Legal Aid Socy., Inc. v City of New York Police Dept. 2025 NY Slip Op 30177(U) January 17, 2025 Supreme Court, New York County Docket Number: Index No. 151910/2024 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 151910/2024 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/17/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ---------------------------------------------------------------------------------X INDEX NO. 151910/2024 THE LEGAL AID SOCIETY, INC.,JESSE KROPF MOTION DATE 03/01/2024 Petitioner, MOTION SEQ. NO. 001 -v- CITY OF NEW YORK POLICE DEPARTMENT, JORDAN S. DECISION + ORDER ON MAZUR, MOTION Respondent. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .
Petitioners, The Legal Aid Society, Inc. (“Legal Aid”) and Jesse Kropf, petition the court
pursuant to CPLR § 7806 seeking an order directing respondent, City of New York Police
Department (“NYPD”) to disclose records sought by petitioners under the New York Freedom of
Information Law, Public Officers Law §§ 84-90 (“FOIL”). Legal Aid argues that NYPD has not
fully responded to the FOIL request, that there are outstanding records that have not been
provided, and that the records they have been provided were improperly redacted. Legal Aid
further argues that it is entitled to attorney’s fees pursuant to NY PUB OFF § 89(4) because
NYPD had no reasonable basis for denying it the records sought. NYPD cross-moves pursuant to
CPLR § 7804(f) to dismiss Legal Aid’s Article 78 petition. NYPD argues that it has complied
with its statutory duty under FOIL and have provided all responsive non-exempt records.
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BACKGROUND
Legal Aid is a nonprofit legal services organization serving the New York City area that
provides criminal defense, civil, juvenile rights, and pro bono legal services (NYSCEF Doc No 1
¶ 2). Jesse Kropf, the Supervising Attorney of the Discovery Unit at Legal Aid submitted a FOIL
request on behalf of Legal Aid on June 12, 2023 to the NYPD (id. at ¶ 1 – 3; see also NYSCEF
Doc No 6). The FOIL request sought information regarding the NYPD’s Enterprise Case
Management System (“ECMS”), which is a digital case management system used by NYPD to
organize and share case files and documents across NYPD (NYSCEF Doc No 6). Specifically,
Legal Aid requested “the most recent version of any training material related to the use of the
[ECMS] software [specifically] all training materials for all types of employees, including but
not limited to: Administrative Staff, Information Technology Staff, Police Officers, Detectives,
and Unit Commanders” (id.).
On June 15, 2023, NYPD acknowledged the request and informed Legal Aid that it could
expect a response by October 27, 2023 (NYSCEF Doc No 7). On October 15, 2023 NYPD
provided Legal Aid with a 43 page partially redacted file and closed the request (NYSCEF Doc
No 8). On October 20, 2023, Legal Aid appealed NYPD’s production to the Records Appeal
Officer as “not fully responsive to the June 12, 2023 request because it does not provide all of
the material requested” (NYSCEF Doc No 9). Legal Aid argued that the production was not fully
responsive for three reasons.
First, it argued that the materials provided were incomplete as the training materials
provided were only intended as instructions to supervisors on how to “generate reports for cases
assigned to a specific detective, unit, or precinct” (id.). Legal Aid clarified that NYPD failed to
disclose “[t]raining materials provided to precinct level detectives on how to create [entries into
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ECMS] during an investigation” (id). Legal Aid further requested training materials provided to
28 specialized NYPD units on how to create ECMS entries (id). Additionally, Legal Aid
requested “[t]raining Materials provided to patrol officers, administrative staff, or IT
professionals on the operation of ECMS” (id.).
Second, Legal Aid noted that the October 15, 2023 production referred to other training
materials which were not actually included within that production (id). For example a portion of
the production referenced “User Manuals” that officers using the software could access but the
production did not include the user manuals themselves (NYSCEF Doc No 9 at p 34 ¶ 19[a]).
Finally, Legal Aid objected that the materials produced were from 2009 when Legal Aid
requested the most recent versions of training materials used by NYPD (id.). Legal Aid noted
that the ECMS system was reported to have been updated multiple times since 2009 and
requested the most recent copies of training documents associated with those software updates
(id.).
NYPD responded to Legal Aid’s’ appeal on November 2, 2023 (NYSCEF Doc No 15).
