N.Y. C.L. Union v. Suffolk Cty.

216 N.Y.S.3d 824

In the Matter of the Application of NEW YORK CIVIL LIBERTIES UNION, Petitioner,

v.SUFFOLK COUNTY and Suffolk County Police Department, Respondents, for Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.

Supreme Court, Suffolk County.

Decided on January 5, 2024

PETITIONER’S ATTORNEY, KIRKLAND & ELLIS, LLP, 601 Lexington Avenue, New York, NY 10022

RESPONDENTS’ ATTORNEY, SUFFOLK COUNTY ATTORNEY, 100 Veterans Memorial Highway, Hauppauge, NY 11788, By Lisa Azzato, Assistant County Attorney

Maureen T. Liccione, J.

Upon the reading and consideration of NYSCEF documents 1 through 97 it is:

ORDERED AND ADJUDGED that the petition (motion sequence no. 001) is grant- ed, in part, to the extent that Respondents are directed to review each of the FOIL requests which are the subject of this proceeding in accordance with the requirements set forth herein on a rolling basis, beginning 30 days from service of this order and judgment with notice of entry via NYSCEF, subject to any redactions or exemptions authorized by statute; and it is further

ORDERED that Respondents shall provide a log to Petitioner justifying each claimed redaction and exemption from disclosure stating the specific statutory basis invoked in a manner that would allow for judicial review; and it is further

ORDERED that in the event Petitioner claims that exemptions or redactions are improper, the Court will conduct in-camera review of the unredacted records; and it is further

ORDERED that counsel for the parties are directed to appear on February 15, 2023 at 2:00 p.m., at the Alan Oshrin Supreme Court Courthouse, One Court Street, Court Annex, Part 78, Riverhead, New York to set a schedule for the rolling release of records; and it is further

ORDERED that the motion for leave to file an amicus brief (motion sequence no. 002) is denied.

This is a special proceeding by petitioner, the New York Civil Liberties Union (Petitioner or NYCLU), brought pursuant to Article 78 of New York’s Civil Practice Law & Rules (CPLR) and Public Officers Law (POL) § 89 et seq (FOIL) against respondents the County of Suffolk and the Suffolk County Police Department (SCPD) (collectively Respondent or County). The petition seeks: (1) production of SCPD records which were withheld in response to the NYCLU’s FOIL requests, subject to redactions permitted by FOIL; (2) reproduction of records which have been produced pursuant to the NYCLU’s FOIL requests with written explanations justifying the redactions or, in the alternative, an in-camera review of the redacted records; and (3) attorney’s fees and litigation costs as authorized pursuant to FOIL.

The County opposed the petition arguing that personal privacy exemptions under FOIL required the SCPD to withhold certain records and that its redactions of portions of others were proper. The County also argues that the repeal of Section 50-a does not apply retroactively to records created before passage of the repeal.

On November 28, 2022, the Suffolk County Police Benevolent Association (PBA) submitted a motion for leave to submit a proposed amicus curiae brief. The motion was unopposed. The proceeding was assigned to this part in or about November 2023.

Factual Background

[1, 2] Prior to its repeal in June 2020, New York Civil Rights Law § 50-a had generally excluded all police personnel records from disclosure. On the heels of the repeal, on September 15, 2020, the NYCLU submitted a letter to the SCPD which contained extensive FOIL requests covering records created over a twenty-year period and making conclusory statements predicting the conclusions that would be drawn from records it sought.¹ The NYCLU requested 47 categories of records; and some requests had as many as 30 subcategories.

Over the course of the ensuing year the SCPD produced responsive records. On October 15, 2021 the SCPD indicated that it was withholding all records of disciplinary proceedings where the complaints against officers were classified as unsubstantiated, unfounded, or exonerated (Withheld Records). While records of disciplinary proceedings which were classified as substantiated were released to the NYCLU, no particularized statements justifying the legal bases for redactions of portions of those records were provided (Redacted Records). The NYCLU timely appealed the October 15, 2021 partial denial to the County’s FOIL appeals officer. The appeal was denied on November 30, 2021. In March 2022 the SCPD released additional records and the parties conferred. They agreed to further negotiate the potential production of the Redacted Records, and further stipulated that they would potentially litigate the issue of the Withheld Records. The parties further agreed to a tolling agreement dated March 30, 2022 by which they stipulated to extend the deadline for the NYCLU to commence an Article 78 proceeding challenging the County’s denial of the administrative appeal.

