Cite as: Newsday LLC v. Nassau County Police Dept., 8172/13, NYLJ 1202640266951, at *1 (Sup., NA, Decided January 16, 2014)

8172/13

Justice Daniel Palmieri

Decided: January 16, 2014

ATTORNEYS

Attorney for Plaintiff: David A. Schulz, Esq., Alia L. Smith, Esq., New York, NY.

Attorney for Defendant: Carnell Foskey, Nassau County Attorney, Jeremy Zenilman, Deputy County Attorney, Mineola, NY.

The following papers were read on this proceeding/motion:

Notice of Verified Petition and Petition, dated 7-2-13 1

Memorandum of Law in Support, dated 7-8-13 2

Answer and Objections in Point of Law, dated 10-30-13 3

Nassau County Police Department, Memorandum of Law, dated 10-30-13 4

Reply (Memorandum),dated 11-21-13 5

SHORT FORM ORDER AND JUDGMENT

 

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This special proceeding/action for relief pursuant to CPLR Article 78 and Public Officers Law §§84 et seq.,and CPLR 3001, is granted to the extent set forth in this Decision, Order and Judgment.

This is a hybrid proceeding for relief under the Freedom of Information Law ("FOIL"), set forth in Article 6 of the Public Officers Law,§§84-90, and for related declaratory and mandamus relief. Petitioner/plaintiff Newsday LLC ("Newsday" or "petitioner") asserts that the respondent/defendant Nassau County Police Department ("NCPD" or "respondent") has violated FOIL by consistently failing to respond properly to legitimate requests for information and documents. It seeks not only a vacatur of denials for certain information, but also a declaration by the Court that NCPD has

 

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engaged in a pattern and practice of refusing to obey the law, and a judgment in mandamus directing the NCPD to do what it is bound to do under FOIL. It also seeks a related direction ordering respondent, in effect, to certify to the Court annually that it is in compliance with the statute. Finally, petitioner seeks to recoup its costs, including legal fees, expended in its efforts to obtain the information sought.

The specific FOIL requests and the responses by NCPD that sparked this litigation shall be summarized, in the order in which they appear in the petition.

The first, dated October 4, 2012, was a request for each "Field name" for each data field within an "incident tracking" system maintained by respondent. The request defined "Field name" as the label or identification of an element of a computer database, and would include a subject heading such as a column header, data dictionary, or record layout. By letter dated January 15, 2013, NCPD denied the request pursuant to Public Officers Law §87(2)(e)(i) and §87(2)(e)(iv) and 87(2)(f), stating that "disclosure of that information could impede or interfere with pending and/or future investigation. It would reveal the method by which the [NCPD] conducts investigations and non-routine investigative procedures. Additionally, disclosure could also jeopardize the safety of our officers." No further elaboration or reasons were given.

Newsday took an administrative appeal from this "Field name" denial on February 13, 2013. Thomas V. Dale, Commissioner of Police, upheld the denial by letter dated March 7, 2013, stating that "Information gathering and the means by which the NCPD classifies that information is an integral part of investigations…your request…is again denied." Commissioner Dale cited the same reasons found in the initial denial, without

 

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further comment.

The second Newsday request is dated January 15, 2013. That request was for "arrest reports, police reports, case reports and any other publically releasable documents" involving four criminal cases, identified by the name of the person charged. This "four criminal cases" request was denied by letter dated February 21, 2013, the NCPD officer issuing the denial stating that it was based on Public Officers Law §87(2)(b), "which exempts from disclosure records, which constitute an unwarranted invasion of personal privacy". There was no additional statement of reasons given.