NYPD objected to the breadth of Legal Aid’s appeal arguing that “the request is too broad and
does not reasonably describe a record in a manner that could lead to its retrieval” (NYSCEF Doc
No 15). Notwithstanding its objection, NYPD conducted a search and provided an additional 960
pages of records (id.). According to NYPD, portions of these records were redacted pursuant to
NY PUB OFF §§ 87(2)(b); 89(2)(b); 87(2)(i); and 87(2)(a); as well as Criminal Procedure Law
§160.50 (id.). NYPD also disclosed 272 pages, with redactions pursuant to POL § 87(2)(e)(iv),
that consisted of “Patrol Guide Procedure number 212-75,” “69 Detective Guide sections,” and
“Operations Order 45 of 2013” (id.).
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Finally, NYPD also informed Legal Aid that it identified “four NYPD-created ECMS
training presentations specifically detailing how to investigate stolen property and narcotics
matters, document debriefings, and conduct specific computer checks” but they had been
withheld in their entirety pursuant to NY PUB OFF § 87(2)(e)(iv). NYPD further stated “that no
other records related to this matter were located” (id.).
Finally, after Legal Aid initiated this proceeding, NYPD provided additional disclosure
on July 29, 2024 providing three slideshows that were partially redacted (NYSCEF Doc No 35).
Legal Standard for Judicial Review of a FOIL Request
NY PUB OFF § 87(2) provides that agencies “make available for public inspection and
copying all records, except those records or portions thereof that may be withheld pursuant to the
exceptions of rights of access appearing in this subdivision.” “[T]he purpose of FOIL is ‘to
promote open government and public accountability’ with the law imposing ‘a broad duty on
government to make its records available to the public’” (Tuck-It-Away Assoc., L.P. v Empire
State Dev. Corp., 54 AD3d 154, 162 [1st Dept 2008]). “All government records are
presumptively open for public inspection unless specifically exempted” (Matter of Fappiano v
New York City Police Dept., 95 NY2d 738, 746 [2001]).
Judicial review of a FOIL request is subject to an Article 78 review under CPLR § 7803
and is limited to a determination of whether the agency’s denial “was affected by an error of
law” (Mulgrew v Bd. of Educ. of City School Dist. of City of New York, 87 AD3d 506, 507 [1st
Dept 2011]).
When an agency does not provide requested documents under FOIL, “Public Officers
Law § 89(3) requires the agency to ‘certify that it does not have possession of [a requested]
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record or that such record cannot be found after [a] diligent search’” (Rattley v New York City
Police Dept., 96 NY2d 873 [2001]). If an agency claims that a requested record is subject to an
exemption from disclosure they must provide a particularized and specific justification for
denying access (City of Newark v Law Dept. of City of New York, 305 AD2d 28 [1st Dept 2003]).
“Exemptions are to be narrowly construed to provide maximum access, and the agency seeking
to prevent disclosure carries the burden of demonstrating that the requested material falls
squarely within a FOIL exemption by articulating a particularized and specific justification for
denying access” (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566
[1986]).
While the burden of proof for justifying an exception lies with the agency, when a
petitioner challenges an agency’s claim that there are no further responsive documents, a
petitioner is “required to articulate a demonstrable factual basis to support his contention that the
requested documents existed and were within the [agency’s] control” (Matter of Gould v New
York City Police Dept., 89 NY2d 267, 279 [1996]).
Withheld Trainings
Legal Aid argues that NYPD has not met its burden under Hearst of “articulating a
particularized and specific justification for denying access” to the four additional NYPD- created
ECMS training presentations which were withheld in their entirety. NYPD argues that these were
properly withheld pursuant to NY PUB OFF § 87(2)(e)(iv).
NY PUB OFF § 87(2)(e)(iv) states:
(2) Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except those records or portions thereof that may be withheld pursuant to the exceptions of rights of access appearing in this subdivision. A denial of access shall not be based solely on the category or type of such record and shall be valid only when there is a particularized and
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specific justification for such denial. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: … (e) are compiled for law enforcement purposes only to the extent that disclosure would:
(iv) reveal criminal investigative techniques or procedures, except routine techniques and procedures;
“The purpose of this exemption is [to ensure] that violators of the law not be apprised of
the nonroutine procedures by which an agency obtains its information” (Fink v Lefkowitz, 47
NY2d 567, 572 [1979]). “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.).
