Beruflich Dokumente
Kultur Dokumente
159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
ANDREW M. STENGEL,
Petitioner,
-against-
CYRUS VANCE, JR. in his official capacity as District Attorney of New York
Respondents.
VERIFIED ANSWER
(212) 335-9000
ROBIN A. McCABE
Assistant District Attorney
Of Counsel
1 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
-against-
Respondents.
ROBIN A. McCABE, an attorney duly admitted to practice law in the courts of this state,
District Attorney, New York County. I represent Respondents, District Attorney Vance and ADA
Susan Roque, an Appeals Access Officer, at the District Attorney's Office ("DANY") in this matter.
I submit this Answer in response to Petitioner's application for a judgment pursuant to Civil Practice
Law and Rules ("CPLR") Article 78, seeking (i) to compel respondent to furnish him with responsive
records not subject to any exemption or privilege, pursuant to New York's Freedom of Information
Law ("FOIL"), Public Officers Law ("POL") §§ 84-90; (ii) ganting costs to cover attorney expenses
and fees incurred in this proceeding; and (iii) such other and further relief as this Court deems just
and proper. Unless otherwise stated, this Answer is based upon information and belief, the sources
of which are my review of the Article 78 Petition, the documents attached to that petition, DANY
2 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
records, and my conversation with other DANY employees. Any facts in the Verified Petition that
PROCEDURAL HISTORY
2. By an email received on March 23, 2018, Petitioner filed a FOIL request with DANY
in which he sought to obtain "from January 1, 2017, to the present the list of police officers of any
rank or law enforcement agency indicating an adverse credibility findings that is maintained by New
Office."
York District Attorney's Jee (Verified Petition ["VP"], Exh. B).
County
29th th
3. By letters dated March of 2018, the assigned Records Access Officer
("RAO"), ADA Thandiwe Gray, acknowledged receipt of the FOIL request and kept Petitioner
4. Upon completion of her review, by letter dated June 7, 2018, RAO Gray informed
Petitioner that she was denying the FOIL request. Jee (VP, Exh. E, p. 1). RAO Gray determined
'list' responsive"
initially that DANY did "not have a directly to the request. Id. Notwithstanding, the
RAO further explained that adverse credibility finding information maintained by DANY was exempt
litigation,"
from disclosure pursuant to CPLR §3101(d)(2) because it was "prepared in anticipation of
and therefore was not subject to disclosure under FOIL. Id. RAO Gray concluded by informing
Petitioner that the FOIL Appeals Officer was ADA Patricia J. Bailey, Chief of the Special Litigation
5. By a letter dated June 20, 2018, received on June 25th, Petitioner appealed RAO Gray's
denial of his FOIL request. Initially, Petitioner questioned the RAO's representation that DANY had
"list,"
no responsive since he had heard about such a list when he worked at DANY and more recently
list"
another ADA (Levinson) referred to "a in discussing potential adverse credibility findings with
the court in a prior criminal prosecution. See generally (VP Exh. F). Petitioner further contended that
3 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
the authority cited by RAO Gray did not establish that the information requested was attorney work
product because it was not prepared in anticipation of this FOIL litigation. Id at p. 2. In addition,
Petitioner argued that, even if a qualified or conditional privilege existed under CPLR §3101(2)(d), it
made."
"is waived when disclosures are Id at p. 3.
6. On July 9, 2018, ADA Susan C. Roque, the assigned DANY Appeals Officer ("AO"),
upheld the RAO's determination and concurred with her legal analysis in support of the FOIL denial.
See generally (VP, Exh. G). In doing so, AO Roque affirmed RAO Gray's determination.
maintain"
Upon review, AO Roque initially agreed with RAO Gray that DANY "does not the
list"
information requested in the form of "a and "since an agency cannot release that which it does
denied."
not possess, access must necessarily be Id at p. 1. Moving onto the legal basis for the denial,
AO Roque explained that "while DANY does maintain information regarding a court's 'adverse
finding,'
credibility it does so in anticipation of litigation so that if and when an officer testifies and
obligations."
the information qualifies, DANY can comply with the relevant disclosure Id Citing
FOIL exemption POL and two state statutes - Criminal Procedure Law
§87(2)(a), supporting ("CPL")
§§ 240.10(2) and (3) and CPLR §3101(c), AO Roque concluded that the information requested
constitutes attorney work product and as such is not obtainable in a FOIL request. Id In support of
her analysis and by way of illustration, AO Roque cited People v Shaw (196 AD2d 558 [2d Dept 1993],
which held that a prosecutor's list of questions and short factual statements were not Rosario material.
