Majuc v. N.Y. Cnty. Dist. Attorney's Office

2019 NY Slip Op 33696(U)

In the Matter of JOHNMARK MAJUC, Petitioner, v. NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE and CYRUS R. VANCE, JR.,IN HIS OFFICIAL CAPACITY AS THE DISTRICT ATTORNEY OF NEW YORK COUNTY Respondent.

INDEX NO. 160988/2017

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART IAS MOTION 56EFM

RECEIVED: December 18, 2019

December 16, 2019

NYSCEF DOC. NO. 37

PRESENT: HON. JOHN J. KELLEY Justice

MOTION DATE 09/17/2019

MOTION SEQ. NO. 001

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 32, 35, 36 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER).

I. INTRODUCTION

In this proceeding pursuant to CPLR article 78, the petitioner seeks judicial review of an August 17, 2017 New York County District Attorney's Office (DA) determination denying his administrative appeal of an initial determination rejecting his request for agency records pursuant to the Freedom of Information Law (Public Officers Law § 84, et seq.; hereinafter FOIL). In that March 2, 2017 request, the petitioner had requested "documents under the Freedom of Information Law arising from [the DA's] investigation" of French bank BNP Paribas, S.A. (BNPP) "for [its] role in processing financial transactions for the [Government of Sudan]." The petitioner asserted that he and others are in the process of prosecuting a civil action against BNPP in the United States District Court for the Southern District of New York to recover for violations of federal and international law prohibiting the provision of financial assistance to terrorist organizations and the evasion of U.S. sanctions imposed upon Sudan (see Kashef v BNP Paribas, S.A., 925 F3d 53 [2d Cir 2019]). They allege that they or their families were wounded, kidnapped, or killed by the Janjaweed Militia that was supported by the Sudanese government, both of which received financial assistance from BNPP; they further allege that the DA prosecuted BNPP criminally for the same conduct, and successfully secured a plea of guilty in 2014, resulting in a conviction in 2015, pursuant to which that bank agreed to pay a record $9 billion fine (see id. at 56).

The DA answered the petition in this proceeding, and filed the administrative record, explaining that it reviewed thousands of pages of documents, many of which it claimed fell within several exemptions from disclosure set forth in FOIL. During the pendency of the proceeding, the court requested the DA to provide it with exemplars of the documents that would fall into the exempt categories. The DA provided the court with a CD-R containing those exemplars, and the court reviewed them. Thereafter, the court conducted an in camera review session with the attorneys for the DA, at which they were asked to explain the factual basis for several of the DA's legal claims. The court concludes that numerous categories of documents are indeed exempt from disclosure under FOIL. It thus grants the petition only to the extent of directing the DA to produce documents constituting or containing "raw data," as will be defined herein, unless otherwise exempt from disclosure under FOIL by virtue the law enforcement, grand jury, attorney-client privilege, attorney work product, and trade secret exceptions to that statute. To that end, the court directs the DA to submit those documents constituting or containing "raw data" to a referee, who is directed to hear and report on the issue of whether those documents are otherwise exempt from disclosure pursuant to the law enforcement, grand jury, attorney-client privilege, and attorney work product, and trade secret exceptions.

II. BACKGROUND

Although the petitioner limited his initial FOIL request to several identified categories, the DA denied the request in its entirety, citing several reasons, including the extremely large size ofthe requested documentation, consisting of thousands of pages of documents, and the petitioner's alleged failure reasonably to describe the records that he sought. The DA also asserted that matters relating to its investigation against BNPP were ongoing despite the 2014 plea agreement, and therefore were not only subject to the law-enforcement exception, but would reveal sensitive law-enforcement techniques; it further argued that the DA's office obtained many of the records from French law-enforcement authorities through a multilateral law enforcement treaty between France and the United States that requires documents to be kept confidential where, as here, the providing party requests confidentiality. The DA further asserted that the records contained confidential personal information, such as banking records of individuals and businesses who are not related to the prosecution of BNPP, and that BNPP allegedly provided several documents to the DA on the basis that they would be exempted from disclosure on the ground that they were trade secrets or needed to be kept confidential for other reasons. The DA also argues that the records contain documents subject to attorney-client and attorney work-product privilege.

