New York County Clerk's

Index No. 100220/2013

To be argued by
DANIEL A. MCGUINNESS

NEW YORK SUPREME COURT

APPELLATE DIVISION: FIRST DEPARTMENT
In the Matter of
LAW OFFICES OF ADAM D. PERLMUTTER,
P.C., for a Judgment Pursuant to Article 78 of the
Civil Practice Law and Rules,
Petitioner-Respondent,
against
NEW YORK CITY POLICE DEPARTMENT,
and RAYMOND KELLY, in his official capacity
as Commissioner of the New York City Police
Department,
Respondents-Appellants,

BRIEF FOR PETITIONER-RESPONDENT

LAW OFFICES OF ADAM D.
PERLMUTTER, P.C.
Daniel A. McGuinness, Esq.
Adam D. Perlmutter, Esq.
Attorneys for Petitioner-Respondent
260 Madison Ave., Suite 1800
New York, NY 10016
(212)-679-1990
dam@adplegal.com

PRINTED ON RECYCLED PAPER

Table of Contents
Table of Authorities ...................................................................................... iii

Introduction .................................................................................................... 1

Statement of Facts .......................................................................................... 3

A. Background to Petitioner-Respondent's FOIL Request........................ 3

B. Petitioner-Respondent's FOIL Request and Appeal ............................. 4
C. Petitioner-Respondent's Article 78 Action ........................................... 5

Argument........................................................................................................ 8

POINT I
THE DOCUMENTS ARE NOT EXEMPT FROM
DISCLOSURE UNDER POL 87(2)(e)(i) BECAUSE
THE REQUESTED DOCUMENTS WERE NOT
COMPILED FOR A LAW ENFORCEMENT PURPOSE. ................ 8
POINT II

DISCLOSURE OF THE REQUESTED DOCUMENTS

WOULD NOT INTERFERE WITH ANY ONGOING
CRIMINAL INVESTIGATIONS OR JUDICIAL
PROCEEDINGS: ANY POSSIBLE HARM FEARED
BY APPELLANTS IS ILLUSORY................................................... 12
A. In Order to Withhold the Requested
Documents, Appellants Must Demonstrate
A Generic Harm that Would Result from the
Disclosure of these types of Documents. ......................... 12
B.

The Disclosure of these Documents would

not Interfere in any Pending Criminal Matter.................. 16

C.

Unlike in a Criminal Case, Burdens of

Production cannot be Considered in the
Context of a FOIL Request. ............................................. 20

POINT III
THE DOCUMENTS ARE NOT EXEMPT FROM
DISCLOSURE UNDER POL 87(2)(A): CPL 240.20
DOES NOT PROHIBIT DISCLOSURE OF ANY OF
THE DOCUMENTS.......................................................................... 22

POINT IV
PUBLIC POLICY REQUIRES THAT
THIS INFORMATION BE DISCLOSED......................................... 25
POINT V
APPELLANTS HAVE ABANDONED THEIR APPEAL
OF THE LOWER COURT'S DECISION ORDERING
ATTORNEY'S FEES TO PETITIONER-RESPONDENT ............... 28

Conclusion.................................................................................................... 29

ii

Table of Authorities
Cases
Matter of Farberman & Sons v. New York
City Health & Hosps. Corp., 62 N.Y.2d 75 (1984) .................................. 23
Matter of Fink v. Leftkowitz, 47 N.Y.2d 567 (1979).................................... 12
Matter of Gould v. New York City Police
Dept., 89 N.Y.2d 267 (1996) ............................................ 13, 18, 21, 22, 23
John P. v. Whalen, 54 N.Y.2d 89 (1981) ............................................... 23, 24
Matter of Legal Aid Socy. of New York v.
New York City Police Dept.,
274 A.D.2d 207 (1st Dept. 2000) ................................................. 14, 15, 19
Lesher v. Hynes, 19 N.Y.3d 57 (2012)................................................... 16, 19
National Labor Relations Bd. v. Robbins Tire
& Rubber Co., 437 U.S. 214 (1978) ......................................................... 19
Matter of New York Civ. Liberties Union
v. City of Schenectady, 2 N.Y.3d 657 (2007)............................................ 13
Matter of New York Times Co. v. City of New
York Fire Dept., 4 N.Y.3d 477 (2005), .................................................... 15
People v. Hadzovic, Sup. Ct., Bronx Co.,
Docket No. 1236/04 .................................................................................. 20
People v. Hernandez, 31 Misc. 3d 208
(Rochester City Court 2011) ............................................................... 26, 27
People v. Pealer, 20 NY3d 447 (2013).................................................... 9, 10
People v. Summa, 140 Misc. 2d 763
(Dist. Court, Suffolk County 1986) .......................................................... 26

