Rickner PLLC v. City of New York
Opinion
Rickner PLLC v City of New York 2024 NY Slip Op 30766(U)
March 11, 2024
Supreme Court, New York County Docket Number: Index No. 153903/2022 Judge: Arlene P. Bluth
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.
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 03/11/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. ARLENE P. BLUTH PART 14 Justice
---------------------------------------------------------------------------------X INDEX NO. 153903/2022 RICKNER PLLC,
MOTION DATE 03/04/2024 Petitioner,
MOTION SEQ. NO. 001 -v-
THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DECISION + ORDER ON
DEPARTMENT
MOTION
Respondents.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1- 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61 were read on this motion to/for ARTICLE 78 FOIL .
The petition to annul respondents’ determination regarding four separate requests under the Freedom of Information Law (“FOIL”) is granted as described below. Background
Petitioner brings this proceeding to challenge the denial of its FOIL requests that seek the full disciplinary history for 14 officers identified in four separate FOIL requests. It argues that respondents’ objections are improper and there should be full disclosure of these records. Petitioner emphasizes that in related litigation, respondents have assured a federal court that they are working to ensure full transparency but they are refusing to disclose the requested information.
The subject FOIL requests were sent on January 28, 2021, two were sent on February 19, 2021 and the last was submitted on March 11, 2021. Petitioner argues that under the repeal of Civil Rights Law § 50-a, respondents must turn over the requested information. Petitioner also
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demands legal fees in accordance with the FOIL statutory scheme under Public Officers Law § 89(4).
Respondents cross-move to dismiss on the ground that the requests are unduly burdensome. They observe that the FOIL requests revealed 168 disciplinary cases that could be responsive to petitioner’s requests and that a review of those files revealed 114 disciplinary cases that could be subject to disclosure (respondents contend they need not turn over files relating to technical infractions). Respondents observe that the “investigative worksheets” alone totaled 10,054 pages, a figure that does not include attachments. They estimate that there would be over 13,800 pages to review and put applicable redactions.
Respondents also argue that petitioner failed to exhaust its administrative remedies with respect to the fourth FOIL request and that it is premature to decide whether or not legal fees should be awarded.
In reply, petitioner contends that it afforded respondents additional time to comply with their requests and now suddenly claim that the requests are too burdensome. It alleges that in the more than two years since these requests were submitted, respondents have only produced 9 pages of records even though they admit in their cross-motion that they have over 10,000 pages. Petitioner theorizes that now that it appears objections related to the repeal of Civil Rights Law § 50-a are no longer viable, respondents have changed the basis of their denial in this proceeding. Petitioner also contends that it exhausted its administrative remedies as respondents closed their FOIL request; it insists that entitles it to bring the instant proceeding. Discussion
“To promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public. The statute is based on the
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policy that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government. Consistent with the legislative declaration in Public Officers Law § 84, FOIL is liberally construed and its statutory exemptions narrowly interpreted. All records are presumptively available for public inspection and copying, unless the agency satisfies its burden of demonstrating that the material requested falls squarely within the ambit of one of the statutory exemptions. While FOIL exemptions are to be narrowly read, they must of course be given their natural and obvious meaning where such interpretation is consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL” (Abdur- Rashid v New York City Police Dept., 31 NY3d 217, 224-25, 76 NYS3d 460 [2018] [internal quotations and citation omitted]).
The Court observes that petitioner met its burden to show that it exhausted its administrative remedies. The record is replete with respondents’ delays (e.g., NYSCEF Doc. Nos. 16, 23 [delaying their own response deadlines]). To be sure, petitioner’s requests seek a significant amount of documents. But this is not a situation in which a requestor simply files an Article 78 proceeding without seeking any administrative appeal whatsoever. The fact is that to the extent that petitioner did not obtain a final determination for every single one of its requests, its appeals were certainly constructively denied (see NYSCEF Doc. No. 29 [respondents’ “closing out” of a FOIL request]).
Next, the Court finds that respondents’ reliance on the privacy exemption to justify denial of these FOIL requests is without merit. The Appellate Division, First Department has found that the repeal of Civil Rights Law § 50-a applies retroactively to records created prior to the effective date of the relevant legislation (June 12, 2020) and that these types of police disciplinary records must be disclosed pursuant to a FOIL request (NYP Holdings, Inc. v New
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York City Police Dept., 220 AD3d 487, 198 NYS3d 7 [1st Dept 2023]). The privacy exemption is not a basis to justify production only 9 pages of documents when respondents admit it has over 10,000 pages of responsive records (Newsday, LLC v Nassau County Police Dept., 222 AD3d 85, 201 NYS3d 88 [2d Dept 2023] [concluding that the privacy exemption under FOIL did not apply to justify wholesale denial of a FOIL request for police disciplinary records]).
Next the Court must evaluate respondents’ burdensome argument. Respondents argue, essentially, that they cannot produce these records (some of which they initially said they did not possess) because to do so would be overly burdensome. The problem for this Court is that argument was not properly raised in respondents’ various denials of petitioner’s FOIL requests. It is axiomatic that this Court cannot consider arguments that were not part of the administrative record (Molloy v New York City Police Dept., 50 AD3d 98, 100, 851 NYS2d 480 [1st Dept 2008]).
Respondents contend for the first time in this proceeding that they have over 10,000 records and insist it would take many, many hours to go through these records. But nothing close to that argument was raised in the administrative proceedings below. Instead, respondents handed over a miniscule number of pages of responsive records; at no point did respondents provide any details on the thousands of pages they now claim are at issue.
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