| Matter of Bellamy v New York City Police Dept. |
| 2009 NY Slip Op 01411 [59 AD3d 353] |
| February 26, 2009 |
| Appellate Division, First Department |
| In the Matter of Perry Bellamy, Respondent, v New YorkCity Police Department, Appellant. |
—[*1] Perry Bellamy, respondent pro se.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered April 30, 2008,which, in a proceeding pursuant to the Freedom of Information Law (FOIL), insofar as appealedfrom, denied respondent Police Department's motion to vacate an order, same court and Justice,entered on or about November 27, 2007, directing respondent to produce certain documentswithout redaction, unanimously reversed, on the law, without costs, the motion granted, theNovember 27, 2007 order vacated, and the matter remanded to Supreme Court for furtherconsideration of the exemptions from disclosure claimed by respondent. Appeal from the orderof November 27, 2007 unanimously dismissed, without costs, as academic in view of theforegoing.
On a prior appeal (272 AD2d 120 [2000], overruled in part Matter of Rattley v NewYork City Police Dept., 96 NY2d 873 [2001]), we remanded this proceeding to SupremeCourt with instructions to conduct an in camera review of a certain DD-5 that respondent waswithholding and of unredacted versions of documents that respondent had released, or indicatedit would release, in redacted form. On remand, respondent submitted to the court unredactedcopies of the documents in question, indicating the redactions it had made, and an affidavit froma FOIL-unit officer stating that the withheld information could identify individuals who spoke tothe police in connection with the murder of which petitioner had been convicted in 1986. InApril 2002, Supreme Court, at petitioner's request, removed the proceeding from its calendarwithout prejudice, in order to allow the Queens County prosecutor to investigate petitioner'sclaim of innocence. By order dated November 17, 2007, Supreme Court, responding to anOctober 2007 letter from petitioner that had not been served on respondent, restored theproceeding to its calendar, conducted in camera review of the previously submitted documents,and directed disclosure of such documents without redaction, all without notice to respondent.Supreme Court stated that the information sought to be redacted was "very old," and therefore"probably" could no longer implicate the personal privacy, safety, and law enforcement concernsunderlying the three statutory exemptions from FOIL's public disclosure mandate thatrespondent was claiming under Public Officers Law § 87 (2) (b), (e) (iv) and (f).Respondent moved to vacate this [*2]order pursuant to CPLR2221. In the order entered April 30, 2008, the court stated that it was entertaining the CPLR 2221motion because it had inadvertently failed to forward a copy of petitioner's letter to respondent,but that it was adhering to the November 27, 2007 order because respondent failed to adducenew evidence not previously known to the court or to show that the court had overlooked ormisapprehended the facts or law. The latter order was properly appealed by respondent (seeNedell v Sprigman, 227 AD2d 163 [1996]).
The propriety of an exemption claimed under Public Officers Law § 87 (2) (b)(unwarranted invasion of personal privacy) requires a court to first determine whether privacyinterests are implicated by the type of information sought to be redacted (see Matter of New York Times Co. v Cityof N.Y. Fire Dept., 4 NY3d 477, 484-485 [2005]); if so, to determine whether release ofthe information sought to be redacted falls within one of the six examples of an "unwarranted"invasion of personal privacy set forth in Public Officers Law § 89 (2) (b); and, if not, todetermine whether there is nevertheless any unwarranted invasion of privacy "by balancing theprivacy interests at stake against the public interest in disclosure of the information" (id.at 485). The propriety of a FOIL exemption claimed under section 87 (2) (f) (endangering thelife or safety of any person) requires a court to consider whether the information sought to beredacted "could, by its inherent nature, give rise to the implication that its release, in unredactedform, could endanger the life and safety of witnesses or have a chilling effect on future witnesscooperation" (Matter of Johnson v New York City Police Dept., 257 AD2d 343, 349[1999]). The propriety of a FOIL exemption claimed under section 87 (e) (iv) (law enforcementinvestigative techniques or procedures of a nonroutine nature) may be indicated by "a substantiallikelihood that violators could evade detection by deliberately tailoring their conduct inanticipation of avenues of inquiry to be pursued by agency personnel" (Matter of Fink vLefkowitz, 47 NY2d 567, 572 [1979]).
While the age of information sought to be redacted can be relevant to these inquiries, agealone is not a sufficient basis for finding the above exemptions inapplicable. We note SupremeCourt's statement that "despite the limited usefulness of [the redacted] information to thepetitioner, he is, after 22 years still fighting for his freedom," and remind the court that "access togovernment records does not depend on the purpose for which the records are sought"(Matter of Gould v New York City Police Dept., 89 NY2d 267, 274 [1996]).Concur—Saxe, J.P., Catterson, McGuire, Moskowitz and Acosta, JJ.