iii

Matter of Pittari v. Pirro,

258 A.D.2d 202 (2d Dept. 1999)................................................... 14, 15, 19
Statutes
Committee on Open Government Regulations
(21 NYCRR) 1401.5 ......................................................................... 12, 21
CPLR 5519(a)(1)...................................................................................... 6, 28
Department of Health Regulations (10 NYCRR) 59.4(c) ......................... 10
CPL 240.20(1)(k) ..................................................................................... 3, 16
CPL Article 240 .................................................................................... passim
Public Health Law 230(9) ......................................................................... 23
Public Officers Law 84 ....................................................................... 12, 21
Public Officers Law 87(2)(a) ............................................................. passim
Public Officers Law 87(2)(e)(i).......................................................... passim
Public Officers Law 87(2)(e)(ii) ................................................................. 5
Public Officers Law 87(2)(e)(iv)................................................................. 5
Public Officers Law 87(2)(g) ...................................................................... 5
Public Officers Law 89 ............................................................................... 5
Public Officers Law 89(4)(b) .................................................................... 14
Other
Laws of 1974 (ch 578 2, as amended)................................................. 12, 13
Laws of 1974 (ch 579 3, as amended)................................................ 12, 13

iv

www.fdle.state.fl.us/ Content/Alcohol-Testing-Program/
Menu/Public-Records/Electronic-Data.aspx ............................................. 26
www.wsp.wa.gov/breathtest/wdms_home.htm ........................................... 26

Introduction
On July 3, 2009, an Intoxilyzer 5000EN used to test a drunk driving
suspect's blood alcohol level malfunctioned and went out of service (328).1
An NYPD technician made a note of the malfunction in the machine's
maintenance log. A year later, July 13, 2010, a different Intoxilyzer
machine went out of service, and the NYPD replaced it by putting the first
Intoxilyzer machine back into service, without any apparent repair or
diagnosis of the first machine (328). The NYPD technician wrote another
note in the maintenance log. On October 24, 2011, that Intoxilyzer
malfunctioned again, and was taken out of service permanently. The NYPD
technician made a final notation in the maintenance log. The NYPD
technician's small notes are part of a much larger story. The full story is
made up of thousands of similar documents. It is the story of the NYPD's
Intoxilyzer machines; the story of how they are maintained, how they work,
how they malfunction, and how they are repaired or not repaired when they
break. It is a story that only the NYPD and District Attorneys of New York
City know. They want to keep it that way.
To keep this story secret, Appellants have tried to raise a plausible
specter of harm that would occasion the release of these documents. None

1
Unless otherwise indicated, numbers in parenthesis refer to the Records on Appeal.

of these fears are founded nor do they provide a legal basis for exempting
these documents from disclosure. The District Attorneys of New York City
seek to join Appellants' cause by claiming that they prosecute thousands
upon thousands of people based on these Intoxilyzers. But this is not a
reason to keep the story of these machines hidden it is the reason the story
must be told.

Statement of Facts
A.

Background to Petitioner-Respondent's FOIL Request

The New York City Police Department ("NYPD") offers a breath test

to individuals arrested for driving while intoxicated by alcohol ("DWI") in

order to determine their blood alcohol concentration ("BAC") (27). The
NYPD exclusively uses the Intoxilyzer 5000EN (27). The NYPD owns 28
Intoxilyzer 5000EN machines, which are stored at six locations throughout
the city. (27-28). A New York State driver arrested for DWI is required to
submit to this test or face a one-year license revocation. (27). The results of
these tests determine what charges will be filed, and what plea deals will be
offered. Id.
During the course of a DWI criminal case, the prosecution is required
to disclose certain records to the defendant, pursuant to CPL 240.20(1)(k).
Petitioner-Respondent, whose practice includes defending DWI cases,
obtained Intoxilyzer records through his practice (348). These records
demonstrate that Intoxilyzers may be taken out of service following
malfunctions, then placed back into service without any repair or diagnosis
(24).

B.