Finally, AO Roque pointed out the flaws in Petitioner's arguments, which rely on CPLR §3101(2)(d)
and federal case law, that somehow attorney work product created in anticipation of litigation (in a
criminal prosecution) loses its protection when it is the subject of a state FOIL request or the privilege
is somehow waived because another ADA referred to a list from which disclosures are made, yet did
4 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
7. By papers filed with this Court on or about October 22, 2018, Petitioner commenced
this Article 78 proceeding seeking records, pursuant to FOIL, "held by [DANY] regarding the
officers," witnesses."
credibility of police i.e., "a list of adverse credibility finding of law enforcement
See generally Petitioner's Notice of Petition and Preliminary Statement in the Verified Petition ("VP").
Petitioner contends that he is entitled to disclosure of said records, requested in his March 23, 2018
FOIL letter. Specifically, he seeks judgment, directing Respondents to disclose all portions of the
responsive records not subject to any exemption or other privilege, pursuant to CPLR §7806. He also
seeks the award of attorney's fees and reasonable litigation costs, pursuant to POL §89. Jee (VP at
para. 3).
8. As set forth in the legal arguments, below, Petitioner is not entitled to portion of
any
the records requested, and the petition should be dismissed. Nor is Petitioner entitled to an award of
attorney's fees and litigation costs pursuant to POL §89(4)(c), since Respondent agency had a
STANDARD OF REVIEW
proceeding is governed by CPLR §7803(3). The standard of review is whether the agency
determination was affected by an error of law. Matter of Thornas v Condon, 128 AD3d 528, 529 (1st
Dept 2015). In other words, the issue of whether an agency invoking a FOIL exemption has met its
interpretation."
burden is one of "pure legal Matter of Toys R Us v Silva, 89 NY2d 411, 419 (1996).
10. In a special proceeding seeking to compel a government agency to act, and where the
act is not within the exclusive domain of the agency's authority and does not involve the special
expertise of the agency, a reviewing court may consider legal arguments raised for the first time by
the agency in the Article 78 proceeding. See Scherbyn v Wayne-Finger Lakes Bd. Of Coop. Educ. Servs.,
5 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
162 AD2d 967, 967-8 (4th Dept 1990) (rule that judicial review of agency determinations is limited
mandamus to compel), rev on othergrounds, 77 NY2d 753 (1991); see also Gould v NYPD, 89 NY2d 267,
275 (1996) (remanding FOIL matter for agency to determine if it could make a particularized
showing it did not make during the administrative proceedings); Scott, Sardano & Pomeranz v Records
Access Officer, 65 NY2d 294, 297 (1985) (after constructive denial of FOIL request, reviewing
exemption arguments presented for the first time in CPLR Article 78 proceeding); Johnson Newspaper
Corp. v Stainkamp, 61 NY2d 958 (1984) (considering privacy issue not raised below). And, to the
extent that Petitioner suggests that an administrative appeals officer is limited to the bases listed in
1
the initial denial letter, he misstates the law.
LEGAL ARGUMENT
I. DANY had a valid basis for its initial denial because the requested information is orotected
attorney work product and deliberative material not subject to disclosure pursuant to FOIL.
11. Under New York's Freedom of Information Law, "[a]ll government records are
presumptively open for public inspection unless specifically exempted from disclosure as provided in
Law."
the Public Officers Fappiano v New York City Police Dept., 95 NY2d 738, 746 (2001). However,
a FOIL petitioner is not entitled to receive copies of records that are "specifically exempted from
statute[.]"
disclosure by state or federal POL §87(2)(a); see generally People v Kozlowski, 11 NY3d 223, cert
denied 556 US 1282 (2009). One such category of records is attorney work product, which is exempt
CPLR.2
from disclosure under Section of the See e.g., Morgan v New York State Dept.
3101(c) of Enott.
6 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
Conservation, 9 AD3d 586, 587 (3rd Dept 2004); John Blair Communications, Inc. v Reliance Capital Group,
182 AD2d 578 (1st Dept 1992); Corcoran v Peat Marwick, 151 AD2d 443 (1st Dept 1989); see also Shooters
Comm. on Political Educ., Inc. v Cuomo, 147 AD3d 1244, 1245 (3rd Dept 2017) ("[POL] §87(2)(a) also
statute,'
exempts from disclosure materials 'specifically exempted from disclosure by state or federal
which includes privileged communications between attorneys and their clients as well as attorney work
product"); Spring v County of Monroe, 141 AD3d 1151, 1152 (4th Dep't 2016) (material protected by
privilege"
"attorney work product was "exempt from FOIL disclosure"). The attorney work product
privilege is absolute. See Spectrum Systems Intern. Corp. v Chemical Bank, 78 NY2d 371, 376 (1991);
Hickman v Taylor, 329 US 495, 510-11 (1947); see also Siemens Solar Indus. v Atlantic Richfield Co., 246
product"
AD2d 476 (1st Dep't 1998) (an "attorney's work is "absolutely exempt from discovery").
