N.Y. Civil Liberties Union v. N.Y. State Police

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2023 NY Slip Op 32079(U)

In the Matter of the Application of NEW YORK CIVIL LIBERTIES UNION Petitioner, v. NEW YORK STATE POLICE, Respondent.

Index No. 905020-22

Supreme Court, Albany County

April 14, 2023

Unpublished Opinion

Latham & Watkins, LLP Jamie L. Wine, Esq. Jaclyn D. Newman, Esq. Ben N. Herrington-Gilmore, Esq. Margaret Babad, Esq.

New York Civil Liberties Union Foundation Robert Hodgson, Esq. Lisa Laplace, Esq.

Hon Letitia A. James Attorney General of the State of New York Attorney for Respondent (Kostas D. Leris, Assistant Attorney General-Of Counsel) Department of Law The Capitol

Richard E. Mulvaney, Esq. General Counsel Police Benevolent Association Of the New York State Troopers, Inc.

Daniel E. Strollo, Esq. General Counsel Police Benevolent Association of the New York State Troopers, Inc.

DECISION, ORDER AND JUDGMENT

KERI E. SAVONA, JUDGE

Enacted in 1976, New York State Civil Rights Law' §50-a permitted law enforcement agencies to refuse to disclose "personnel records used to evaluate performance toward continued employment or promotion." In September, 2020 following the repeal of Civil Rights Law §50-a Petitioner New York Civil Liberties Union filed a request for documents with the New York State Police pursuant to the Freedom of Information Law (hereinafter "FOIL"). The request sought documents from January 1, 2000 through September 15, 2020, and consisted of eight categories of records: A) Disciplinary Records, B) Use of Force, C) Stops/Temporary Detentions/Field Interviews, D) Complaints About Misconduct, E) NYSP Immigration-Related Enforcement, F) NYSP Professional Standards Bureau Records, G) Diversity in the Ranks, and H) Additional Policies and Agreements. Each of these categories was broken down into subcategories, for a total of approximately fifty categories of inquiry.

According to the Petitioner, sixteen months after the filing of the FOIL request, the Respondent has responded to a portion of the demand but has refused to supply records responsive to the following categories:

Section A(1): "... copies of all law enforcement disciplinary records. For purposes of this request, Law enforcement disciplinary records' means 'any record created in furtherance of a law enforcement disciplinary proceeding' as defined in Section 86, subdivision 6 of the Public Officers Law (the 'Act'), including, but not limited to:

a) The complaints, allegations, and charges against an employee;

b) The name of the employee complained of or charged;

c) The transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing;

d) The disposition of any disciplinary proceeding; and

e) The final written opinion or memorandum supporting the disposition and, if applicable, the discipline imposed, including the agency's complete factual findings and analysis of the conduct, and if applicable, appropriate discipline of the covered employee."

Section D(7): "All investigative reports regarding each law enforcement officer cleared of, or found to have engaged in, wrongdoing in civilian complaints."

Section F: "We request copies of records regarding complaints filed with the NYSP Professional Standards Bureau ('PSB') formerly the Internal Affairs Bureau (TAB'), including: Records kept in the PSB or IAB case tracking systems, including complete complaints and allegation histories of every active member of the NYSP, and every former member of the NYSP who left service for any reason since January 1, 2000."

The petition further asserts that, although a spreadsheet was provided in response to Section D(5) ("Documents sufficient to show the total number of complaints per calendar year within this request's time period, broken down by the subject of the complaint (categories used internally to categorize complaints are sufficient for the purposes of this request), including, but not limited to, complaints about racial profiling, the use of force, and stops or temporary detentions."), that certain officers' names were redacted. The Petitioner alleges that the Respondent wrongfully used the "personal privacy" exception in the redaction of these records.

The Petitioner seeks judgment: (1) Pursuant to C.P.L.R. § 7806, directing Respondent to comply with its duty under FOIL and disclose all the records sought by the NYCLU in the Request, redacted only as permitted by FOIL and on a reasonable rolling basis where appropriate; (2) Awarding reasonable attorneys' fees and litigation costs as allowed under New York Public Officers Law § 89; and (3) Granting such other relief as the Court deems just and proper, the Respondent asserts that they have complied with the demand and that their refusal to respond to certain portions of the demand is justified due to the fact that the records sought are not reasonably described and that production of same w ould be unduly burdensome. The Respondent also asserts that the redaction of certain officers' names is appropriate for personal privacy reasons.