Petitioner took an internal administrative appeal from this denial on March 22, 2013. By letter dated May 15, 2013, Thomas C. Krumpter, First Deputy Commissioner of Police, denied the appeal. He stated that "any records relating to the above named [four] individuals would not be provided without an authorization from those individuals or from an individual involved in the incident. New York State Public Officers Law §87(2)(b), exempts from disclosure records which constitute an unwarranted invasion of personal privacy. In furtherance of [that section], it is the policy of this Department not to release records relating to an investigation unless it is requested or authorized by a person involved in the incident. Further, your request is denied as the disclosure…could identify confidential sources or information relating to criminal investigations and could reveal non-routine investigative techniques. Therefore your request is also denied pursuant to Public Officers Law §§87(2)(e)(iii) and 87(2)(e)(iv)." A final reason for the denial was §87(2)(f), which provides that the governmental agency may withhold information which, if disclosed, "would endanger the life or safety or any person."

 

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The third Newsday request is dated February 15, 2013, and requested records indicating all monetary payments to confidential informants/cooperating witnesses from 2008 to 2012, including, if possible, date and method of payment, rather than an annual total, including ancillary paid expenses such as meals, housing and transportation. The request specifically noted that "we are clearly not seeking information that identifies individuals, simply the amount of public money that's gone to informants and cooperating witnesses."

By letter dated February 26, 2013 NCPD denied access to records regarding these confidential informant payments ("CI payments"), stating that it was doing so pursuant to Public Officers Law §87 (2)(e)(iii) and (iv) and §87(2)(f), because "the release of this information would endanger the safety of certain individuals and would reveal confidential information relating to criminal investigations and disclose investigative techniques and procedures." Upon administrative appeal, which petitioner initiated on March 28, 2013, First Deputy Commissioner Krumpter upheld the denial by letter dated April 19, 2013, citing the same reasons and adding that release would interfere with pending investigations, citing Public Officers Law §87(2)(e)(i).

The fourth request concerned a widely reported case in which Leatrice Brewer was accused of the 2008 killing of her own children. By letter dated April 25, 2012, petitioner requested all documents related to this defendant, her home in New Cassel, logs and radio dispatches directed to her home, and GPS tracking data related to patrol vehicles dispatched to her home for the hour before and three hours after any calls for services to her location. Newsday explained that its request was based on its assertion that the

 

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police had been called to her home prior to the time she killed her children.

The request for the Brewer records was denied by way of a form dated May 1, 2012, which had checked as the reasons for denial under the Public Officers Law 1) the need for authorizations from persons involved in the incident (citing §87(2)(b)), 2) exposure of criminal investigative technique or procedure (citing §87(2)(e)(iv), and, regarding E911 records, County Law §308(4) [barring release of records of calls made to an E911 system except to governmental agencies/departments or private providers of medical or emergency services]. Upon Newsday's administrative appeal of May 22, 2012, Deputy County Attorney Brian Libert, serving as the FOIL appeals officer for this appeal, remanded the request to NCPD "so that it may specifically identify and enumerate documents in its possession and articulate any exemption it may have as to a particular record." Letter dated June 22, 2012.

On remand, NCPD again denied the request by way of letter from Detective Sergeant Israel Santiago, dated July 20, 2012.. The reasons were 1) that the request for "all documents" did not reasonably describe the specific documents being sought, 2) unwarranted invasion of personal privacy (citing Public Officers Law §87(2)[b]), 3) County Law §308(4), and 4) that the release of GPS tracking data could impede or interfere with pending an/or future investigation, reveal methods of investigation and could jeopardize officer safety (citing Public Officers Law §§87(2)(e)( i) and (2)(e)(iv) and (2)(f)).

Upon administrative appeal after remand, by letter dated September 20, 2012, NCPD notified Newsday that the County Attorney had requested that NCPD reconsider

 

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its second denial and, as a result, NCPD was producing documents, but redacted "in order to prevent an unwarranted invasion of personal privacy of certain individuals." Those records that were produced were, in fact, redacted, obscuring such items as addresses where incidents involving Brewer occurred, and the names and other persons involved, including witnesses and those suspected of criminal behavior.