Petitioner-Respondent's FOIL Request and Appeal

To determine whether the Intoxilyzers are being properly maintained,

on August 30, 2012, Petitioner-Respondent sent a FOIL request for all

records related to the NYPD's inspection, maintenance and repair of their
Intoxilyzers, and included nine sample documents of records known to
Petitioner-Respondent (348). Petitioner-Respondent's letter included twenty
serial numbers for Intoxilyzer machines under the control of the NYPD, and
the addresses of the six locations where the machines are kept (349).
Petitioner-Respondent's letter also informed the NYPD of an agency's
obligation to respond to a FOIL request within five days (350).
Over two weeks later, the NYPD still had not responded, and, on
September 19, 2012, Petitioner-Respondent called the NYPD seeking a
response (33-34). By letter dated September 20, 2012, the NYPD denied the
FOIL request, and refused to disclose any responsive documents (374).
Records Access Officer Lt. Richard Mantellino wrote that the records were
withheld on the basis of Public Officers Law ("POL") 87(2)(e)(i) since
their disclosure would interfere with law enforcement investigations or
judicial proceedings (374).
Petitioner-Respondent appealed the NYPD's decision in a letter dated
September 25, 2012 (377). By letter dated December 3, 2012, the NYPD

denied the appeal (383). Records Access Appeals Officer Jonathan David
denied the records under POL 87(2)(e)(i) and (ii), stating "because
disclosure of the requested records to just one party would interfere with the
ordinary course of court supervised discovery and deprive other parties of
their right to a fair trial or impartial adjudication in ongoing litigation." Id.
The NYPD also denied the appeal under POL 87(2)(e)(iv) "because
disclosure would reveal non-routine criminal investigative techniques or
procedures," and POL 87(2)(g) "to the extent that said records contain
preliminary data and information." Id.
C.

Petitioner-Respondent's Article 78 Action

On January 30, 2013, Petitioner-Respondent commenced an Article

78 action challenging the NYPD's denial of Petitioner-Respondent's FOIL

request (400). Petitioner-Respondent's Verified Petition and Memorandum
of Law in Support demonstrated that none of the claimed exemptions
applied (24). Petitioner-Respondent also sought legal fees pursuant to POL
89, since the NYPD's denial had been untimely and unreasonable (36).
The NYPD responded by Verified Answer and Memorandum of Law
dated May 2, 2013 (390). In the Answer, the NYPD claimed that the
requested documents were exempt pursuant to POL 87(2)(e)(i), 87(2)(a),
and 87(2)(g), and that "Respondents' denial of Petitioner's FOIL request was

lawful and proper in every respect and mandated by law." (408-409). In

support of the NYPD's Answer, the NYPD attached Affirmations from every
District Attorney's Office in New York City to demonstrate that there are
thousands of pending DWI matters (440-456). These Affirmations
demonstrated that there are open DWI matters dating back to 1999 (453).
By decision and order dated October 17, 2013, New York Supreme
Court Justice Doris Ling-Cohan ordered the NYPD to produce the requested
documents, and granted attorneys fees to Petitioner-Respondent (8-19).
Justice Ling-Cohan noted that the records were not compiled during the
investigation or arrest of any particular case, and did not threaten to disturb
any pending prosecutions (17-18). Furthermore, the court found that
records had been arbitrarily withheld:
Assuming the petition is granted and a wealth of information
regarding the Intoxilyzers is made public, there are two
outcomes: all equipment proves to be accurate and wellmaintained; or not all equipment proves to be accurate and
well-maintained. The first outcome will not interfere with law
enforcement investigations or judicial proceedings; it may even
have the salutary effect of bolstering confidence in the handling
of DUI cases. The second outcome, the discovery of faulty or
defective equipment, can only be in the public interest in
preventing improper prosecutions. Such an outcome should not
be the sort that a public agency cites to, in order to protect its
records from disclosure. That would be an arbitrary and
capricious determination, and fail under CPLR 7803(3).

(18). The court ordered that the NYPD comply within 30 days of the order,
and directed Petitioner-Respondent to submit an accounting of costs and
attorneys' fees within 60 days (19).
On October 29, 2013, Appellant-Respondents filed a notice of appeal
from "each and every part" of the court's decision, judgment and order (6),
thereby staying the court's orders, pursuant to CPLR 5519(a)(1).

Argument
POINT I
THE DOCUMENTS ARE NOT EXEMPT FROM
DISCLOSURE UNDER POL 87(2)(e)(i) BECAUSE
THE REQUESTED DOCUMENTS WERE NOT
COMPILED FOR A LAW ENFORCEMENT PURPOSE.
The NYPD creates these records for administrative purposes. The

NYPD must keep these documents to ensure that the Intoxilyzers perform
properly. The records are not compiled in response to or in anticipation of
any complaint, incident, investigation, or prosecution. The Court of Appeals
and the District Attorneys' Association of New York State have
acknowledged that the documents sought by Petitioner-Respondent are
created for administrative and not law enforcement purposes.
Appellants argue that the requested documents "are compiled
specifically to ensure that evidence gathered for DWI prosecutions is
reliable." Appellants' Brief at 15. Citing to affirmations submitted by
District Attorneys' Offices from the Bronx, Brooklyn, Queens, Staten Island,
and New York County, Appellants argue that, because there are thousands of
pending criminal cases for which the records are relevant, "those records are
clearly created for a law enforcement purpose." Id.