The Police Benevolent Association of the New York State Troopers, Inc., sought leave to intervene on the limited issue of whether the names of officers involved in unsubstantiated complaints were properly redacted from the Respondent's spreadsheet created in response to inquiry D(5). Said motion was granted and The Police Benevolent Association of the New York State Troopers, Inc. was given until March 6, 2023 to file a brief. However, nothing was ever received.

Response to Section D(5)

The issue of whether the names of officers involved in "unsubstantiated complaints" were properly redacted in the spreadsheet prepared by the Respondent in response to Petitioner's Request "D(5)" is not ripe for decision. This court agrees with the Respondent that the request did not ask for the names of officers. Rather, the request was for "Documents sufficient to show the total number of complaints per calendar year within this request's time period, broken down by the subject of the complaint (categories used internally to categorize complaints are sufficient for the purposes of this request), including, but not limited to, complaints about racial profiling, the use of force, and stops or temporary detentions." This Court notes that the creating of a spreadsheet is not equivalent to the disclosure of a document or documents maintained by an agency. The Respondent did not "redact" certain officers' names from records maintained by the NYSP, but, instead, chose to omit those names from a spreadsheet which was created through the review of documents maintained by the NYSP.

It is clear that the mere fact that the complaint was determined to be unsubstantiated does not categorically exempt the records from disclosure. (See, e.g., Matter of New York Civ. Liberties Union v. New York City Dept, of Corr., 2023 N.Y.App.Div. Lexis 896; Matter of New York Civ. Liberties Union v. City of Syracuse, 210 A.D.2d 1401 [4th Dept., 2022]). If and when the Respondent turns over the disciplinary files pertaining to unsubstantiated complaints, the Respondent will be responsible for redacting said records so as to not create an unwarranted invasion of personal privacy through their disclosure. At that time the question of whether the redaction was appropriate will become an issue. Records pertaining to both unfounded and founded complaints may properly be redacted. The question of whether any prospective redactions were appropriate is a question for a later date, once the Petitioner is provided with documents containing redactions. Accordingly, the portion of the petition seeking an order compelling disclosure of an unredacted spreadsheet pursuant to section D(5) of the demand is denied.

Response to Section D(7)

Public Officers Law §89(3)(a) requires that records sought pursuant to FOIL requests must be "reasonably described." "'The requirement of Public Officers Law §89(3)(a) that requested documents be 'reasonably described' served to enable an agency to locate and identify the records in question.'" Matter of Reclaim the Records v. New York State Dept, of Health, 185 A.D.3d 1268, 1269 (3rd Dept., 2020) (quoting Matter of Konigsberg v. Coughlin, 68 N.Y.2d 245, 249 [1986]) (internal quotation marks and citations omitted). Section D(7) of the Petitioner's FOIL request sought "All investigative reports regarding each law enforcement officer cleared of, or found to have engaged in, wrongdoing in civilian complaints."

The Respondent asserts that the records being sought are not reasonably described. (See, Exhibit R to the petition -letter dated January 20, 2021). The Petitioner does not provide a definition of "investigative reports" and has not established that the Respondent maintains a classification of documents known as "investigative reports". The Respondent is not required to speculate about what exactly it is that the Petitioner is seeking, nor are they required to provide documents that may be perceived as "investigative reports" if they are not otherwise so named. Accordingly, the portion of the petition seeking an order compelling disclosure of documents responsive to section D(7) of the demand is denied.

Response to Section F

Section F of the Petitioner's FOIL demand requested: "copies of records regarding complaints filed with the NYSP Professional Standards Bureau ('PSB') formerly the Internal Affairs Bureau (TAB'), including: Records kept in the PSB or IAB case tracking systems, including complete complaints and allegation histories of every active member of the NYSP, and every former member of the NYSP who left service for any reason since January 1, 2000."

Although the Respondent was specifically asked, in the court's February 14, 2023 "Decision of Motion" to provide information on "Whether the...