In addition to the privacy exemption, NCPD's transmittal letter explained that additional redactions of information had been made regarding "dispatch logs, radio transmissions, etc. to Brewer's home(s)" pursuant to County Law §308(4) and Public Officers Law §87(2)(a), which permits an agency to withhold information if it is "specifically exempted from disclosure by state or federal statute." As noted above, County Law §308(4) bars a general release of records of calls made to an E911 system. Finally, the letter explained that GPS tracking data was again denied on the ground that disclosure could impede or interfere with pending or future investigations, reveal investigative techniques and jeopardize officer safety.

Newsday challenged the redactions in an administrative appeal by letter dated January 29, 2013. It asked for unredacted pages so it might know the scene of an incident, Brewer's address and occupation, witnesses, arrestees or suspects regarding criminal incidents (not all of which concerned the killing of the children), persons against whom Brewer had an order of protection, and the name of a DSS/CPS [Department of Social Services/Child Protective Services] employee assigned to look into a matter. Newsday also challenged whether all documents concerning Brewer were produced, whether or not redacted. The appeal was denied by letter from Deputy County Attorney

 

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Libert dated April 3, 2013.

The fifth and final request addressed in this proceeding was dated August 21, 2012 and sought the names of all sworn officers in the police department. The parties have resolved this request, albeit not without complaint from petitioner that it took more than a year to do so. Accordingly, the Court will not address it, except as it concerns the fee request.

As is made clear in the legislative declaration, the Freedom of Information Law is intended to open the workings of government to the public, including through a free press, which is cast as the pubic's representative for that purpose. Public Officers Law §84. To effect this purpose, the statutory scheme is comprehensive and at its core presumes that governmental records are available for review. It thus places the burden on a resisting agency or department to explain how a given request for records fits under one of the statutory exemptions (Public Officers Law §89(4)[b]), which are to be narrowly construed to provide maximum access to the public. See, e.g., Matter of Gould v. New York City Police Department, 89 NY2d 267 (1996); Matter of Capital Newspapers v. Whalen, 69 NY2d 246 (1987).

Relatedly, the department or agency must provide in support of a denial particular and specific justification for its action. Matter of Fink v. Lefkowithz, 47 NY2d 567 (1979); Matter of Flores v. Fischer, 110 AD3d 1302 (3d Dept. 2013); Matter of Madera v. Elmont Public Library, 101 AD3d 726 (2d Dept. 2012). Conclusory or speculative assertions that certain records fall within a statutory exemption are insufficient; evidentiary support is needed. Matter of Porco v. Fleischer,100 AD3d 639 (2d Dept.

 

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2012); Matter of Dilworth v. Westchester County Dept. of Correction, 93 AD3d 722 (2d Dept. 2012); Matter of Madera, supra; see also Washington Post Co. v. New York State Ins. Dept., 61 NY2d 557 (1984).

Further, given the arguments made on this proceeding, it is worth noting that, as a general matter in Article 78 review, a court should not evaluate arguments and proof that were not raised or presented at the administrative level. Matter of Molloy v. New York City Police Dept., 50 AD3d 98, 100 (1st Dept. 2008); Matter of Graziano v. Coughlin, 221 AD2d 684, 686 (3d Dept. 1995). Nevertheless, the Court will address such arguments here, both because of the alleged potential effect of release on the confidentiality rights of third parties (Matter of Rose v. Albany County Dist. Attorney's Office, 111 AD3d 1123 [3d Dept.3013]), citing, inter alia, Matter of Johnson Newspaper Corp. v. Stainkamp, 61 NY2d 958 [1984]), and because petitioner has commenced a hybrid proceeding that blurs the line between Article 78 and a declaratory judgment action. In any event, these arguments do not change the result.

In view of the foregoing well-established law, it is apparent to this Court that the denial of access to the records requested was not adequately supported by the respondent, and that the petition should be granted for that reason, to the extent indicated.

In denying the "field names" records NCPD provided no explanation or proof that disclosure of this information would have the consequences that would fall within the stated statutory exemptions. Rather, it did no more than restate the statutory language. Although a Public Officers Law §87(2)(e)(i) exemption might shield data if a specific investigation were ongoing (Matter of Lesher v. Hynes, 19 NY3d 57 [2012]), there is no

 

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such claim here. With regard to the reference to Public Officers Law §87(2)(f), there is no explanation as to how any person's life or safety would be endangered.

