| Matter of Exoneration Initiative v New York City PoliceDept. |
| 2014 NY Slip Op 00728 [114 AD3d 436] |
| February 6, 2014 |
| Appellate Division, First Department |
| In the Matter of Exoneration Initiative,Respondent, v New York City Police Department,Appellant. |
—[*1] Exoneration Initiative, New York (Rebecca E. Freedman of counsel), forrespondent.
Order and judgment (one paper), Supreme Court, New York County (Peter H.Moulton, J.), entered March 28, 2013, granting the CPLR article 78 petition to annulrespondent NYPD's determination, which redacted or withheld seven pages ofdocuments from a file pertaining to a homicide investigation, and to compel respondentto disclose unredacted copies of all seven pages, as requested by petitioner pursuant tothe Freedom of Information Law (FOIL), and awarding petitioner reasonable attorney'sfees, modified, on the law, to grant the petition to the extent of directing respondent todisclose the two pages that were entirely withheld, with the name, address, telephonenumber, and any other information identifying the unnamed informant redactedtherefrom, to disclose a copy of the DD5 pertaining to that informant with the redactionsmade by respondent except for the police tax registration number, and denyingpetitioner's request for attorney's fees, and otherwise affirmed, without costs. Judgment,same court and Justice, entered June 24, 2013, awarding petitioner $49,276.94 inattorney's fees, reversed, on the law, without costs, and the judgment vacated.
In this action for the disclosure of documents relating to a criminal investigation ofRichard Rosario, who was convicted of murder in the second degree, we find thatpetitioner exhausted its administrative remedies by submitting an appeal fromrespondent's initial denial of its FOIL (Public Officers Law § 84 et seq.)request, and, commencing the instant proceeding when it received only a partialdetermination after the statutorily mandated 10-day response period had lapsed (see Matter of New York Times Co.v City of N.Y. Police Dept., 103 AD3d 405, 408 [1st Dept 2013], lvdismissed 21 NY3d 930 [2013]; Council of Regulated Adult Liq. Licensees vCity of N.Y. Police Dept., 300 AD2d 17, 18 [1st Dept 2002]; see also PublicOfficers Law § 89 [4] [a]-[b]). Petitioner's FOIL request sought disclosure ofdocuments relating to the murder investigation, including a DD5, and statements frompersons interviewed by the police, including someone who did not testify at trial and isidentified in the DD5 only as "Passerby," and Jose Diaz, a food cart vendor who wasoperating his hot-dog truck within a short distance of where the murder took place.
We agree with the dissent's observation that the public safety exemption of Public[*2]Officers Law § 87 (2) (f) does not warrant ablanket exception for DD5s[FN*]that reveal the identity of individuals (see Matter of Gould v New York City PoliceDept., 89 NY2d 267, 277 [1996]; Matter of Johnson v New York City PoliceDept., 257 AD2d 343, 349 [1st Dept 1999]). However, the dissent's rationale forrelease of this information, i.e., that "they may provide further information that wouldbenefit Rosario's case" is at odds with both the public safety and privacy exemptions ofPublic Officers Law § 87.
The Gould Court recognized that unlimited disclosure of identifyinginformation on the DD5s is not warranted. It stated that "[d]isclosure of such documentscould potentially endanger the safety of witnesses, invade personal rights, and exposeconfidential information of nonroutine police procedures. The statutory exemptionscontained in the Public Officers Law, however, strike a balance between the public'sright to open government and the inherent risks carried by disclosure of police files"(Gould, 89 NY2d at 278, citing Public Officers Law § 87 [2] [b], [e], [f]).
We disagree with the dissent's conclusion that there is no basis to find that"disclosing the passerby's name, address, and telephone number as of 1996, and JoseDiaz's address and telephone number, could endanger them or violate their privacy."While it is true that, as we observed in Johnson, "the disclosure of informationthat tends to exonerate a criminal defendant would not be likely to present any apparentdanger to the witness from whom it was derived" (257 AD2d at 349), we went on to statethat, in the context of a homicide investigation, "we do not find that there must be aspecific showing by respondents that petitioner, who is presently incarcerated, hasthreatened or intimidated any of the witnesses in his criminal case . . . inorder to warrant redaction of certain identifying information" (257 AD2d at 348,citing Gould, 89 NY2d at 277). Indeed, as we noted in Matter of Bellamy v New YorkCity Police Dept. (87 AD3d 874 [1st Dept 2011], affd 20 NY3d 1028[2013]), "The agency in question need only demonstrate 'a possibility of endanger[ment]'in order to invoke this exemption" (id. at 875, quoting Matter of Connolly vNew York Guard, 175 AD2d 372, 373 [3d Dept 1991]; see Matter of Rodriguez vJohnson, 66 AD3d 536 [1st Dept 2009]). In fact, "[e]ven in the absence of sucha threat, certain information found in DD5s could, by its inherent nature, give rise to theimplication that its release, in unredacted form, could endanger the life and safety ofwitnesses or have a chilling effect on future witness cooperation" (Johnson, 257AD2d at 349).
