifies that the following guestion of law, decisive of the correctness of its determination, has arisen, which in its opinion ought to be reviewed by the Court of Appeals: "Was the order of this Court, which reversed the judgment and order (separate papere) of the Supreme Court, properly made?" This Court further certifies that its determination was made as a matter of law and not in the exercise of discretion. So much of petitioner'S motion which seeks an enlargement of time to file certain documents, is denied, as moot. ENTER: c;SLL. DEPUTY CLERK SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ---------------------------------------X In the Matter of the Application of, PERRY BELLAMY, Petitioner-Appellant, For a Judgment Pursuant to Article 78 of the Civil .Practice Law and Rules, -against- THE NEW YORK CITY POLICE DEPARTMENT, Respondent. ---------------------------------------X SIRS: NOTICE OF ENTRY NEW YORK COUNTY INDEX NO. 401463/98 APPEAL NOS. 3997, 3997A M-4995 PLEASE TAKE NOTICE that within is a true copy of the July 17, 2012 Decision and Order of the Appellate Division, First Department, granting Petitioner-Appellant, Perry Bellamy, permission to appeal to the Court of Appeals the Appellate Division.' s September 8, 2·011 Order reversing the· Order of the Supreme Court, .and denying this Article 78 petition, duly entered in the Office of the Clerk of the Court for the Supreme Court of the State of New York, Appellate Division, First Judicial Department, on the ~l~ day of ~, 2012. Dated: August 7, 2012 Elmira, New York Respe~UllY, ----------------------------------------------------------------- To: Sharyn Rootenberg Corporation Counsel 100 Church Street New York, NY 10007 r At a Term of the Appellate Division of the Supreme Court held in and for the First JUdicial Department in the County of New York ou·July 17, 2012. Present: Hon. Peter Tom, Karla Moskowitz Helen E. Freedman Rosalyn H. Richter Sallie Manzanet-Daniels, ---------------------------------------x In re Perry Bellamy, Petitioner-Respondent, -against- The New York City Police Department, Respondent-Appellant. ---------------------------------------X Justice presidi"ng, Justices. M-4995 Index No. 401463/98 Petitioner-respondent having moved for reargument of or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court entered on september 8, 2011 (Appeal Nos. 3997 and 3997A), and for an enlargement of time to file certain documents with respect to said appeal, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion, to the extent it seeks reargument, is denied. "So much of the motion which seeks leave to appeal to the Court of Appeals is granted, and this Court, pursuant to CPLR 5713, certifies that the following question of law, decisive of . the correctness of its determination, has arisen, which in its opinion ought to be reviewed by the Court of Appeals: "Was the order of this Court, which reversed the order of the Supreme Court, properly made?!! This Court further certifies that its determination was made" as a matter of law and not in the exercise of discretion. So much of petitioner's motion which seeks an enlargement of time to file certain documents { is ~enied, as moot. ENTER: DEPUTY CLERK #2 I AlFlB'HM, VliT OlF SEllWliCE STATE OlB' NEW YORl( ) )ss,: COUNTY OF CHEMUNG) Description of documents: Notice of Entry I, Perry Bellamy ,being dWy sworn,deposeand say; I am over the age of eighteen (18) years old and a competent witness; On Augus~ 201~, I placed accurate, correct and true copies of the above described documents in a properly addressed envelope and filled out the necessary forms to have New York State, Department of C01Tcctional Services' employee(s) at the Elmira Correctional Facility in Ehnira, NY, to either use my free legal mail postage, authorize the advancement of funds, or use funds from my prisoner inmate account to purchase U,S, Mail postage and affix same to said envelope and, ti1en place same in the care and control of said'DOCS employee(s) io process and mail the aforementiolled document~ by the U.S, Postal Service via first class U,S, Mail to the following; , Sharyn Rootenberg, Clerk of the Court Attorney fo Respondent Appellate Division, First Department Corporation Counsel 27 Madison AVenue 100 Church Street New York, NY 10010 New York, NY 10007 ' county Clerk 60 Centre street Room 161 New York, NY 10007 and declare under penalty of perjury that the same is accurate, correct and tnte as stated upon information and belief, and as to those matters, I believe them to be true, ubscl'ibed and swam to before me this Id TAMMYL HI!:KEY t fIaIaIy PublIc, Stale of NewVGIIl No.01H16199Ol!11 eomO:=:..fj'2,$!'213 Elmira Correctional Facility Box 500 ' ' , Elmira, NY 14902-0500 FOI'II1 #65 #2 AlFlFmA vn OlF SERVICE STATE OlF NEW YORK ) )88.: COUNTY OlF CHEMUNG ) Description of documents: Notice of Entry I, Perry Bellamy ,being dilly sworn,'d,epose and say; I run over the age of eighteen (18) years old and a competent witness; On Augus~, 201~, I placed accurate, correct and true copies of the above described documents in a properly addressed envelope and filled out the necessary forms to have New York State, DePaIlment of COlTectional Services' elllployee(s) at the Elmira Correctional Facility in Ebnira, NY, to either use my free legal mail postage, anthorize the advancement of funds, or use funds from my prisoner inmate account to purchase U,S. Mail pos4lge and affix same to said envelope and, then place same in the , care and control of said'DOCS emptoyee(s) to process and mail the aforementioned document~ by the U.S, Postal Service via first class U.S. Mail to the following; , Sharyn Rootenberg, ' Clerk of the Court , Attorney fo Respondent Appellate Division, First Department Corporation Counsel 27 Madison AVenue 100 Church Street New York, NY 10010 New York, NY 10007 County Clerk 60 Centre Street Room 161 New York, NY 10007 and declare under penalty of perjury that the same is accurate, correct and'ime as stated upon information and belief, and as to 11,ose matters, I believe them to be true, Elmira Correctional Facility Box 500 Elmira, NY 14902·0500, FOl'm #65 AFFWA vn OF §JElRVllCE §TA'IEOFNEWYORJ[( ) )88.: COUNTY OF CIlIEMUNG ) , Descriptiol1ofdoculllents: )t/o-H'ol'\ fir' ~eu~e -k Qeoflf'(.chol') Wu(ll')ei (+wo C0 ..Ju. . ..J :::I U. t w c.. U) ~ U) - SUPREME COURT OF THE .sTATE OF NEW YORK - NEW YORK COUNTY . . ALICE· SCHLESINGER ALICE SCHLESINGER Justice -v- lA.ffART~ INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. ~7JJ Yb 3/9f- !lOr; he following papers. nu. berad 1 to _ were .read on this motion toffor ___ _ PAPERS NUMBERED otice of Motionl Order to Show Cause - Affidavits - Exhibits ... nswaring Affidavits - Exhibits ______ ~---- 1_.,...-__ aplying Affidavits __________ ~ ____ • ___ --,._ . . ross-Motion: 0 Yes . No Is. d e.{Q.v \IV\.. l \A.e. d I'VI a cc (/ vd () t1UZ \M y.t, C CO VI1 ~ a "'yr~ 1M f' W1 0"" allt(jL{wt d eo S/~ JUN 182009 Dated: _____ -'-- Check one: ~ FINAL DISPOSITION Check if appropriate:· 0 DO NOT POST . ~,QiL. AL\CE SCHLESlNG51 "' /' o NoN-FINAL DISPOSITION o REFERENCE " SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------c---------------------------------------------------------J( In the Matter of the Application of PERRY BELLAMY Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules, -against- NEW YORK CITY POLICE DEPARTMENT, . Respondent. ---------------------------------------------------------------------J( SCHLESINGER, J.: Index No. 401463/98 Motion Seq. No. 004 On February 26, 2009 this request made pursuant to the Freedom of Information Law (FOIL) was remanded to this Court by the Appellate Division, First Deptartment 59 AD3d 353. Pursuant to the decision and order of the higher court, I directed the NYPD . to submit to this Court for in camera inspection unredacted copies of the documents at issue. I also instructed the Department to establish particularized exemptions as well as proposed redactions. These claimed exemptions were to be served on the petitioner, Perry Bellamy, who was given an opportunity to respond. All of the above has now been done. I am deciding on the redactions pursuant to the guidance provided by the decision in Matter of Wm. Johnson v. New York City Police Dept, 257 AD2d 343 (1 sl Dept 1999). There are 38 documents in all. Virtually all of them had been earlier sent to the petitioner but redacted to such an extent as to be meaningless. Petitioner pOints out in paragraph 5, at page 3 of his affidavit, that he is not particularly interested in information which could impact on the privacy of witnesses. This assertion is important because that I· 's primarily and almost exclusively the argument counsel for respondent puts fOlWard, that ertain information such as addresses, employment history, dates of birth, etc., would ompromise the privacy interests of these individuals who were contacted by the police in 1985, twenty-four years ago. Bellamy, instead, is seeking the names of the witnesses and their statements. I find hat he is entitled to this information as I cannot see how it would constitute an nwarranted invasion of personal privacy pursuant to §§87 2(b) and §89(2)(b) of the New ork Public Officers Law. Nor do I find, after reading the statements, that providing these tatements to Bellamy would endanger the life or safety of the victim's family or witnesses r their families, pursuant to§§87(2)(e)(iv) of the same law. Therefore, with regard to documents#1-8 and 12-29, an arrest report and complaint ollow-up reports, I am directing that respondent turn them over to petitioner, but that all ddresses, ages or dates of birth, employment information, telephone numbers, etc., be edacted. The names of the individuals as well as their statements will be left intact. As for the tax identification numbers of the investigating police officers, Bellamy. tates they have already been pro.vided to him on earlier occasions. However, the epartment wishes to protect this "highly personal" information. Therefore, they may edact it as well. With regard to exhibits #9-11, Latent Fingerprint Reports, the only redaction should e the tax registry numbers of the Police. I find no other information should be redacted s no exemptions apply. " . Regarding exhibit #21, a crime scene unit report, I see no reason for redaction of he victim's information except for his address. Likewise with #24, a property clerk's . nventory, the tax registry information can be redacted. 2 • As to photographs, item 25, 32, 34, and 35, in a letter dated November 10,2008, he Police Department withdrew its argument against disclosure since the photographs had Iready been provided to Mr. Bellamy in 2001. So again these should be disclosed. espondent shall also disclose any documents not specifically mentioned herein by umber (22,23,28-31, 33, 36 and 37), as respondent did not oppose their disclosure in heir papers. Finally, petitioner alludes to a letter from a Queens County Assistant District ttorney indicating that their office was in possession of approximately 8 full boxes of ocuments sent by the Police to another Assistant District Attorney, Gary La Salle, rguably a relevant homicide folder which would normally be kept in the 113th Precinct Detective Unit. Since the Queens District Attorney is not a party to this FOIL request, though it may eem unfair to petitioner, I cannot simply order that entity to disclose records. Therefore, if Bellamy believes there are additional relevant documents still out there and in possession f the Queens District Attorney, he must make a separate FOIL request to that entity. Accordingly, it is hereby ADJUDGED that the petition is granted to the extent of directing respondent to provide to Mr. Bellamy within twenty (20) days of the date of this decision the dOcuments pecified herein. Respondent may retrieve the documents provided for in camera Inspection from the Clerk in Room 222. D t d TJhiS c:~st2itouot:~he decision and judgment of this CO~ ,.. r a e : uJUN' 181O~&Tf(E D ~ )U~~ JUL 3 1 20093 aalWftCLER!