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Article 78 proceedings

This is an Article 78 proceeding filed by petitioner UJC against the respondents, the New York Police Department (NYPD) and its commissioner, to compel the production of records relating to raids on certain bondage, dominance, sadism and masochism (BDSM) establishments, pursuant to New York’s Freedom of Information Law (FOIL) (Public Officers Law, “POL” §§ 84-90), and for attorneys’ fees and costs.

The background facts are as follows:

Petitioner UJC is a New York not-for-profit legal and social services corporation. It has several divisions and one of which is the Sex Crimes Workers Project. This division is engaged in protecting the rights of people referred to as “sex workers,” people profiled as “sex workers” and victims of human trafficking.

On 29 September 2008, UJC made a FOIL request to NYPD for certain documents relating to raids conducted between April and September of 2008 by NYPD on BDSM establishments. The request for the production of records fell into two distinct categories: training manuals as to arrests for prostitution (Category 1); and, memos and manuals of policies and investigation records of bondage and domination establishments (Category 2).

On 9 October 2009, with regard to the Category 1 documents, NYPD produced the document entitled “Patrol Guide, Procedure No.: 208-44, Prostitution” but withheld the other located responsive records (nine pages of the Manual) and stated that it fell under the exemptions because the disclosure would impede law enforcement process (New York Public Officer Law (POL)), particularly: disclosure would reveal non-routine criminal investigative techniques and procedures (POL §87 (e)(iv)); and, disclosure could endanger the life or safety of any person (POL §87 (2)(f)). With regard to the Category 2 documents, NYPD denied the request stated that it could not locate the requested records because they were not “reasonably described.”

On 6 November 2009, UJC appealed the NYPD’s determination on the following grounds: NYPD did not justify the invoked exemptions as required by FOIL; the exemptions do not apply; and, the prostitution arrests-related records and the records of BDSM investigations exist and must be disclosed.

On 28 December 2009, the appeal was denied by the Records Access Appeals Officer (RAAO).

Consequently, on or about 15 April 2010, UJC filed the instant petition, pursuant to CPLR §7806, and sought for an order, pursuant to POL §89, compelling the NYPD and its Commissioner to comply with the disclosure of the records sought in the FOIL request, with attorney’s fees and costs.

The Criminal Court decided as follows:

On the issue of lack of personal jurisdiction over the Police Commissioner:

It is undisputed that the Court lacked personal jurisdiction over NYPD’s Commissioner. In any event, personal delivery of the notice of petition and the petition to the Office of the Corporation Counsel as service upon NYPD was ineffective to obtain jurisdiction over its Commissioner.

Under the rules, in order to obtain personal jurisdiction over a party, strict compliance with the service requirements is necessary and, “the petitioner has the burden of proving that service was properly made.” “The service of process upon [the Corporation Counsel] without personal service upon the [Police] Commissioner or an agent specifically designated to receive process on his behalf is inadequate to gain personal jurisdiction over the Commissioner.”

Here, UJC did not serve the notice or the petition upon the Police Commissioner and, without any indication as to whether the New York City Corporation Counsel acts as an agent for service of process for the Commissioner in his official capacity, the delivery of papers to the New York City Office of the Corporation Counsel was insufficient as to the Commissioner. Clearly, UJC did not comply with the statutory requirement of serving each respondent herein. Furthermore, “official-capacity suit” generally represent only another way of pleading an action against an entity of which an officer is an agent. Indeed, the instant petition appeared to be completely devoid of any specific factual allegations against the Commissioner. Apparently, UJC seemed to have added him as respondent only because of his title in the NYPD. Thus, the portion of the petition as against him was dismissed.

On the issue of the FOIL request:

In Article 78 proceedings, the usual standard of review that “the agency’s determination will not be set aside unless arbitrary or capricious or without rational basis” is not applicable. Rather, the agency resisting disclosure must prove entitlement to one of the exceptions. FOIL is based upon the policy that agency records are presumptively available to members of the public, unless the agency establishes that the records fall within the enumerated exemptions of POL §87 (2). Thus, the burden rests on the agency to demonstrate the applicability of an exemption. The agency “must show that the requested information ‘falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access'”.

Affidavits merely repeating the statutory phrasing of an exemption are insufficient to establish the requirement of particularity. 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.

Under POL §89 (3)(a), on diligent search, “when an agency is unable to locate documents properly requested, the statute requires the agency to certify that it does not have possession of [a requested] record or that such record cannot be found after diligent search.” Nonetheless, there was no specific manner in which an agency must certify that documents cannot be located. Once the agency certifies to the court that it had provided the petitioner with all responsive documents in its possession, the petitioner is then required to “articulate a demonstrable factual basis to support its contention that the requested documents exist and are within the agency’s control.”

Here, the Criminal Court first ruled on the Category 2 documents.

