Index No. 158036/2018
NYSCEF DOC. NO. 40
DECISION and ORDER
Mot. Seq. 1 HON. EILEEN A. RAKOWER, J.S.C.
Petitioner James Campbell ("Petitioner") brings this action pursuant to Article 78 of the New York Civil Practice Law and Rules ("Article 78") for an Order directing Respondents The City of New York (the "City") and The New York City Police Department (the "NYPD") (collectively, "Respondents") to produce a complete copy of all documents or records related to the September 7, 2017 arrest (Arrest ID M17654502) and subsequent prosecution of Petitioner (Index No. 03406-2017). Respondents cross move to dismiss the action.
On May 10, 2018, Petitioner sent a Freedom of Information Law Request ("FOIL Request") to the NYPD FOIL unit seeking:
"any records relating in any way to the arrest of James Campbell on or about September 7, 2017, including all documents relating to the investigation of the burglaries at the Westside Jewish Center at 347 West 34th Street in June and August of 2017, and the subsequent prosecution in the case The People of the State of New York v. Campbell, Case No. 03406-2017. The investigation was handled by Detectives James Ouellette (Shield No. 6852) and Gary Scollard (Shield No. 7804). Video surveillance
was recovered from the Westside Jewish Center, and that footage should be included in the responsive documents. Enclosed is a duly executed §160.50 release, which allows for the release of these records."
On August 8, 2018, the NYPD sent an email to Petitioner providing ten pages of documents related to the June 26, 2017 investigation and Petitioner's arrest on September 7, 2017. The NYPD denied Petitioner's request for video surveillance pursuant to New York Public Officers Law ("POL") § 87 (2)(b) and (f) because the information sought would be "an unwarranted invasion of privacy and would endanger the life and safety of any person".
On August 16, 2018, Petitioner appealed the NYPD's August 8, 2018 response as "inadequate and failing to provide all required documents under FOIL law". Petitioner challenged the NYPD's denial to release surveillance footage, contending that a blanket denial of the videotapes is improper and the videotapes should be analyzed under the same standard as any other record under FOIL.
On August 20, 2018, the NYPD responded to Petitioner's appeal and granted the appeal "to the extent that a diligent search was conducted" and the NYPD provided "the complete investigative case file for the arrest of Mr. Campbell (#M17654502) referred to in your request" with redactions. The NYPD also provided Petitioner with Petitioner's mugshots, the 911 SPRINT Report (with redactions), surveillance video and the signed criminal complaint. The NYPD further stated after performing a diligent search no other records were located.
Petitioner brings this Article 78 proceeding (1) directing Respondent City Clerk to produce all documents related to Petitioner's September 7, 2017 arrest and subsequent prosecution; and (2) awarding attorneys' fees and expenses incurred in this litigation.
Respondents brought their Cross-Motion on December 3, 2018, seeking a dismissal of the Petition on the grounds that: (1) the current proceeding is moot in that a diligent search has been completed, and all responsive records located pursuant to a diligent search have been provided; and (2) a portion of the records sought were not reasonably described in a manner that could lead to their retrieval.
Petitioner asserts that the NYPD failed to complete a "diligent" search of the documents requested in Petitioner's FOIL Request. Petitioner argues that he "reasonably described" the documents sought in the FOIL Request and the NYPD would have been aware that Petitioner was arrested and charged on September 7, 2017. Petitioner contends that he did not limit his FOIL Request to a specific incident or arrest number and the reason he provided one arrest number was to assist NYPD with their search. Petitioner further contends that he "clearly stated" in his FOIL Request that he sought all records related to the September 7, 2017 arrest. Furthermore, Petitioner asserts that he does not seek the records previously provided by the Manhattan District Attorney's Office through a FOIL Request. Petitioner contends that he is entitled to attorney's fees.
In Respondents' Cross-Motion, Respondents contend that the NYPD has done a "diligent search" of the documents sought in Petitioner's FOIL Request, pursuant to POL § 89(3). Respondents argue that they provided Petitioner with the entire case file related to the September 7, 2017 and the Arrest ID M17654502 which was requested in Petitioner's FOIL Request and denied documents pursuant to POL § 87(2)(e)(iv) (non-routine law enforcement techniques). Respondents further argue that the Court of Appeals has held that documents sought in FOIL Requests are moot or academic where the District Attorney's Office has provided those documents. Respondents contend that since the District Attorney's Office has provided Petitioner with a number of documents, Respondents do not have to provide those documents because they are already in Petitioner's possession.