12. The Appellate Division, First Department has defined attorney work product as
documents prepared by counsel that are "uniquely the product of a lawyer's learning and professional
skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal or
theory
strategy[.]"
Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 190-91 (1st Dept 2005);
Cioffi v S.M. Foods, Inc., 142 AD3d 520, 522 (2016). That court has also recognized that the '"mental
theories'"
impressions, conclusions, opinions or legal of a prosecutor during a criminal action fall
within the attorney work product privilege.Smith v City of New York, 49 AD3d 400, 401 (1st Dept 2008)
3101[d][2]).3
(quoting CPLR § Similarly, section 240.10(2) of the Criminal Procedure Law defines
disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney...". CPLR
§3101(d)(2); see also Patrick M. Conners,
Practice Commentaries, Consolidated Laws of NY, McKinney's
Book 7B, CPLR C3101:27 (2005 ed).
3 The case cited by Petitioner, M. Farbrnan & Sons, Inc. v NYC Health & Hospitals Corp., 62 NY2d 75,
81-82 (1984), involving a civil suit between the party requesting the records and the city agency that possessed
those records, is distinguishable from the case at bar. In Forbman, the Court of Appeals held that access to
records under FOIL is "not affected by the fact that there is pending or potential litigation between the person
ageng."
making the request and the Id. at 78 (emphasis added). The Court specifically excluded from its
consideration would be claimed exemption from FOIL on the basis of privilege. Nor did it address the issue
of FOIL exemptions, such as attorney's work product and material prepared for litigation.
7 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
attorney work product as "property to the extent that it contains the opinions, theories or conclusions
staffs."
of the prosecutor, defense counsel or members of their legal
13. I have reviewed the relevant material for the period in question. It is contained within
an excel spreadsheet organized by name and affiliation and contains a wide range of information,
finding."
including the phrase "adverse credibility Not all the information is case-related or from a
public source. Some of the information consists of communications from attorneys employed by
DANY. And, in many instances the information reflects legal research, analysis and opinions about
required.4
whether disclosure is or may be Significantly, there is no column within the database to
findings;"
extract only formal or judicial "adverse credibility nor is there a distinction made between
explicit judicial credibility findings and analysis of legal opinions, which employ use of the same phrase.
"list"
Thus, as the RAO and AO determined, there appears to be no way to reasonably create a of
such from the spreadsheet without making legal judgments outside the context of a criminal
sealed.5
which an adverse credibility finding was made, has been
potential disclosure purposes. This new tool could be used to more readily identify judicial adverse
credibility findings. However, since only the police tracking spreadsheet was utilized the
being during
period of the subject FOIL request, it is the record upon which the RAO and AO relied in making
their initial determinations. Accordingly, the arguments herein are confined to the limitations of that
4 Some entries do have a link to a draft disclosure letter that was generated in a case with respect to an
identified officer.
5 A FOIL request made other than the defendant or his/her
by someone defense attorney must
provide a CPL §160.50 waiver, duly executed by the defendant whose case has been sealed. No such waivers
were provided in this FOIL request, nor has Petitioner claimed to represent any of the defendants in cases
8 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
spreadsheet and not the new system that is now in place. Sigmficantly, Petitioner has made a new
FOIL request, at or about the same time he filed this Article 78, seeking an expanded version of the
instant request for a larger period of time: 2015-2018. I am informed by the assigned RAO, Thandiwe
Gray, that the new tool is being utilized in an effort to determine the new FOIL request.
15. Further, I am informed by ADA Charles King, Deputy Chief of the Conviction
Integrity Program, that since 2015 he has maintained the subject police tracking spreadsheet, which
was created for internal purposes only, in an effort to assist ADAs in evaluating their cases and
necessary.6
determining whether any disclosure obligations may be The spreadsheet is necessarily
meant to be witness specific and was not designed for general topical searches; although a text search
is possible. Access to the spreadsheet and information compiled is strictly limited to the members of
supervisors.7
the Conviction Integrity Program, members of the B rady/ Giglio Committee and bureau
Before information is added to the spreadsheet, it is evaluated by ADA King or an executive level
ADA designated to determine if it merits inclusion; the information is also evaluated by DANY's
16. I am further informed by ADA King that the information compiled by DANY in its
prosecutions,8
effort to meet its disclosure obligations in criminal remains in a pending, non-final
posture until such time that either a legal/policy determination is made regarding whether a disclosure
may be required on a pending matter or a draft disclosure letter is generated. A secondary legal analysis
necessarily takes place by the assigned ADA and his or her supervisor within the context of a particular
criminal case in which a police witness may testify. This aspect of the deliberative process was
6 to ADA King, the legal staff sometimes referred to the information compiled
According colloquially
list."
in the spreadsheet as "the
7 Line ADAs are instructed to consult the Conviction Program various stages of a case
Integrity during
and will get an alert if there is information on a potential police witness.