The second part of Category 2 information sought by UJC was not specifically included in their FOIL request or appeal but was sufficiently identified in the media reports, which indeed, supplied a lot of details: names of the arrested, locations of the BDSM establishments and dates of the raids and/or arrests at issue. This provided NYPD with the search criteria it claimed to be necessary for locating and identifying the documents sought. Nonetheless, NYPD was not opposed to UJC making a new, more specific request.

At oral argument, in light of the court’s discussion and directive for a search of the second part of Category 2 records, UJC sought to amend the FOIL request to include: a specific category of time and location to possibly facilitate NYPD’s ability to meaningfully respond. The application was granted and the FOIL request was to be limited to (1) the Borough of Manhattan; and (2) the period from September 2006 through September 2008. It was then directed that NYPD conduct a diligent search for the second part Category 2 documents in accordance with the amended FOIL request and produce the responsive documents, reserving all rights; and, to submit a fact affidavit detailing the “burdensomeness” of said request, if applicable.

The Court next ruled on the Category 1 documents.

First, on the ground that disclosure would impede law enforcement:

Category 1 documents withheld by NYPD were clearly protected from disclosure pursuant to POL §87 (e)(iv). As the law provides, NYPD’s files are exempt from disclosure if the disclosure of such files would reveal non-routine criminal investigative techniques or procedures. “The purpose of the exemption provided by Public Officers Law §87 (2) (e) (iv) is to prevent violators of the law from being apprised of non-routine procedures by which law enforcement officials gather information”.

Undercover operations, even though widely used and time-tested, are nevertheless non-routine. Indeed, detailed specialized methods of conducting an investigation into the activities of a specialized area of criminal enforcement in which, as here, voluntary compliance with the law has been less than exemplary and have been held “non-routine”. Similar to undercover techniques and procedures, i.e., the situations in which “the very function to be performed presumes secrecy as to the manner of its performance,” federal courts held that the mechanics of an F.B.I, “stakeout” arrangement be properly excluded from disclosure under the federal Freedom of Information Act; Cox v U.S. Dept. of Justice [CA Mo 1978], citing the case of Hawkes v Internal Revenue Service [6th Cir 1972]).

Here, the subject Manual merely “clarifies the law” encouraging “knowledgeable and voluntary compliance.” It relates to the investigation process of illegal prostitution activity and contains neither the material that would encourage compliance with the prostitution law, nor does it clarify whether bondage and domination are considered ‘sexual conduct’ within the meaning of the New York prostitution laws. Nevertheless, as NYPD has established, disclosing the nine pages of the Manual would raise a substantial likelihood that persons engaged in prostitution-related activity would be alert to the investigative techniques and would deliberately tailor their conduct so as to avoid detection or prosecution, thus, seriously compromising NYPD’s future undercover investigations.

Clearly, NYPD has met its burden of invoking the exemptions, sufficiently articulating “particularized and specific justification” for such exemptions. Hence, NYPD’s exemption from production of the nine pages of the Manual on this ground was proper.

Second, on the ground that disclosure would endanger the life or safety of police officers:

Here, the highly discreet nature of the information contained in the nine pages of the Manual, instructing an undercover police officer on the specific behavior in a highly specific environment of the world of prostitution, if publicly known, could allow potential perpetrators to discern the factors and signals which could identify the officer as an undercover, thereby posing a risk of danger to his or her life or safety, or even the life or safety of “sex workers.” “Pulling any individual ‘thread’ of an undercover operation may unravel the entire ‘fabric’ that could lead to identifying an undercover officer.” Revealing the specific practices, language and equipment used by undercover police officers would make them easily identifiable and, therefore, at greater risk for danger or violence. As held in Matter of Stroma v Hoke, “it is not required to prove that a danger to a person’s life or safety will occur if the information is made public. Rather, there need only be a possibility that such information would endanger the lives or safety of individuals.” NYPD clearly showed that such possibility exists.

Clearly, NYPD has met its burden of establishing that the submitted nine pages of the Manual were also exempt under (POL §87 (2)(f)) as their disclosure could endanger the life or safety of persons and “pose the very risk of harm covered by the exemption.” Hence, the denial on this ground was proper.

In sum, the petition to compel respondents to produce the documents requested pursuant to FOIL was granted solely as to Category 2 documents and denied as to Category 1.

On the issue of attorneys’ fees:

As provided for under POL §89(4)(c), the court may assess, against such agency involved, reasonable attorney’s fees and other litigation costs reasonably incurred by such person in any case in which such person has substantially prevailed, when: (1) the agency had no reasonable basis for denying access; or (2) the agency failed to respond to a request or appeal within the statutory time. However, even if a party meets those requirements, award of attorney fees remains discretionary with Supreme Court.

Here, NYPD had a reasonable basis for denying access to the records at issue, and petitioner did not substantially prevail in this proceeding, notwithstanding the Court’s direction that a limited category of documents be produced. Hence, UJC’s request for attorneys’ fees was denied as unwarranted.

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