Here, disclosure of the information concerning Diaz is not mandated by theobservation that his testimony was potentially exculpatory. While his failure to identifyRosario in a lineup is arguably exculpatory, his testimony at trial which largelycorroborated the accounts provided by the People's other two witnesses raises the"possibility of endangerment," satisfying respondent's burden with respect to theinformation pertaining to Diaz (see Matter of Bellamy, 87 AD3d at 875).[*3]
Further, the disclosure of the informationregarding Passerby would also create a possibility that Passerby's life or safety could beendangered. While it is true that Passerby's statement might seem at odds with theaccount provided by the People's witnesses, this account is not dispositive.
Moreover, we find that the disclosure of the addresses and phone numbers of Diazand Passerby, as well as Passerby's name, would constitute an unwarranted invasion ofprivacy. Since there is no argument that the records at issue fall within any of the sixnon-exhaustive categories of exemption set forth in Public Officers Law § 87 (2)(b), we must, as noted by the dissent, "balance the privacy interests at stake against thepublic interest in disclosure of information" (Matter of Regenhard v City of New York, 102 AD3d 612,613 [1st Dept 2013]). In addition to the above analysis of the public safety exemption,account must be taken of the chilling effect the release of such personal information tothe general public would have on future witnesses to intentional murder fromcooperating with the police, for fear that once they provide their contact information, thegeneral public would have easy and permanent access to their whereabouts as well as theinformation they provided during the investigation. We have held such redactions to beproper (see Matter ofRodriguez, 66 AD3d 536).
Accordingly, we find that respondent properly redacted identifying informationregarding Diaz and Passerby before disclosing some of the requested documents.
Information regarding other persons who did not provide statements to lawenforcement was properly withheld since, under these circumstances, disclosure wouldresult in an unwarranted invasion of personal privacy (see Public Officers Law§ 87 [2] [b]; Matter of Bellamy, 87 AD3d at 875; Matter of De Oliveirav Wagner, 274 AD2d 904, 905 [3d Dept 2000]). However, respondent fails toestablish that the disclosure of the tax registration number of the detective who recordedan unnamed informant's statement would constitute an unwarranted invasion of publicprivacy; thus, respondent must disclose a new copy of the DD5 pertaining to thisinformant with this number unredacted.
Respondent fails to establish that the pages pertaining to the unnamed informant fallunder the confidentiality exemption (Public Officers Law § 87 [2] [e] [iii]), in theabsence of any evidence that this person received an express or implied promise ofconfidentiality (see Matter of Johnson, 257 AD2d at 348). Furthermore, sincerespondent fails to establish that any exemption justifies the complete withholding of twoof the three pages pertaining to this informant, respondent is ordered to disclose thosepages with redactions only to conceal the informant's name, address, phone number, andany other information identifying this person.
Since petitioner has not substantially prevailed, it is not entitled to attorney's feespursuant to Public Officers Law § 89 (4) (c). Concur—Tom, J.P., Sweeny,Saxe and Clark, JJ.
Freedman, J., dissents in a memorandum as follows: I respectfully dissent to theextent that I would affirm both Supreme Court's order and [*4]judgment directing respondent to disclose unredactedrecords that petitioner seeks under the Freedom of Information Law (Public Officers Law§ 84 et seq.) (FOIL), and the court's judgment awarding petitionerattorney's fees under Public Officers Law § 89 (4) (c).
Petitioner, a nonprofit organization that investigates and, where it deems appropriate,litigates on behalf of indigent prisoners claiming their actual innocence, seeks access toNew York City Police Department (NYPD) records relating to the criminal investigationof Richard Rosario, who has been incarcerated since his conviction for second-degreemurder in 1996. Rosario maintains that he was in Florida when the murder occurred andthat his trial counsel was constitutionally ineffective for failing to adequately investigatehis alibi defense.