<,SOFF~' --- -)lfewY(lR:~ J.S.C. ALICE SCHlES1NGER N~~~ \ ,,/J/ .. . . .... _ ...... ~ . .!5:D.. ~ Index No. 401463/1998 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of PERRY BELLAMY, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules, -against- NEW YORK CITY POLICE DEPARTMENT, Respondent. S. ANDREW SCHAFFER Deputy Commissioner, Legal Matters A Attorney for New York City Police Department 1 Police Plaza, Room 1406 New York, New York 10038 Of Counsel: Rebecca Chasan, Esq. Tel.: (646) 610-5400 Due and timely service is hereby admitted. New York, N.Y. ,2000 ... Esq. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------"-------------------~--------------------X In the Matter of the Application of PERRY BELLAMY Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules, -against- r~EW YORK CI-rY POLICE DEPARTMENT, Respondent. ---------------------------------------------------------------------)( SCHl_ESINGER, J.: 'Index No. 401463/98 Motion Seq. No. 005 This Court has attempted to' balance the public interest with the petitioner's legitimate request pursuant to FOIL on a number of occasions. The most recent of these was a decision of June 18,2009. The matter Ilad been remanded to me and pursuant to that remand, I had directed tile respondent New York City Police Department to submit unredacted copies of the documents at issue to me for an in camera inspection together with an instruction to "establish particularized exemptions as well as proposed redactions." After obtaining these documents and arguments, I directed that v<;irious documents. bE tumed ove;-. Those included an arrest report and complaint follow-up reports. However, respecting the privacy of the witnesses and heeding the arguments proferred by respondent, I ordered that "all addresses, ages or dates of birth, employment information, telephone numbers, etc. be redacted." I merely directed that the names and statements of the witnesses be left intact and tumed over. There were reports prepared twenty-four years earlier. Rather than complying, two months' later, respondent has moved to renew and reargue this decision pursuant to CPLR §2221(e) and CPLR §2221(d), with regard to those portions of the decision which dealt with the complaint follow-up reports. There was compliance vis-a-vis the other documents. The proferred reason for renewal is that now, afterall of these years, the Police Department has learned from the Queens DistrictAttorney's office (presumably after some inquiry following my decision) that the individuals whose names appear on the reports at issue did not actually testify at the trial. This was the "new information" just recently acquired. On the basis of this information, counsel argues this was new material facts which, should lE:iad the Court to conclude that disclosure of these individuals and their statements now would constitute an unwarranted invasion of their personal privacy. Several cases from the Second and Third Departments are cited for support for this argument, such as Johnni v. Hynes, 264 AD2d 777 (2nd Dept 1999) and Spencer v. New York State Police, 187 AD2d 919 (3rd Dept 1992.). However, upon a review of these opinions, norationale for this exemption is given. Further, upon tracing back to the cited cases referenced therein, one finds Knight v. Gold, 53 AD2d 694 (2nd Dept 1976) which was a civil case wherein the District Attorney, in a related criminal matter, had interviewed' witnesses in preparation for a trial. Those statements to the prosecutor were denied disclosure as part of its investigatory files compiled for law enforcement. The First Department, while never (to this Court's knowledge) dealing directly with this issue, in Johnson v. New York City Police Dept., 257 AD2d 343. 346 (1999) opined that: 2 Exemptions from disclosure are to be narrowly construed; with the burden resting on the agency to justify the applicability of the exemption upon which it relies. The court further stated that itwas necessary that the agency set forth a "particularized and specific justification for denying access." That court then went on in Matter of Gould, 89 NY2d 267 to discuss the balancing that trial court was required to do, which included the concern that disclosure CQuid result in an unwarranted invasion of personal privacy. Respondent,argues now that because these witnesses did not testify at trial, their names and statements should not be disclosed as it would constitute an unwarranted invasion of personal privacy. But I do not see why such a conclusion is an irresistible one from this fact alone. For example, the prosecutor trying the case may have believed their statements were irrelevant or not particularly helpful in trying the case. 1 He did achieve a conviction without them. There is nothing in any of these statements which promises confidentiality. But that in itself is not dispositive. The Johnson court went on to say (at p 348) that a specific promise of confidentiality is not necessary and adds "if the circumstances give rise to the clear inferences that such a promise was assumed, that too warrants exemption." Therefore, the courts are required to make individualized assessments based on ali the circumstances here. I have done that. There is nothing that I have read in the documents, nor anything about the new information, which convinces me to now exempt . these follow-up reports. Thus, .renewal is denied. 'Twenty-four years later, from my review of the documents, I can detect nothing particularly material or helpful to the prosecution in them 3 As to reargument, I am granting that only to clarify, though I had believed clarification was not needed, that all information about the witnes~es (described in the decision as "etc") was to be redacted except for names and content. So of course, any medical or other similar information would be subject to that exclusion. The respondent should now fully comply with this Court's June 18 decision and such is so ordered. This constitutes the decision and order of this Court. Dated: November 13, 2009 4 · . '. Tom, J.P., Moskowitz, Freedman, Richter, Manzanet-Daniels, JJ. 3997 In re Perry Bellamy, Petitioner-Respondent, -against- The New York City Police Department, Respondent~Appe1lant. Index 401463/98 Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for appellant. Perry Bellamy, re,spondent pro se. Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered July ,31, 2009, to the extent appealed from as limited by the briefs, granting the petition brought pursuant to the Freedom of Information Law to compel respondent to disclose police reports containing the names and statements of witnesses who did not testify at petitioner's trial, and order, same court and, Justice" entered November 18, 2009, which, inter alia, denied respondent's motion to renew, unanimously affirmed, without costs. Respondent failed to meet its burden of establishing that the documents at issue fall within an exemption from disclosure 104 as provided in Public Officers Law § 87(2) (see Matter of Fappiano v New York City Police Dept., 95 NY2d 738, 746 [2001); Matter of O'Donnell v Donadio, 259 AD2d 251, 252 [1999), lv dismissed 93 NY2d 1032 [1999)). Respondent did not allege that any of the non-testifying witnesses were promised anonymity in exchange for their cooperation in the investigation and therefore qualify for protection as "confidential source [s)" . (Public Officers Law§ 87 [2] [e] [iii]; see Cornell Univ. v City of N. Y. Police Dept., 153 AD2d 515, 517 [1989), lv denied 75 NY2d 707 [1990]). Nor did respondent provide factual support for its contention that a promise of confidentiality can be inferred from the circumstances in which the non-testifying witnesses gave their statements (see M{'!tter of Gould v New.York City Police Dept., 89 NY2d 267, 275 [1996) ["blanket exemptions for particular types of documents are inimical to FOIL's policy of open government"]; Matter of Johnson v New York ci ty Police Dept. ,. 257 AD2d 343, 346 [1999), lv dismissed 94 NY2d 791 [1999) ["it is nec('ssary that the agency set forth a particularized and specific justification for denying access") [internal quotation marks and citation omitted)). Respondent also failed to support its contention that disclosure of Document 14 "would give rise to a substantial likelihood that violators could evade detection by deliberately 105 • tailoring their conduct" (see Matter of Spencer v New York State PoJice, 187 AD2d 919, 921 [1992] [internal quotation marks and citation omitted]; Public Officers Law § 87[2] [e] [iv] 1 • THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JANUARY 4, 2011 CLERK 106 SUPREME COURT OF THE STATE OF NEW YORK . APPELLATE DIVISION: FIRST DEPARTMENT ---------------------------------------------------------------------)( In the Matter of the Application of PERRY BELLAMY, Petitioner-Respondent, NOTICE OF MOTION FOR LEA VE TO REARGUE OR For a Judgment Under Article 78 of the Civil Practice Law and Rules, -against- THE NEW YORK CITY POLICE DEPARTMENT, LEA VE TO APPEAL TO THE COURT OF APPEALS New York County Clerk's Index No. 401463/98 Respondent-Appellant. ---------------------------------------------------------------------)( PLEASE TAKE NOTICE that, upon the anne)(ed affirmation ofSHARYN ROOTENHERG, dated February 9, 2011, and upon all the papers and proceedings had herein, the New York City.Police Department will move this Court at the Motion Part thereof, at the Appellate Division, First Department Courthouse, located at 27 Madison Avenue, New York, New York, on the 21st day of February, 2011, at 10:00 o'clock in the forenoon ofthat day, or as soon thereafter as counsel can be heard, for an order to reargue or, in the alternative, granting leave to appeal to the Court of Appeals, and for such and further relief as this Court deems just and proper. Dated: New York, New York February 9, 2011 Yours, etc., . MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Appellant, 100 Church Street, New York, New York 10007. (212) 788-1049 or 1067 ~.~ , . By:.