| Matter of Asian Am. Legal Defense & Educ. Fund v NewYork City Police Dept. |
| 2015 NY Slip Op 01559 [125 AD3d 531] |
| February 24, 2015 |
| Appellate Division, First Department |
[*1]
| In the Matter of Asian American Legal Defense andEducation Fund et al., Appellants, v New York City Police Department et al.,Respondents. |
Weil, Gotshal & Manges LLP, New York (Gregory Silbert of counsel), forappellants.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman ofcounsel), for respondents.
Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), enteredon or about May 21, 2013, denying the petition to compel respondents to disclose 13categories of documents generated by the Intelligence Division of respondent New YorkCity Police Department (NYPD), requested by petitioners pursuant to the Freedom ofInformation Law (FOIL), and dismissing the proceeding brought pursuant to CPLRarticle 78, unanimously affirmed, without costs.
Respondents' determination denying the FOIL request was not affected by an error oflaw (see Mulgrew v Board ofEduc. of the City School Dist. of the City of N.Y., 87 AD3d 506, 507 [1st Dept2011], lv denied 18 NY3d 806 [2012]).
Petitioners failed to meet their "burden . . . to reasonably describe thedocuments requested so that they can be located" (Mitchell v Slade, 173 AD2d226, 227 [1st Dept 1991], lv denied 78 NY2d 863 [1991]). Parts of the requestsought documents relating to NYPD intelligence operations concerning unreasonablybroad categories, such as any New York City businesses "frequented" by Middle Eastern,South Asian, or Muslim persons. Respondents also submitted an affidavit of an NYPDintelligence expert noting that a complete response to the request would entail searchingmore than 500,000 documents which, though mostly electronic, are not necessarilysearchable by ethnicity, race, or religion. Thus, NYPD met its burden to establish thatsome of the descriptions in the FOIL request "were insufficient for purposes of locatingand identifying the documents sought before denying a FOIL request for reasons ofoverbreadth" (Matter of Konigsberg v Coughlin, 68 NY2d 245, 249 [1986][internal quotation marks and citations omitted]).
Moreover, even assuming that all of the documents sought were reasonablydescribed, the requested documents are exempt from disclosure under Public OfficersLaw § 87 (2) (e) (iii) and (iv), commonly known as the "law enforcementprivilege," in that disclosure of the requested documents would identify confidentialsources, confidential information relating to criminal investigations, and nonroutineinvestigative techniques or procedures (see Matter of Fink v Lefkowitz, 47 NY2d567, 571-572 [1979]). Although petitioners note that they are amenable to [*2]redactions of identifying information such as names,addresses, and phone numbers, any attempt at redacting the records would likely allowsuch information to be deduced from details left unredacted, as set forth in NYPD'sexpert affidavit.
The court also properly found that the requested disclosure "could endanger the lifeor safety of any person" (Public Officers Law § 87 [2] [f]). Granting thebroadly worded request for a trove of NYPD Intelligence Division documents repletewith sensitive information about the unit's methods and operations, which could bepublicly disseminated and potentially exploited by terrorists, would create "a possibilityof endangerment" (Matter ofBellamy v New York City Police Dept., 87 AD3d 874, 875 [1st Dept 2011][internal quotation marks and brackets omitted], affd 20 NY3d 1028 [2013]). Inaddition, the court properly recognized that the requested records are exempt from FOILbecause disclosure would constitute an unwarranted invasion of personal privacy (see Matter of New York Times Co.v City of N.Y. Fire Dept., 4 NY3d 477, 485 [2005]; see also PublicOfficers Law § 87 [2] [b]). Petitioners emphasize the public interest inscrutinizing whether NYPD engaged in improper surveillance or profiling of certaincommunities, but this is outweighed by the privacy interests at stake given the specificpurpose of this counterterrorism police operation. The revelation that a certain person,business, or organization was the subject of counterterrorism-related surveillance wouldnot only have the potential to be embarrassing or offensive, but could also be detrimentalto the reputations or livelihoods of such persons or entities. Concur—Friedman,J.P., Andrias, Saxe, Richter and Gische, JJ. [Prior Case History: 41 Misc 3d471.]