In Grabell v New York City Police Dept., the First Department held that the NYPD
properly utilized this exception by refusing to turn over records regarding the use, deployment,
procedures, and training materials of NYPD owned, Z–backscatter vans, which are mobile X–ray
units that scan vehicles or buildings for evidence of explosives, drugs and other materials
(Grabell v New York City Police Dept., 139 AD3d 477 [1st Dept 2016]). The Court determined
that the NYPD “articulated a ‘particularized and specific justification for not disclosing’ these
records … [by] submit[ing] an affidavit of … NYPD's Deputy Commissioner of
Counterterrorism, who averred that … releasing [the records] would undermine [the vans’]
deterrent effect, hamper NYPD's counterterrorism operations, and increase the likelihood of
another terrorist attack” (id. at 478).
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Here, NYPD argues that disclosure of the requested trainings that have been withheld in
their entirety would provide criminals with a roadmap on how to avoid detection and undermine
NYPD investigation strategies. “Where an agency's response to a FOIL petition is sufficient, a
court need not burden itself by conducting either a hearing or an in camera inspection of the
records that the agency contends are exempt from production” (Matter of Robert v LoCicero, 28
AD3d 566, 567 [2d Dept 2006]). While some of the withheld training material may be subject to
the NY PUB OFF 87(2)(e)(iv) exception, since the records were completely withheld “it cannot
be determined whether the [withheld] material falls wholly or only partially within that
exemption” (Gedan v Town of Mamaroneck, 170 AD3d 833, 834 [2d Dept 2019]). “When an
agency claims a FOIL exemption that cannot be evaluated on the basis of the documentation
submitted on the motion, an in camera inspection is an appropriate, and likely necessary, method
for the court to evaluate whether the exemption is applicable” (DJL Rest. Corp. v Dept. of Bldgs.
of City of New York, 273 AD2d 167, 169 [1st Dept 2000]; see also Hudson Val. Community Coll.
Faculty Assn., Inc. v Hudson Val. Community Coll., 218 NYS3d 896, 901 [Sup Ct 2024] [“If the
court is unable to determine whether withheld documents fall entirely within the scope of the
asserted exemption, it should conduct an in camera inspection of [the] documents and order
disclosure of all nonexempt, appropriately redacted material”).
Therefore, NYPD will be directed to submit the withheld training materials to the court
for an in camera inspection and the court will issue an order directing disclosure of any, non-
exempt material after the inspection.
Redacted Documents
Legal Aid also argue that some of the material that was provided contained improper
redactions that were not specifically particularized. NYPD argues that the redactions were proper
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pursuant to NY PUB OFF §§ 87(2)(b), 89(2)(b), 87(2)(e)(i), (e)(iv), (f),(i), (a), and Criminal
Procedure Law §160.50. NY PUB OFF §§ 87(2)(e)(i) and (e)(iv), as discussed above exempts
disclosure when disclosure would interfere with ongoing investigations or reveal non-routine
procedures. NY PUB OFF §§ 87(2)(b) and 89(2)(b) exempts disclosure when disclosure would
constitute an invasion of personal privacy. NY PUB OFF § 87(2)(f) exempts disclosure when
disclosure would endanger the life or safety of persons (including victims, witnesses, suspects
and police officers). NY PUB OFF § 87(2)(i) exempts disclosure when disclosure would
jeopardize the agency’s security of its information technology. And finally, NY PUB OFF §
87(2)(a) and CPL § 160.50 prevents the release of sealed records.
“Where an exemption is claimed, the burden lies with the agency to articulate
particularized and specific justification, and to establish that the material requested falls squarely
within the ambit of [the] statutory exemptions.” (M. Farbman & Sons, Inc. v New York City
Health and Hosps. Corp., 62 NY2d 75, 83 [1984]). “[M]erely repeating the statutory phrasing of
an exemption are insufficient to establish the requirement of particularity” (DJL, 273 AD2d at
168-69). Here, while the NYPD annexed to its moving papers the records that were provided to
Legal Aid and generally stated the exceptions that where the basis for the redactions, it failed to
indicate which exception applied to each redaction. Consequently, an in camera review of the
unredacted records is necessary and NYPD will be directed to provide both an unredacted copy
and a redacted copy, noting the exception that applies to each redaction (see New York Civ.