< Sharyn Root~ To: Perry Bellamy, Pro-se Respondent Inmate No. 87-A-6653 Sullivan Correctional Facility 325 Riverside Drive Fallsburg, New York 12733-0116 - 2 - SUPREME COURT OF THE STATE OFNEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ------------------------------------------------------------------------x In the Matter of the Application of PERRY BELLAMY, Petitioner-Respondent, For a Judgment Under Article 78 of the Civil Practice Law and Rules, -against- THE NEW YORK CITY POLICE DEPARTMENT, Respondent-Appellant. -----------------------------------------------------------------------x AFFIRMATION IN SUPPORT OF MOTION TO REARGUE OR LEA VE TO APPEAL TO THE COURT OF APPEALS New York County Clerk's Index No. 401463/98 SHARYN ROOTENBERG, an attorney duly admitted to practice before the Courts of this State, hereby affirms that the following statements are true, pursuant to CPLR 2106: 1. I am an assistant corporation counsel in the office of MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, the attorney of record for the respondent-appellant ("Police Dept.") in this CPLR Article 78 proceeding involving a request for police documents pursuant to the Freedom of Information Law ("FOIL"). I am familiar with the facts and circumstances of this case, having been assigned to- prosecute this case on appeal and having reviewed relevant files maintained by this Office. 2. This affinnation is submitted in support of the Police Department's Notice of Motion seeking to reargue this Court's order entered January 4, 2011 or alternatively seeking pennission for leave to app~al to the Court of Appeals. 3. This motion is timely made, as respondent served the Appellate Division .order with Notice of Entry via regular mail in an envelope with metered . postage dated January II, 2011 (the Notice of Entry and affidavit of mail service are both dated January 10,2010), and the thirty-five days within which to appeal pursuant to CPLR 5513 and CPLR 21 03(b )(2) have not yet \'lin. (This Court's Order, the Notice of Entry, affidavit of mail service, and mailing envelope, are annexed as Exhibit "A".) 4. Although the pertinent facts are briefly summarized below, this Court is respectfully referred to appellant's brief and reply brief previously filed with this Court for a full recitation of the facts and legal arguments. 5. This case involves an appeal from two orders of the .supreme Court, New York County (Schlesinger, J.), the first issued after the lower court completed an in-camera inspection of documents responsive to petitioner-respondent's 1987 FOIL request (as ordered by this Court) which then directed the New Yor~ City Police Department to disclose all documents with few redactions; the second order issued after the court granted the Police Department's motion to renew and reargue - 2 - and then denied the relief requested in the motion to renew but granted reargument only to clarify its prior order. 6. After the lower court issued its second order, the Police Department provided respondent with 31 records and withheld 7, which were the subject of this appeal. 1 7. The issue presented to this Court was, and remams, whether disclosure of 6 of these documents should be withheld pursuant to Public Officers Law §§ 87 and 89 where the lower court specifically mandated that the :'names of the individuals [who spoke to the police,] as well as their statements will be left intact" (see 7),2 notwithstanding that none of these individuals testified at the criminal trial, and an in-camera review of their statements establishes that the majority of them failed to provide the police with any first-hand information of value to the homicide investigation. 8. In reviewing these documents in-camera, this Court as well as the lower court should have concluded that the ·one implicit conclusion to be drawn was that all of these individuals spoke to the police under circumstances evincing an expectation of personal privacy based upon the very nature of the information 'On May 3, 2010, the day this appeal was perfected, submitted under separate cover I'm this COlll"S in-camera inspection were original un-redacted copies of the 7 records reviewed by the lower court. To date, they have not been returned to this Office. See copy of cover letter submitted with in-camera documents, annexed hereto as Exhibit "B") (requesting the return of these copies "upon conclusion of this matter"). , Unless otherwise indicated, numbers in parenthesis refer to pages in the record on appeal flied in this Court on May 3, 2010 with the underlYing appeal. . - 3 - .. many of them disclosed, and that regardless of their expectations at the time, disclosure of their names and statements would necessarily result in an unwarranted invasion of their personal privacy and would endanger their lives and the safety of others. 9. This Court, rather than addressing the serious personal privacy and safety implications of releasing the names and statements of individuals who assisted the police during the course of a gang-related homicide investigation, rested its decision to disclose police follow-up reports containing said names, along with some inherently private information, upon Public Officers Law § 87( e )(iii)-the confidential source exemption. In so doing, this Court focused its analysis solely on whether the Police Department alleged "that any of the non- testifying witnesses were promised anonymity in exchange for their cooperation in the investigation." Finding that it did not, this Court concluded that they did not qualify for protection as "confidential sources." 10. This Court has previously rejected the notion that the Polic'e Department "must be able to show, in order to warrant exemption, that a witness was specifically promised confidentiality" however, and has .instead looked to "the circumstances [that] give rise to the clear inference that such a promise was assumed." Johnson v. New York City Police Department, 257 AD2d 343 (151 . Dept. 1999). Perhaps recognizing this fact, this Court then baldly found that "a - 4 - · , promise of confidentiality [could not] be inferred from the circumstances in which the non-testifying witnesses gave their statements." To the contrary, the degree and nature of the disclosures made to police by many of the individuals, albeit largely itTelevant and/or tangential to the ongoing investigation, evinced--at the very least--an implied assumption of confidentiality in the absence of an express promise of confidentiality. Many contained sufficient indicia of hesitancy and obliqueness to support the inference that disclosure was guarded, at best, and that certain tidbits were shared particularly discretely: 11. In any event, this Court's decision to order disclosure of the documents without redaction of the interviewees' names and statements merely because they did not fall within the conventional definition of "confidential informants" not only constituted a misapprehension of the law, but stands in direct' conflict with prior decisions of this Court and other appellate divisions in this State. 12., As a preliminary matter, to the extent that none of these individuals testified at trial, all summaries of their statements should have been exempted from disclosure. This Court has previously held that "statements of [] witnesses who spoke with law enforcement personnel" were properly withheld "pursuant to the public interest privilege" and, in the circumstance of testifying witnesses, that the district attorney first "properly deleted identifying characteristics of witnesses from - 5 - certain documents on the ground that disclosure would constitute an unwarranted invasion of personal privacy." Rodriguez v. Johnson, 66 AD3d 536 (1'1 Dept. 2009). See Spencer v. New York State Police, 187 AD2d 919, 922 (3d Dept. 1992); Johnson v. Hynes, 264 AD2d 777 (2d Dept. 1999) ("the statements of nontestifying witnesses are confidential and not disclosable under FOIL.", Citing Public Officers Law § 87(2)( e )(iii); Matter of Moore v Santucci, 151 AD2d 677; and Matter of Spencer v New York State Police, 187 AD2d 919). 13. Secondly, a few of the individuals questioned were unable to provide any relevant information whatsoever pertaining to the homicide investigation. As the Third Department has held, "information pertaining to contacts with individuals who did not provide information [are] properly deemed exempt based on the privacy exemption of FOIL."De Oliveira v. Wagner, 274 AD2d 904, 905 (3d Dept. 2000). 14. Moreover, to the extent that certain individuals may have disclosed private, personal, and medical information about others, it remains unclear whether the lower court order contemplated redaction of such information. On the one hand, the lower court finally recognized (after this Court twice remanded the . matter for further in-camera reviews) that there were privacy interests involved by ordering the redaction of "all addresses, ages or dates of birth, employment information, telephone numbers, etc" (7). On the other hand, it simultaneously - 6 - directed that "n'ames of the individuals as well as their statements [] be left intact" (7), a. Ironically, if the redactions to the statements were made to the 6 documents still at issue, it would invariably result in the same criticism the lower court articulated in its June 18, 2009 decision: that the documents were "redacted to such an extent as to be meaningless" (see 6). IS. And when the Police Department pointed this out in its motion to renew and reargue, the lower court only made "clear" upon reargument that: information about the witnesses ... (described in the [first 1 decision as "etc") was to be redacted except for names and content (see 16) (emphasis added). What this clarified, if anything, is a mystery. 16. A plain reading of the two lower court orders together still seems to require redaction only of certain personal information belonging to the. individuals who made the statements to the police, and not necessarily all of the third party personal and private information disclosed by those witnesses--particularly in light of the lower court's directive that the "content" of the witnesses' statements be left un-redacted. To the extent that this Court failed to address this issue, it failed to address that disclosure of medical information is also exempt from FOIL. Newton v. District Attorney. Bronx Co., 186 AD2d 57 (1 st Dept. 1992); see HIPP A. - 7 - 17. As argued in the Police Department's main brief to this Court, the mere disclosure of the documents at issue without redacting the names of the individuals who made the statements (which the court has also forbidden to be redacted in large part) will violate their personal privacy and put their safety in jeopardy because eitherthey cooperated in some degree or another with the police or because they provided private information about third parties whose information will not be redacted (and likely have no idea their identifying information appears at all in these documents). 