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.

"Here, disclosure of the information concerning Diaz is not mandated by the observation that his testimony was potentially exculpatory," the majority wrote. "While his failure to identify Rosario in a line-up is arguably exculpatory, his testimony at trial which largely corroborated the accounts provided by the People's other two witnesses raises the 'possibility of endangerment,' satisfying respondent's burden with respect to the information pertaining to Diaz."

The unnamed passerby, similarly, could be endangered by the disclosure, the majority said.

"Further, the disclosure of the information regarding Passerby would also create a possibility that Passerby's life or safety could be endangered," it wrote. "While it is true that Passerby's statement might seem at odds with the account provided by the People's witnesses, this account is not dispositive."

Furthermore, the majority wrote, the requested disclosures would be an "unwarranted invasion of privacy" and could have a "chilling effect" on witnesses cooperating with the police in the future.

It therefore ordered the NYPD to produce some parts of the case file that it had withheld, but not the eyewitnesses' information.

The majority found that, in light of this partial reversal, the Exoneration Initiative had not substantially prevailed and thus was not entitled to fees.

Freedman, in her dissent, said she would have affirmed Moulton's decision completely.

She said that she found "no basis to find that disclosing the passerby's name, address, and telephone number as of 1996, and Jose Diaz's address and telephone number, could endanger them or violate their privacy."

"The majority acknowledges that the passerby's statement to the police did not corroborate 'the account provided by the People's witnesses,' and I am puzzled by the majority's reasoning that, merely because 'this account is not dispositive,' disclosing information about the passerby who contradicted that account would endanger him," she added.

Finally, she said, "any intrusion into individuals' privacy is outweighed by the possibility that Rosario is actually innocent and that evidence of actual innocence may be revealed."

She noted that Rosario had filed a habeas corpus petition, which a Second Circuit panel denied 2-1, and that the dissenting judge, Chester Straub, wrote that there was "too much alibi evidence that was not presented to the jury, and too little evidence of guilt, to now have any confidence in the jury's verdict."

Rebecca Freedman, an attorney at the Exoneration Initiative, said that the organization had not decided whether to appeal. She said that even without the eyewitnesses' information, the unnamed passerby's full statement could be helpful to Rosario's case.

"The primary focus for us was always on just getting the information that we'd not been able to see before," she said. "For us, getting the information at all will be a significant victory.... In these innocence cases, any detail could be significant."

The NYPD was represented by Elizabeth Freedman, senior counsel in the appeals division of the Law Department. "We are pleased that the Court recognized the importance of protecting against the disclosure of information that could result in potential harm to a witness in a criminal investigation," she said.

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