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Petitioner contends that PD has not performed a diligent search


In this Sex Crime, Petitioner commenced this Article 78 proceeding against the respondents Police Department (PD) and its Commissioner to compel the production of records relating to raids on certain bondage, dominance, sadism and masochism establishments, pursuant to New York’s Freedom of Information Law (“FOIL”), and for attorneys’ fees and costs related to this action.

A New York Criminal lawyer said that is a New York not-for-profit legal and social services corporation. One of its divisions, Sex Workers Project, is engaged in protecting the rights of people referred to as “sex workers,” people profiled as “sex workers” and victims of human trafficking. Thereafter, in 2008, Petitioner made a FOIL request to PD for certain documents relating to raids conducted between April and September of 2008 by the Police District on BDSM establishments.

Petitioner’s request sought the production of records that fell into two distinct categories: (1) training manuals as to arrests for prostitution and (2) memos and manuals of policies and investigation records of bondage and domination establishments. No arson and no assault were involved.

In October 2009, in response to the portion of the request for Category 1 documents, PD produced a document entitled “Patrol Guide, Procedure No.: 208-44, Prostitution” (the “Guide”), while withholding other located responsive records under two claimed exemptions, pursuant to New York Public Officer Law (“POL”). As to the portion of the request for Category 2 documents, for investigation of BDSM establishments or persons, PD denied the request on the basis that it could not.locate the requested records because they were not “reasonably described” by Petitioner.

A Nassau County Criminal attorney said that, Petitioner appealed PD’s determination on several grounds: (1) that PD did not justify the invoked exemptions as required by FOIL, (2) the exemptions do not apply and (3) the prostitution arrests-related records and the records of BDSM investigations “do exist and must be disclosed.” In December 2009, the Records Access Appeals Officer denied Petitioner’s appeal. As a result, PETITIONER filed this petition, pursuant to CPLR §7806, seeking an order compelling PD and the officer to comply with the disclosure of the records sought in the FOIL request and awarding attorney’s fees and costs pursuant to POL §89.

Petitioner’s main contentions are that: (1) with respect to Category 1 records, the exemptions do not apply; (2) PD has not adequately articulated the justification for these exemptions and (3) additional records exist and must be disclosed.

Petitioner argues that PD asserted the exemptions by merely reciting the statute without providing “particularized and specific justification” for the exemptions, as required by the statute. PD did not explain how and why disclosure of these instructional and training materials would impede the enforcement process or endanger individual police officers.

The exemptions do not apply because disclosure of the training manual for prostitution arrests will not impede the enforcement process as it is simply “instructing the police officers how to correctly apply the law.” Prostitution arrests during the PD’s raids of the BDSM establishments “raise the question of whether the PD considers bondage and domination to be included in the category of sex crime, a ‘sexual conduct’ within the meaning of the statute,” and sexual workers “have a right to know what the PD considers to be prostitution.” Petitioner further argues that prostitution arrests in the form of “sting” operations, raids using the undercovers and street “sweeps,” are commonly known to the public, and thus, are “routine” techniques. While some portions of the Guide may be exempt as non-routine investigative techniques, other documents, which merely clarify laws and routine procedures, should be disclosed.

Petitioner seeks “only general, procedural, policy-oriented documents,” and not any individuals’ names or locations. And, the risk of danger, if any, that police officers could be identified may be avoided by redacting the names or other identifying details.

PD contends that the petition should be dismissed as moot as it has fully complied with its obligations under FOIL by performing a diligent search and disclosing all non-exempt responsive records; it has certified that no other records were located as a result of the diligent search, and Category 2 records were not “reasonably described” for PD to conduct a diligent search of those records.

Petitioner contends that PD has not performed a diligent search of either categories of the requested documents. With respect to the first category, Petitioner argues that, in view of numerous arrests for prostitution, “it is inconceivable” that only ten pages of documents are in PD’s possession.

Next, Petitioner argues that not all of the records in the Category 1 of the request are exempt under §87 (2)(e)(iv). Given the vagueness of the prostitution laws, the disclosure of such documents would help individuals comply with the law. In addition, it would alleviate the potential danger to the public health since, as part of its practice during prostitution arrests, PD collects condoms as evidence from sexual workers. Not all prostitution arrests are carried out by undercover officers, thus, the disclosure will have no detrimental effect on PD’s undercover operations.