18. Before quickly summarizing and reviewing the contents of the documents at issue, this Court must again be reminded that the Police Department was constrained in making its specific exemptions to the lower court, as the lower court insisted that its submission be served on respondent rather than being a true in camera inspection for the court's eyes only, and thus limited its ability to clearly communicate its specific objections (see 88). That said, what follows is a recitation of the general contents of the 6 documents withheld on privacy and safety grounds, aJl of which are before this Court for its own in-camera inspection: A. Document 3: a Complaint Follow-up Report dated December 9, 1985, contains the name and statements of a non-testifying witness. It also contains identifying information about other individuals and describes existing personal relationships as well as medical information about a third individual. • 8,' B. Document 4: a Complaint Follow-Up RepOli dated December 9, 1985, describes the interaction between police and contains the names, genders and races of non-testifying witnesses, how long these individuals have resided at a their addresses, and contains the name of a person the police sought to interview. C. Document 5: a Complaint Follow-Up Report dated November 6, contains the name, sex, race and statement of a non.testifying witness. D. Document 6: a Complaint Follow-Up Report dated December 11, 1985, contains the statements, names, sexes, and races of third party / non-testifying individuals, medical information (protected by HIPP A), an address, and a vehicle license plate number belonging to a third party non-witness. E. Document 7: a Complaint Follow-Up Report dated February 17, 1986, contains the statement, name, and employment status of a non-testifying witness. It contains the name of a person the police . sought to interview, as well as the names of that person's family members. F. Document 14: Complaint Follow-Up Report dated October II, 1985, contains the statements . and names of nontestifying witnesses, and includes medical information (protected by HIPP A) . about a particular individual. . G. Document 19: a Complaint Follow-Up Report dated October 11, 1985, contains the statement, name, and affiliation of a non- testifying witness. 19. Thi~ particularized showing of the personal information contained in these specific documents--even assuming that the lower court's redactions would be applied--demonstrates the need for reconsideration by this Court. It is - 9 - information of this very nature that N.Y. Public Officers Law §§87(2)(b) and 89(2)(b) seeks to protect from disclosure. 20. As the Court of Appeals explained in Gould v.New York City Police Department, 89 NY2d 267, 278 (1996), "[t]he statutory exemptions contained in J the Public Officers Law ... strike a balance between the public's right to open goverriment and the inherent risks carried by disclosure of police files." In seeking to strike such balance in this case, the risks resulting from the disclosure of the six pages of DD-5s, which include the unwarranted invasion of personal privacy and endangerment of lives and the safety of others, against the public's right to open government-the privacy rights of the men and women who aided or attempted to aid the police investigation, as well as the privacy interests of unwitting and unrepresented third parties whose names or other identifying information may have been recorded on the DD-5s, greatly outweigh any interest that the public at large has in being able to see this kind of information. Add to the balancing test that none of these individuals provided information relevant enough to warrant their testimony at trial, the scale must surely tip in favor of non- disclosure. 21. On a policy level, as this Court has previously noted: the "public policy benefit in not discouraging private citizens from making complaint or informing as to observed criminal activity to the proper authorities is self-evident." - 10- \ Church of Scientology of New york v. State of New York, 61 AD2d 942 (l'1 Dept. 1978). If individuals were to think that their names and statements would be revealed every time they spoke to the police regardless of the nature and substance of their communication and conversation, the result would ultimately be that few would come forward and risk possible. recrimination by sharing any piece of information with law enforcement. Since police rely, to a large extent, on voluntary cooperation and on information shared by private citizens, this would severely limit its ability to enforce the law and investigate open cases. Particularly important-this was not the result intended when FOIL was enacted. 22. The Court of Appeals has long recognized that " ... protecting the safety of those who cooperate with the police is an essential tool in advancing the efficiency oflaw enforcement investigations and techniques." 23. Under these circumstances, reargument should be granted pursuant to CPLR 2221 (d)(2), based upon matters of fact and law overlooked or misapprehended as they pertain to the documents at issue. It is respectfully requested that this Court re-inspect the documents in camera to specifically consider whether they should be exempt pursuant to New York Public Officers Law §§ 87(2)(b) and 89(2)(b) as disclosure would constitute an unwarranted invasion of personal privacy - particularly in light of the lower court's ambiguously worded orders. - 11 - 24. In the alternative, this Cdurt should grant leave to appeal to the Court of Appeals. The decision of this Court is elTon eo us as a matter of law and stands in direct conflict with prior decisions of this Court and other Appellate Divisions in this State. 25. The issue warrants review by the Court of Appeals because it concerns an issue of statewide public importance. 22 NYCRR § 500.22(b)(4). WHEREFORE, it is respectfully requested that this Court grant reargument or, in the alternative, issue an order granting leave to appeal to the Court of Appeals, and grant such other and further relief as this Court deems proper. Dated: New York, New York February 9,2011 By: . i. ~~~~~ __ _ Sharyn Rootenber Assistant CorporatIOn Counsel - 12 - Exhibit A SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : FIRST DEPARTMENT In r(~ Application of PERRY BEL.LAMY, Petitioner-Appellant, -against- THE NEI'l YORK CI'r'l POLICE DEPARTMENT, (?·tc",~ et al~, Respondents. Docket #3~97 Index 11401463-98 NOTICE OF ENTRY OF ORDER PLEASE TAKE NOTICE,' that the annexed brderis a copy of a.n order duly entered in the above entitled action and filed in I:he office of the Clerk of the Court for the New York state Supreme court, Appellate Division First Judicial Depart;nent, on the· 4r.th day of January 20'11. , ro: Sharyn Rootenbe:rg Corporation Counsel of 100 Church street New York, NY 10007 City of New York ~ yoo'iV etc •....... . PEi}R . ·~,~LA;~Y , 8'lA Pet tioner-Pro· Sullivan Correct. Fac. 1?0. Box 116 Fallsburg, NY 12733-0116 AFFID~VIT OF SERVICE -"-'--""--'-- STATE OF NEW YORK ). )55: COIJNTY OF SULLIVAN I NOTICE OF ENTRY OF ORDER Index No. 401463-98 I, PERRY BELLAMY being duly sworn, deposes and says: I am that plaintiff mentioned in the within proceedings. 'rhat upon the below date of notorization, I placed in the mail deposi tory box at the Sullivan c.rrectional Facil i ty true and accurate copies of the Appellate Division, First Department, DECISION AND ORDER Service to the below listed parties by way via, United States Postal Services, First Class Mail as due and Buff'lcient services~ COPIES SENT TO: Dated: January ~.Q, 20n Clerk of the Court Suprell1e Court of the state of New·York Ne'l,v York Count:y Court',\,house 60 Centr s_treet Naw York, New York 10007-1474 Sharll'Ill Rootenberg Corporation Counsel Attorney for Respondent '100 Church Street N('ll." Yo:r.k, NY1 0007 County ClerK: 60 Centre Sb:,~e!: Room 161 New York, NY 10007 nel:\p~ctful1y Submi t.ted, , . l?ERR:Y-~Ei:.LM1y~3':iA665 j Petitioner-Pro se Sullivan Correct. Fac. P .0. Box 1'1 6 rallsburq, NY 12133-0116 ':Lorn, J.P., Moskowitz, Freedman, Richter, Manzanet-Daniels, JJ, 3997 In re Perry Bellamy, Petitioner-Respondent, -against- The New York City Police Department, Respondent-Appellant. Index 401463/98 Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for appellant. Perry Bellamy, respondent pro se. Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered July 31, 2009, to the extent appealed from as limited by the briefs, granting the petition brought pursuant to ,the Freedom of Information Law to compel respondent to disclose police reports containing the names and statements of witnesses who did not test·ify at petitioner's trial, and order, same court and, Justice, entered November 18, 2009, which, inter alia, denied respondent's motion to renew, unanimously affirmed, without costs. Respondent failed to meet its burden of establishing that the documents at issue fall within an exemption from disclosure 104 as provided in Public Officers Law § 87 (2) (see Matter of Fappiano v New York City Police Dept., 95 NY2d 738, 746 [2001] Matter of O'Donnell v Donadio, 259 AD2d 251, 252 [1999], Iv dismissed 93 NY2d 1032 [1999]). Respondent did not allege that , any of the non-testifying witnesses were promised anonymity in exchange for their cooperation in the investigation and therefore qualify for protection as "confidential source [s]" (Public Officers Law § 87 [2] Eel [iii]; see Cornell Univ. v City of N. Y. Police Dept., 153 AD2d 515, 517 [1989], Iv denied 75 NY2d 707 [1990]). Nor did respondent provide factual support for its contention that a promise of confidentiality can be inferred from the circumstances in which the non-testifying witnesses gave their statements (see Matter of Gould v New York City Police Dept., 89 NY2d 267, 275 [1996] ["blanket exemptions for particular types of documents are inimical to FOIL's policy of open government"]; Matter of Johnson v New York City Police Dept., 257 AD2d 343, 346 [1999], Iv dismissed 94 NY2d 791 [1999] ["it is necessary that the agency set forth a particularized and specific justification for denying access"] [internal. quotation marks and citation omitted]). Respondent also failed to support its contention that disclosure of Document 14 ·would give rise to a substantial likelihood that violators could evade detection by deliberately 105 tailoring their conduct" (see Matter of Spencer v New York State Police, 187 AD2d 919, 921 [1992) [internal quotation marks and ~ citation omitted); Public Officers Law § 87 [2) [e) [iv)) . THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JANUARY 4, 2011 CLERK 106 SULliVAN CORRECnONAL Ft:,CiLiTY P.O. BOX 116 FALLSBURG, NEW YORK 12733-0116 NAME: Perry Bellamy DIN: 87A6653 CONFIDENTIAL LEGAL MAIL ~tiLLl\i~£..:..tl;; cU~~Wni}HAl FACiliTY tlf Sharyn Rootenberg Corporation Counsel Attorney for Respondent 100 Church street New York, NY 10007 o '" 10007$2SS9 C020 1 ... 1111 ... /I;"II ... I.,.I .. I.I.II ... II .. I .. I.I.I •• I.I .... I.JI • NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES INMATE CORRESPONDENCE PROGRAM • Printed on Recycled Paper .. - :;,.,".(,..:.., c:...:..,::' $00/1';0 - ~ vl/1V2011 ;~:';H!c:d Frorrt 12733 US POSTAGE Exhibit B • ',." mCIlA EL A. CAIIOOZO COI.,J(!ration Counsel THE CITY OF NEW YORK LAW DEPARTMENT' 100 CHURCH STREET NEW YORK, NY 10007 SIlARVN ROOTENBERG Assistant Corpordllon COflnsel Phone: (212) 788·1 049 F",: (212) 788·1054 SRootenb@law,nyc,gov Clerk of the Court AppeJlate Division: First Department 27 Madison Avenue New York, N.Y. 10010 May 3, 2010 Re: Bellamy v. New York City Police Dept. Index No. 401463/98 To Whom It May Concern: The above captioned appeal was perfected on May 3, 20 I 0 for the September 20 I 0 term of this Court. Although a Record on Appeal was filed, enclosed under separate cover are copies of the New York City Police Department records reviewed by the Honorable Alice Schlesinger in-camera. I These documents have ill!! been turned over to the respondent. in this case, and are being submitted to this Court for its own in-camera review. It is respectfully requested that these copies be returned to appellant upon conclusion of this matter. Respectfully submitted, ~\ Sharyn Rootenberg 1 As indicated on page 63 of the Record on Appeal, the unredacted documents at issue are being submitted to this Court under separate cover. New York County Clerk's Index No. 401463/98 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT In the Matter of the Application of PERRY BELLAMY, I Petitioner-Respondent, I For a Judgment Under Article 78 of I the Civil Practice Law and Rilles, I -against- THE NEW YORK CITY POLICE DEPARTMENT, Respondent-Appellant. NOTICE OF MOTION FOR REARGUMENT OR LEAVE TO APPEAL . MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Appellant 100 Church Street New.York, N. Y. 10007 Of Counsel: Sharyn Rootenberg Tel: (212) 788-10-/9 or 1067 · . STATE OF NEW YORK ~ COUNTY OF CHEMUNG ) ss . : SWORN AFFIDAVIT Bellamy v. NYCPD New York County Index No. 401463/98 SteVen Gerrara, being duly sworn, d~poses and declares all statements made herein to be true and accurate to the best of his knowledge. 