In November 2011, petitioner filed a FOIL request with the NYPD requestingdisclosure of, among other things, "DD5" complaint follow-up reports and other recordspertaining to statements by a passerby at the crime scene who did not testify at Rosario'scriminal trial and by Jose Diaz, a trial witness for the People who was in the vicinity ofthe murder but who did not identify defendant. Petitioner contends that the passerby'sand Diaz's statements corroborate other evidence that the murder was premeditated andcommitted by someone who knew the victim, contradicting the People's theory atRosario's criminal trial that the victim was a stranger who Rosario killed after a chanceencounter.
In December 2011, the NYPD denied the entire FOIL request; thereafter petitionerfiled an administrative appeal. In a February 2012 letter, a NYPD Records AccessAppeals Officer informed petitioner that the NYPD had been directed "to conduct afurther search for the requested records" and that its determination would be deferreduntil the search was completed.
In May 2012, petitioner filed this CPLR article 78 proceeding to compel respondentsto disclose the requested documents. Petitioner also seeks attorney's fees and costs. TheNYPD cross-moved to dismiss, contending that petitioner failed to exhaust itsadministrative remedies because the NYPD was still searching for the requested records.In July 2012, Supreme Court denied the cross motion, finding that the NYPD failed tocomply with the 10-day time limit for an agency to respond to an appeal from a FOILrequest denial (Public Officers Law § 89 [4] [a]), and that the failure constituted adenial of the administrative appeal under Public Officers Law § 89 (4) (b).
In August 2012, NYPD answered the petition, asserting that the records it refused tofurnish, or furnished with redactions, fall under the FOIL exemptions for public safety(Public Officers Law § 87 [2] [f]), personal privacy (Public Officers Law §87 [2] [b]), and confidentiality (Public Officers Law § 87 [2] [e] [iii]). AfterNYPD furnished some of the requested records and a conference was held before thecourt, the number of pages in dispute was narrowed to seven. Three of the pages make upa DD5 containing the passerby's statement and the other four pertain to Jose Diaz. Inresponse to the FOIL request, the NYPD withheld two of the seven pages from thepasserby's DD5 and redacted the other five pages to remove the passerby's name, address,and telephone number and Diaz's address and telephone number. The NYPD alsoredacted other individuals' names and some fragmentary information about them from thefive pages.
In March 2013, after reviewing the seven unredacted pages in camera, the motioncourt granted the petition and ordered the NYPD to disclose the pages in full, findingthat the NYPD failed to establish that the disclosure would endanger either the passerbyor Diaz or invade anyone's privacy. It further found that the exemption to protectconfidential sources is inapplicable. In addition, the court rejected the NYPD's claim thata police officer's tax registration number should be redacted from the passerby's DD5under the personal privacy [*5]exemption.
In June 2013, the Court awarded petitioner approximately $49,000 in attorney's fees.Thereafter, the NYPD appealed from both the order and judgment granting the petitionand the judgment awarding attorney's fees. The appeal also brings up for review the July2012 order denying the NYPD's cross motion to dismiss the petition.
As a preliminary matter, I agree with the majority that the cross motion was properlydenied because the NYPD's failure to respond fully to the FOIL request within 10 daysconstituted a denial which exhausted petitioner's administrative remedies. I also agreethat the passerby's DD5 pages do not fall under FOIL's confidentiality exemptionbecause the NYPD made no showing that it made an express or implicit promise ofconfidentiality to the passerby.
However, I see no basis to find that disclosing the passerby's name, address, andtelephone number as of 1996, and Jose Diaz's address and telephone number, couldendanger them or violate their privacy. FOIL imposes a broad duty on governmentagencies to disclose their records. Statutory exemptions to disclosure are "narrowlyconstrued," and an agency's justification for nondisclosure must be "particularized andspecific" (Matter of New YorkCiv. Liberties Union v City of Schenectady, 2 NY3d 657, 661 [2004]). WhileFOIL provides that an agency may withhold records if it demonstrates the possibility thatdisclosure "could endanger the life or safety of any person" (Public Officers Law §87 [2] [f]; Matter of Bellamy vNew York City Police Dept., 87 AD3d 874, 875 [1st Dept 2011], affd20 NY3d 1028 [2013]), "this does not mean . . . that a blanket exemption iswarranted on public safety grounds for all DD-5s that reveal . . . the identityof individuals" (Matter of Johnson v New York City Police Dept., 257 AD2d343, 349 [1st Dept 1999], lv dismissed 94 NY2d 791 [1999]). InJohnson, this Court noted that "the disclosure of information that tends toexonerate a criminal defendant would not be likely to present any apparent danger to thewitness from whom it was derived" (id.).