This position is a sudden, self-serving reversal of the position recently

taken by these District Attorneys' Offices. In December 2012, the District
Attorneys Association of the State of New York, led by their President
Cyrus R. Vance, Jr., District Attorney of New York County, filed an amicus
brief to the Court of Appeals in People v. Pealer, 20 N.Y.3d 447 (2013), in
which he vigorously argued that these records were created for
administrative purposes. See Brief for Amicus Curiae in People v. Pealer,
point I, www.nycourts.gov/ctapps/courtpass/ (search by party name, enter
"pealer", select "People v Robert Pealer", select "PeoplevPealer-amicDAsAssocSNY-amicbrf") (hereinafter "Vance Amicus").
Pealer concerned whether maintenance and calibration documents
could be admitted into evidence as business records, or if the creator of the
records needed to testify. District Attorney Vance stated that the documents
qualified as business records because they were created for administrative
purposes:
Examination of the particular documents at issue here merely
confirms that when the police technicians created these reports,
they did so primarily for administrative reasons. To begin, none
of the reports was completed near in time to defendant's arrest
and none even mentioned defendant . . . In fact, given that the
maintenance tests themselves were scheduled to be done every
six months, it is apparent that the related calibration records
were not linked to any particular suspect and therefore were not
created with any defendant in mind.

The form and content of the documents was further proof that
the technicians' primary purpose was not to create documents
that would be introduced at a trial but to record the fact that
tests were done and that the breath test machinery was working
properly...
Vance Amicus at 21-22 (emphasis in original). District Attorney Vance
further explains that breathalyzer maintenance is administratively required
by 10 NYCRR 59.4(c), which states that breathalyzer machines may not be
used unless the agency has verified that such machines operate properly. Id.
at 20. District Attorney Vance concluded, "The fact that the same records
might also make their way into a criminal trial is incidental to both the
creation of the reports and the certification of the results." Vance Amicus at
24.
The Court of Appeals agreed with District Attorney Vance. The
Pealer Court held that the documents were not compiled for law
enforcement purposes, but rather to ensure the proper functioning of the
machines:
It may reasonably be inferred that the primary motivation for
examining the breathalyzer was to advise the Penn Yan Police
Department that its machine was adequately calibrated and
operating properly . . . The fact that the scientific test results
and the observations of the technicians might be relevant to
future prosecutions of unknown defendants was, at most, an
ancillary consideration when they inspected and calibrated the
machine.
20 N.Y.3d at 455.

10

In the context of DWI prosecutions, the NYPD and District Attorneys

of New York City regularly acknowledge that maintenance and calibration
records are not made for a law enforcement purpose, but are merely
administrative records made in the regular course of business. When the
calibration records are disclosed in the context of a criminal case, the NYPD
technician signs a form indicating that they are business records, kept in the
regular course of business. Petitioner-Respondent attached such a record to
his Verified Petition (280). To deem these records as compiled for law
enforcement purposes would require a reversal of Pealer, which,
consequentially, would require testimony from an NYPD technician to admit
these records into evidence in any DWI trial.

11

POINT II
DISCLOSURE OF THE REQUESTED DOCUMENTS
WOULD NOT INTERFERE WITH ANY ONGOING CRIMINAL
INVESTIGATIONS OR JUDICIAL PROCEEDINGS: ANY
POSSIBLE HARM FEARED BY APPELLANTS IS ILLUSORY
A.

In Order to Withhold the Requested Documents, Appellants Must

Demonstrate A Generic Harm that Would Result from the
Disclosure of these types of Documents.
New York's Freedom of Information Law mandates that all

documents generated by a government entity are presumptively available for

inspection and copying. See POL 84; 21 NYCRR 1401.5. The stated
public transparency purpose for this law is found in POL 84, which reads,
in pertinent part:
As state and local government services increase and public
problems become more sophisticated and complex and
therefore harder to solve . . . it is incumbent upon the state and
its localities to extend public accountability wherever and
whenever feasible.
The people's right to know the process of government decisionmaking and to review the documents and statistics leading to
determinations is basic to our society. Access to such
information should not be thwarted by shrouding it with the
cloak of secrecy or confidentiality . . .
The Court of Appeals embraced this view in Matter of Fink v. Leftkowitz, 47
N.Y.2d 567, 571 (1979), in which it elaborated:
[FOIL], of course, proceeds under the premise that the public is
vested with an inherent right to know and that official secrecy is