Moreover, Respondents contend that the Facial Identification Section and Mugshot photo related to a complaint number was not requested in Petitioner's FOIL Request. Respondents assert that the NYPD informed Petitioner that the Pattern Report would not be disclosed pursuant to POL § 87(2)(e)(iv). Respondents contend that the three other criminal incidents were not requested in Petitioner's FOIL Request because they did not coincide with the September 7, 2017 arrest date which related to the June 26, 2017 grand larceny at the Westside Jewish Center at 347 West 34th Street. Respondents further contend that the three other criminal incidents could not be obtained because the indictment number Petitioner provided cannot be conducted within the NYPD's because the indictment number is issued by the Court. Respondents argue that the Facial Identification Section Request and the NYPD Mugshot Photo Viewing do not correspond to the Arrest ID number Petitioner provided. Furthermore, Respondents argue that Petitioner has not demonstrated that the documents exist and were in the NYPD's control. Respondents assert that the Petitioner has the burden to "reasonably describe" the documents sought in the FOIL Request. Additionally, Respondents contend that Petitioner's request for attorney's fees should be denied.
"All agency records are presumptively available for public inspection and copying, unless they fall within 1 of 10 categories of exemptions, which permit agencies to withhold certain records." Hanig v. State Dep't of Motor Vehicles, 79 N.Y.2d 106, 108  (citations omitted). "Those exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption (Public Officers Law § 89  [b])." Id. "[T]o invoke one of the exemptions of section 87 (2), the agency must articulate particularized and specific justification for not disclosing requested documents." Gould v. New York City Police Dep't, 89 N.Y.2d 267, 275 . Moreover, "an agency responding to a demand under [FOIL] may not withhold a record solely because some of the information in that record may be exempt from disclosure. Where it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information." Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals v. Mills, 18 NY3d 42, 45 .
"Public Officers Law § 89(3) places the burden on petitioner to reasonably describe the documents requested so that they can be located." Mitchell v. Slade, 173 A.D.2d 226, 227 [1st Dept. 1991] (citation omitted). "When an agency is unable to locate documents properly requested under FOIL, Public Officers Law § 89(3) requires the agency to 'certify that it does not have possession of [a requested] record or that such record cannot be found after a diligent search.'" Rattley v. New York City Police Dep't, 96 N.Y.2d 873, 875 . "The statute does not specify the manner in which an agency must certify that documents cannot be located." Id. "Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required." Id.
"[J]udicial review of an administrative determination is limited to the grounds invoked by the agency" and "the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis." Madeiros v. New York State Educ. Dep't, 30 N.Y.3d 67, 74  (citation omitted). "Although review of an administrative determination is generally limited to the grounds invoked by the agency at the time of its determination, this principle of administrative law [does] not preclude [this Court] from addressing the... newly raised exemption where, as here the confidentiality rights of third parties not before the court are implicated by the disclosure determination". Empire Healthchoice Assurance, Inc. v. Clement, 60 Misc. 3d 1207(A) [N.Y. Sup. Ct. 2018] (citations omitted).
Agencies may deny a FOIL Request pursuant to POL § 87(2)(e), where "access to records that reveal criminal investigative techniques or procedures, except routine techniques and procedures". Fink v. Lefkowitz, 47 N.Y.2d 567, 568 . "Indicative, but not necessarily dispositive, of whether investigative techniques are nonroutine is whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel." Id. at 572
Pursuant to POL § 89(4)(c), a court may award reasonable attorney's fees and litigation costs incurred where a party has "substantially prevailed" and when the agency "failed to respond to a request or appeal within the statutory time"; and the agency had no "reasonable basis" for denial. See POL § 89(4)(c). The Court of Appeals has stated, "[p]ursuant to FOIL's fee-shifting provision, a court may award reasonable counsel fees and litigation costs to a party that 'substantially prevailed' in the proceeding if the court finds that (1) 'the record involved was, in fact, of clearly significant interest to the general public,' and (2) 'the agency lacked a reasonable basis in law for withholding the record'(Public Officers Law § 89  [c]). Only after a court finds that the statutory prerequisites have been satisfied may it exercise its discretion to award or decline attorneys' fees." Beechwood Restorative Care Ctr. v. Signor, 5 N.Y.3d 435, 441 .
Respondents satisfied the certification requirement pursuant to POL § 89(3) by stating that the NYPD has done a "diligent search" and that all responsive documents had been disclosed to Petitioner. Rattley, 96 N.Y.2d at 875. Accordingly, Respondents Cross-Motion to Dismiss is granted. Petitioner's request for attorneys' fees is denied.
Wherefore it is hereby
ORDERED that the Petition is denied and that Respondents' Cross-Motion is granted; and it is further
ORDERED that the Petition is dismissed and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that counsel for Petitioner shall serve a copy of this Order, along with notice of entry on all parties within 15 days of entry.
This constitutes the Decision and Order of the Court. All other relief requested is denied. Dated: MAY 31, 2019
Eileen A. Rakower, J.S.C.