1. I am an inmate in the custody of, the New York State Department of Corrections and Community Supervision ("NYSDOCCS"), currently housed at the Elmira Correctional Facility ("ECF"). 2. In the six-plus years that I have been in NYSDOCCS custody, I have been in four separate facilities. It is my experience that, immediately after a transfer to a faility, it typically takes a very diligent inmate approximately one month to get to the law library. Inmates must fill out request forms. Once the request form is completed and submitted, it-is dropped, by the inmate, into a law library ~equest box to be collected by the appropriate NYSDOCCS personnel. I have no idea how often these requests are collected. The request forms will often (as they do at ECF) dictate that only one such form may be submitted, per inmate, per week. As is generally the case here at ECF, it most often is necessary for' an inmate to submit several of these requests in order to receive his first "call-out" to go to the law library. I know this, not only because it was my own personal experience here at ECF, but many other inmates have advised me of their similar experiences. Page 1 of 3 3. As of January 6, 2012, I have been authorized, by the relevant staff member here at ECF, to assist inmate Perry Bellamy in this matter. However, I have been acquainted with Mr. Bellamy since August of 2011. In early October, 2011, Mr. Bellamy explained to me his numerous efforts to get to ECF's law Library to no avail. At the time, I was extremely busy, having been' approved to ass'ist three other inmates with various legal matters. Two of those inmates had rapidly approaching deadlines that I had to ensure that they met. Any question regarding my assistance of those individuals may be verified via communication with Ms. B. Smith, Assistant Deputy Superintendent of Programs ("ADSP"). Because I was upable to assist Mr. Bellamy within the time frame during which his motion to reargue and application for leave to appeal to the Court of Appeals is typically required to be filed, I advised him how he might alternatively proceed in light of the fact that he was unable to get to the law library or otherwise secure the needed assistance. Thus, with my guidance, Mr. Bellamy prepared and submitted the Notice of ,Motion and Declaration advising the Court of his desire to reargue arid request leave to appeal to the Court of Appeals. Said Notice of Motion and Declaration further advised the Court. that Mr. Bellamy was requesting a 120-dayextension of time within which to perfect and file the relevant legal papers for the reasons set forth above, Le., due to Mr. Bellamy's inability to acquire immediate and necessary assistance. I have recently completed the work required by those other inmates whose .deadlines precluded me from assisting Mr. Bellamy in October and am now able to provide the Page 2 of 3 assistance that he needs. 4. I would like to additionally note that, in my personal experience with the NYPD regardini litigation following denial of a FOIL request and FOIL appeal, Records Access Officer James Russo ("RAO") provided counsel for the NYPD with an affidavit quite similar to the one offered by Carl Parker III (dated 01/23/01) in this case. Like Parker's affidavit; the RAO's affidavit in my case (which will be appended as an exhibit to Mr. Bellamy's motion papers) claimed that the vas t maj ori ty of those records responsive to my FOIL request had been handed over to the District Attorney's Gffice. Naturally, premised upon these claims, the NYPD in my case contended that, because the records were no' longer in the custody of the NYPD, the NYPD now had no obligation to produce them. This plainly serves to demonstrate a pattern in which the NYPD can only be perceived as doing one of two things: 1) consistently failing to maintain copies of records with which it charged with producing and maintaining in the course of its every day business, or 2) consistently claiming that it has turned over records that, in fact, remain within its custody to avoid having to disclose those records in response to FOIL requests. Sworn to before me this Steven Gerrara, 05A4562 Elmira C.F. _~- 'r-- - ~~2012 AIJ.' (~~~Cfdee£{/ . NOTARY PUBLIC Page 3 of 3 Charles D. Caswell . Notary Public, State of New York Chemung Count, No. 01 CA6200259 r.nmmie.cinn I=Ynir~1Q. . (!=an ?Rr"'J::51 '< I ' , . . SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION· FIRST DEPARTMENT 27 MADISON AVENUE NEW YORK, NY 10010 212·340·0400 DATE: (0- 3/- (/ To: BxCoDA LAS NYSAG OAD . \I NYCCC NYCoDA .. idle£"\ --- rtJIHER rilLE'- INDCT/INDX # ___ -'-~>--->'-""_"''+--'--==--______ _ DATEOFJ'DGMNT/ORDER 7- ~ \- ~ N.O.A. g- 3 -0'7 . . . ..... --'.L.:.l..8..:::.Q.tf ........................ m ......••• m ••••••••••• m ••••• m •• m •••• A PRO SE MOTION HAS BEEN ADDED TO THE CALENDAR OF: . f 1-/ 5 ~ ((, THE MOTION SEEKS (MORE THAN ONE MAY BE CHECKED): POOR PERSON RELIEF __ COUNSEL __ LAS __ OAD __ CAL 18B TO RELIEVE COUNSEL AND ASSIGN NEW COUNSEL PERMISSION TO PROCEED PRO SE MINUTES CORAM NOBIS RELIEF (INEFFECTIVE APPELLATE COUNSEL) ENLARGE TIME Ie l'M¥l'le'li LEAVE TO FILE A PRO SE SUPPLEMENTAL BruEF DEEM NOTICE OF APPEAL TIMELY FILED DEEM MOVING P APERS TIMELY NOTICE OF APPEAL CLERK'S OFFICE , At a Term of the Appellate Division. of the Supreme Court held in and for the First Judicial Department in the County of New York on September 8, 2011. Present - Hon. Peter Tom, Karla Moskowitz Helen E. Freedman Rosalyn H. Richter Sallie Manzanet-Daniels, ---------------------------------------x In re Perry Bellamy,· Petitioner-Respondent, -against- The New York City Police Department, Respondent-Appellant. ---------------------------------------x Justice Presiding, Justices. M-624 Index No. 401463/98 Respondent-appellant having moved for reargument of or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court entered on January 4, 2011 (Appeal No. 3997), Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion, to the extent it seeks reargument, is granted and, upon reargument, the decision and • order of this Court entered on January 4, 2011 (Appeal No. 3997) is recalled and vacated and a new decision and order substituted therefor. (See Appeal No. 3977, decided simultaneously herewith.) The motion, to the extent it seeks leave to appeal to the Court of Appeals, is denied. ENTER: • CLERK Tom, J.P., Moskowitz, Freedman; Richter, Manzanet-Daniels, JJ. 3997- 3997A In re Perry Bellamy, Petitioner-Respondent, -against- The New York City Police Department, Respondent-Appellant. Index 401463/98 Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for appellant. Perry Bellamy, respondent pro se. Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered July 31, 2009, to the extent appealed from as limited by the briefs, granting the petition brought pursuant to the Freedom of Information Law to compel respondent to disclose police reports containing the names and statements of witnesses who did not testify at petitioner's trial, and order, same court and Justice, entered November 18; 2009, which, inter' alia, denied respondent's motion to renew, unanimously reversed, on the law and the facts, without costs, and the petition denied. In 1986, petitioner was convicted of the murder of a New York City Parole Officer. Petitioner made inculpatory statements to the police, in which he admitted to being present during the planning of the murder and to luring the victim to the scene. During the federal narcotics prosecution of other participants in 12 the murder scheme, these individuals asserted that petitioner had not been involved. Petitioner's FOIL request for unredacted versions of documents he has received previously is part of his effort to obtain a new trial. Public Officers Law § 87(2) (f) permits an agency to deny access to records, that, if disclosed, would endanger the life or ,safety of any person. The agency in question need only demonstrate "a possibility of endanger[ment]" in order to invoke this exemption (see Matter of Connolly v New York Guard, 175 AD2d 372, 373 [1996]; see also Matter of Rodriguez v Johnson, 66 AD3d 536 [2009]). U[A]ccess to government records does not depend on the purpose for which the records are sought" (Matter of Bellamy' v New York City Police Dept., 59 AD3d 353, 355 [2009]). Respondent met its burden of establishing that the documents at iSsue fall within an exemption from disclosure as provided in Public Officers Law § 87(2). The documents here reflect the identities of certa.in persons who spoke wit.h police during the course of an investigation into this gang-related homicide ordered from prison. Because these individuals never became testifying witnesses, neither respondent, nor anyone else, would know about them otherwise. It is therefore possible that the lives of persons who spoke with police could be endangered from the release of identifying information. After learning the 13 names, all one would need is an Internet connection to determine where they live and work. Moreover,insofar as the documents mention individuals who did not provide information relied upon during the investigation, ,that information is exempt from FOIL under the privacy exemption (see Public Officers Law § 87 t2] [b] i Matter of De Oliveira v Wagner, 274 AD2d 904 [2000]). Accordingly, based on the facts and circumstances, we deny petitioner's FOIL request seeking unredacted versions of the documents (see Matter of Rodriguez, 66 AD3d 536 [2009] [DA properly withheld, pursuant 'to the public interest privilege, ,statements of two· witnesses who spoke with law enforcement personnel]) . The decision and order of this Court entered herein on January 4, 2011, is hereby recalled and vacated (see M-624 [decided simultaneously herewith]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: SEPTEMBER 8, 2011 14 I . ' . . . ;s:'i~ C(}UHT OF TOE STATE OF NEh; YORK ~'LLA1F DIVISION, FIRST DEPARTMENT ,".,~ =' ...... ,,. "".". "'"' "" ... ,., ........ "".,.-_ ............ - _ ...... ., ........ ---- ""' ............... - .... ;< l,n (~c· PI',HltY EF:LI."AHY, Petitioner-Respondent, ,:'1, YC,~!( CITY pOLler DEPAHTHENT, HespGndent-Appelbmt. ,. '._ .. ~~_u. _____ ~_~ ______ ~~ _________________ ~ 1'0 ''', ,. ~,,,,,.,,,,,,,. 'r.I'"'' _ t'., ~'.' -.r.Mj:;,(~"~'Ij'\}~:J .. 1 .~H'. LFIiVT Til I\PPf';AI, AND fDH f\t:; L)~'T'fNS ION OF :rn'.E DI'clwt. No. ~'!