NYPD Can Withhold Records from Non-Profit, Panel Rules

, New York Law Journal

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A divided state appeals panel has let the New York City Police Department off the hook for $49,000 in legal fees after finding that it did not wrongfully withhold certain records from a non-profit group investigating a wrongful murder conviction claim.

The 4-1 Appellate Division, First Department, panel ruled on Feb. 6 in The Exoneration Initiative v. New York City Police Department, 102688/12, that the NYPD does not have to turn over the addresses and telephone numbers of two people who witnessed the murder, though it must turn over some other information that it had withheld.

Justices Peter Tom (See Profile), John Sweeny (See Profile), David Saxe (See Profile) and Darcel Clark (See Profile) joined in the unsigned majority opinion. Justice Helen Freedman (See Profile) dissented.

The Exoneration Initiative, which investigates wrongful conviction claims, is looking into the conviction of Richard Rosario for a murder committed in 1996. In 2011, it filed a Freedom of Information Law Request with the NYPD asking for information about the case, including information about two eyewitnesses.

One of the eyewitnesses, Jose Diaz, operated a food cart near where the murder took place and testified at trial, but did not identify Rosario in a line-up. The other, identified only as a "passerby" in police records, did not testify in the case but spoke to the police about it.

The Exoneration Initiative sought the passerby's name and the phone numbers and addresses, as of 1996, for both the eyewitnesses. It said that it wanted to contact them because their statements could show that the murderer knew his victim and the crime was premeditated, contradicting the prosecution's theory at trial that the murderer and victim were strangers.

The NYPD repeatedly missed deadlines in responding to the request, and the Exoneration Initiative filed an Article 78 proceeding. The NYPD then produced heavily redacted parts of the case file. Among the redactions were two full pages containing a detailed statement from the passerby, which was summarized only briefly elsewhere in the police report.

Last year, Manhattan Supreme Court Justice Peter Moulton (See Profile) ordered the NYPD to produce information it had withheld, including the passerby's statement and personal information about the eyewitnesses, and ordered it to pay $49,000 in legal fees (NYLJ, June 17, 2013). The NYPD appealed.

The majority in last week's decision agreed that the NYPD must turn over the passerby's statement, but held that it did not have to turn over his or Diaz's personal information. It ruled that the privacy and safety interests of the eyewitnesses outweigh the Exoneration Initiative's interest in contacting them. It also ruled that other redactions of the case file could stand.

Diaz, the majority said, was a witness for the prosecution and could therefore be put in danger by the disclosure, even though there is a chance that he could help exonerate Rosario.

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