8 Such information includes confidential and private grand investigations or sealed
information, jury
matters which are exempt from FOIL disclosure. POL §§87(2)(a) + (b).
9 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
compilation of information has the potential for disclosure further illustrates that it should be
memorandum"
05236 (LTS) (KHP), 2018 WL 716013 at *12 (SDNY 2018) ("draft, internal was
product"
"protected under the work privilege).
17. Accordingly, for both inclusion in the spreadsheet and later a disclosure determination,
it is necessary for an ADA to apply the legal definition for Brady/Gglio material that is set forth in
CPL Article 240 as well as the applicable case law to the facts and circumstances of the case, since
each circumstance differs. In other words, as AO Roque explained, an attorney in determining his or
her disclosure obligations must apply a legal analysis and draw a conclusion within a fact-specific
determinative of guilt or innocence (or sentence). See generally Brady v Maryland, 373 US 83 (1963);
Gglio v United States, 405 US 150 (1972). Applying those definitions, the prosecuting attorney must
determine which police witnesses, if any, would be called to testify on behalf of the People and whether
any potentially exculpatory or impeachment material would have to be disclosed. This is not a task
that could simply be delegated to another attorney, let alone a non-lawyer, unfamiliar with the facts of
the particular case. All told, disclosure determinations concerning any potentially negative police
findings" -
witness related information maintained by DANY, which may include "adverse credibility
which itself is a term of art that requires legal analysis - are in some instances made preliminarily by
the Brady/Gglio Committee, but generally not made until the information is reviewed by an assigned
ADA and his or her supervisor and assessed in the context of a specific criminal prosecution; the
skills[,]"
result of which is necessarily the product of "a lawyer's learning and professional Hoffrnan v
10 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
Ro-San Manor, 73 AD2d 207, 211 (1st Dep't 1980). As such, this compilation of information, subject
to multiple levels of legal analysis, falls squarely within the attorney work product privilege.
19. Moreover, unlike other disclosure obligations, the focus of Brady/ Giglio concerns
"information"
of what the prosecutor actually or constructively knows, as opposed to discovery of
writings or records the prosecutor possesses. Cf CPL 240.10(3); 240.20(1), 240.45(1)(a). In other
words, disclosure of Brady/ Giglio information is required regardless of whether it has been
memorialized. United States v Rodnguez, 496 F3d 221 (2d Cir 2007). Thus, the constitutional obligation
can be, and often is, satisfied even though pertinent documents are not disclosed. See United State v
Volpe, 42 F Supp 2d 204, 227 (EDNY 1999) (government properly disclosed names of potential
witnesses but not summaries of statements). Significantly, none of these statutes require a prosecutor
list"
to create and provide to the defense "a of the sources of and/or the form in which the
information relied upon is maintained. Nor do they require a prosecutor to reveal the data or records
from which the disclosure determination is made. Rather, when a Brady/ Giglio disclosure is made, it
is often in letter form indicating the substance of the information pertaining to a specific witness or
an oral record.
20. Ultimately, Petitioner's attempt to circumvent the criminal discovery and disclosure
rules and use them as a basis to compel disclosure in a civil FOIL proceeding is unavailing, since
neither criminal law nor criminal procedure law governs the release of documents under a FOIL
request. Ironically, there is no New York state case law that addresses whether a judge's adverse
credibility finding against a witness in one case would constitute Giglio information or be a basis for
case.9
impeachment in another Nevertheless, in an effort to ensure that judicial findings are given an
appropriate and uniform review, DANY has adopted protocol that calls for the collection and review
9 Compare to federal law which does allow for impeachment in some circumstances based
evidentiary
on a prior adverse credibility finding. See United States v Lance White, 692 F3d 235 (2d Cir 2012).