Liberties Union v New York City Dept. of Correction, 213 AD3d 530, 531 [1st Dept 2023], lv to
appeal denied, 40 NY3d 909 [2024] [“The court also properly required that [the agency]
sufficiently document its justification for redactions, to facilitate potential in camera review”]).
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Additional Records / Diligent Search
Legal Aid also argues that it is entitled to an evidentiary hearing it has demonstrated that
additional responsive records to its request likely exist despite NYPD’s certification to the
contrary. NYPD contends that it has provided all responsive records following a diligent search.
An agency’s obligation under FOIL pursuant to NY PUB OFF § 89(3) states that “the
entity shall provide a copy of such record and certify to the correctness of such copy if so
requested, or as the case may be, shall certify that it does not have possession of such record or
that such record cannot be found after diligent search.” When an agency certifies that it
performed a diligent search and provided all responsive records, the entity requesting the
documents may “be entitled to a hearing on the issue where he or she can articulate a
demonstrable factual basis to support the contention that the requested documents existed and
were within the entity's control” (Matter of Oddone v Suffolk County Police Dept., 96 AD3d 758,
761 [2d Dept 2012]). A petitioner may satisfy this “demonstrable factual basis” by pointing to
references to such records by agency officials, and unexplained absences for records that would
be produced in the course of ordinary business (see Binghamton Precast & Supply Corp. v New
York State Thruway Auth., 196 AD3d 944 [3d Dept 2021] [a letter from agency Comptroller
referencing certain records was sufficient basis to order a hearing]).
Here, however, Legal Aid has failed to meet its burden of articulating a “demonstrable
factual basis” that requested documents exist in the agency’s control but were not produced.
While Legal Aid argues that it is inconceivable that the most recent training material for the
ECMS system is from 2019, it fails to point to any evidence indicating that any more current
versions of the material exist. While Legal Aid notes public statements made by NYPD officials
describing NYPD as “the most technologically advanced police department in the nation” that
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“utilizes cutting-edge technology and equipment” (Technology and Equipment, NYPD,
https://www.nyc.gov/site/nypd/about/about-nypd/equipment-and-tools.page [accessed Jan. 14,
2025]), unlike the statement in Binghamton this generic statement does not directly reference any
material that was withheld from disclosure.
Further, while Legal Aid contends that it is likely that NYPD creates training material
specifically designated for specialized units which NYPD has not provided, and that the
specialized unit materials it has provided are out of date, an unsupported assertion that the
materials are out of date is insufficient to trigger an evidentiary hearing (see Grabell v New York
City Police Dept., 139 AD3d 477 [1st Dept 2016]). Therefore, an evidentiary hearing will not be
held.
Attorney’s Fees
Public Officers Law § 89[4][c][ii] states that a court “shall assess, against such agency
involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person
in any case under the provisions of this section in which such person has substantially prevailed
and the court finds that the agency had no reasonable basis for denying access.” The mandatory
language “evinces an unmistakable legislative intent that attorney's fees are to be assessed
against an agency when the other party has substantially prevailed” (Rauh v de Blasio, 161 AD3d
120, 127 [1st Dept 2018]). A “petitioner substantially prevail[s] when [the agency], during the
pendency of [a] proceeding, disclose[s] … records sought in the FOIL request (Dioso Faustino
Freedom of Info. Law Request v New York City, 191 AD3d 504, 505 [1st Dept 2021]).
Here, while an in camera review may result in Legal Aid being provided with more
documents, it has already substantially prevailed because during the pendency of this proceeding
NYPD disclosed additional records (NYSCEF Doc No 35). Therefore, Legal Aid is entitled to its
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reasonable attorney’s fees but, because proceedings are ongoing, an attorney’s fees
determination will be made on submission after the in camera review.
Accordingly, it is,
ORDERED that the petition is granted to the extent that the NYPD is directed to submit
for in camera review, the documents withheld in their entirety, and the unredacted version of the
documents provided to Legal Aid along with the redacted documents indicating the basis for
each redaction; and it is further
ORDERED that NYPD shall deliver the records to the Part within 30 days of entry of this
order; and it is further
ORDERED that Legal Aid’s request for an evidentiary hearing is denied.
1/17/2025 DATE PAUL A. GOETZ, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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