On April 19, 2017, the petitioner administratively appealed the DA's initial rejection to the DA's records access appeals officer, asserting that the DA cannot reject a FOIL request simply because the request would be burdensome or the document production would be too voluminous, that the agreement between the DA and BNPP to keep BNPP's documents confidential was not enforceable, and that the DA could not categorically deny FOIL requests.

On August 17, 2017, Susan Roque, Assistant District Attorney of the Special Litigation Bureau, denied the petitioner's administrative appeal. Roque concluded that the documents sought were provided to the DA under the condition that they remain confidential and used only for the DA's investigation. In addition, Roque claimed that the request failed specifically to describe the records sought, despite the petitioner's attempts to narrow the scope of the request. Further, Roque stated that the investigation of BNPP was ongoing and, therefore,disclosing these documents could have a prejudicial effect on law enforcement matters. This CPLR article 78 proceeding ensued.

As a general rule, "if the court is unable to determine whether withheld documents fall squarely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 275 [1996]). Here, although some records are clearly exempt from disclosure, others described by the DA presented a closer issue. Hence, an in camera inspection of representative documents was warranted. On May 6, 2019, upon the court's request, the DA provided this court with exemplars of documents to review in camera. With the consultation of the petitioner's attorneys, the DA identified 100 documents, totaling 17,390 pages, from the original search results. In addition, the DA provided the 56 documents that had been employed for the Factual Statement attached to the June 29, 2014 plea deal with BNPP, which came to an additional 399 pages. On August 13, 2019, counsel for the DA appeared in court, on the consent of the petitioner, to explain in camera as to whether and why there were ongoing law enforcement proceedings and whether French authorities requested confidentiality with respect to documents that it provided pursuant to treaty.

III. DISCUSSION

"While the Legislature established a general policy of disclosure by enacting the Freedom of Information Law, it nevertheless recognized a legitimate [governmental need] to keep some matters confidential" (Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]). When denying a FOIL request, a state or municipal agency must "state, in writing, the reason for the denial of access" (Matter of West Harlem Bus. Group v Empire State Dev. Corp., 13 NY3d 882, 884 [2009]). If the requesting party administratively appeals the denial, the agency's appeals officer must also provide written reasoning for upholding the denial (see id.).

"[O]n the issue of whether a particular document is exempt from disclosure under the Freedom of Information Law, the oft-stated standard of review in CPLR article 78 proceedings, i.e., that the agency's determination will not be set aside unless arbitrary or capricious or without rational basis, is not applicable" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, 94 [3rd Dept. 1985], affd 67 NY2d 562 [1986]; see Matter of Prall v New York City Dept. of Corrections, 129 AD3d 734 [2d Dept 2015]; Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d 153 [1st Dept 2010]). Rather, upon judicial review of an agency's determination to deny a FOIL request, the court must assess whether "the requested material falls squarely within a FOIL exemption" and whether the agency, upon denying such access, "articulat[ed] a particularized and specific justification for denying access" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566). In other words, the court may only review an agency's FOIL determination to ascertain whether the determination to invoke a particular statutory exemption was affected by an error of law (see Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 246 & n 2 [2018], affg 140 AD3d 419, 420-421 [1st Dept 2016]; CPLR 7803[3]).

1. Motive or Purpose of Request

The court first notes that the petitioner seeks the subject documents for use in a pending federal court action. FOIL does not require the party requesting the information to show any particular need or purpose (see Matter Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 156 [1999]; Matter of M. Farbman & Sons, Inc. v New York City Health & Hosps. Corp., 62 NY2d 75, 80 [1984]). Nonetheless, "the...