10
11 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
by the Brady/ G¼lio Committee of instances where there has been or what may be considered an
21. Assuming for argument's sake that adverse credibility findings are Gglio material,
Plaintiff's final assertion that a prosecutor's disclosure obligation, in and of itself, constitutes a waiver
of applicable privileges, has no statutory or decisional merit whatsoever. While voluntary disclosures
to third parties may constitute a waiver of attorney communications and work product in some
circumstances, there is simply no authority, and Plaintiff cites none, for the proposition that a
Brady/ G¼lio disclosure made by a prosecutor at a state criminal hearing or trial waives any applicable
access.¹°
privilege (to the records from which a disclosure decision is made) for the purposes of FOIL
See e.g. Matter of Gartner v NY State Attorney General's Of, 160 AD3d 1087 (2018) ("handwritten notes
prepared by an Assistant Attorney General, and apparently never shared with anyone outside that
office, are exempt as attorney work product."); Dillenbeck v Hess, 73 NY2d 278, 289 (1989) ("[p]1aintiff's
contention that privilege is somehow forfeited upon their submission of evidentiary facts
demonstrating that defendant's physical condition is in controversy is without merit and confuses the
amount of evidence required to justify discovery under CPLR 3121(a) with that required under CPLR
4505 to establish waiver"). Nor does Plaintiff cite a specific instance where DANY waived the work
product protection of the information contained in the spreadsheet by making a Brady/ G¼lio
disclosure about a prior adverse credibility finding of a testifying police witness, to the defense or in
open court. See e.g., Miller v Zara, 151 AD3d 462, 463 (1st Dep't 2017) (lack of any actual disclosure
to a third party); Peerenboom v Marvel Entertainment, LLC., 148 AD3d 531, 532 (1st Dep't 2017); see also
Matter of Luongo v NYPD RAAO, 2017 NY Misc LEXIS 2101 *6-7, 2017 NY Slip Op 31142(U)(Sup
to In fact, as is often the case withGig/io disclosures, because they are often overly inclusive, a motion in
limine is made to preclude reference to the information or restrict its use or introduction into evidence during
trial.
11
12 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
Ct NY Co 2017) (court rejected petitioner's argument that respondent waived nondisclosure under
Civil Rights Law 50-a by making personnel orders available to the press in the past). Even the court
2).1¹
transcript excerpt provided by Petitioner belies such a claim. See (VP Exh. A, pp. 1 and
22. Equally unavailing is Petitioner's attempt to equate a judicial adverse credibility finding
with a separate record prepared by DANY to collect such information in anticipation of litigation
and/or case evaluations. The first is arguably a public record (provided the case is not sealed), while
the second is clearly attorney work product (i.e. opinion that this may be subject to disclosure laws)
prepared in anticipation of a criminal case in which the subject police officer may be called to testify.
Under no reading of the law can a court decision be equated with information prepared by an attorney
about it. The federal cases cited by Petitioner are distinguishable on the facts and support
actually
Respondent's view. For example, in U.S. v Nobles, 422 US 225, 238 (1975), the Supreme Court held
that, "[a]t its core, the work-product doctrine shelters the mental processes of the attorney, providing
case."12
a privileged area within which he can analyze and prepare his client's So, while a voluntary
submission of a disclosure letter about an adverse credibility finding to the court could effectively
waive any work product protection as to the letter itself (assuming it was not provided under a
protective order or pursuant to a motion in limine which was granted), such a waiver would not extend
to attorney's notes, research, analysis, drafts, or other work product utilized in its preparation. See e.g.
Salmon Bros. Treasuy Litig. v Steinhardt Parners, LP., 9 F 3d 230, 235 (2d Cir 1993) submission
(voluntary
of subject memorandum to the SEC waived its work product protection); Matter of Baker, 139 Misc2d
11 matter - Petitioner's
In that case, ADA Levinson was responding on the record to an evidentiary
attempt to impeach his own a police officer - and the resources DANY could utilize to investigate a
witness,
list,"
potential perjury charge. While initially referring to "a which he explained included prior adverse
credibility findings, at no time did he reveal any information contained therein. Id Significantly, no
substantive disclosure was made in that case.
12 The Court went on to explain that like other qualified it may be waived; such as when
privileges,
respondent elected to present an investigator as a witness to contrast his recollection of contested statements
with that of the prosecution's witness. In that instance, he waived the privilege only with respect to matters
covered in his testimony. Id
12
13 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
573, 575 (Sup Ct Nassau Co 1988) ("disclosure of a document protected by the work-product rule
"list"
II. DANY had a proper basis to deny a request for a not in its possession and properly
certified due diligence; nor was DANY reauired to create a list. since to do so would require
unreasonable effort.
23. Petitioner's FOIL request, without reference to any particular case or witness, broadly
requested "the list of police officers...indicating an adverse credibility finding...". (VP Exh B.) Both
RAO Gray and AO Roque examined the relevant spreadsheet and concluded, as did I, that it is not a
"list."
