

______________________________
MICHAEL LESHER,
Petitioner-Appellant,
– v. –
CHARLES J. HYNES, DISTRICT ATTORNEY OF KINGS COUNTY, ET AL.
Respondents-Respondents
______________________________
ON APPEAL FROM THE APPELLATE DIVISION, SECOND DEPARTMENT
BRIEF OF AMICUS CURIAE NEW YORK CIVIL LIBERTIES UNION
CHRISTOPHER DUNN
COREY STOUGHTON
DANIEL MULLKOFF
New York Civil Liberties Union Foundation
125 Broad Street,19th Floor
New York, N.Y. 10004
(212) 607-3300
Attorneys for Amicus Curiae New York Civil Liberties Union
Dated:
January 6, 2012
New York, NY
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................. ii
INTRODUCTION ...................................................................................................1
STATEMENT OF INTEREST OF AMICUS CURIAE...........................................2
DISCLOSURE STATEMENT PURSUANT TO RULE 500.1(f) ..........................4
ARGUMENT ...........................................................................................................5
I.
THIS COURT SHOULD REVERSE THE APPELLATE
DIVISION AND HOLD THAT THE RESPONDENTS WERE
OBLIGATED TO USE REDACTION TO THE EXTENT
FEASIBLE RATHER THAN WITHOLDING RESPONSIVE
RECORDS IN THEIR ENTIRETY. ...................................................5
A. This Court Has Fully Embraced Agency Obligations to Use
Redaction........................................................................................6
B. No Basis Exists for a Unique Exception to the Redaction
Obligation for Records Subject to Section 50-b of the Civil
Rights Law. ..................................................................................11
II.
THE COURT SHOULD REQUIRE AGENCIES INVOKING
THE LAW ENFORCEMENT EXEMPTION TO
DEMONSTRATE A PARTICULARIZED AND SPECIFIC
FACTUAL BASIS FOR CONCLUDING THAT THE
RELEASE OF RECORDS WOULD ACTUALLY INTERFERE
WITH ONGOING INVESTIGATIONS OR JUDICIAL
PROCEEDINGS. ..............................................................................13
III.
THE COURT SHOULD ALSO REVERSE THE APPELLATE
DIVISION FOR FAILURE TO REQUIRE A
PARTICULARIZED AND SPECIFIC JUSTIFICATION FOR
RESPONDENTS’ INVOCATION OF CIVIL RIGHTS LAW
SECTION 50-b. .................................................................................23
CONCLUSION ......................................................................................................24
i
TABLE OF AUTHORITIES
Cases
Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.),
2004 I.C.J. 12 .........................................................................................................21
Church of Scientology of New York v. State, 61 A.D.2d 942,
403 N.Y.S.2d 224 (1st Dep’t 1978) .......................................................................22
Church of Scientology of New York v. State, 46 N.Y.2d 906,
414 N.Y.S.2d 900 (1979) .................................................................................14, 22
Daily Gazette Co. v. City of Schenectady, 93 N.Y.2d 145,
688 N.Y.S.2d 472 (1999) .........................................................................8, 9, 11, 12
Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 849 N.Y.S.2d 489 (2007) ......9, 13, 14
Feerick v. Safir, 297 A.D.2d 212, 745 N.Y.S.2d 538 (1st Dep’t 2002)...........22, 23
Fink v. Lefkowitz, 47 N.Y.2d 567, 419 N.Y.S.2d 467 (1979) .........................10, 14
Gould v. New York City Police Department, 89 N.Y.2d 267,
653 N.Y.S.2d 54 (1996) .................................................................................7, 8, 14
Karlin v. McMahon, 96 N.Y.2d 842, 729 N.Y.S.2d 435 (2001) ............ 5, 6, 11, 12
Legal Aid Soc. of New York v. New York City Police Dep’t,
274 A.D.2d 207, 713 N.Y.S.2d 3 (1st Dep’t 2000) ...............................................17
Lesher v. Hynes, 80 A.D.3d 611, 914 N.Y.S.2d 264 (2d Dep’t 2011) ........5, 13, 23
Medellín v. Texas, 552 U.S. 491 (2008) ................................................................21
N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978)..............................16
New York Civil Liberties Union v. City of Saratoga Springs, 87 A.D.3d 336,
926 N.Y.S.2d 732 (3rd Dep’t 2011) ........................................................................3
ii
New York Civil Liberties Union v. City of Schenectady, 2 N.Y.3d 657,
781 N.Y.S.2d 267 (2004) .........................................................................................3
New York Civil Liberties Union v. Erie County, No. 2010-5715
(Erie County Supreme Court, Aug. 30, 2010) .........................................................3
New York Civil Liberties Union v. New York City Police Department,
74 A.D.3d 632, 902 N.Y.S.2d 356, (1st Dep’t 2010) ..............................................3
New York Civil Liberties Union v. New York City Police Department,
2008 WL 2522233 (N.Y. County Supreme Court, May 7, 2008) ...........................4
New York Civil Liberties Union v. New York City Police Department, Index
No. 115928/09 (N.Y. County Supreme Court, Feb. 14, 2011) ................................4
New York Civil Liberties Union v. New York City Police Department, Index
No. 111836/2011 (N.Y. County Supreme Court, filed October 17, 2011) .............4
New York State Defenders Ass’n v. New York State Police, 87 A.D.3d 193,
927 N.Y.S.2d 423 (3d Dep’t 2011) ..........................................................................3
New York Times Co. v. City of New York Fire Dep’t, 4 N.Y.3d 477,
796 N.Y.S.2d 302 (2005) .................................................................................16, 18
