Anda di halaman 1dari 12

FILED: NEW YORK COUNTY CLERK 12/06/2018 04:22 PM INDEX NO.

159740/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/06/2018

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK
--------------------------------------------------------------------x
In the Matter of Index No. 159740/2018

ANDREW M. STENGEL Mot. Seq. 001

Petitioner,

For Judgment Pursuant to Article 78


Of the Civil Practice Law and Rules

-against-

CYRUS VANCE, JR., in his official capacity as


District Attorney of New York County,
And SUSAN ROQUE

Respondents.
--------------------------------------------------------------------x

=====================================================================

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PETITION

=====================================================================

Dated: New York, New York


December 6, 2018

Henry Bell
BELL LAW PLLC
Attorney for Petitioner
747 Third Ave, Second Floor
New York, NY 10017
Tel: 347-951-7743
Fax: 347-620-7262

1 of 12
FILED: NEW YORK COUNTY CLERK 12/06/2018 04:22 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/06/2018

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................................ 2 


PRELIMINARY STATEMENT ................................................................................................................... 1 
ARGUMENT .................................................................................................................................................... 2 
I.  Respondents have not met their burden to show a particularized exemption precludes
disclosure of the list. .................................................................................................................................... 2 
II.  The request accurately described what Respondents refer to as “the subject police
tracking spreadsheet” also referred to as “the list.” .............................................................................. 2 
III.  This court may only review exemptions to disclosure of the list cited in Respondent’s
June 7, 2018, FOIL denial .......................................................................................................................... 3 
IV.  The list is not privileged ................................................................................................................. 4 
1.  The list is not material prepared in anticipation of litigation.............................................. 4 
2.  The list is not work product. ...................................................................................................... 5 
3.  Any alleged privilege for the list is waived through disclosure to the Conviction
Integrity Program ..................................................................................................................................... 5 
V.  The list is not sealed under CPL § 160.50. ................................................................................. 5 
VI.  The list is not exempt from disclosure for privacy considerations ........................................ 6 
VII.  Even if portions of the list are exempt, the list must be produced with appropriate
redactions. ...................................................................................................................................................... 7 
VIII.  Petitioner is entitled to attorneys fees because Respondents had no reasonable basis to
withhold the list. ........................................................................................................................................... 7 
CONCLUSION ................................................................................................................................................. 8 

2 of 12
FILED: NEW YORK COUNTY CLERK 12/06/2018 04:22 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/06/2018

Table of Authorities

Case Page

Bennett v Troy Record Co.


25 AD2d 799 (3d Dept 1966) ........................................................................................................ 5

Chem. Bank v Arthur Andersen & Co


143 Misc. 2d 823 (Sup Ct, N.Y. County 1989) .............................................................................. 5

Dockery v New York City Hous. Auth.


51 AD3d 575 (1st Dept 2008) ........................................................................................................ 6

Kirsch v Bd. of Educ. of Williamsville Cent. School Dist.


152 AD3d 1218 (4th Dept 2017) ................................................................................................... 7

Konigsberg v Coughlin
68 NY2d 245 (1986) ...................................................................................................................... 2

Madeiros v New York State Educ. Dept.


30 NY3d 67 (2017) ........................................................................................................................ 4

Mantica v New York State Dept. of Health


248 AD2d 30 (3d Dept 1998) ......................................................................................................... 2

Matter of Gould v New York City Police Dept.


89 NY2d 267 (1996) ...................................................................................................................... 2

McCrory v Vil. of Mamaroneck


34 Misc. 3d 603 (Sup Ct, Westchester County 2011) .................................................................... 5

Mulgrew v Bd. of Educ. of City School Dist. of City of New York


87 AD3d 506 (1st Dept 2011) ........................................................................................................ 6

New York State Defs. Ass'n v New York State Police


87 AD3d 193 (3d Dept 2011) ......................................................................................................... 7

People v Kozlowski
11 NY3d 223 (2008) ...................................................................................................................... 5

Professional Standards Review Council of Am. Inc. v New York State Dept. of Health
193 AD2d 937 (3d Dept 1993) ....................................................................................................... 2

Rauh v de Blasio
161 AD3d 120 (1st Dept 2018) ...................................................................................................... 7

Scherbyn v Wayne-Finger Lakes Bd. of Co-op. Educ. Services


77 NY2d 753 (1991) .................................................................................................................. 3, 4

3 of 12
FILED: NEW YORK COUNTY CLERK 12/06/2018 04:22 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/06/2018

The New York Times Co. v City of New York Fire Dept.
4 NY3d 477 (2005) ........................................................................................................................ 6

4 of 12
FILED: NEW YORK COUNTY CLERK 12/06/2018 04:22 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/06/2018

PRELIMINARY STATEMENT

Respondents claim in their answer that the list1 is exempt from disclosure under the

Freedom of Information Law (“FOIL”) because the list allegedly: (1) is privileged; (2) does not

exist; (3) is interagency material; (4) is exempt because of privacy considerations; and (5) is

sealed. Respondents were required to show a particularized exemption that precludes disclosure

of the records sought by Petitioner’s FOIL request, i.e., the list, which they have not done.