Seegenerally (VP Exhs. E and G). Acknowledging the reality that "an agency cannot produce that
possess,"
which it does not the FOIL statute permits an agency to deny a request on this ground, if
the denial contains a certification by the RAO that the agency either does not have possession of the
records or cannot locate them after conducting a diligent search. POL §89(3); Rattley v NYPD, 96
NY2d 873, 875 (2001). That is exactly what RAO Gray did in this case.
"list,"
that simply because he or other ADAs have colloquially referred to a the requested information
must therefore exist in that form - falls given confirmation ADA who
flat, especially by King, currently
maintains the excel spreadsheet, that the information requested is kept and maintained in a different
"list"
format from which a is not readily identifiable. And, as explained below, because the spreadsheet
is interspersed with attorney notes, opinions, and other confidential and private information (which is
exempt from FOIL on the various substantive grounds described herein), it cannot be reasonably
segregated into a topical list. Semantics aside, Petitioner has failed to show by more than speculation
documents"
that "all responsive (i.e. a list) were not produced. See Corbin v Ward, 160 AD2d 596 (1st
Dept 1990); Matter of Moore v Santucci, 151 AD2d 677 (2d Dept 1989). Here, Petitioner simply
13
14 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
25. Furthermore, FOIL does not require an officer to create a new record or compile
information in order to comply with a FOIL request, especially where it would create an unreasonable
burden on the agency. POL §89(3); Matter of Data Tn·e LLC v Romaine, 9 NY3d 454, 464-5 (2007)
(redactions on privacy grounds create undue burden); DiRose v NYSDOC, 216 AD2d 691 (3d Dept 1995)
(list of inmates requires creation of new record); see also Matter of Jones v NYPD, 2013 NY Misc LEXIS
2301 *2-3, 2013 NY Slip Op 31167(U)(Sup Ct NY Co 2013) (offer of proof fails to establish records
are in respondent's possession; agency not required to create or recreate records in order to comply
with FOIL); Matter of Urban Justice Center v NYPD, 2010 NY Misc LEXIS 4258 *16-18, 2010 NY Slip
Op 32400(U)(Sup Ct NY Co 2010). Here, the spreadsheet in question was designed to pool together
various types of information. As a practical matter, a list cannot be reasonably created from the
findings."
spreadsheet in part because there is no data field just for "adverse credibility Id.;N.Y. Comm.
For Occupational Safety & Health v Bloomberg, 72 AD3d 153 (1st Dept 2010) (no comprehensive database);
(3"¹
Matter of Jones v Goord, 35 AD3d 951 Dept 2006), app denied 8 NY3d 808, cert denied 128 S Ct 488 (US
2007) (agency not required to compile a list). And, importantly, since the phrase is used in different
contexts within the spreadsheet, a text search would not produce an accurate result of only formal judicial
adverse credibility findings. Further manual investigation of each entry would be required, creating an
FOIL officer is not required nor equipped to do, and requiring the FOIL officer to make legal assessments
that is not the function of a RAO. Id.; see also Section III (A.).
III. The Court may consider other applicable bases for denial, raised herein, including
insufficient descriotion orovided, the intra-agency exemption. and privacy considerations.
A Insufficient Desenption.
26. In the first instance, Petitioner has failed to meet his burden to reasonably describe
the documents requested so that they can be located. POL §89(3)(a); Matter of Asian Am. Legal
15 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
Defense & Educ. Fund v NYPD, 125 AD3d 531 (1st Dept 2015), le denied 26 NY3d 919 (2016). The
findings,"
FOIL request here, seeking "adverse credibility does not specify a particular police witness
or case - which could be readily searched - but rather uses a legal term of art that is subject to
interpretation for all potential police witnesses DANY may have information on. As explained in
the previous section, the description provided is insufficient for locating and identifying the specific
information sought since the police tracking spreadsheet does not distinguish text that refers to
formal judicial findings and current or pending legal assessments of ADAs. Id.; see e.g. Matter of Bmwn
v DiFiore, 139 AD3d 1048, 1049-50 (2d Dept 2016) (speculation as to existence of undisclosed
statements insufficient to raise factual question as to whether respondents failed to turn them over).
27. Nor does FOIL require a respondent to solicit additional information from a
petitioner to enable respondent to identify documents possibly responsive to a.FOIL request. POL
§89(3) places the burden squarely on the petitioner to reasonably describe the documents requested
(1"
so that they can be located. Mitchell v Slade, 173 AD2d 226, 227 Dept 1991), le denied 78 NY2d
863 (1991). Petitioner has not met that burden in the first instance.