Here, petitioner seeks identifying information about the passerby and Diaz becausetheir accounts of the murder are at odds with the People's theory of the case and they mayprovide further information that would benefit Rosario's case. After reviewing the threepages pertaining to the passerby, the motion court agreed with petitioner that thepasserby "may have information that helps Rosario as he attempts to prove hisinnocence" (Matter ofExoneration Initiative v New York City Police Dept., 39 Misc 3d 962, 966 [SupCt, NY County 2013]). The majority acknowledges that the passerby's statement to thepolice did not corroborate "the account provided by the People's witnesses," and I ampuzzled by the majority's reasoning that, merely because "this account is not dispositive,"disclosing information about the passerby who contradicted that account would endangerhim.
As for Diaz, heretofore disclosed records indicate that he made certain statements tothe NYPD, which the People did not elicit at trial and which suggest that the murder waspremeditated and the perpetrator knew the victim. Diaz stated that the perpetrator and anaccomplice brandished guns during the altercation, and that the shooter followed thevictim and his friend as the accomplice ran to the getaway car and moved it to enable theshooter to flee from the scene. Petitioner also is motivated to contact Diaz because,although he testified that he thought he could recognize the men involved in the incident,he was unable to identify Rosario as the perpetrator both during a police lineup threeweeks after the shooting and in court. The majority's determination that disclosing Diaz'saddress and telephone number as of 1996 could endanger him merely because he testifiedat Rosario's trial is conclusory, given that some of his statements to the police, as well ashis failure to identify Rosario, are exculpatory.
I also do not concur with the majority's holding that the privacy exemption justifies[*6]redacting identifying information and other data forDiaz, the passerby, and other persons named in the seven pages. To invoke theexemption, an agency must demonstrate that the records sought constitute an"unwarranted invasion of personal privacy" (Matter of New York Times Co. v City of N.Y. Fire Dept., 4NY3d 477, 485 [2005]). To determine whether disclosure of personal information iswarranted, a court "must balance the privacy interests at stake against the public interestin disclosure of the information" (Matter of Regenhard v City of New York, 102 AD3d 612,613 [1st Dept 2013]).
Here, any intrusion into individuals' privacy is outweighed by the possibility thatRosario is actually innocent and that evidence of actual innocence may be revealed. It isnoted that after Rosario's direct appeal from his conviction failed, he sought habeas reliefwhich was denied by a divided panel of the Second Circuit of the United States Court ofAppeals (Rosario v Ercole, 601 F3d 118, 126 [2d Cir 2010], cert denied563 US —, 131 S Ct 2901 [2011]). In a partial dissent, Circuit Judge Straub wrotethat "there exists too much alibi evidence that was not presented to the jury, and too littleevidence of guilt, to now have any confidence in the jury'sverdict. . . . The majority essentially concedes a Strickland violationand that Rosario would be entitled to relief if this case arose on direct review but deniesthe writ out of deference to the state court" (Rosario, 601 F3d at 129, 137[Straub, J., dissenting]).
Since I believe that none of the FOIL exemptions justify withholding or redacting theseven pages and would affirm Supreme Court's grant of the petition, I would also affirmthe award of attorney's fees to petitioner because it prevailed in the litigation andSupreme Court providently exercised its discretion in finding that the NYPD's delay inresponding to the administrative appeal warranted the award (see Public OfficersLaw § 89 [4] [c] [ii]). [Prior Case History: 39 Misc 3d 962.]
Footnote *: DD5s are "reportsproduced by police officers to record the information they have gathered in conjunctionwith an investigation made pursuant to a complaint," which are commonly requested inFOIL applications pertaining to prior criminal investigations (see Matter of Johnson vNew York City Police Dept., 257 AD2d 343, 346, 349 [1st Dept 1999], lvdismissed 94 NY2d 791 [1999]).