In his affidavit submitted on this proceeding, First Deputy Commissioner Krumpter also states that release "could potentially" give away specific knowledge of how respondent's record management system is structured, and that an individual with sufficient technical knowledge could "reverse engineer" the system. He states that based upon conversations with members of respondent's Information Technology Unit ("ITU"), "all records could be exposed if hacked into." It is claimed that release would give rise to a substantial likelihood that violators (i.e., criminals) could evade detection by tailoring their conduct in anticipation of avenues of inquiry.

However, while these statements are made upon the affiant's "training and experience as First Deputy Commissioner", he does not claim to be an information technology expert, and the obviously hearsay statements attributed to ITU personnel are inadmissible. Before a court could accept them, these contentions clearly require expert proof of how a security breach could occur if the requested data were released, and none is offered. The absence of such proof is particularly conspicuous here since ITU personnel are employees of NCPD. Under these circumstances, this Court cannot find that the respondent has shown that the "field names" information in the incident tracking system as sought by petitioner falls within Public Officers Law §87(2)(e)(iv), as claimed. Thus, resort to this exemption is inadequate.

Deputy Commissioner Krumpter further asserts that release would violate respondent's obligation to the vendor of the software it uses in its incident tracking

 

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system, would permit disclosure of protected trade secrets, and that the vendor thus would sustain an injury to its competitive position, Public Officers Law §87(2)(d). These claims are unsupported by proof and thus constitute no more than conclusions and speculation, which are insufficient. There is no statement from the unnamed vendor, let alone persuasive evidence, demonstrating how release of the information would cause an injury to its competitive interests. Accordingly, it must be rejected. See Matter of Markowitz v. Serio, 11 NY2d 43, 50 (2008). The records shall be produced.

The second FOIL request, for the "four criminal cases" documents, was resisted primarily on the basis of the "unwarranted invasion of personal privacy" exemption, Public Officers Law §87(2)(b), as more specifically defined in section 89(2)(b). That is restated here, although not further argued. In any event, it is without merit. The latter statute defines this protection as extending to seven categories of information. While the statute provides that such an invasion of privacy is not limited to this list, respondent relies on no more than its own policy, stated to be "in furtherance of" this section, not to release records without an authorization from the individuals involved in the incident. Without more, this is patently inadequate. There is no reference to any of the seven categories, nor to any other specific explanation as to how this could lead to an "unwarranted invasion" of personal privacy. Respondent also failed to address section 89(2)(c)(i), which provides that disclosure shall not constitute such an invasion of privacy when identifying details are deleted, which clearly was not considered.

On this proceeding, however, the emphasis is on the stated fact that each of these arrests was the result of undercover investigations. Krumpter states that it is the position

 

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of NCPD, in effect, that any document related to undercover investigations should not be produced because disclosure could lead to the identification of undercover officers, thereby putting them at risk. Newsday does not disagree that NCPD should be able to protect the identities of such officers, but argues that information leading to their identification can be redacted. Krumpter's response is "If any redaction were performed it would be so expansive as to render the records completely meaningless."

Unlike his arguments regarding the records tracking system/field headings, Krumpter's statements about the criminal investigations records carry the weight of his position and experience. However, on the present record the Court cannot evaluate his contention that redaction cannot be performed without eviscerating the records in their entirety, and his statement, standing alone, is insufficient as a reason for withholding all documents.

Agencies of government may be required to produce records that contain both information that may be withheld under a statutory exemption and other information that is not so protected, with redaction of the former. See, Schenectady County Society for Prevention of Cruelty to Animals v. Mills, 18 NY3d 42 (2011). A blanket refusal based on the "mixed" nature of requested documents cannot be countenanced. Id. Accordingly, respondent is directed to produce the requested documents, redacted to protect the names of undercover officers.