28. In any event, even if the description was sufficient and such information could be
identified and located on the spreadsheet, from which a list could be created, whether a disclosure
was made and whether it would constitute a waiver of the attorney work product privilege as to the
contents of the spreadsheet, necessarily requires a FOIL officer to gather transcripts and engage in
legal analysis, which is not an appropriate function of a RAO. The same would be true for
determining whether text contained in the spreadsheet refers to a judicial adverse credibility finding.
That this request calls for legal analysis on several fronts underscores the fact that the
described"
list/information sought is not "reasonably as that term is defined in FOIL. POL
§89(3)(a); Matter of Bmwn v DiFiore, 139 AD3d 1048, 1050 (2d Dept 2016) (request for "unusual
occurrence addendums...did not reasonably describe the records sought and was properly denied").
15
16 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
described"
FOIL requests which call for legal analysis are not "reasonably and may be denied on
B. Intra-agency Material.
29. The records in question not only constitute attorney work product (as determined by
both the RAO and AO), they constitute intra-agency material that is exempt from FOIL. POL
only¹3
§87(2)(g). As explained above, this spreadsheet was created for internal use and is to be
utilized only in cases where a potential witness in a criminal prosecution is named therein to assist
ADAs in the deliberative process of evaluating the strength of a case and the likelihood of
specific information contained therein is preliminary and represents views or analyses expressed by
others, and includes legal interpretations of court decisions, such as those that may contain adverse
findings.14
credibility It is also incomplete, in that much of the information requires additional
research and legal evaluation before a disclosure decision is made; for this reason, it is deliberative
information exchanged for discussion and legal analysis purposes on a case by case basis, not
"final"
constituting policy decisions. See Matter of Russo v Nassau Co Community College, 81 NY2d 690
Officers'
(1993); see also Matter of Correction Benevolent Assn. v NYC Dept. Of Corrections, 15 AD3d 643,
30. In order to effectively meet its disclosure obligations, it is essential for DANY to be
able to rely upon the opinions and recommendations of its employees in a confidential format and
13 While the spreadsheet does not contain statistical or factual tabulations or data, internal audits, final
agency policy, in some instances, a final disclosure determination made by the Brady/ Giglio Committee is
noted therein. POL §87(2)(g)(i-iv). However, whether the relevant officer testified and the disclosure was
16
17 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
protect the confidential nature of the information relied upon and the deliberative process that goes
into meeting those obligations. That is the very purpose of the intra-agency FOIL exemption. NY
C. Privacy Considerations
31. Once made, a prior adverse credibility finding disclosure, as with other trial-related
disclosures, will certainly enjoy less privacy consideration, perhaps subjecting it to public access via
FOIL. However, that does not mean that any attending privacy concerns would be forevermore
waived, particularly if a motion in limine was granted restricting or prohibiting use of the
information. POL §87(2)(b); De Oliveira v Wagner, 274 AD2d 904, 905 (3d Dept 2000) (disclosure of
lead sheets to defense counsel "does not mandate wholesale disclosure of the information contained
in the sheets under FOIL"); see also People v McHugh, 124 Misc2d 823, 827-28 (Sup Ct Bronx Co
1984) ("a privilege is not waived if the disclosure was by court order subject to a limitation as it its
use") (citation omitted). In weighing the competing interests of public access and individual privacy
under FOIL, the status of the case, nature of the investigation, or type of information contained in a
record may be considered to demonstrate the necessity of protecting privacy rights. Johnson v
NYPD, 257 AD2d 343 (1st Dept 1999), app dismissed 94 NY2d 79 (1999). Because an adverse
may have been made in a case that is sealed or a disclosure about such
credibility finding finding
have be made in a case that is pending or sealed, such finding would be subject to either the
may
sealing statute, CPL §160.50, or to one or more FOIL exemptions. POL §§87(2)(a)(b)(e); see also
Matter of Asian Arner. Legal Defense & Education Fund v NYPD, 41 Misc 3d 471, 479-80 (Sup Ct NY
Co 2013), afd 125 AD3d 531 (1st Dept 2015), le denied 26 NY3d 919 (2016).
32. As pointed out above, since sealed or pending cases are not identified as such in the
spreadsheet, exempt findings cannot be readily extracted therefrom. Even if they could, those
remaining findings may not even constitute Giglio material. Again, an overly cautious disclosure is
17
18 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
not dispositive of the public's interest, especially when balanced against attending limiting or
prohibitive rulings made by the court. It bears repeating that such a disclosure would only be made
when a police officer testifies in a criminal prosecution. Prior to that event, an officer's privacy
considered.15
interest in the subject information should be Nevertheless, privacy considerations
aside, it is not the findings themselves that Petitioner seeks here, but DANY's attorney work
product associated therewith, the latter of which is clearly exempt from FOIL disclosure.