The County had denied the NYCLU’s appeal with respect to the Withheld Records by asserting that they were exempt from disclosure because their release would "constitute[ ] an unwarranted invasion of the personal privacy of the officers" (NYSCEF Doc No. 46) and cited the personal privacy exemptions in FOIL (POL 87 [2]) as well as Committee on Open Government (COOG) Advisory Opinions 17195 (July 27, 2020) and 19785 (March 19, 2021) as justification. The County also denied the appeal with respect to the Redacted Records noting that:

"some of the records contain medical information of a private nature concerning policy officers, and in other instances private individuals who were victims of crimes or otherwise injured parties. Redactions Were made to protect the identities, addresses, dates of birth or other private information of witnesses to crimes or other persons present at crime scenes. Redactions include details about private individuals’ personal encounters or interactions with other private individuals that resulted in the police being called. The personal privacy of the subjects of the reports outweighs the interest of the public in access to that information. Some such reports involved instances of domestic violence, harassment, and similar situations between private individuals"

(NYSCEF Doc No. 46). The County, however, did not correlate itemized redactions to specified justifications. The parties apparently were unable to reconcile their differences as outlined in the stipulation and tolling agreement. This proceeding ensued.

Article 78 Proceeding / Motion Sequence No. 001

On November 22, 2023 the Appellate Division Second Department, reversed an Article 78 judgment by Supreme Court, Nassau County, and ruled that "records concerning unsubstantiated complaints or allegations of misconduct are not categorically exempt from disclosure as an unwarranted invasion of personal privacy" and that the Nassau County Police Department was required to disclose such records, "subject to redactions with particularized and specific justification[s]" (Matter of Newsday, LLC v. Nassau Cnty. Police Dept., 222 A.D.3d 85, 91, 201 N.Y.S.3d 88 [2d Dept. 2023]). This ruling was in accordance with those of the First and Fourth Departments (Matter of New York Civ. Liberties Union v. New York City Dept. of Corr. 213 AD.3d 530, 530-531, 183 N.Y.S.3d 411 [1st Dept. 2023]), [POL 87 (2) "does not create a categori- cal or blanket exemption from disclosure for unsubstantiated complaints or allegations of uniformed officers’ misconduct . [documents concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details"]; (Matter of New York Civ. Liberties Union v. City of Syracuse, 210 A.D.3d 1401, 1404, 178 N.Y.S.3d 331 [4th Dept. 2022]) [POL 87 (2) (b) " ‘does not categorically exempt . documents from disclosure’ " even where a FOIL request concerns release of unsubstantiated allegations or complaints against police officers"]).

[3] Since police misconduct records are not categorically exempt, "[i]n order to invoke the personal privacy exemption . respondents must review each record responsive to petitioner’s FOIL request and determine whether any portion of the specific record is exempt as an invasion of personal privacy and, to the extent that any portion of a law enforcement disciplinary record concerning an open or unsubstantiated complaint of .. officer misconduct can be disclosed without resulting in an unwarranted invasion of personal privacy, respondents must release the non-exempt, i.e., properly redacted, portion of the record to petitioner" (City of Syracuse, 210 A.D.3d at 1404-1405, 178 N.Y.S.3d 331).

[4, 5] In denying the administrative appeals the County invoked general reasons why it considered portions of the Redacted Records to be exempt from disclosure, but never linked a particular justification to a specific portion of a Redacted Record. To the extent that the SCPD "relied upon exemptions" it was obligated to articulate "a particularized and specific justification for [any] such denial" (Matter of Newsday, LLC v. Nassau Cnty. Police Dept.), citing POL 87 [2]); see Matter of Lockwood v. Nassau Cnty. Police Dept., 78 Misc.3d 1219(A), 2023 WL 2779058 [Sup. Ct., Nassau Cnty., 2023] [claimed redactions required to be "documented in a manner that allows for review by the Court"]).

It bears noting that several the Redacted Records contain invalid exemptions including the blocking of information in public records such as court pleadings, notices of claims, the name of a bureau chief in the County Attorney’s Office...