This is without prejudice to petitioner's later request for an in camera comparison of the unredacted documents to the redacted copies should petitioner believe that the redactions were not made in good faith, and were unnecessary to protect undercover

 

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officers' identities. The Court will retain jurisdiction to that extent, including jurisdiction to award costs and fees should those redactions be challenged and the Court ultimately agree with petitioner that redactions were unnecessarily excessive or wholly unnecessary for their stated purpose. It is in the first instance the respondent's task to review and determine what records are responsive to the request, and to make those redactions that are necessary, and it cannot shift that initial responsibility on to the courts.

That branch of the petition that concerns the third request, payments to confidential informants/cooperating witnesses, must yield a similar result. The statement that the records sought are highly sensitive, are protected even within NCPD itself, and that disclosure would pose an actual risk to the lives of the individuals involved, including undercover officers (Krumpter Aff., at 8), is unsupported by any detail as to why and how records of payments to unidentified informants could result in the identification of such persons and the resultant risk. Nor is there any assertion that an open investigation might be compromised by these records, or an explanation of how law enforcement techniques would be revealed.

Importantly, respondent does not provide any reason as to why a careful redaction of details regarding such payments, revealing only the payment information requested, still would fail to protect the individuals involved and would lead to a disclosure of identities. Although respondent correctly cites authority to the effect that even the possibility that safety could be compromised can be a sufficient grounds for withholding records (Matter of Ruberti, Girvin & Ferlazzo P.C. v. New York State Div. of State Police, 218 AD2d 494 [3d Dept. 1996]), there still must be a showing of such possibility, and

 

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here there is nothing but conclusory statements. Accordingly, the petition is granted as to this request. Respondent may redact information deemed necessary to protect the identity of persons it considers vulnerable, and to protect confidential law enforcement techniques or ongoing investigations. The Court will retain jurisdiction to hear a challenge to such redactions, including jurisdiction to award costs and fees should those redactions be challenged and the Court ultimately agree with petitioner that redactions were unnecessarily excessive or wholly unnecessary for their stated purposes.

The Brewer requests, fourth on Newsday's list, have devolved from the initial objection and reconsideration to whether the redacted documents ultimately received constitute an adequate response. The Court has recited above the history leading to the production because it contains the seeds of the respondent's response, and thus are important as a basis for understanding the redactions.

Initially, the Court rejects respondent's resort to County Law §308(4). That section shields only those records of calls made to an emergency 911 system, not all 911 records generally. As exemptions are to be narrowly construed (Matter of Gould v. New York City Police Department, 89 NY2d 267, supra), NCPD was not entitled to redact or withhold records except those which were of the calls themselves. Records of a municipality's own dispatches which may have resulted from those calls therefore would have to be produced, and redaction could be made only to the extent that the logs or other records contained actual call content.

Further, given the undisputed notoriety and public interest in the Brewer case, respondent's reliance on a line of cases denying on privacy grounds inmates' access to

 

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witness information that concerned only their own matters is misplaced. This includes Matter of Bellamy v. New York City Police Dept., 87 AD3d 874 (1st Dept. 2011), the key case upon which respondent relies in its memorandum, where privacy issues clearly were secondary to concerns about the personal safety of persons interviewed during the investigation of petitioner's own criminal case.

As there is no showing of safety concerns in the Brewer matter and, with regard to privacy, no demonstration that revealing the names would fall within one of the examples of "unwarranted invasion of personal privacy" set forth in Public Officers Law §89(2)(b), the Court must balance public interest against more generalized privacy concerns. Matter of New York Times Co. v. City of N.Y. Fire Dept., 4 NY3d 477, 485 (2005); see also Mulgrew v. Board of Educ. of the City School Dist. of the City of New York, 87 AD3d 506 (1st Dept. 2011). In the present case, the undisputed public interest favors disclosure.