Respondents arguments to the contrary are completely devoid of merit for five reasons.

First, Petitioner’s FOIL request accurately described the list. Petitioner requested “the

list of police officers . . . indicating an adverse credibility finding” which reasonably describes

the “police tracking spreadsheet” aka the list. Respondents contend that the list is not a list and it

is merely a spreadsheet. This argument is absurd on its face, and word games cannot absolve

Respondents of their FOIL disclosure obligations.

Second, Respondents may not raise any exemptions that were not raised in their initial

denial of Petitioner’s FOIL request. Respondents deceptively cite to the Fourth Department in

Scherbyn for to argue otherwise, but that holding was explicitly overturned by the Court of

Appeals on direct appeal.

Third, the list is not privileged. It is not material made in anticipation of litigation nor

work product.

Fourth, the list itself is not sealed under CPL § 160.50. There is no indication that it is an

“official record” subject to sealing.

Fifth, the list is not exempt for privacy reasons. Any potential privacy consideration is

outweighed by the public’s interest in the credibility of NYPD officers.

1
Respondents admit that they maintain a police tracking spreadsheet which is colloquially referred to as “the list.”
The remainder of this brief will refer to that record as “the list.”

5 of 12
FILED: NEW YORK COUNTY CLERK 12/06/2018 04:22 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/06/2018

Even if portions of the list are exempt from disclosure, the list itself is not subject to a

blanket exemption and must be produced in redacted form. Because Respondents had no basis

for withholding the records sought by Petitioner, Petitioner is entitled to an award of attorney’s

fees.

ARGUMENT

I. Respondents have not met their burden to show a particularized exemption precludes
disclosure of the list.

FOIL imposes a broad duty of disclosure on the government,2 and records must be

disclosed unless specifically exempted by statute.3 “Mere conclusory allegations, without factual

support, that the requested materials fall within an exemption are insufficient to sustain an

agency's burden of proof.”4

Respondents have failed to meet this burden. Respondents were required to show that the

list is specifically exempted from FOIL disclosure, which, as discussed below, they have not

done.

II. The request accurately described what Respondents refer to as “the subject police
tracking spreadsheet” also referred to as “the list.”

A FOIL request need only “reasonably describe” the records sought.5 This requirement is

designed to enable the agency to find the records in question.6 Therefore, an agency cannot

claim that the records were not reasonably described if the agency in fact locates the requested

records.7

2
Matter of Gould v New York City Police Dept., 89 NY2d 267, 274 (1996).
3
Mantica v New York State Dept. of Health, 248 AD2d 30, 32 (3d Dept 1998), affd, 94 NY2d 58 (1999).
4
Professional Standards Review Council of Am. Inc. v New York State Dept. of Health, 193 AD2d 937, 939 (3d
Dept 1993).
5
Konigsberg v Coughlin, 68 NY2d 245, 249-50 (1986).
6
Id.
7
Id.

6 of 12
FILED: NEW YORK COUNTY CLERK 12/06/2018 04:22 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/06/2018

Petitioner’s FOIL request reasonably described the list, and Respondents must produce

the entire list. Instead of acknowledging this fact, Respondents play bizarre semantical games

which are completely at odds with FOIL’s broad disclosure provisions. They claim that the list

is not in fact a list, but is actually a “police tracking spreadsheet” which contains information

organized by name and affiliation. Respondent’s own description fits the dictionary definition of

a list.8 However, even if the list is not technically a list, it is internally referred to as the list and

it was described by Assistant District Attorney Jeffrey Levinson, who is also a Deputy Bureau

Chief, as “a list of officers . . . that have adverse credibility findings.”9 Finally, and critically,

Respondents found the list and may not now claim that it was not reasonably described.

III. This court may only review exemptions to disclosure of the list cited in Respondent’s
June 7, 2018, FOIL denial

The Court of Appeals in Scherbyn stated that “it is the settled rule that judicial review of

an administrative determination is limited to the grounds invoked by the agency.”10 Despite this

proclamation, Respondents argue that they may somehow present several novel issues in this

proceeding despite failing to raise them at the administrative level. Respondents inexplicably

cite the Fourth Department decision in Scherbyn, which the Court of Appeals directly

overturned.

Respondents claim that Scherbyn was overturned on other grounds, but this interpretation

is foreclosed by a cursory reading of the case. In Scherbyn, the petitioner sought review of

respondent’s termination of her employment.11 The trial court upheld the termination based

upon grounds invoked by the respondent for the first time in the Article 78 proceeding.12 The

8
Merriam Webster defines a “list” as a series of names, official roster, or catalogue. See https://www.merriam-
webster.com/dictionary/list.
9 Petition, Ex. A at 3.
10
Scherbyn v Wayne-Finger Lakes Bd. of Co-op. Educ. Services, 77 NY2d 753, 758 (1991).
11
Id. at 755.
12
Id.

7 of 12
FILED: NEW YORK COUNTY CLERK 12/06/2018 04:22 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/06/2018

Fourth Department affirmed holding that the general rule that judicial review is limited to the

grounds initially invoked by the agency did not apply.13 The Court of Appeals reversed and

directly overturned this holding stating that “the alternative ground for [petitioner’s] removal

belatedly raised by the respondents and relied upon by the courts below may not serve to sustain

her dismissal.”14

Respondents continue mispresenting the law by suggesting that the cases cited in

Petitioner’s opening brief are inapplicable. Respondents only specifically address Madeiros,

suggesting that it only “refers to new grounds raised for first [sic] time in an appeal of an Article

78 judgment, not the article 78 proceeding itself.”15 Once again, this interpretation is foreclosed

by a cursory reading of Madeiros, which involved an Article 78 proceeding related to a FOIL

denial.16 The Court of Appeals rejected the respondent’s reliance on POL § 87(2)(e)(iv) because

respondent “failed to invoke that particular exemption in its denial of petitioner's FOIL

request.”17

Therefore, this court cannot consider any arguments that were not raised in the initial

denial of Petitioner’s FOIL request. However, the remainder of this brief will address

Respondent’s contentions on the merits.

IV. The list is not privileged

1. The list is not material prepared in anticipation of litigation.

Materials “prepared in anticipation of litigation” are not absolutely privileged from

disclosure, and the privilege does not extend beyond the litigation for which the documents were

13
Id.
14
Id. at 759.
15
Answer at 5.
16
See Madeiros v New York State Educ. Dept., 30 NY3d 67 (2017).
17
Id. at 74 (emphasis added).

8 of 12
FILED: NEW YORK COUNTY CLERK 12/06/2018 04:22 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/06/2018

prepared.18 Respondents admit that the list was prepared for potential use in criminal

prosecutions,19 and thus it is not material prepared in anticipation of this litigation.

2. The list is not work product.

The work product privilege is limited to documents that reveal a lawyers legal analysis or

trial strategy.20 The list contains objective facts that would bear on a police officer’s credibility.

These facts do not reflect any sort of legal analysis or trial strategy.21 Even if some aspects of

the list contain work product, those portions should be redacted and the remainder of the

document produced.22

3. Any alleged privilege for the list is waived through disclosure to the Conviction
Integrity Program

Respondents admit that the “Conviction Integrity Program” has access to the list. This

program includes the “outside Conviction Integrity Policy Advisory Panel” compromised of

individuals who are not employed by the District Attorney of New York.23 Disclosure of the list

to this non-government-employee panel constitutes a waiver of any claimed privilege.

V. The list is not sealed under CPL § 160.50.

Under CPL § 160.50, all “official records and papers” relating to criminal prosecution are

sealed upon the termination of a case in favor of a defendant. This does not mean that any

records relating in anyway whatsoever is sealed; for example, 911 calls are not official records

18
Bennett v Troy Record Co., 25 AD2d 799, 799–800 (3d Dept 1966) (“the phrase in preparation for litigation refers
exclusively to the instant litigation and does not grant immunity from disclosure to material prepared for prior
litigation”); McCrory v Vil. of Mamaroneck, 34 Misc. 3d 603, 623 (Sup Ct, Westchester County 2011) (“CPLR
3101(d)(2) applies only to material prepared in anticipation of the litigation in which the protection is invoked”);
Chem. Bank v Arthur Andersen & Co., 143 Misc. 2d 823, 826 (Sup Ct, N.Y. County 1989) (material prepared for
other litigation was not protected because “it was not prepared for the case at bar”).
19
Answer at 3.
20
People v Kozlowski, 11 NY3d 223, 245 (2008).
21
See id.
22
Id.
23
https://www.manhattanda.org/district-attorney-vance-announces-conviction-integrity-program.

9 of 12
FILED: NEW YORK COUNTY CLERK 12/06/2018 04:22 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/06/2018

subject to such sealing.24 Respondents have made no showing that the list is an official record or

paper subject to sealing, and thus it is irrelevant whether the list contains information related to

determinations of witness testimony in cases that have been sealed. Respondents would also

bear the burden of proving which cases if any have been sealed and may not withhold

information because they do not keep track of what cases have been sealed.

VI. The list is not exempt from disclosure for privacy considerations

Under POL § 87(2)(b), any record that would be an unwarranted invasion of privacy

under POL § 89(2)(b) is exempt from disclosure. If the record does not fall under one of the six

enumerated categories in § 89(2)(b), then the court must balance the invasion of privacy against

the public interest in disclosure.25

Because the list does not fail within the specific exemptions, this court must balance the

invasion of privacy against the public interest in disclosure. Respondents have not explained the

privacy interest in the list, but whatever that may be, there is an overwhelming public interest in

disclosure: the ability of a police officer to perform his or her job properly.26 An NYPD officer’s

lack of credibility, propensity to lie under oath, and any other information contained within the

list directly affects their fitness to be police officers.

In addition, impeaching information about a witness a prosecutor will or may call at trial

has an enormous effect on the trajectory of a case. Material concerning the impeachment of

prosecution witnesses is usually disclosed by the prosecutor immediately prior to trial, if at all.

Thus, the public also has a right to know whether Respondents are complying with their

disclosure obligations and whether they withhold crucial information from criminal defendants.
24
Dockery v New York City Hous. Auth., 51 AD3d 575 (1st Dept 2008)
25
The New York Times Co. v City of New York Fire Dept., 4 NY3d 477, 485 (2005)
26
Mulgrew v Bd. of Educ. of City School Dist. of City of New York, 87 AD3d 506, 507-08 (1st Dept 2011) (“the
reports concern information of a type that is of compelling interest to the public, namely, the proficiency of public
employees in the performance of their job duties”).

10 of 12
FILED: NEW YORK COUNTY CLERK 12/06/2018 04:22 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/06/2018

If Respondents do not take their FOIL obligations seriously, there is serious concern that they

may also not take their Brady and Giglio disclosure obligations seriously.

The public has a right to know whether the police officers who are on the list and

prosecutors making disclosures are capable of performing their vital job duties, and any potential

privacy interest is outweighed. Thus, the list must be disclosed.

VII. Even if portions of the list are exempt, the list must be produced with appropriate
redactions.

If the list truly does contain exempt information, which Petitioner maintains it does not,

then “the appropriate remedy is an in camera review and disclosure of all nonexempt,

appropriately redacted material.”27

VIII. Petitioner is entitled to attorneys fees because Respondents had no reasonable basis to
withhold the list.

Under POL § 89(4)(c)(ii), a court must award a prevailing party attorneys fees if the

agency had no reasonable basis for withholding records.28 This statute is mandatory: if the

requirements are met, then the court does not have discretion over whether to award fees.29 A

court should award fees when an agency issues a blanket denial to a FOIL request when only

portions of the records were exempt.30

Respondents asserted a number of exemptions, none of which form a reasonable basis for

withholding the list. From Petitioner’s initial request to this proceeding, Respondents have

consistently raised meritless arguments for withholding the list. Respondents initially denied the

request claiming that the list was not in fact a list and was material prepared in anticipation of

27
Kirsch v Bd. of Educ. of Williamsville Cent. School Dist., 152 AD3d 1218, 1219-20 (4th Dept 2017), lv to appeal
denied, 155 AD3d 1610 (4th Dept 2017), lv to appeal denied, 31 NY3d 904 (2018).
28
Rauh v de Blasio, 161 AD3d 120, 126-27 (1st Dept 2018).
29
Id.
30
New York State Defs. Ass'n v New York State Police, 87 AD3d 193, 197 (3d Dept 2011) (awarding fees when
respondents failed to articulate any persuasive reason why the records could not have been redacted and the portions
that were not exempt from disclosure turned over).

11 of 12
FILED: NEW YORK COUNTY CLERK 12/06/2018 04:22 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 12/06/2018

litigation. As discussed above, both of these contentions are without merit. Respondents’

argument against a fee award focuses on the potential work product privilege, but this argument

was not in the initial denial.31 Finally, in this proceeding, Respondents raised three new equally

meritless arguments for withholding the documents. This conduct evidences a total disregard for

FOIL’s broad disclosure provisions.

However, regardless of whether the list contains some potentially exempt information,

Respondents have absolutely no basis for withholding the entire list sought by Petitioner instead

of applying appropriate redactions. Because there is no merit to withholding the entire list,

attorneys fees must be awarded.

CONCLUSION

Respondents arguments are in complete contravention of the broad public disclosure

provisions of FOIL. The legislature wanted to encourage open governance, and thus any

exemption should be construed narrowly. Instead of embracing this legislative purpose,

Respondents have attempted to shroud the list in a veil of secrecy. The public has a right to

know whether the NYPD is capable of performing their police duties properly. Therefore, this

FOIL petition should be granted and Respondents should be compelled to disclose the list.

/s/Henry Bell
Henry Bell, Esq.

31
Materials prepared in anticipation of litigation and work product are separate privileges. See CPLR § 3101.

12 of 12