12

anathematic to our form of government . . . Moreover, judicious

use of the provisions of the law can be a remarkably effective
device in exposing waste, negligence and abuses on the part of
government; in short, to hold governors accountable to the
governed.
(citations and quotations omitted).
The NYPD is an agency subject to mandates of FOIL, and it bears the
burden of demonstrating that any of its records can be withheld from public
inspection. See Matter of Gould v. New York City Police Dept., 89 N.Y.2d
267, 274 (1996); POL 89(4)(b). In order to bear this burden, the NYPD
must show that the requested document "falls squarely within a FOIL
exemption" by articulating "particularized and specific justification" for its
denial. Matter of New York Civ. Liberties Union v. City of Schenectady, 2
N.Y.3d 657, 661 (2007).
POL 87(2)(e)(i) provides that an agency may deny access to records
"or portions thereof" if the documents:
[A]re compiled for law enforcement purposes and which, if
disclosed would:
i. interfere with law enforcement investigations or judicial
proceedings;
(emphasis added). The current language of this exemption reflects a
modification made to the original FOIL language passed in 1974, which
covered all "investigatory files compiled for law enforcement purposes." L

13

1974, ch 578 2; L 1974, ch 579, 3. The exemption was narrowed in

1977 when the Legislature altered the language to permit withholding
material only if disclosure would interfere with law enforcement
investigations or judicial proceedings, identify a confidential source, or
disclose confidential information relating to a criminal investigation. The
Senate sponsor of the law, Ralph Marino, wrote that the amendment
"reverses the current presumption in which all records are closed... and
instead mandates that all records be open except for a limited number of
areas." See Letter from Sen. Ralph Marino to the Honorable Judah Gribetz,
Executive Chamber (August 1, 1977).
Two Appellate Division cases, Matter of Legal Aid Socy. of New York
v. New York City Police Dept., 274 A.D.2d 207 (1st Dept. 2000) and Matter
of Pittari v. Pirro, 258 A.D.2d 202 (2d Dept. 1999) held that a less "specific
and particularized" showing is sufficient where documents pertain to a
petitioner's arrest and prosecution, and would interfere with a pending
prosecution. In both cases, however, documents were found to be properly
exempt only after a showing of the generic harm disclosure of certain types
of documents would cause to an investigation or prosecution. In Legal Aid
Society, the NYPD asserted that the specific files requested "contained
witness identifying details as well as summary statements from witnesses

14

who had not given courtroom testimony" and disclosure "would reveal
confidential information relating to a criminal investigation or nonroutine
investigatory techniques" prior to trial. 274 A.D.2d at 210. In Pittari, the
Second Appellate Division limited the scope of exemption to the release of
records that could "result in destruction of evidence, chilling and
intimidation of witnesses, and revelation of the scope and nature of the
Government's investigation." 258 A.D.2d at 205 (internal quotations and
citations omitted).
After Legal Aid Society and Pittari, the Court of Appeals has clarified
the need for the withholding agency to show an actual risk of interference in
order to claim the exemption. In Matter of New York Times Co. v. City of
New York Fire Dept., 4 N.Y.3d 477, 490 (2005), the Court held that six
tapes which the United States intended to use in the trial of accused terrorist
Zacarias Moussaoui were not shielded by the law enforcement exemption
because "there is no showing that disclosure would interfere with the
Moussoui trial or cause any unfairness." The Court explained that in order
for the United States Department of Justice to be entitled to this exemption,
it must demonstrate why disclosure would "create problems in the criminal
case." Id.

15

The Court of Appeals squarely addressed Pittari and Legal Aid

Society in Lesher v. Hynes, 19 N.Y.3d 57, 67 (2012), and concluded that
while certain generic types of risks may allow an agency to withhold
documents, those risks must be supported by a factual basis:
We emphasize that this does not mean that every document in a
law enforcement agency's criminal case file is automatically
exempt from disclosure simply because it is kept there. The
agency must identify the generic types of documents for which
the exemption is claimed, and the generic risks posed by
disclosure of these categories of documents. Put slightly
differently, the agency must still fulfill its burden under Public
Officers Law 89(4)(b) to articulate a factual basis for the
exemption.
(emphasis added). Thus, Court of Appeals in Lesher explicitly rejected the
lower Appellate Court's holding that a bare claim that disclosure would
interfere with an ongoing law enforcement investigation is a sufficient
particularized justification.
B.