The Court also notes that in its opposing memorandum respondent presents supporting arguments only with regard to third parties, addressed in the preceding paragraph, and the identification of a CPS/DSS worker involved in a matter affecting Brewer's family. As to the latter, this must be disclosed as it concerns the performance of a public employee in his or her job, which is of legitimate public interest generally, as well as in this particular case. Mulgrew, supra. There is no cogent argument made in favor of redacting many of the other details petitioner seeks, such as incident scene, Brewer's address and occupation, information regarding the deceased children, and damage to vehicles. Other than 911 call content, the only redaction that may be

 

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supportable involves a party who was the subject of an order of protection obtained by Brewer, which might have been sealed. See CPL 160.50. In that case, the Court would agree that all information contained therein should be withheld, but the respondent would be bound to state that it was in fact sealed. Otherwise, it must provide the information.

To the extent respondent relied on those sections of FOIL that refer to interference with pending or future investigations, revealing investigative techniques, or compromising officer safety, there has been no showing as to how production of the records sought would cause the negative effect cited. The Court therefore cannot find that an exemption under the statute has been satisfied.

Accordingly, that branch of the petition that concerns the Brewer records is granted, and unredacted copies of the records previously served on petitioner are to be turned over to petitioner, with the possible exception of the order of protection information, and 911 call content, as set forth above.

The Court declines petitioner's invitation to speculate as to the existence of other records that were not produced at all, and to direct NCPD to supplement its response with any documents responsive to petitioner's original request, if yet not revealed. However, the Court will retain jurisdiction of this aspect of the matter, as it has with regard to the other elements of the case that are not as of yet fully resolved, and considers it respondent's duty to produce any records it later may find that must be disclosed under the present decision. This is consistent with and akin to the ongoing duty of disclosure imposed on all parties to litigation under the Civil Practice Law and Rules. See CPLR 3101(h).

 

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Those branches of the petition/complaint that seek declaratory and mandamus relief are denied.

The "pattern and practice" petitioner wishes the Court to declare as being in violation of FOIL — respondent's use of form denials, lack of particularized justifications, and untimely responses to administrative appeals — are grounded on the five NCPD responses discussed here. To declare violations based upon the Court's findings essentially is redundant, and violations also can be redressed by the assessment of costs and fees pursuant to section 89(4)(c), discussed below. Further, if Newsday feels an advisory opinion on the issue is warranted, it is free to seek one from the Committee on Open Government, pursuant to Public Officers Law §89(1)(b). That is what the statute currently provides. Petitioner is asking the Court either to engraft new forms of relief onto the existing statutory scheme, which is a legislative task, or, in effect, to recognize a new cause of action based on federal law it cites in its memorandum.

As to the latter, establishing a new cause of action is best left to the appellate courts, especially our Court of Appeals, as such a determination "is largely a question of policy" (Donohue v. Copiague Union Free School Dist., 47 NY2d 440, 445 (1979) [Wachtler, J., concurring] and can have both "foreseeable and unforeseeable consequences…" Caronia v. Philip Morris USA, Inc., _ NY3d _, 2013 WL 6589454, quoting Madden v. Creative Servs., 84 NY2d 738, 746 (1995). This Court therefore concludes that it would be inappropriate to recognize the claim advanced by petitioner.

Accordingly, that branch of the petition that seeks declaratory relief in the form stated in the notice of petition is denied, and the Court instead declares that the existing

 

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statute provides for all the relief currently available to the petitioner. See Matter of New York Times Co. v. City of New York Police Dept., 103 AD3d 405 (1st Dept. 2013).

The Court also concludes that mandamus is unavailable here. "[T]he extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when there exists a clear legal right to the relief sought." See, e.g., Matter of Henrius v. Honoroff, 111 AD3d 828 (2d Dept. 2013). There is no clear legal right to have respondent annually certify to the Court that it is obeying FOIL's directives regarding the provision of sufficiently particularized reasons for denying requests, and to timely respond to administrative appeals. Although Newsday, as a requester under FOIL, has a right to a timely response in accord with the statute, the petitioner did respond, albeit imperfectly, and thus it appears to the Court that the issue here is how it performed its duties rather than whether it refused to do so in the first instance. See Klostermann v. Cuomo, 61 NY2d 525, 540 (1984); see also Matter of New York Times Co. v. City of New York Police Dept., supra [review of FOIL determination does not provide for mandamus relief].