Pittari v. Pirro, 258 A.D.2d 202, 696 N.Y.S.2d 167 (2d Dep’t 1999)..................17
Short v. Board of Managers of Nassau County Medical Center,
57 N.Y.2d 399, 456 N.Y.S.2d 724 (1982) ...........................................................5, 6
Schenectady Society for the Prevention of Cruelty to Animals, Inc. v. Mills,
18 N.Y.3d 42 (2011) ..............................................................................................10
Title Guarantee Co. v. N.L.R.B., 534 F.2d 484 (2d Cir. 1976)..............................16
Washington Post Co. v. New York State Insurance Department,
61 N.Y.2d 557, 475 N.Y.S.2d 263 (1984) .....................................................6, 7, 14
Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 490 N.Y.S.2d 488 (1985) .........7
iii
Statutes
L 1974, ch 578, § 2 ................................................................................................15
L 1974, ch 579, § 3 ................................................................................................15
N.Y. Civil Rights Law § 50-a ..................................................................8, 9, 11, 12
N.Y. Civil Rights Law § 50-b ........................................................................ passim
N.Y. Pub. Off. Law § 87(2) ........................................................................... passim
Other Authorities
Committee on Open Government, FOIL–AO–13916 (Feb. 26, 2003) .................22
Démarche from Embassy of United Mexican States to U.S. Department of
State (28 Mar. 2008) ..............................................................................................21
U.S. Department of State, “Protocol for the Modern Diplomat,” (1998),
available at http://www.state.gov/www/obc/pubs/protocol.html..........................21
Vienna Convention on Consular Relations (1963), available at
http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf
................................................................................................................................21
iv
INTRODUCTION
This appeal presents important issues concerning the use of redaction to
comply with the open-government mandate of the Freedom of Information Law
and concerning the ability of government agencies to invoke the law enforcement
exemption under the statute to shield a wide array of documents. Because the pro
se petitioner’s briefs do not fully address these issues, the New York Civil
Liberties Union -- which frequently is forced to resort to litigation to obtain
documents under FOIL -- respectfully submits this amicus curiae brief.
Starting with the redaction issue, the Appellate Division understandably
relied upon a 2001 memorandum opinion from this Court holding that a
government agency invoking a statute shielding the identity of sex-crime victims
need not resort to redaction, even if doing so would remove all exempt material
about the victims. That ruling, however, has long been superseded by many
rulings from this Court holding that the mere presence in a document of exempt
material is no basis for withholding the entire document when redaction can be
deployed. Indeed, just two months ago, this Court expressed its exasperation with
agencies’ failure to recognize their obligation to use redaction, ordering the
production of redacted documents and noting: “We are at a loss to understand why
this case has been litigated.” The NYCLU respectfully submits that this Court
1
should now overrule the earlier memorandum opinion and make clear that in all
FOIL disputes redaction must be used whenever feasible.
With regard to the law enforcement exemption, the Appellate Division
concluded that agencies are permitted to make “generic” or blanket assertions of
the exemption, without the need to demonstrate how release of the records would
“interfere with law enforcement investigations or judicial proceedings” as the
statute requires. This ruling is inconsistent with this Court’s repeated holdings that
an agency only meets its burden to invoke an exemption when it articulates a
“particularized and specific” factual basis for the application of the exemption and
ignores clear statutory text, legislative history, and controlling case law providing
that the law enforcement exemption is not a general exemption for records related
to an investigation but rather only applies to records that would, if released,
actually interfere with an ongoing investigation. The Court should reverse the
Appellate Division and make clear that a particularized and specific factual basis
establishing actual interference with a truly ongoing matter must be shown.
STATEMENT OF INTEREST OF AMICUS CURIAE
The New York Civil Liberties Union (NYCLU), the New York State
affiliate of the American Civil Liberties Union, is a non-profit, non-partisan
organization with tens of thousands of members. The NYCLU is committed to the
defense and protection of civil rights and civil liberties. For over fifty years, the
2
NYCLU has been involved in litigation and public policy on behalf of New
Yorkers, fighting against discrimination and advocating for individual rights and
government accountability. New York’s Freedom of Information Law (“FOIL”) is
a crucial vehicle in the NYCLU’s efforts to monitor state and municipal agencies,
learn about governmental policies and, when appropriate, challenge the legality of
problematic policies. The NYCLU frequently has had to resort to litigation to
enforce FOIL and thus has a substantial organizational interest in this matter and
substantial experience dealing with the issues presented by this appeal. See, e.g.
New York Civil Liberties Union v. City of Schenectady, 2 N.Y.3d 657, 781
N.Y.S.2d 267 (2004) (adjudicating NYCLU challenge to police department refusal
to produce incident reports); New York Civil Liberties Union v. City of Saratoga
Springs, 87 A.D.3d 336, 926 N.Y.S.2d 732 (3rd Dep’t 2011) (addressing NYCLU
entitlement to fees in case in which agency produced documents about use of tasers
only after NYCLU filed suit); New York State Defenders v. New York State Police,
87 A.D.3d 193, 927 N.Y.S.2d 423 (3d Dep’t 2011) (addressing NYCLU
entitlement to fees in case in which agency produced documents about videotaping
of custodial interrogations only after NYCLU filed suit); New York Civil Liberties
Union v. New York City Police Department, 74 A.D.3d 632, 902 N.Y.S.2d 356 (1st
Dep’t 2010) (ordering NYPD to produce data concerning race of civilians shot at
by police officers); New York Civil Liberties Union v. Erie County, No. 2010-5715
3
(Erie County Supreme Court, Aug. 30, 2010) (ordering Erie County to release
information about use of taxpayer money to thwart federal and state investigations
into conditions at local jails); New York Civil Liberties Union v. New York City
Police Department, 2008 WL 2522233 (N.Y. County Supreme Court, May 7,
2008) (ordering NYPD to produce stop-and-frisk database); New York Civil
Liberties Union v. New York City Police Department, No. 115928/09 (N.Y. County
Supreme Court, Feb. 14, 2011) (ordering NYPD to produce shooting reports); New
York Civil Liberties Union v. New York City Police Department, No. 111836/2011
(N.Y. County Supreme Court, filed October 17, 2011) (challenging NYPD refusal
to produce police commissioner’s meeting calendar).
DISCLOSURE STATEMENT PURSUANT TO RULE 500.1(f)
The New York Civil Liberties Union hereby discloses that it is a non-profit,
501(c)(4) organization, which is the New York State affiliate of the American Civil
Liberties Union.
4
ARGUMENT
I.
THIS COURT SHOULD REVERSE THE APPELLATE DIVISION
AND HOLD THAT THE RESPONDENTS WERE OBLIGATED TO
USE REDACTION TO THE EXTENT FEASIBLE RATHER THAN
WITHOLDING RESPONSIVE RECORDS IN THEIR ENTIRETY.
The respondent Kings County District Attorney’s Office sought to withhold
some of the documents requested by the petitioner on the grounds they contained
information that would identify sex-crime victims and thus that was exempt under
section 50-b of the Civil Rights Law. In response to the petitioner’s challenge to
this categorical withholding, the Appellate Division held that the District Attorney
had no obligation to redact documents subject to section 50-b, even if redaction
would entirely eliminate the exempt material. In doing so, it quoted from this
Court’s 2001 memorandum order in Karlin v. McMahon: “‘[T]he [appellants] are
not obligated to provide the records even though redaction might remove all details
which ‘tend to identify the victim[s].’” Lesher v. Hynes, 80 A.D.3d 611, 613, 914
N.Y.S.2d 264, 266 (2d Dep’t 2011) (quoting Karlin v. McMahon, 96 N.Y.2d 842,
729 N.Y.S.2d 435 (2001)). The Appellate Division also cited this Court’s 1982
decision in Short v. Board of Managers of Nassau County Medical Center, 57
N.Y.2d 399, 456 N.Y.S.2d 724 (1982), which suggested a narrow view of agency
obligations to use redaction. See Lesher, 80 A.D.3d at 613, 914 N.Y.S.2d at 266.
Karlin does indeed contain the language quoted by the Appellate Division
and, like this case, did involve a dispute about the categorical withholding of
5
documents containing information subject to section 50-b of the Civil Rights Law.
And Short does suggest a narrow view of redaction. Those cases, however, cannot
be squared with a consistent series of FOIL rulings from this Court over the three
decades since Short, including one issued just two months ago, making clear that
redaction must be employed whenever feasible in response to FOIL requests.
Given these cases, the NYCLU respectfully urges the Court to make clear that
Short and Karlin have been superseded and are no longer good law.
A. This Court Has Fully Embraced Agency Obligations to Use Redaction.
The Freedom of Information Law permits an agency to deny public access to
“records or portions thereof.” N.Y. Pub. Off. Law § 87(2) (emphasis added).
Starting with a decision issued two years after Short and culminating with one
issued just two months ago, this Court has made clear that an agency cannot
categorically withhold entire documents because they include exempt material but
instead must disclose portions of documents after redacting those portions that are
exempt when, as is the case here, redaction will preserve the purpose of the
exemption.
This Court’s departure from the narrow view of redaction suggested in Short
began with its 1984 ruling in Washington Post Co. v. New York State Insurance
Department, 61 N.Y.2d 557, 562, 475 N.Y.S.2d 263, 264 (1984). That case
involved a request for insurance company meeting minutes in the possession of the
6
New York State Insurance Department, with the insurance company claimed the
minutes were exempt under section 87(2)(d) as information maintained for its
commercial enterprise that would injure its competitive position if disclosed. See
61 N.Y.2d at 567, 475 N.Y.S.2d at 266–67. In rejecting this claim the Court
stated, “That some portions of the records may be entitled to exemption does not
warrant withholding the minutes completely.” 61 N.Y.2d at 567, 475 N.Y.S.2d at
267 (citation omitted).
One year later in Xerox Corp. v. Town of Webster, the Court rejected a claim
of categorical exemption and expressly endorsed redaction for documents
otherwise qualifying as intra-agency materials exempt from disclosure under
section 87(2)(g) of FOIL. See 65 N.Y.2d 131, 490 N.Y.S.2d 488 (1985) (per
curiam). After agreeing the reports “in principle” may be exempt from disclosure
under section 87(2)(g), the Court nonetheless rejected the suggestion this was
sufficient to withhold them entirely; rather, consistent with the exception noted in
section 87(2)(g), it explained that “statistical or factual tabulations or data” and
“other material subject to production . . . should be redacted and made available.”
65 N.Y.2d at 133, 490 N.Y.S.2d at 490.
Eleven years later, this Court offered an unequivocal rejection of the
categorical withholding of documents based upon the presence of exempt material.
As in Xerox Corp., the issue in Gould v. New York City Police Department was
7
whether documents -- in that case police reports -- could be withheld as intraagency material exempt under 87(2)(g) of FOIL. See 89 N.Y.2d 267, 653
N.Y.S.2d 54 (1996). In holding that the documents had to be produced subject to
redaction, the Court squarely rejected categorical withholding and emphasized the
role of redaction:
All government records are thus presumptively open for public
inspection and copying unless they fall within one of the enumerated
exemptions of Public Officers Law § 87(2). To ensure maximum
access to government documents, the exemptions are to be narrowly
construed, with the burden resting on the agency to demonstrate that
the requested material indeed qualifies for exemption. As this Court
has stated, only where the material requested falls squarely within the
ambit of one of these statutory exemptions may disclosure be
withheld.
In keeping with these settled principles, blanket exemptions for
particular types of documents are inimical to FOIL’s policy of open
government. Instead, to invoke one of the exemptions of section
87(2), the agency must articulate particularized and specific
justification for not disclosing requested documents. If the court is
unable to determine whether withheld documents fall entirely 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.
See 89 N.Y.2d at 274-75, 653 N.Y.S.2d at 57 (citations omitted).
Three years after deciding Gould, this Court expressly extended this
redaction approach to documents otherwise privileged by section 50 of the Civil
Rights Law -- the same general section at issue here. At issue in Daily Gazette Co.
v. City of Schenectady were police personnel records protected by section 50-a of
8
the Civil Rights Law.1 See 93 N.Y.2d 145, 152, 688 N.Y.S.2d 472, 474 (1999). In
analyzing the police department’s claim it could withhold the documents
categorically, the Court noted that the statutory goal of section 50-a was to protect
police officers from abuse and thus that the exemption applies only to the extent
the agency “demonstrates a substantial and realistic potential of the requested
material for the abusive use against the officer.” 93 N.Y.2d at 159, 688 N.Y.S.2d
at 478. And given the statute’s purpose of protecting officers against abuse, the
Court expressly endorsed redaction as a way of allowing the production of
documents while shielding officers from potential abuse:
[D]isclosure for uses that would not undermine the protective
legislative objectives could be attained either by a restrictive
formulation of the FOIL request itself, or through redaction by the
agency having custody of the records, tailored in either case so as to
preclude use in personal attacks against an officer which Civil Rights
Law § 50-a was enacted to preclude.
93 N.Y.2d at 159, 688 N.Y.S.2d at 478 (emphasis supplied; citations omitted).
In 2007 this Court again endorsed redaction, holding that an agency could
not withhold documents (in that case, electronic records) simply because they
contained information protected from disclosure under FOIL’s privacy exemption.
See Data Tree LLC v. Romaine, 9 N.Y.3d 454, 464-65, 849 N.Y.S.2d 489, 495-96
(2007).
1
This section of the Civil Rights Law creates an exemption by virtue of section 87(2)(a) of
FOIL, which exempts from disclosure documents exempted by other state statutory provisions.
9
Finally, there is this Court’s ruling just two months ago in Schenectady
Society for the Prevention of Cruelty to Animals, Inc. v. Mills, which involved a
FOIL request for certain records pertaining to licensed veterinarians and
technicians. See 18 N.Y.3d 42 (2011). The State Education Department refused to
produce the records at all, claiming they also contained home addresses that were
exempt under FOIL’s privacy exemption. This Court emphatically rejected this
contention, stating that redaction must be deployed where feasible:
We hold that an agency responding to a demand under the Freedom of
Information Law (FOIL) may not withhold a record solely because
some of the information in that record may be exempt from
disclosure. Where it can do so without unreasonable difficulty, the
agency must redact the record to take out the exempt information.
Id. at 45. Moreover, the Court made clear its frustration with agencies’ failure to
recognize their obligation to redact:
We are at a loss to understand why this case has been litigated.
It seems that an agency sensitive to its FOIL obligations could have
furnished petitioner a redacted list with a few hours’ effort, and at
negligible cost. Instead, lawyers for both sides have submitted briefs
and argued the case in three courts, demanding the attention of 13
judges, generating four judicial opinions and resulting in a delay in
disclosure of almost four years. It is our hope that the Department, and
other agencies of government, will generally comply with their FOIL
obligations in a more efficient way.
Id. at 46.
The holdings and message from this Court over the last three decades are
clear: the presence of exempt material in a document responsive to a FOIL request
10
is not a basis for withholding the entire document. Rather, agencies must use
redaction.
B. No Basis Exists for a Unique Exception to the Redaction Obligation
for Records Subject to Section 50-b of the Civil Rights Law.
Given the clear evolution of this Court’s approach to the role of redaction in
FOIL disputes, the question presented by this case is whether, as suggested by the
memorandum decision in Karlin v. McMahon, a unique exemption should continue
to exist for documents covered by section 50-b(1) of the Civil Rights Law. The
NYCLU respectfully submits that no basis for doing so exists and thus urges this
Court to expressly overrule Karlin.
The only arguable distinction presented by this case is that the claimed
exemption lies in the Civil Rights Law and not FOIL itself (being incorporated into
FOIL by virtue of section 87(2)(a) of FOIL). Yet, this Court already had held that
protective provisions in the Civil Rights Law are subject to redaction. As
discussed above, the Court held in Daily Gazette that the obligation to redact
applies to personnel records otherwise protected by section 50-a of the Civil Rights
Law. That this case involves records covered by the companion section 50-b of the
Civil Rights Law is no reason to exempt them from redaction.
Moreover, in addressing the competing interests between shielding
personnel records and allowing open access to government, this Court explained in
Daily Gazette that a “comprehensive statutory exemption must be tempered when
11
it interacts with the competing, equally strong legislative policy of open
government through broad public access to governmental agency records
embodied in the FOIL legislation.” 93 N.Y.2d at 157, 688 N.Y.S.2d at 477.
Similarly, section 50-b’s statutory purpose of protecting the privacy of sex crime
victims also “must be tempered when it interacts with” FOIL’s “equally strong
legislative policy of open government.” As with section 50-a, where redaction can
remove all details that “tend[] to identify the victim,” the statutory aims of both
section 50-b and FOIL can be achieved through such redaction.2
Given all these considerations, the NYCLU respectfully urges the Court to
overrule the 2001 decision in Karlin v. McMahon and to hold that records covered
by section 50-b of the Civil Rights Law are not exempt from the general obligation
under FOIL to employ redaction where feasible. Such a decision would fully
2
Indeed, at the time section 50-b was passed, there was little question that it required redaction
of identifying details from otherwise discoverable records. The Office of Court Administration
(OCA), in a letter opposing the bill’s passage, noted that court personnel would be required to
undertake “the enormous task of reexamining all files of affected cases to insure redaction of
protected material.” Letter from Frederick Miller to the Honorable Richard A. Brown, Counsel
to the Governor (18 Jun. 1979) (attached as Exhibit A) (emphasis added). Senator Ronald
Stafford responded to this concern by stating that while redaction would be necessary, OCA
would only have to do so “when public inspection of a particular file was actually requested.”
Letter from Sen. Ronald Stafford to the Honorable Richard A. Brown, Counsel to the Governor
(2 Jul. 1979) (attached as Exhibit B).
Moreover, as noted by Attorney General Robert Abrams in a letter supporting the passage
of section 50-b, the statute neither “requires exclusion of the public from criminal proceedings
nor purports to bar publication of such information by newspapers.” Letter from Robert Abrams
to the Governor (13 Jun. 1979), accessible at L. 1979, ch. 656, § 1 (attached as Exhibit C). It
strains credulity to interpret section 50-b to prohibit the redaction of identifying information
where such information is readily available to the public simply by viewing court proceedings.
12
protect the interests advanced by section 50-b and fully effect the crucially
important open-government mandate of the Freedom of Information Law.
II.
THE COURT SHOULD REQUIRE AGENCIES INVOKING THE
LAW ENFORCEMENT EXEMPTION TO DEMONSTRATE A
PARTICULARIZED AND SPECIFIC FACTUAL BASIS FOR
CONCLUDING THAT THE RELEASE OF RECORDS WOULD
ACTUALLY INTERFERE WITH ONGOING INVESTIGATIONS OR
JUDICIAL PROCEEDINGS.
The Appellate Division held that all records in Avrohom Mondrowitz’s file,
including those records that were not about the investigation or prosecution of his
crimes but rather about the failed attempt to extradite him, were shielded by Pub.
Off. Law § 87(2)(e)(i), which allows agencies to “deny access to records or
portions thereof that are compiled for law enforcement purposes and which, if
disclosed, would interfere with law enforcement investigations or judicial
proceedings.” In particular, the Appellate Division held that “appellants were not
required to detail the manner in which each document sought would cause such
interference” and that merely making a “generic assertion” that interference would
occur was sufficient to justify withholding records. Lesher, 80 A.D.3d at 613, 914
N.Y.S.2d at 265-66.
This holding is flies in the face of several well-established rulings of this
Court regarding the showing required to invoke an exemption to FOIL. First, “the
burden of proof rests solely with the [agency] to justify the denial of access to the
13
requested records.” Data Tree, LLC, 9 N.Y.3d at 463, 849 N.Y.S.2d at 494. That
burden can be met only by articulating a “particularized and specific” basis for the
application of an exemption. Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d
467, 470 (1979). This requires presenting specific facts to support the applicability
of the exemption. Church of Scientology of New York v. State, 46 N.Y.2d 906, 908,
414 N.Y.S.2d 900, 901 (1979) (holding that agencies must “tender [a] factual basis
on which to determine whether the materials sought” fall within an exemption).
Conclusory averments, without more, are insufficient to satisfy the agency’s
burden. Washington Post Co., 61 N.Y.2d at 567, 475 N.Y.S.2d at 267 (holding
that an agency had not met its burden for withholding records where justification
was provided “in the form of conclusory pleading allegations and affidavits”).3
“Generic” or blanket assertions of the law enforcement exemption are
wholly inconsistent with this body of law. They do not constitute a “particularized
and specific” showing and they do not entail the presentation of any facts to
support the application of the exemption. Rather, they are precisely the kind of
conclusory averments rejected by this Court, in which agencies merely parrot the
3
Even if an agency submits such a justification, this Court has instructed lower courts, if they are
“unable to determine whether withheld documents fall entirely within the scope of the asserted
exemption,” to conduct an in camera inspection of records in order to disclose “all nonexempt,
appropriately redacted material.” Gould, 89 N.Y.2d at 275, 653 N.Y.S.2d at 57-58. Permitting a
“generic” or blanket invocation of the law enforcement exemption would circumvent the
requirement to consider redaction as an alternative to withholding, a subject addressed in the
detail in Part I of this brief.
14
language of the statutory exemption, as Respondents did here both in their initial
denial and on administrative appeal.
Importantly, the legislature specifically crafted the law enforcement
exemption not to shield all documents connected to a criminal investigation or
prosecution, but only those that will interfere with ongoing proceedings, if
released. When FOIL was first passed in 1974, the law enforcement exemption
covered all “investigatory files compiled for law enforcement purposes.” (L 1974,
ch 578, § 2; L 1974, ch 579, § 3).4 However, in 1977, the legislature narrowed the
exemption significantly to permit withholding only if disclosure would interfere
with law enforcement investigations or judicial proceedings, or identify a
confidential source or disclose confidential information relating to a criminal
investigation. N.Y. Pub. Off. Law § 87(2)(e)(i). The Senate sponsor of the bill,
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.” Letter from Sen. Ralph Marino to the
Honorable Judah Gribetz, Executive Chamber (1 Aug. 1977) (attached as Exhibit
D). Marino added that the amendment effectuated a “shift in the burden of proof to
assist a person challenging an agency determination which has barred access to
agency records.” Id.
4
The exemption was formerly codified at Former N.Y. Pub. Off. Law § 88(7)(d).
15
In interpreting this narrower version of the law enforcement exemption, both
this Court and the Supreme Court of the United States have held that the
exemption and the analogous federal exemption under the Freedom of Information
Act (FOIA) are limited to the disclosure of records that specifically threaten to
disrupt a case. In New York Times Co. v. City of New York Fire Dep’t, this Court
held that six tapes and/or transcripts 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 Moussaoui trial or cause any unfairness.” 4 N.Y.3d 477, 490, 796
N.Y.S.2d 302, 309 (2005). Importantly, this Court added that if the United States
Department of Justice (DOJ) could show “some good reason” why disclosure
would “create problems in the criminal case,” then the records could be shielded.
Id. However, absent such a particularized showing, the records were not shielded
by the law enforcement exemption.
Similarly, in N.L.R.B. v. Robbins Tire & Rubber Co., the Supreme Court of
the United States held that the scope of the law enforcement exemption to FOIA,
on which the FOIL exemption is based, was limited to disclosure of records that
“would involve the kind of harm that Congress believed would constitute an
interference.” 437 U.S. 214, 241 (1978) (internal quotation marks omitted). See
also Title Guarantee Co. v. N.L.R.B., 534 F.2d 484, 491 (2d Cir. 1976) (rejecting
16
the claim that any investigative information obtained in connection with a pending
enforcement proceeding is per se nondisclosable).
These cases make clear that demonstrating a probability of actual
interference with an investigation or proceeding is a necessary element of
establishing an agency’s entitlement to invoke Section 87(2)(e)(i). Thus, the
particularized and specific factual showing required to invoke the law enforcement
exemption must include a basis for the court to conclude that release of the records
sought would cause some actual interference.
In support of their argument that a “generic” or blanket assertion of the
exemption is permitted and no showing of possible interference is required, both
Respondents and the Appellate Division relied on two Appellate Division
decisions, Legal Aid Soc. of New York v. New York City Police Dep’t, 274 A.D.2d
207, 713 N.Y.S.2d 3 (1st Dep’t 2000) and Pittari v. Pirro, 258 A.D.2d 202, 696
N.Y.S.2d 167 (2d Dep’t 1999). But in Legal Aid Society, the NYPD filed an
affirmation stating that the specific files requested “contained witness identifying
details as well as summary statements from witnesses who had not given
courtroom testimony” and thus “would reveal confidential information relating to a
criminal investigation or nonroutine investigatory techniques” prior to an
anticipated trial in the midst of an ongoing investigation. 274 A.D.2d. at 210, 713
N.Y.S.2d at 5-6. And in Pittari, the Appellate Division limited the scope of the
17
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, 696 N.Y.S.2d at 170 (internal
punctuation and citation omitted). Here, Respondents have made no specific
factual averments about the records requested, nor have they even established that
an investigation is presently “ongoing” or “pending,” as they were in both Legal
Aid Society and Pittari.
In any case, to the extent that the Appellate Division’s decisions in Legal
Aid Society or Pittari purport to hold that records pertaining to a criminal
investigation or judicial proceeding are categorically exempt from FOIL, they are
contrary to the text and express legislative history or FOIL, and have been
superceded by this Court’s more recent ruling in New York Times Co. v. City of
New York Fire Dep’t, which specifically imposed the burden on the government
agency to show some reason why release of records pertaining to an ongoing
criminal investigation and prosecution would cause interference. See 4 N.Y.3d at
490, 796 N.Y.S.2d at 309-10. This Court should reaffirm that ruling in this case,
as well as the legislative intent behind the 1977 amendments to FOIL, and hold
that, as a matter of law, some showing of a probability of interference with
ongoing proceedings must be shown to invoke the law enforcement exemption.
18
In this case, the Appellate Division wrongly concluded that merely parroting
the language of the exemption was sufficient. It assumed, without any factual
justification, that the records requested would cause interference if released, even
going so far as to reject the lower court’s determination that the records related to
Mondrowitz’s extradition, as opposed to the investigation of his alleged crime,
were not exempt. The Court should remand for a factual determination of whether,
in fact, release of the requested records would cause actual interference with an
ongoing criminal investigation or judicial proceeding.
Respondents’ arguments and the approach of both the lower court and the
Appellate Division suggest that, in order to avoid protracting this litigation further,
the Court should make two principles clear on remand. First, the Court should
reject Respondents’ argument and the Appellate Division’s implicit holding that
records that are merely “related to” a criminal investigation are exempt. See
Respondents’ Br. at 15 (characterizing the Appellate Division’s decision as holding
that the law enforcement exemption “applied to all of the documents in the
respondents’ possession that related to [the] investigation” of Mondrowitz,
including correspondence between the District Attorney and federal agencies
regarding extradition). As the plain text of the exemption and the preceding
discussion illustrate, the exemption requires a showing that the records were
“compiled for law enforcement purposes” and would, if disclosed, “interfere with
19
law enforcement investigations or judicial proceedings.” Pub. Off. Law §
87(2)(e)(i). Whether the records are in some sense “related” to the investigation -a matter that the parties spend a great deal of time debating -- is not the central
question; the central question is whether their release would cause an actual
interference in an ongoing investigation or proceeding.
Second, the Court should make clear on remand that, in assessing the
probability of actual interference with an ongoing investigation or proceeding, the
mere possibility that a prosecution could be resumed at some point in the future is
legally insufficient to shield public records from disclosure. In this case, the
possibility of actually bringing Mondrowitz to justice is so remote as to be
imperceptible. There is no dispute that the Israeli Supreme Court has explicitly
forbidden the extradition of Mondrowitz.5 Unless Mondrowitz voluntarily returns
to the United States -- a proposition akin to speculation that a heretofore unknown
suspect might confess to a crime years after the fact -- the case will not proceed to
trial. Respondent claims that “prosecution remains viable because the [DOJ] and
the State Department are considering whether to lodge with the Israeli Government
5
Even if Respondents are correct in arguing that these facts are not in the record and this Court
cannot take judicial notice of them, it is beyond dispute that the lower courts on remand will
have this present state of affairs before them when they re-consider this matter. Thus, given that
the parties have briefed this issue and to avoid the possibility of this case once again reaching
this Court, the Court should provide clarity on the question of what constitutes a sufficient
showing of actual interference with an ongoing criminal investigation or prosecution.
20
a formal protest, called a ‘démarche,’ which could serve to reinstate the extradition
order,” Respondents’ Brief at 13 n. 3 (emphasis added), but even if the State
Department actually did issue a démarche, that is no reason to believe that the
Israeli government would take steps to overturn a Supreme Court decision and
thereby clear the way for extradition.6 Such speculative possibilities cannot serve
to indefinitely bar public access to records otherwise discoverable under FOIL.
6
The State Department defines a démarche as “a request or intercession with a foreign official,
e.g., a request for support of a policy, or a protest about the host government’s policy or actions.”
U.S. Department of State, “Protocol for the Modern Diplomat,” (1998), available at
http://www.state.gov/www/obc/pubs/protocol.html. It is odd that Respondents would cite a
démarche as anything more than a token sign of a nation’s disapproval, since the United States
frequently sends démarches without any assurance that the receiving nation will change its
policy and ignores démarches received from other governments urging that action be taken on
behalf of their citizens.
Most famously, the Mexican Government issued a démarche to the U.S. following the
Supreme Court’s opinion in Medellín v. Texas, 552 U.S. 491 (2008), which held that an
international treaty is not binding domestic law unless 1) Congress has enacted statutes
implementing it; or 2) it is self-executing. The treaty at issue in Medellin was Article 36 of the
Vienna Convention, which provides that when a foreign national of is arrested or committed to
prison or to custody pending trial or is detained in any other manner, a state shall, without delay,
inform the consular post of the national’s home country of the detention and inform the
individual of his right to contact the consulate. Vienna Convention on Consular Relations (1963),
available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf.
Three days after the Medellin ruling, the Mexican government sent a démarche to the
State Department, declaring, “[T]he Embassy wishes to express the full confidence of the
Government of Mexico that the Department of State will take all necessary steps to achieve
proper compliance by the United States with the ICJ decision [Case Concerning Avena and
Other Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12], namely the effective review and
reconsideration of the cases of the 51 Mexican nationals sentenced to death, including the case of
Mr. Medellin.” Démarche from Embassy of United Mexican States to U.S. Department of State
(28 Mar. 2008). The démarche did nothing to prevent Mr. Medellin’s execution, which took
place on August 5, 2008.
21
Such an outcome is contrary to the legislative intent of Section 87(2)(e)(i)
and the open-government principles of FOIL, as the Appellate Division has
recognized in several cases. For instance, in Church of Scientology of New York v.
State, the First Department rejected the use of the law enforcement privilege where
the records at issue, while compiled for law enforcement purposes, “have been the
subject of inquiry, have resulted in no further action, and that there presently exists
no intention to commence any further action with regard to them.” 61 A.D.2d 942,
943, 403 N.Y.S.2d 224, 226 (1st Dep’t 1978), aff’d 46 N.Y.2d 906, 414 N.Y.S.2d
900 (1979). The court added:
What we are left with is the wholly speculative proposition that
something may yet turn up, although it has not yet done so in the
many years of the petitioner’s existence, that will require some
unspecified law enforcement action, to which these earlier letters may
be relevant and that somehow will be impaired by disclosure. More
than that is surely required to invoke the exception claimed by the
respondents.
Id. (emphasis added); see also Committee on Open Government, FOIL–AO–13916
(Feb. 26, 2003) (“The less such activity has recently occurred or is ongoing, the
less is the ability . . . to contend that disclosure would interfere with an
investigation. If the case has effectively been closed, it might be contended that
disclosure at this juncture would neither have an effect on nor interfere with the
investigation; in essence, the investigation would be over.”) (emphasis added);
Feerick v. Safir, 297 A.D.2d 212, 213, 745 N.Y.S.2d 538, 539 (1st Dep’t 2002)
22
(holding the exemption inapplicable because “the criminal investigation and
judicial proceedings concerning these petitioners’ conduct have long ago been
concluded”).
III.
THE COURT SHOULD ALSO REVERSE THE APPELLATE
DIVISION FOR FAILURE TO REQUIRE A PARTICULARIZED AND
SPECIFIC JUSTIFICATION FOR RESPONDENTS’ INVOCATION
OF CIVIL RIGHTS LAW SECTION 50-b.
In addition to the matter of redaction addressed in Part I of this brief, the
Court should reverse the Appellate Division’s decision to the extent it upheld
Respondents’ conclusory statement that the records sought “might tend to identify
the victims of alleged sex crimes” and thus are shielded by Civil Rights Law § 50b. Lesher, 80 A.D.3d at 613, 914 N.Y.S.2d at 266. As is detailed in Part II, supra,
such conclusory statements, parroting the language of the exemption without more,
fail to meet an agency’s burden under FOIL.
23
CONCLUSION
For the reasons cited above, and those expressed in Plaintiff-Appellant’s
brief to the Court, amicus curiae NYCLU urges the Court to reverse the judgment
of the Appellate Division, Second Department.
Respectfully submitted,
__________________________
CHRISTOPHER DUNN
COREY STOUGHTON
DANIEL MULLKOFF
New York Civil Liberties Union Foundation
125 Broad Street, 19th Floor
New York, NY 10004
(212) 607-3300
Counsel for Amicus Curiae
New York Civil Liberties Union
Dated: January 6, 2012
New York, N.Y.
24