The Disclosure of these Documents would not Interfere in any

Pending Criminal Matter.
Appellants fail to articulate any generic harm or interference to any

criminal matter. Instead, Appellants submit that there are thousands of open
DWI matters, and production of the requested materials "would result in the
disclosure of records to which a criminal defendant is not entitled under
New York Criminal Procedure Law 240.20(1)(k)." Appellants' Brief at

16

18. Appellants fail to identify how the disclosure of these documents would
actually interfere with any DWI prosecutions. They instead claim that
"[D]isclosure of the requested documents would interfere with the criminal
courts' ability to manage pretrial discovery in thousands of cases. . ."
Appellants' Brief at 22. This concern is unfounded.
Appellants express concern that the production of non-discoverable
records may somehow rob criminal courts of their discovery purview.
Appellants also imply that requests of both the non-discoverable records and
discoverable records may upset the timing of pretrial discovery. The
disclosure of these documents would have no effect on criminal courts
ability to manage pretrial discovery.
With respect to the non-discoverable records, a FOIL request would
have no effect on the scope of pretrial discovery. Appellants suggest that a
defendant should not be allowed to obtain material via FOIL that is outside
the scope of Article 240. In the context of any particular criminal matter,
however, there is an infinite universe of items that are not discoverable
under Article 240. Appellants do nothing to narrow this field. Appellants'
view would prohibit a DWI criminal defendant from obtaining any material
under FOIL (e.g., New York State legislative committee reports), since it is
not discoverable under Article 240. A criminal defendant would entirely

17

lose his rights under FOIL for the pendency of the criminal matter. This
categorical limitation has been rejected by the Court of Appeals in Matter of
Gould v. New York City Police Dept., 89 N.Y.2d 267, 274 (1996). (Gould
discussed further infra at Point III.)
A FOIL request for the non-discoverable records would have no
adverse effect on the timing of pretrial disclosure. A criminal court judge
would not allow a FOIL request for any non-discoverable records to delay
the proceedings. In order for the judge to deem the documents nondiscoverable, the judge determines them irrelevant to the current proceeding.
Otherwise the judge would find the records discoverable, and order their
production within the criminal case. Certainly, criminal court judges will
not delay proceedings for defendants to conduct fishing expeditions for
documents they have deemed irrelevant. In fact, Appellants cite to a
criminal case in which an Assistant District Attorney from the Manhattan
District Attorney's Office instructs Respondent to file a FOIL request for
materials that the court has denied. See Appellants' Brief at 20; Record at
340. The court in that matter did not offer any delay in the criminal matter
for Respondent to file a FOIL request for the materials (340-341). Indeed,
that case proceeded forward and has since been resolved.

18

The possible early disclosure of discoverable Intoxilyzer records also

does not threaten any prosecution. The Lesher Court noted that early
disclosure of certain documents may present "an obvious risk of prematurely
tipping the District Attorney's hand." 19 N.Y.3d at 67-68. The documents
in Lesher presented such a risk, since the documents case summaries,
timelines of the crimes, witness names and information, and witness
statements were "replete with information about the crimes committed."
Id. at 67. All of the other cases cited by Appellants contain similar
information that presents a similar risk of revealing key facts specific to the
investigation. See National Labor Relations Bd. v. Robbins Tire & Rubber
Co., 437 U.S. 214, 217 (1978) (finding FOIA did not require the early
production of witness statements); Matter of Legal Aid Socy. v. New York
City Police Dept., 274 A.D.2d 207, 209-210 (1st Dept. 2000) (exempting
from disclosure complaint report worksheets, complaint follow-up reports,
arrest reports, activity logs and arrest photos of defendants in criminal case);
Matter of Pittari v. Pirro, 258 A.D.2d 202, 203 (2d Dept. 1999)
(withholding from early disclosure complaint reports, interviews with
witnesses and police activity logs).

19

The requested documents in this matter pose no such risk. They are
administrative documents not part of any particular investigation. The
timing of their disclosure is not governed by any provision of law.
As a practical matter, with only 28 machines, and thousands of DWI
prosecutions, copies of documents reflecting a particular check of a
particular Intoxilyzer are commonly distributed to multiple different
defendants. These documents are given to the defendants at different
intervals. Any defendant is free to distribute or duplicate these Intoxilyzer
records, and defense counsel is free to collect them as a partial history of the
Intoxilyzer. To a limited extent, these records are already available early to
many defendants. Appellants cannot point to any harm ever caused by such
early disclosure.
C.