Finally, that branch of the petition that is for an award of costs and attorney's fees pursuant to Public Officers Law §89(4)(c) is granted. That section provides that an award may be made where the petitioner has "substantially prevailed," and where 1) the governmental agency had no reasonable basis for denying access to the requested documents/information, or 2) failed to respond to initial requests or appeals within the statutory time periods prescribed by section 89((3) (a) and (4)(a). Such an award, however, remains addressed to the discretion of the reviewing court. Matter of Maddux v

 

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New York State Police, 64 AD3d 1069 (3d Dept. 2009).

In this case the petitioner has substantially prevailed, as this Court has not upheld any of the denials of access issued by the respondent and has directed remedial action. Further, in almost all cases there was no reasonable basis for the denials, and in several instances respondent did not articulate any reason, let alone a reasonable one, in support of its stated position. In the Brewer case, respondent continued to resist even after the County Attorney granted Newsday's appeal. Further, several responses to requests and appeals were beyond the statutory periods. In addition, the material sought was of interest to the general public, as it concerned the functioning of its police and related services, and interest to the public is a factor that has been noted by appellate courts in determining whether an award should be made. See Matter of Grace v. Chenango County, 256 AD2d 890 (3d Dept. 1998).

The overall record therefore is such that an award is appropriate. See Matter of Legal Aid Society v. New York State Dept. of Corrections and Community Supervision, 105 AD3d 1120 (3d Dept. 2013). Accordingly, respondent shall pay the reasonable costs, including reasonable attorney's fees, incurred by petitioner after the initial denials by respondent, as such expenses pertain to all its requests for documents and information described in this decision, at both the administrative appeals and court levels, excepting those costs and fees associated with the "sworn officers" requests. The latter is excepted because the parties resolved that matter, and the Court will not discourage such settlements by having NCPD remain liable for petitioner's expenses notwithstanding what appears to be a good-faith effort to resolve the issue. In so finding, however, the Court

 

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notes that there may be circumstances where even an ultimate resolution will not shield respondent from such payments.

As no affirmation of services or other proof is offered by petitioner or its counsel regarding the proper amount of fees, a hearing is required.

Subject to the approval of the Justice there presiding and provided a Note of Issue has been filed by petitioner at least 10 days prior thereto, this matter is referred to the Calendar Control Part (CCP) for a hearing on February 18, 2014, at 9:30 A.M.

A copy of this order shall be served on the Calendar Clerk and accompany the Note of Issue when filed. The failure to file a Note of Issue or to appear as directed may be deemed an abandonment of the claim for costs and fees giving rise to the hearing.

This directive with respect to a hearing is subject to the right of the Justice presiding in CCP to refer the matter to a Justice, Judicial Hearing Officer or a Court Attorney/Referee as he or she deems appropriate.

In sum, the petition is granted as follows: 1) the "field names" must be produced; 2) the documents responsive to the "four criminal cases" request must be produced, with redactions deemed necessary by NCPD, subject to the Court's continuing jurisdiction to hear a further proceeding under this index number regarding that production and those redactions; 3) the records responsive to the "confidential informants" payments request are to be produced, with redactions deemed necessary by NCPD, subject to the Court's continuing jurisdiction to hear a further proceeding under this index number regarding that production and those redactions; 4) the "Brewer" material must be produced without the redactions found in the present record, excepting so much thereof that contains

 

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information found in a sealed record, and records of 911 call content; and 5) costs and fees are awarded as expended in the pursuit of the records described in items 1-4 of this paragraph, and the amount thereof shall be established in a hearing.

Respondent shall serve on petitioner all records directed to be produced within 30 days of the date of this Order, unless further extended by agreement of the parties or by Court direction.

All other requests for relief are denied.

This shall constitute the Decision, Order and Judgment of this Court.

Dated: January 16, 2014

ENTER: