1
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------ X Index No. 10400988
In the Matter of
:
:
URBAN JUSTICE CENTER,
:
:
Petitioner,
: VERIFIED PETITION
:
:
-against:
:
NEW YORK POLICE DEPARTMENT,
:
and RAYMOND KELLY, in his official capacity as
:
Commissioner of the New York City Police
:
Department,
:
:
:
Respondents.
:
:
For a Judgment Pursuant to Article 78
:
Of the Civil Practice Law and Rules
:
------------------------------------------------------------------- X
PRELIMINARY STATEMENT
1. This Article 78 proceeding seeks to vindicate the right of Petitioner, the Urban Justice
Center (“UJC”), and the right of the public under the Freedom of Information Law (“FOIL”) to
have access to records created and held by the New York Police Department (“The
Department”). The UJC sought these records on September 29, 2008, after reports that the
Department had initiated a series of raids on establishments offering BDSM (bondage and
discipline, dominance and submission, sadism and masochism) services between April and
September 2008, making several prostitution arrests. Seeking to clarify procedural and
substantive law pertaining to arrests for violations of the penal law against prostitution, the UJC
sought copies of any memos, manuals, instructions, policies, and curriculum used to train or
instruct police officers on arresting persons for the crime of prostitution for the prior two years,
2
and copies of specific memos, manuals, instructions, policies, procedures, meeting minutes,
reports, or any other written documents concerning the investigation of establishments or persons
who provide bondage and discipline, dominance and submission, sadism and masochism
(“BDSM”) for a fee, either in an establishment or independently, for the prior two years.
2. Despite multiple attempts by the UJC to obtain from the NYPD records concerning the
investigation of prostitution-related crimes and BDSM-related establishments, the Department
first failed to respond for over a year and then refused to produce these records other than a
single page from the Patrol Guide. Although the Department asserted that certain records are
exempt from disclosure and others do not exist, the requested records are not exempt from
disclosure. Moreover, and again contrary to the NYPD’s assertion, the series of high-profile raids
on dungeons during a five-month period in 2008 reveals that records pertaining to these
investigations do exist and must be disclosed unless they fall under one of the enumerated FOIL
exemptions.
VENUE
3. Pursuant to C.P.L.R. §§ 506(b) and 7804(b), venue in this proceeding lies in New York
County, the judicial district in which Respondents took the action challenged here and where the
offices of Respondents are located.
PARTIES
4. Petitioner Urban Justice Center is a not-for-profit corporation that serves New York
City’s most vulnerable residents through a combination of direct legal service, systemic
advocacy, community education, and political organizing. Since 2001, the Sex Workers Project
3
(“SWP”), a division of the UJC, has provided legal and social services to hundreds of sex
workers, people profiled as sex workers, and victims of human trafficking
5. Respondent NYPD is a municipal department subject to the requirements of the Freedom
of Information Law (“FOIL”).
6. Respondent Raymond Kelly is a public officer who is named in his official capacity as
the Commissioner of the NYPD.
FACTS
7. The UJC serves New York City’s most vulnerable residents through a combination of
direct legal service, systemic advocacy, community education, and political organizing. Using a
harm reduction and human rights model, the UJC seeks to protect the rights and safety of sex
workers who by choice, circumstance, or coercion to remain sex workers. Given these goals, the
UJC has long been concerned about preventing the human rights abuses faced by sex workers,
promoting sex workers’ rights to protect their health through the use of condoms and other safer
sex devices, and ensuring that the criminal justice system appropriately responds to sex workers’
needs.
8. Clients of the UJC have routinely reported that police confiscate condoms in their
possession in the course of arrests for prostitution-related offenses to use as evidence in criminal
proceedings. As a result of this routine confiscation, many sex workers are reluctant to carry
condoms for fear that they will be used as evidence that they were engaged in criminalized
4
activity. Similarly, adult businesses have declined to become providers of New York Citysponsored free condoms for fear that the presence of condoms will be used as evidence that illicit
sexual activity is taking place on the premises.
9. In addition, the NYPD conducted a series of raids targeting BDSM establishments
between April and September of 2008, leading to many arrests and the closure of many
businesses. Numerous news reports, published in the New York Post and the New York Daily
News among other media outlets, document these multiple raids. These raids targeted a specific
set of businesses that provide experiences that include role-play, domination, submission,
physical bondage or discipline, or other activities.
PROCEDURAL HISTORY
10. In keeping with the UJC’s mission to promote the health and civil rights of New Yorkers,
and sex workers in particular, the UJC filed a Freedom of Information Law (“FOIL”) request on
September 29, 2008. The UJC specifically requested: (1) copies of any memos, manuals,
instructions, policies, and curriculum used to train and instruct police officers on arresting
persons for the crime of prostitution; and (2) copies of specific memos, manuals, instructions,
policies, procedures, meeting minutes, reports, or any other written documents concerning the
investigation of establishments or persons who provide BDSM for a fee, either in an
establishment or independently, dated or generated in the last two years. See Letter to FOIL
5
Officer, Freedom of Information Unit, from Gratienne Baskin, UJC (Sept. 29, 2008) (attached as
Exhibit A).
11. On November 12, 2008, in response to the UJC’s September 29 FOIL request, NYPD
Records Access Officer Sergeant James Russo stated that the Department would need until
January 10, 2009 to determine whether it would grant or deny, even in part, the UJC’s request.
Letter to Gratienne Baskin from NYPD Sergeant James Russo (Nov. 12, 2008) (attached as
Exhibit B).
12. By May 12, 2009, the UJC still had not received a response from the NYPD regarding
whether it would grant the UJC’s FOIL request, despite the NYPD’s professed intent to make
this determination by January 10, 2009. The UJC mailed a follow-up letter requesting a prompt
response from Principal Ellis, whom the FOIL department indicated in its acknowledgment letter
had been assigned the UJC’s case. Letter to Principal Ellis, Freedom of Information Unit, from
Gratienne Baskin, UJC (May 12, 2009) (attached as Exhibit C).
13. On June 17, 2009, still awaiting a response from the NYPD, the UJC deemed its request
denied due to failure to respond and contacted Jonathan David, NYPD Records Access Appeals
Officer, by telephone to confirm that he was the appropriate person to whom the UJC should
direct an administrative appeal. Mr. David instructed the UJC to call NYPD Sergeant Russo,
Principal Ellis’ supervisor, to follow up on the request. Phone Call to Jonathan David, NYPD
Records Access Appeals Officer, from Suzanne Chilcote, UJC (June 17, 2009). Referenced in
6
Letter to Jonathan David, Special Counsel to the Deputy Commissioner of Legal Matter, Records
Access appeals Officer, from Gratienne Baskin, UJC (July 20, 2009) (attached as Exhibit D).
14. On June 24, 2009, the UJC called Sergeant Russo to inquire about the status of the
NYPD’s response to the UJC’s FOIL request. In the course of this phone conversation, Sergeant
Russo indicated that he had not yet read the UJC’s request. In response to an oral description of
the request, Sergeant Russo indicated that the request would be denied in its entirety because: (1)
some of the information requested did not exist; (2) there is no specific procedure for an arrest of
a prostitute that is any different from other arrests and therefore the UJC’s request is too broad;
(3) there are too many different kinds of prostitution-related offenses and therefore the UJC’s
request is too broad; and (4) the NYPD cannot reveal its methods in a way that would endanger
its ability to carry out these types of operations. Referenced in Letter to Jonathan David, Special
Counsel to the Deputy Commissioner of Legal Matter, Records Access appeals Officer, from
Gratienne Baskin, UJC (July 20, 2009) (attached as Exhibit D).
15. By July 20, 2009, the UJC had not yet received a complete and formal response from the
NYPD granting or denying the UJC’s FOIL request in writing so that the UJC would have a
basis on which to appeal the decision. Therefore, the UJC wrote a follow-up letter to Jonathan
David, Records Access Appeals Officer, informing him of the UJC’s conversation with Sergeant
Russo and requesting a written response either granting or denying the FOIL request. Letter to
Jonathan David, NYPD Records Access Appeals Officer, from Gratienne Baskin, UJC (July 20,
2009) (attached as Exhibit D).
7
16. On October 9, 2009, the NYPD informed the UJC in writing that it granted the UJC’s
request to the extent that the NYPD could provide a single page of its Patrol Guide entitled
“Procedure No.: 208-44 – Prostitution.” The NYPD indicated that it had located other records
responsive to the prostitution-related aspect of the UJC’s FOIL request, such as an Investigator’s
Guide used by the NYPD’s Vice Enforcement Division, but that such records were exempt from
disclosure pursuant to Public Officers Law §§ 87(2)(e)(iv) and 87(2)(f). The NYPD also stated
that no records related to the investigation of establishments or persons who provide BDSM for a
fee could be located. Letter to Gratienne Baskin, UJC, from Sergeant James Russo, NYPD
Records Access Officer (October 9, 2009) (attached as Exhibit E).
17. The UJC, believing the NYPD’s rationale for withholding the requested prostitutionrelated documents was erroneous and that the NYPD had made an inadequate search for the
requested domination-related documents, administratively appealed the denial on November 6,
2009. Letter to Jonathan David, Records Access Appeals Officer, from Gratienne Baskin, UJC
(Nov. 6, 2009) (attached as Exhibit F).
18. On December 28, 2009, the NYPD denied the UJC’s administrative appeal. The NYPD
Records Access Officer, Jonathan David, stated that the prostitution-related segment of the
Investigator’s Guide was exempt from disclosure, citing Public Officers Law § 87(2)(e)(iv) and §
87(2)(f), and that no records concerning the investigation of domination could be located. Mr.
David also rejected the UJC’s contention that it had made an inadequate search for relevant
records, stating, “The appeal is denied because the Records Access Officer conducted a diligent
search for the requested records concerning the investigation of prostitution and domination.”
8
Letter to Gratienne Baskin, UJC, from Jonathan David, Records Access Appeals Officer (Dec.
28, 2009) (attached as Exhibit G).
CAUSE OF ACTION: ARTICLE 78 REVIEW OF WRONGFUL DENIAL OF FOIL
REQUEST
21. Article 78 is the appropriate method for review of agency determinations concerning
FOIL requests.
22. Petitioner, the UJC, has a clear right to information about the dungeon raids and
prostitution-related offenses. Pursuant to FOIL’s requirement that an agency articulate
particularized and specific justification to invoke an exemption, the Department has failed to
justify the exemptions that it invoked. Further, the Department lacks such justification to claim
these exemptions. Reciting exemptions in a conclusory fashion without explanation is
insufficient to withhold disclosure.
23. Respondents have not produced the information sought by the UJC, in spite of the strong
presumption that all agency records are open to the public for inspection and copying.
24. Respondents have, therefore, failed to perform duties enjoined by law and have acted in
an arbitrary and capricious fashion.
9
25. Petitioner UJC exhausted its administrative remedies when it appealed the County’s
denial of its FOIL request and was denied access to responsive records. Petitioner has no other
remedy at law.
REQUESTED RELIEF
WHEREFORE, Petitioner seeks judgment:
(1) Pursuant to C.P.L.R. § 7806, directing Respondents to comply with their duty under
FOIL to perform an adequate search for the records requested in the Petitioner’s September 28,
2008 FOIL request and to disclose all portions of the responsive records that are not subject to
any exemption or other privilege;
(2) Awarding attorneys’ fees and reasonable litigation costs as allowed under New York
Public Officers Law § 89; and
(3) Granting such other and further relief as the Court deems just and proper.
Respectfully Submitted,
URBAN JUSTICE CENTER, by
___________________________
GRATIENNE BASKIN
123 William Street, 16th Floor
New York, NY 10038
Dated: New York, NY
April 15, 2010