IV. Petitioner is not entitled to attorney's fees and litigation costs because DANY had a
reasonable basis for its initial FOIL denials.
prevailed"
33. Under POL § 89(4)(c), a person, who has "substantially on a FOIL petition
access"
and when "the agency had no reasonable basis for denying to the requested records, may
person."
recover "reasonable attorney's fees and other litigation costs reasonably incurred by such
The purpose of this provision governing attorney's fees is to "create a clear deterrent to unreasonable
delays and denials of access [and thereby] encourage every unit of government to make a good faith
FOIL."
effort to comply with the requirements of Matter of New York Civil Dberties Union v. City of
Saratoga, 87 AD3d 336, 338 (3d Dept 2011)(citation omitted). However, to recover attorney's fees, a
petitioner must show that the agency lacked a reasonable basis in law for withholding the records.
POL §89(4)(c); Matter ofMadeims v New York State Educ. Dept., 30 NY3d 67, 78 (2017). The "reasonable
basis"
requirement ensures that attorney's fees are not awarded in a situation where an agency has a
disagreement"
valid basis for withholding a record, or where there is a "legitimate between the parties
15 Compare decisions a FOIL exemption for statements made to law enforcement non-
finding by
testifying witnesses on privacy and other grounds. See e.g Friedman v Rice, 30 NY3d 461 (2017); Matter of
Moreno v New York Co. DA's Office, 38 AD3d 358 (1st Dept 2007), /v denied9 NY3d 801 (2007).
18
19 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
and a court orders disclosure, attorney's fees should not be awarded so long as there was a "reasonable
basis"
for the initial denial. See Matter of Whijield v Bailey, 91 AD3d 491, 492 (1st Dept 2012); Matter of
Mineo v New York State Police, 119 AD3d 1140, 1142 (3d Dept 2014); Matter of Humane Society of U.S. v
35. Here, Petitioner cannot show that DANY's initial determination of the FOIL petition
lacked a reasonable basis for withholding the requested information/list in the instant case. As
discussed at length, supra, RAO Gray and AO Roque both had a rational basis for relying on the
statutory attorney work product exemption when they initially denied petitioner's FOIL request: the
information sought is attorney work product created in anticipation of litigation and the information
36 Accordingly, since DANY had a reasonable basis for the initial determination of
attorneys'
Petitioner's FOIL request, this Court should not award fees to Petitioner in this case. See
Matter of Whifeld v Bailey, 91 AD3d 491, 492 (1st Dept 2012), le denied 18 NY3d 991 (2012) (initial
" unreasonable'
denial of petitioner's FOIL request was not 'so as to justify an award of costs to
petitioner"); Matter of Humane Society of United States v Fanslau, 54 AD3d 537, 539 (3d Dept 2008)
(same); see also Matter of Urac Corp. v PSC, 223 AD2d 906, 908 (3d Dept 1996) (upholding denial of
attorneys'
fees "in light of evidence of confusion and possible misunderstanding involved in the
Department's efforts to comply with petitioner's request"); Matter of Maddux, 64 AD3d 1069, 1070
(3d Dept 2009) (upholding denial of attorney's fees where respondent had a reasonable basis for
initial denial of the FOIL petition, then voluntarily provided a response after the Article 78 was
brought). After all, the instant case is hardly one that involved the kind of arbitrary denial of access
and unreasonable delay that attorney's fees awarded under FOIL are meant to prevent. Cf Matter of
New York Civil Liberties Union v City of Saratoga Springs, 87 AD3d 336, 339-40 (attorney's fees
19
20 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
warranted where the respondent engaged in delaying tactics, failed to offer any excuse for failure to
efforts"
respond to FOIL request, and only disclosed documents after "substantial by the
timely
Robin A. McCabe
Assistant District Attorney
Senior Investigative Counsel
20
21 of 22
FILED: NEW YORK COUNTY CLERK 11/26/2018 02:17 PM INDEX NO. 159740/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/26/2018
VERIFICATION
ROBIN A. McCABE, being duly sworn, deposes and says that she has read the foregoing Answer
and knows the contents thereof, that the historical facts alleged therein are true to her own knowledge,
except as to matters therein stated to be alleged upon information and belief, and that as to those matters
she believes them to be true. She further states that she makes this affidavit of verification by virtue of
Robin A. McCabe
Notary Public
21
22 of 22