-6:;U~ New'lm:k County IndfYlI No. !!.OH63,{911 an '~[iidavic iu Support (and perhaps supporting exhibits) to \)0 t:1'~:'; Court, ad~iti,onally granting aD extension of ti;ne of 120 ~~t0J: E:J.~ira, I~e~ York October 11,' 2011 (~~)r~:la~utioD Counsel /" t t :'i ~ :.">H'U"vn Root.(~nbcl~~r, DECLARATION '",., YCJ\:·k Coun ty l.mll'ix No. 401463/98 1., I'en:y' iJellamy, on this 10th dtlY of October:" ;"·(-::n{:~l ty of perJury,. do de,clare t.tll statern(:.nts ma.dc, i.H~·te:Lfl t{) "be 1..i';U<;: und COl'trec:t." .\.. 1 h~llle r0(:ently, due to circumst!I ,fOlie -_l.y 1.1U.;'3 far, nil of my efforts l,ave been to no 4~ As a reslJl.t of my inability tQ get to the Inw library, I . ',' '~l'" . ~."." -. t ~! ~ "i ~~ 1 ",." ~',,,t·~ ... , ..... t i.,. ',. j'" ·L-)\{i.:;' I)C~.(~:.:n unao, e 1:0 acqtn,t~ .. Hcces~ 0 Lne .l.e~.;",d ,1:,;:.;,,:L'_ • .n .. ~;'!fg •• ~..:: hd,,,, "' :'080 in aeJecta continue my litigious pursuit of the instant Article 7f~ nlatters~ ~;" tlnly ,today ,Octooerl0, 2011, did I findtn(~ indbridual \:,:l'h)- is b-iirt'-eh-t-ly·'--as-s-i-s-fii1"g rri'e ~,ntlyenglilged in other cr1.rrd.nnl l.iti~:ationfor \'ihich !.hi. nn" 8ovcr:al deadlino)$ I~nd much ~;ortr. I'lit to do. Thu;> , i.t \0/111 ;:'C' nom€' tl.me (approximately three men tl1s) befor" he Hill be· Dble tl) assist me in this matter. (,. As c.ircuillst;.,'1rtCes c!l1:t'entl,Y' s,t,md, :i t Cl,' '1"""""1'" 'n"" '! fl'"'' - .. " 17 JrJ .... ···L " ,,,:<-(,~~ • i!.5. Sharyn Rodtenb~rg Order; Supreme Court, New York County (Beverly Cohen, J.), entered October 9, 1998, granting respondents' cross-motion to dismiss pet:t:tioner's petition.which sought to vacate the denial of his Freedom of Information Law (FOIL) request, unanimously modified, on the law, to direct respondents to conduct a diligent search for the records that they alleged they were unable to locate, and the matter remanded.for an in-camera review by Supreme Court to ascertain the·applicability of the redactions and exemptions claimed by respondents pursuant to Public Officers Law §§ 87(2) (b), 87(2) (f) and 87(2) (e) (iv) , and otherwise , affirmed, without costs. Petitioner was convicted of murder in 1986, .following his inculpatory .. statements to the police in which he c.laimed to have been present during the planning of the murder and to have lured the victim to the scene. During the Federal narcotics prosecution of other participants in the murder scheme, these 69 individuals asserted that petitioner had not been involved. Iri furth,erance of his attempt to obtain a new trial in state court, on July 17, 1997, petitioner requested copies of the following documents from respondents, pursuant to the Freedom cif Information Law (Article 6 of the Public Officers Law) : 1 . Arrest Reports (UF4) 2. Booking Arrest Worksheet 3. Mugshot 4. Complaint Report (UF61) 5. Complaint.Follow-up (UPS; PO 313-081) 6. Crime Incident Data Sheet (PD313-1S2c) 7. Arrest Invest;:. Report 3. "Supp. Arrest Invest. Report." 9 . Unusual Occurrence Report· (00'84) 10. Police Memo .Book Entries 11. Sprint Incident Inquiry 12. Acl:ivityLog 13. Case Inves.t. Reports 14. Crime Scene Unit·Supplementary Report 15. Request for Laboratory Exam for Fingerprints and Ballistics 16. Detective Individual.Care Log Reports 17. Any and all Faxes in co=ection with this case " 18. All the F.B.I. Reports, kept on file with respondent:' 19 . .DDS 1 S Reports , 20. Line-up Workshe~t and ph6t9gr,aphs 21. Property Clerk Invoice, . . 22. Statements made by, M:i'ke BraWl'!, 23. . \\ Terry Trantham 24. \\ Larry Rqbinson· 25. \\ Dennis ,Morris 26. \\ Jeffrey Ruffin On November 11, 1997, petitioner amended his request to include the following: 27. Any and all statements mad,e by witness Mike Brown 28. Any and all statements made by witnese Terry Trantham 29. A copy of the 911 Tape of 'October 10, 1985 from the hours of 4:00 p.m. to 9:00 p.m. 70 30. Any and all statements made by witness Denise Morris on October 10 and October 11, 1965 to the New York City Police 31. Any and all audio/visua:1 recordings of the interview conducted with Mike Brown 32. Any and all audio/visual recordings of the interview conducted with Terry Trantham 33. A copy of the Sentencing Report of 34. " 35. " 36. A copy of'the Probation Report of Mike Brown Terry Trantham Mike Brown ' Terry Trantham Although respondent folice Department had advised him that it would make a determination within 120 days, no response was forthcoming. Petitioner filed an appeal, with respondents in January 1998, requesting that a de'termination be issued and asserting that respondents' silence was tantamount to a denial of his request. In 'February, petitioner contacted respondents again, seeking informatiOn on the status of his appeal. Having heard nothing from respondents by May 4, 1998, he commenced the instant action seeking t,o vacate ,the constructive denial of his FOIL request. By letter dated May 2'7, 1998, respoll,dents informed petitioner that his appeal had been granted. They promised that they would immediately provide access to all documents which have' been located and for which no statutory exemptions applied. By letter dated August 6, 1996, Lt. Glen Suarez advised petitioner that he would be provided with items 1, 3, 4, 14, 19 and 21," as well as a Latent Prints Report, upon payment of the $10 fee. He 71 indicated that redactions had been made because release posed "an unwarranted invasion on personal privacy" or because it "would' endanger the life or safety of any person", citing to Public Officers Law§§ .87.2 (b) and (f). Additionally,' he, denied the release of one DD-5 on the ,ground that its release "would reveal rioh;:;*.~)Jtine investigat,oJ::Y t!')ch .. '1iques" pu:r.suant to§ 87.2 (e) (iv) . . . ' .~.- (A DD.,,5 is a Complaint Follow-up Report.) As to items 18 seeking FBI reports and 33, through 35, see~ingsentencing reports, he referred petitioner to the FBI and ";PL~'SE!n1:elncin,g court, respectively. Finally, he asserted that "[b] provided and after searching for document Cs) , ,this unit was unable Unusual Occurrence Report (Item ori the information '.lou requested Audio/Visual Recordings of i JItems 31-32) Sprint Printout and 9~ Tape (I . 11 and 29) Requet;it for Lab Exam (Item 15) L~ne-:ii,p Report & Photo~~ (Item 20) , 'VQ~¢~~#~ #A132709 & Cl1~306 (Item 1) 'Wi'tn~\"i"'Statements (Iths 22-28 and 30) Memo Book(Item 10) Faxes in connection with this case ,(17) Respondents cross-moved to dismiss the petition for .. mootness. petitioner opposed, as he'did not believe that respondents had adequately complied with his FOIL request. He challenged the redaction of the documents offered by responderit, claiming that h~ needed to know the identity of potential 72 " witnesses whom he, could call ,in other proceedings. He urged an in-camera review of withheld documents to determil1e whether the exemptions claimed by respondents apply. He also argued that respondents had not made any showing that the.y made a dilige l1t search for the items they were allegedly unable to locate. Without addressing these' issues, the cour.t dii~missed the petition on the grounds that petitioner had not paid the $10 copying charge. The court e:t;roneously overlooked petitioner's meritorious contention that respondents' compliance wa~ incomplete. Obviously, payment of the $10 is not a condition precedent to receipt of any documents wha'tsoever, because respondents have already made certain documents available. The court appeared to assume that respondents had complied fully arid that only petitioner's failure to pay the surcharge was delaying his access to the materials. When an agency denies a request because it cannot find the requested documents in its file, it must certify that it does not have possession of the document after a diligent search (~, Public Officers Law § 89(3); Matter of Oavvam v NYPD l 227 AD2d 188, 189). Conclusory certifications made upon information and belief by people without direct knowledge are, insufficient to 73 ,I snow a diligent searcn (see, Matter of Key, v Hvnes, 205 1ID2d 779, 781) Tnis burden was not met, because respondents failed to certify either that the Police Department did not have the records that it claimed were not: in its possession or that it had conducted a diligent search for the r~cords (Matter of Cuadrad6 v • Morgenthau, __ 1ID2d __ ', 699 NYS2d l67). Lt. Suarez merely stated that "[b] ased on the information you provided and after searching for the following'requested document(s), this unit was unable, to locate" certain documents. ,'I t is unclear what role, if any,' he played'in,searcning for the documents and whether in fact a . diligentieear,ch had been conducted .. Under FOIL, government records are presumptively open for. public inspection and copying unless a statutory exemption applies (Matter of Gould v New York City PoHceDepartment I 89 i ' -, ~", NY2d 267, 274-215)., In keeping with this policy of government, accountability and openness.. such exemptions are to be narrowly " construed, . with the burden resting on the agency to provide particularized reasons why the material in question is exempt (Matter of Hanig v' State Dept. of Motor Vehicles, 79 NY2d 106, 109). In Matter 9f J9hnson v New York City Police Department (2,57' ,1ID2d 343, ,Iv dismiSsed 94 ~2d 791), 'this' court took note of the 74 competing considerations involved in a FOIL requ!:!st for 00-5 Reports, from a homicide investigation. We held that an in-came~a review of the documents by Supreme Court was the best way to balance the witnesses' safety and ,privacy conce=s against tl),e, strong policy preference for open disclosure (supra, at, 349) . This analysis applies ':.0 the o'li$'~ at bar . i Respondents did not even articulate'what type of info~ation was contained in this DD-5, but simply offered their con:clusion that the document would ,reveal confidential non-routine investigatory ,techniques. For similar reasons, Supreme Court on remand is directed to conduct an in~camera review of the unredacted versions of those documents that were released in redacted form, ~, the Arrest Report, Complaint Report, various DD-5s, 'Crillle Scene'Report, Latent Print Report and Voucher Cl702!n, to ascertain whether '" they fall within the privacy and safety exemptions under 87(2) (b) and (f). In ,iight of the foregoin~" we' need not address petitloner"s due process arguments. TRIS CONSTITUTES THE DECISION AND ORDER OF THE SUpREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ,ENTERED: MAY 9, 2000 , Gd-~"!I·'" O'~*1'o......lu~. \. ~-;r CLERK 75 · .. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ______ c _______________ " _______________________________ ---------------J( In the Matter of ,the Application of PERRY BELLAMY, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules -against- NEW YORK CITY POLICE DEPARTMENT, '. Respondent ----------------------------------------------------------------------J( CARlL PARKER IU, being duly sworn, deposes and says: AFFmA VllT OF CARL PARKERIH Index No, 401463/98 (Schlesinger, J.) 1. I am a detective employed by the Police Department of the City of New York ("NYPD"). Since August of 1995, I have been assigned to the Freedom of Information Law ("FOIL") Unit of the NYPD, which is the Unit responsible for processing all requests made to the NYPD pursuant to article 6 of the N.Y. Public Officers Law. 2. I make this affidavit i~ connection with the application of Perry Bellamy for a judgment pursuant to CPLR article 78, directing the production. of certain documents. I mak~ this affidavit upon personal knowledge, based upon my own actions in connection with this matter and based on my knowledge of the relevant NYPD procedures,' and also upon information and belief, based upon my review of documents contained in the file of this matter, which is maintained and kept in the normal course of NYPD business. 