Unlike in a Criminal Case, Burdens of Production cannot be

Considered in the Context of a FOIL Request.
Appellants cite criminal cases denying discovery requests for these

documents and seek to import that reasoning to a FOIL proceeding. The

analysis used in a criminal discovery matter is inapplicable to a FOIL
request. Appellants cite People v. Hadzovic, Sup. Ct., Bronx Co., Docket
No. 1236/04 for its holding that a similar request would be overly
burdensome in light of the limited probative value. Balancing the burden to

20

produce against the likely probative value is appropriate in a criminal court

context, but not in a FOIL action. FOIL provides presumptive access to all
agency records and places no requirement on the requestor to provide a
reason or justification for the request. See POL 84; 21 NYCRR 1401.5.
POL 89(3)(a) specifically states that an agency may not deny a request
because it is overly burdensome:
An agency shall not deny a request on the basis that the request
is voluminous or that locating or reviewing the requested
records or providing the requested copies is burdensome
because the agency lacks sufficient staffing or on any other
basis if the agency may engage an outside professional service
to provide copying, programming or other services required to
provide the copy . . .
The Court of Appeals declared that this language must be read with its plain
meaning: "[T]he statutory language imposes a broad duty to make certain
records publicly available irrespective of the private interests and the
attendant burdens involved." Gould, 89 N.Y.2d at 279.

21

POINT III
THE DOCUMENTS ARE NOT EXEMPT FROM
DISCLOSURE UNDER POL 87(2)(A): CPL 240.20 DOES NOT
PROHIBIT DISCLOSURE OF ANY OF THE DOCUMENTS.
Appellants claim that the documents are exempt under POL 87(2)(a)
because they would not be discoverable under Article 240. POL 87(2)(a)
permits an agency to withhold documents that "are specifically exempted
from disclosure by state or federal statute." (emphasis added.) Article 240
sets forth items that a prosecutor is required to disclose in a criminal matter,
not items that are exempted from disclosure.
POL 87(2)(a) is entirely inapplicable and inapposite to Article 240
because Article 240 contains no prohibitions on disclosure. Article 240
simply governs discovery in a criminal case; it does not deem any
information confidential, sensitive, or otherwise restricted. Indeed,
Appellants point to no language within Article 240 prohibiting disclosure,
since none exists.
The NYPD has made this argument before, and the Court of Appeals
refused to accept it. In Matter of Gould v. New York City Police Dept., 89
N.Y.2d 267 (1996), the NYPD argued that the Petitioner-Appellants should
be barred from utilizing FOIL because they sought items related to a
criminal case, which is governed by Article 240. The Gould Court rejected

22

that argument stating, "insofar as the Criminal Procedure Law does not
specifically preclude defendants from seeking these documents under FOIL,
we cannot read such a categorical limitation into the statute." Id at 274. In
reaching this conclusion, the Court adopted reasoning from Matter of
Farberman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75
(1984), which addressed a similar attempt to exempt documents based upon
disclosure requirements in CPLR Article 31 the civil procedure analogue to
CPL Article 240:
[I]n Farbman, the Court also concluded that "[g]iven FOIL's
purpose, and its broad implementing language, and the
narrowness of its exemptions, [CPLR] article 31 cannot be read
as a blanket exemption from its reach. . . Nowhere in FOIL . . .
is there specific reference to records already subject to
production under article 31, and no provision of FOIL bars
simultaneous use of both statutes." (62 NY2d, at 81). Because
CPL article 240 likewise fails to specifically exempt criminaldisclosure documents from FOIL, we are, just as in Farbman,
not free to disregard the open-government mandate of FOIL
based on what is perceived as some generalized tension
between FOIL and a distinct statutory disclosure scheme.
Gould at FN1, 274.
The only support Appellants offer for their claim that POL 87(2)(a)
justifies nondisclosure is John P. v. Whalen, 54 N.Y.2d 89, 96-97 (1981). It
concerns a FOIL request for information protected by New York Public
Health Law 230(9), which explicitly prohibits disclosure of state board
professional medical conduct proceedings for reasons of confidentiality. Id.

23

Whalen is inapposite to the current case since Appellants fail to cite

any provision expressly prohibiting disclosure of breathalyzer maintenance
records. The requested records are general administrative records that are
not confidential, privileged, or otherwise protected.

24

POINT IV
PUBLIC POLICY REQUIRES THAT
THIS INFORMATION BE DISCLOSED
Appellants warn this Court that the revelation of these documents
would be in Respondent's interest, but against Appellants: Respondent's
DWI practice may benefit from this information, but revelation of improper
maintenance could disturb DWI prosecutions. Respondent respectfully
submits that these arguments are distractions from the central inquiry of
what is in the public interest.
Justice Ling-Cohan aptly and succinctly summarized this litigation by
stating that there were two possible outcomes: the Intoxilyzers are properly
maintained and working properly, or the Intoxilyzers are not properly
maintained or not accurate (18). The first outcome is in the public interest,
as it would increase public confidence in the Intoxilyzers. Id. Justice LingCohan explains that this second outcome is also in the pubic interest, as it
would prevent improper prosecutions. Id.
Appellants' Brief signals that the second outcome should be expected.
Appellants write, "[Old maintenance records] may be used generally to
impugn the trustworthiness of the equipment and its operators." Appellants'
Brief at 21. Maintenance records showing proper maintenance could not be

25

used to impugn the trustworthiness of either the Intoxilyzers or the

operators. Thus, Appellants tacitly concede these records contain evidence
of improper maintenance. It is well established that Intoxilyzers require
proper maintenance to function properly. See e.g. People v. Summa, 140
Misc. 2d 763, FN1 (Dist. Court, Suffolk County 1986) (following a Frye
hearing as to the admissibility of the Intoxilyzer's results, the court noted,
"All witnesses concurred that it is essential that the Intoxilyzer 5000 be
properly maintained.")
By Appellants' own admission, there are thousands of pending DWI
matters throughout New York City that rely on these tests. The outcome of
most of these cases will turn upon the BAC reading that an Intoxilyzer
machine displays, and prints. If these machines are improperly maintained
or inaccurate, the public must know.
A number of other jurisdictions make these records publicly available
on the Internet. See e.g. www.wsp.wa.gov/breathtest/wdms_home.htm (last
checked July 30, 2014) (Washington State's breath testing documents);
http://www.fdle.state.fl.us/ Content/Alcohol-Testing-Program/Menu/PublicRecords/Electronic-Data.aspx (last checked July 30, 2014) (Florida's breath
testing documents). At least one New York court has suggested that New
York would benefit from similar practice. See People v. Hernandez, 31

26

Misc. 3d 208, 221 (Rochester City Court 2011) ("[A]n Internet library
containing read-only copies of [records relating to calibration of breath
testing instruments] made available to prosecutors and defense counsel
would expedite discovery and might facilitate plea negotiations.") The
lower court stated that granting Petitioner-Respondent's request, and making
these records public may actually result in greater efficiency for the courts,
since they would receive fewer applications for greater disclosure of such
records (18).
Appellants argue that these records should be withheld from Petitioner
in this FOIL action because they would be withheld from a defendant in a
criminal action. Appellants seek to create a situation where there no citizen
may ever obtain a complete set of these records. These records, created by
the NYPD, made while inspecting the NYPD's machines, and kept in the
NYPD's offices, would be available to only the NYPD, as they prosecute
cases for as long as 15 years. See Record at 453 (showing an open DWI
case from 1999). This is precisely the type of government secrecy and lack
of citizen oversight that FOIL exists to remedy.

27

POINT V
APPELLANTS HAVE ABANDONED THEIR APPEAL OF
THE LOWER COURT'S DECISION ORDERING
ATTORNEY'S FEES TO PETITIONER-RESPONDENT
Appellants' Notice of Appeal indicated that they intended to appeal
"each and every part" of the lower court's decision (6), thereby triggering an
automatic stay, pursuant to CPLR 5519(a)(1), of the portion of the court's
order regarding determining attorneys fees. The Appellants have failed to
raise this issue on appeal. That issue should be deemed abandoned, and the
lower court's award of attorney's fees, including fees related to the instant
appeal, should be granted to Respondent.

28

Conclusion

The requested records must be disclosed to Petitioner-Respondent

pursuant to the mandates of FOIL. None of the claimed exceptions apply.
Petitioner-Respondent is also entitled to recover attorneys fees for this
action.

Dated: New York, NY

August 4, 2014
Respectfully Submitted,
LAW OFFICES OF ADAM D.
PERLMUTTER, P.C.

Adam

c
ess
. Perlmutter

260 Madison Ave., Suite 1800

New York, NY 10016
Tel: (212) 679-1990
Fax: (888) 679-0585
dam@adplegal.com

29

PRINTING SPECIFICATIONS STATEMENT

I hereby certify pursuant to the Rules of the Appellate Division, First
Department (22 NYCRR) 600.10(d)(1)(v) that this brief was prepared on
an Apple iMac computer with Microsoft Word, using Times New Roman,
14-point font, double-spaced. The portions of the brief that must be
included in this word count pursuant to the Rules of the Appellate Division,
First Department (22 NYCRR) 600.10(d)(l)(i) contain 5,115 words.

Dated:

New York, New York

August 4, 2014
LAW OFFICES OF ADAM D.
PERLMUTTER, P.C.
\

aniel A. McGuinn ss, sq.

Attorney for Peti{oner-Respondent
260 Madison Ave., Suite 1800
New York, NY 10016
(212) 679-1990
dam@adplegal.com

PRJNTED ON RECYCLED PAPER