3. As a part of my' duties in the FOIL Unit, I participate in the maintenance of the files and records of the Unit, which files and records are kept in the normal course of NYPD 1 business. My duties also include contacting various units of the NYPD in order to obtain copies of documents required in connection with FOIL requests received from members of the public. In addition, I review responsive documents and prepare responsive letters in connection with . such FOIL requests. 4. It is the ordinary practice of the FOIL Unit to maintain, onfile, copies of all FOIL requests received. This practice has been in effect since before my assignment to the Unit, and remains in effect to this day. 5. Specifically, when a request for records is received by the FOIL Unit, it is assigned a chronological reference number and it is placed in it file folder (the "FOIL Unit File") which bears the name of the requester as well as the chronological reference number. As records pertaining to the request are gathered, they are placed in the FOIL Unit File pending review and release to the requester. Also kept in the FOIL Unit File are copies of any subsequent communications that pertain to the request. 6. In connection. with the current article 78 litigation (see, paragraph 2, supra), I have reviewed the FOIL Unit's records regarding petitioner's FOIL request, which records were made and kept in the ordinary course of NYPD business. 7. My review of the FOIL Unit File relevant to this matter reveals that petitioner made his original FOIL request on July 17, 1997, requesting records pertaining to charges against him of second degree murder, and also, of a second degree weapons charge. Petitioner also claims that byletter dated November 11, 1997', he added additional items to his original FOIL 'There is no record of receipt of this letter by the NYPD at any time prior to comm~ncement of this proceeding. However, inasmuch as this November 11, 1997 letter is addressed in this proceeding; 2 request. See, letters by Perry Be!!amy,dated July 17, 1997, and November 11, 1997 ,copies of which are annexed hereto as Exhibit" A. " 8. Furtber review of this FOIL Unit File reveals that the NYPD Records Access Officer ("RAO") g.ranted petitioner access to fourteen (14) photographs and twenty-three (23) pages of documents, with redactions pursuant to §§ 87 (2) (b) and (t), which exempt disclosure of information which would represent an unwarranted invasion of personal privacy, and of information which would endanger the life or safety of any person, respectively. The petitioner was also advised that upon receipt of his remittance in the amount of $ib.oO for the copying fee, the documents would be mailed to him. See, letter by Lieutenant . Glen Suarez, dated August 6, 1998, a copy of which is annexed hereto as Exhibit "B. " 9. However, prior to receiving a response to his FOIL request, petitioner filed an article 78 proceeding against respondents on May 4, 1998, asserting that respondents had constructively denied his request. See, order to show cause, dated May 4, 1998, affidavit,dated March 24, 1998, affidavit in support of order to. show cause, dated March 24, 1998, notice of petition, dated March 24, 1998, and verified petition'and accompanying exhibits, dated March 24, 1998, copies of which are annexed hereto as Exhibit "C." On August 18, 1998, respondents .. ~ cross-moved to dismiss the petition for mootness, in that ,the NYPD had made available to petitioner all tbe documents in its custody and possession tbat were responsive to his FOIL request. See, respondent's notice of cross-motion to dismiss and affirmation in support, copies. respondents have included the letter as part of Exhibit "A," annexed hereto, since petitioner has purported to have sent it to the FOIL Unit. This part of respondents' Exhibit "A," was copied from petitioner's Exhibit "C," annexed to the verified petition. 3 of which are annexed hereto as Exhibit':D .. ". The Hon. Bt)verly S. Cohen, J. S, C., by order dated October 5, 1998, denied and dismissed the petition. See, order by the Hon. Beverly S. Cohen, . dated October 5, 1998, a copy of which is annexed hereto as Exhibit "E." Petitioner appealed tnis decision, and the Appellate Division unanimously modified the Supreme Court's ruling in fav:or of the petitioner. See,paragraph 10, infra . . 1 0. On or about December 11, 2000, I received a memorandum dated December 11,2000, from the FOIL Litigation Unit of the NYPD. Annexed to the memorandum was a copy of an order from the Supreme Court, Appellate Division, First Department, dated May: 9, 2000, which modified the lower court's decision. See, memorandum from Supervisor, FdIL Litigation Unit, dated December 11, 2000, and order of the Appellate Division, First Department, dated May 9, 2000, copies of which are annexed hereto as Exhibit "F." 11. The memorandum described in paragraph 10, supra, directs the FOIL Unit to conduct a thorough and diligent search for the following items from petitioner's FOIL request2: a. Unusual Occurrence Report (Item 9) b. ·.AudiolVisual Recordings of interviews (Items 31-32) c. Sprint Printout and 911 Tape (Items 31-32) d. Request for Lab Exam (Item 15) e. Line-up Report & Photos (Item 20). f. Vouchers # A132709 & C170306 (Item 21) g. Witness Statements (Items 22-28 and 30) h. Memo Book (Item 10) i. Faxes in connection with this case (17) The FOIL Unit was directed to fully document its search. See, Exhibit "F." I was the person 2The Appellate Division also directed the NYPD to search for copies of the sentencing reports of Mike Brown and Terry Trantham, and a copy of the probation report of Terry Trantham. See, Exhibit "P." However, since the NYPD's involvement in criminal cases ceases at trial, and these documents are prepared after trial, the NYPD does not have custody or control of these docllments. 4 assigned to conduct this search, 12, Based on my knowledge of NY PO procedures, the only place these documents are likely to be found is in the homicide folder kept in the 113th Precinct Detective Unit ("PDU"), Based upon several phone conversations in the week of January 2, 2001, through January'5, 2001, with Lieutenant Richard Bellucci, the supervisor of the 113th PDU, I was informed that the entire case record had been forwarded to Mr. Gary. Lasalle of the Queens District Attorney's Office. See, memorandum requesting this case record from the 113th Precinct, a copy of which is annexed hereto as Exhibit "G." 13. Based upon my review of all the documents available to me in the case involvihg the charges against the petitioner, including the unredacted complaint reports and complaint follow-up reports, and my knowledge of NYPD procedures,' there is no .indication that audio/visual recordings of interviews (Item 3), witness statements (Item 22-28, and 30), other than those contained in DOSs, and line-up report and photos (Item 20) were prepared by the NYPO . in the case involving the charges against the petitioner. If any of the foregoing documents did exist, they would be among the documents transmitted to the Queen's County District Attorney's . Office, and not within the custody and control of the NYPD, See, paragraph 12, supra, and Exhibit "G." 14. On January 22,2001, I contacted Sergeant .Bottoms of the Chief of Patrol's Office in order to obtain the unusual occurrence report pertaining topetitioner's case. Sergeant Bottoms later informed me that his search for this record yielded negative results. As such, the unusual occurrence report is not in NYPD custody and contro\. . 15. Or). January 8, 2001, I contacted Sergeant Lotakis, who is assigned to the Records 5 and Tapes Unit of the NYPD, who informedlTlethatthe 911 Sprint Printout in regard to the October 10, 1985 homicide had been destroyed pursuant to a destruction order. 3 Moreover, insofar as the petitioner's request for a tape recording of the 91 I-call, which occurred on October 10,1985, is concerned, this tape no longer exists because it is the ordinary practice of the NyPD to destroy 911 tapes after90 days. 16. Moreover, review of this FOIL Unit File indicates that petitioner was granted access to latent [finger] prints reports and ballistics reports (Item 15), arid therefore a thorough and diligent search for these records is unnecessary; See, Exhibit "B" and ~ also copies of all documents petitioner was granted access to, annexed hereto as Exhibit "H." 17. Also, my. review of the FOIL Unit File indicates that petitioner was granted access to a redacted copy of Voucher # C170306, part of Item 21 of his request, which was a voucher of the decedent's personal property; and thus, a further search for this record is unnecessary. 18. In so far as Voucher#Al32709 is concerned, I contacted the College Point Pound to obtain information on January 8, 2001, at which time I spoke with Police Administrative Assistant ("PAA") Battles .. PAA Battles typed in this voucher number into the computer, and stated that the computer listed, "no files found" under this particular number. 19. Based on my knowledge of NYPD procedure, detectives assigned to investigative units are not required to maintain police memo books. Based upon my review of the FOIL unit file, the only police officer involved in the investigation of the charges against the petitioner, was 3Sergeant Lotakis also informed me that Sprint reports are documented on microfiche for ten years, and then, pursuant to destruction orders, are destroyed by incineration. 6 Police .officer Tin19thy Foley ,who,documented the original complaint report (known as a "61 ".). ... On January 18, 2001, I contacted PAA Cole, of the NYPD's personnel department, in order to ascertain Police Officer ("PO") Timothy Foley's current whereabouts within the NYPD, inorcter to obtain his memo book, As per PAA Cole, who conducted a computer search under PO Timothy Foley's name and tax registration number, the computer indicated that Mr. Timothy Foley had tendered his resignation to the NYPD in 1987. Based upon my review of the documents in the FOIL Unit folder, the other members of the NYPD il\volved in the investigation of this case were several designated detectives of the 113th PDU. Based upon my knowledge of . NYPD procedure, NYPD detectives document their investigative findings in DD5s, or complaint follow-up reports, rather than in memo books. As noted in paragraph 8, supra, the petitioner has been granted access to these DD5s in redacted form, 20. Additionally, the FOIL Unit was directed to search for "faxes in connection with this case." See, Exhibit F. The NYPD does not maintain any official record that is designated a "fax.4" Previously disclosed records may have been transmitted by fax to and from NYPD personnel. However, I am unable to determine, which, if any, records were faxed to and from NYPD personnel. Nevertheless, even if this were possible, the fax would be no more than a telecopy of the original document; that is, it would only be a duplicate of another document that had an independent existence. 4A fax is no morethan the electronically transmitted copy of a document, and has no independent existence as a document. 7 21. Asnoted inparagrapl112, supra, ~ had been adyised by Lieutenant Bellucci that the case folder WaS forwarded to the Queens District Attorney's Office, and as such it is no longer in the custody and control of the NYPD. Based upon my review of the FOIL Unit folder pertaining to petitioner's case, I have conducted a diligent search for various items, as directed , by the Appellate Division, First Department, and my findings are fully documented herein. above. The exercise of due diligence requires no more than a search for records where it can reasonably be expected to be, and this has been done in this case, to the.furthest extent possible. WHEREFORE, by virtue of the foregoing and of all the. papers and proceedings heretofore held herein, respondent respectfully requests that the court find that the respondent lias conducted a diligent search as directed by the appellate division, and grant such other and further relief as may be just and proper. Dated: New York, New York January 23, 2001 MICHAELJ. KAIEGEIl NOTARY PUBUC, STATE Of NEW YORK NO. 02KR6024192 . QUAUFIED IN QUEENS COUNTY COMMISSION EXPIRES MAY 3, 2001 Sworn to me before this. 23'd day of January 2001 Detective CARL PARKER HI I 8 I , ' SUPREME COURT OF THE STATE Qf.,NEW YORK - NEW YORK COUNTY " ALICE SCHLESINGI:K· lArllt1te PRESENT: PART ,. Justice INDEX NO. MOTION DATE • v • MOTION SEQ. NO. MOTION CAL. NO. The following papers, numbered 1 to __ were read on this motion tolfor _____ _ PAPERS NUMBERED Notice of Motionl Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits ___________ ~ _____ _ Replying Affidavits ___ -'--____ --, _____ _ Cross-Motion: 0 Yes 0 No Upon the foregoing papers, it is ordered that this motion NOV 27 2007 ~ Q~". . .' Dated: ~ '-J. ALICE SCHL ~E'RJ·S.C. Check one: If':':J. FINAL DISPOSITION o NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST [J REFERENCE SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------~-------------------"-------------------------------)( In the Matter of the Application of PERRY BELLAMY Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules, -against- NEW YORK CITY POLICE DEPARTMENT, Defendants. ---------------------------------------------------------------------)( SCHLESINGER, J.: Index No. 401463/98 On March 27, 2002, I marked off the calendar the petition brought by Perry Bellamy pursuant to Article 78 of the CPLR. Mr. Bellamy had made an extensive FOIL request of respondent, the New York Police Department, for documents regarding the investigation of events related to the murder of Parole Officer, Brian F. Rooney on October 10, 1985. Mr. Bellamy had been convicted of that murder. In the ensuing 22 years, petitioner has been challenging that conviction in both state and federal courts, insisting that he is innocent of the crime. To date, he has been unsuccessful in those efforts and remains incarcerated. I had taken his FOIL petition off the calendar pursuant to a request made by Bellamy, communicated through his pro bono attorney, Michael Ciaffa. Mr. Ciaffa and this Court believed that Mr. Bellamy's claim of innocence was deserving of further investigation. Striking the matter from the calendar and providing time for such an investigation, which the Queens District Attorney's Office, the prosecutor in this case, had agreed to do, seemed to best serve the interests of justice. In a letter to the Court; dated December 21,2004, Charles Testagrossa, Executive Assistant District Attorney for the Queens Major Crimes Division, outlined what his office had done to reinvestigate Mr. Bellamy's allegations that he had been wrongfully convicted. Testagrossa's conclusion. was that Bellamy had not been. wrongfully convicted and he pointed out that Mr. Bellamy's assertions of innocence throughout his appeals were in . contradiction to the written and videotaped statements he had given to the police when he was arrested. Those statements by Bellamy admitted to his having been in the decedent's· car shortly before the murder. Therefore, the Queens District Attorney concluded their investigation, seeing no reason to change their position. After this, I did not hear from Mr. Bellamy and his FOIL request remained off calendar. That is until October 23, 2007 when he wrote to the Court requesting that the " case be placed qack on the calendar. Petitioner also wanted to amend his FOIL in several. ways, generally dealing with other individuals charged with this crime. Bellamy's original challenge to the Police Department's response to his FOIL request was first denied by a different judge in this court for technical reasons. Mr. Bellamy appealed that dismissal and won a modification before the Appellate Division. On May 9, 2000, that court decided that the dismissal was unwarranted. As to the merits of the FOIL action, it remanded the matter for two purposes. First, it directed respondent New York City Police Department to make a diligent search for the requested records and then so state that that was done and the results of that search. Second, there was to be an in camera review by the Supreme Court to ascertain the applicability of the redactions and exemptions claimed by respondent pursuant to Public Officers Law §§ 87(2)(f) and 2 87(2)(e)(iv). Bellamy v. NYC Police Dept., 272 A02d 120 (1'1 Dep't 2000). The decision gave specific details as to the FOIL requests and how the Police had responded. Mr. Bellamy had requested 36 separate items. In a letter dated August 6, 1998, Lt. Glen Suarez advised petitioner that he would provide 6 of those items, as well as a Latent Prints Report. (These would be provided upon payment of a $10.00 fee).1 Those items were the arrest reports, his mugshot, the complaint report, the crime scene unit supplementary report, 00-5 reports, and the property clerk invoice. The documents were redacted because Suarez stated release would pose "an unwarranted invasion on personal privacy" or because it ''would endanger the life or safety of any person." The. authority for this assertion was Public Officers Law §§ 87 (2)(b) and (f). Finally, with regard to one complaint follow-up, a 00-5, that was held back pursuant to §87(2)(e)(iv) on the ground that its release "would reveal non-routine investigatory " techniques." The Appellate Court opined that Lt. Suarez's letter was insufficient to satisfy respondent's burden. It must instead certify that it conducted a diligent search by an individual with personal knowledge. Also, as stated above, it was for the court to review the documents and balance the interests of the petitioner in obtaining documents "presumptively open for public inspection" with the witnesses' safety and privacyconcerns . . in mind. The court added that there was a "strong policy preference for open disclosure", quoting In the Matterof Johnson v. New York City Police Department, 257 A.0.2d 343, 349 IFrankly, it is unclear to me, the second trial court hearing this matter, whether the aforementioned documents were actually turned over. However, whether they were or were not, they were severely redacted. 3 (1't Dep't 1999), Iv dismissed 94 NY2d 791. The Department responded to the remand in two ways. First, it submitted an 8 page affidavit from Detective GarlParker III, who, since August of 1995 has been assigned to the Freedom of Information Law Unit of the NYPD. The second was a submission to the Court of the police documents located showing what redactions had been made and with yellow post-its attached to each, summary reasons for the redactions. I have reviewed both the affidavit and the documents and find the following. The affidavit by Detective Parker detailing the steps he personally took in trying to locate the requested documents does satisfy the first direction. It should be noted, however, that the first 14 pages of the affidavit merely give the history of this protracted FOIL proceeding. However, in paragraph 12, beginning on page 5, the Detective does detail how he searched and what his findings were. He does provide details in that regard. For example, he learned that the relevant homicide folder, which would normally be kept in the 113th Precinct Detective Unit, had been sent in its entirety to a Mr. Gary LaSalle of the Queens District Attorney's office. Therefore, he says in paragraph 13, "if any of the foregoing documents did exist, they would be among the documents transmitted to the Queens County District Attorney's office, and not within the custody and control of the NYPD."2 Detective Parker then goes on to explain precisely who he contacted in his search and what responses he received. It should be noted here that this crime occurred 22 years ago and thus it does not surprise that many of the requested documents are now gone. 2This information does seem consistent with Mr. Testagrossa'sstatement that the records related to Mr. Bellamy's case "comprise approximately eight full boxes of documerits." . 4 .. ,.~ As to my in-camera review, I believe, after all of these years thaUhe balancing tips in Mr. Bellamy's favor. The information is very old and as to details of addresses and the like; probably no longer useful. But I frankly see no danger to individuals or their privacy after so many years. I also do not see anything extraordinary about the investigative techniques used by the Police in the mid-1980's which would compromise ongoing techniques. On the other side, despite the limited usefulness of this information to the petitioner, he is, after 22 years still fighting for his freedom. Therefore, I am directing that the respondent turn overto Mr. Bellamywithin 15 days of this decision, which is being mailed to the parties, the located documents without any redactions. Finally, in Mr. Bellamy's October 23, 20071etierto the Cou rt,he states that he wants to amend his F.O.I.L so as to get a copy of H~ward Mason's trial transcripts under indictment number 5382/85. Mason also went to trial for Rooney's murder. He also is requesting a copy of the arrest reports for Mike Brown, "who was charged with perjury." I cannot allow such.an amendment. In the first instance, respondent NYPD would not have possession of Mason's trial transcripts. Therefore they are not a proper party to such a request. As to Brown, BeHamy wiil have to make a separate request for that document pursuant to the Public Officers Law. As to federal documents, mentioned by Mr. Bellamy, of course this Court has no jurisdiction over those documents and thus cannot order or eVE)n urge those authorities to provide them. I am not unsympathetic to Mr. Bellamy's plight but cannot go beyond the bounds of my designated authority. Accordingly, it is hereby 5 ORDERED that this proceeding is restored to the calendar; and it is further ADJUDGED that the petition is granted to the extent provided herein. This constitutes the decision and judgment ofthis Court. , _ ("!iJ , Dated: November 27, 2007 ~,,\(&U~~ NO" ~ 7 LQG1 z:::;::?-'--- . J.S.C. " ALICE SCHLESINGER 6