Further, Petitioner reiterates that it does not seek to reveal the identities of the officers; disclosure of the information would not be used by convicted felons or terrorists, but sex workers or those at risk of being arrested for prostitution; as such, the disclosure would not endanger life or safety of any person.

And, with respect to the second category of records, Petitioner argues that PD has not established that the requested records do not exist. Petitioner does not seek case specific information, “but broader policy-related records related to these types of cases.” The 2008 raids must have occurred as a result of some new initiative by PD decision-makers, and Petitioner finds it “inconceivable that these raids were carried out without a single page of instruction or other writing.”

Finally, PETITIONER argues that the news reports attached to its petition contain ample information to serve as the criteria which PD has claimed to be necessary in order to perform a more effective search.

As an initial matter, the Court notes that Petitioner does not dispute this court’s lack of personal jurisdiction over the officer. In any event, the Court determines that personal delivery of the notice of petition and the petition to the Office of the Corporation Counsel as service upon PD was ineffective to obtain jurisdiction over the officer.

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 Commissioner or an agent specifically designated to receive process on his behalf is inadequate to gain personal jurisdiction over the Commissioner (CPLR §7804 (c) [In an Article 78 proceeding, a notice of petition must be served on any adverse party;

Petitioner has not served the notice or the petition upon the Commissioner and, absent 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 is insufficient as to the Commissioner. Therefore, Petitioner has not complied with the statutory requirement of serving each respondent herein.

Moreover, “official-capacity suits,” as here, “generally represent only another way of pleading an action against an entity of which an officer is an agent” Indeed, the instant petition appears to be completely devoid of any specific factual allegations against the officer, whom Petitioner seems to have added as respondent only because of his title in the PD. Thus, the portion of the petition as against the officer is dismissed.

In the instant proceeding, Petitioner’s request seeks the production of records that fall into two distinct categories. Category 1 documents were produced, except as to those documents allegedly protected from disclosure under the POL exemptions discussed. However, PD denied the request as to Category 2 documents on the ground that they were not reasonably described as required by POL § 89(3)(a) for PD to perform the search.

“When an agency is unable to locate documents properly requested under POL§89(3), 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. The statute does not specify the 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 required to “articulate a demonstrable factual basis to support its contention that the requested documents exist and are within the agency’s control”.

While the court is not unconcerned with the factual data presented by Petitioner in regards to the large number of prostitution arrests in New York City between 2005 and 2008, Petitioner’s argument that more than ten pages of responsive documents in Category 1 exist because prostitution investigations and arrests are “a significant part of the daily operations of the PD,” and that “it is inconceivable that only ten pages are in the Department’s possession,” is simply insufficient to support a finding that further documents responsive to the Category 1 of the request are in PD’s possession claims to the contrary, there was no demonstrable basis to support a finding that further documents responsive to petitioner’s request were in the agency’s possession;. The number of arrests performed do not bear any relation to the guidelines under which such arrests were performed. In other words, be it 10 or 1000, the number of persons violating the law as such law is expressed in PD guidelines or instructions does not reflect any greater or lesser number of guidelines or instructions. Thus, the court concludes that PD adequately established the non-existence of additional responsive records in Category 1. B. Category 2

As to whether Petitioner properly described the documents in its FOIL request, POL §89 (3)(a) places the burden on the petitioner to “reasonably describe” the documents requested so that a search can be made by the agency by supplying the information required to retrieve the requested documents.

Here, PD asserts that a search of the second part of Category 2 documents could not be performed since the description of the records provided by Petitioner was inadequate because its computer database does not have a key word search capability, and instead, can be searched by the location of an incident, a complaint number, a precinct of occurrence or an incident date or a case number.

At the oral argument, PD posited that the FOIL searches discussed above might prove to be burdensome. The court directed PD to submit a fact affidavit detailing the “burdensomeness” of said request, if applicable.

Based on the foregoing, the Court hereby ORDERED and ADJUDGED that the Article 78 petition for an order compelling the respondents New York Police Department and the Commissioner of the New York City Police Department to produce documents requested pursuant to New York’s Freedom of Information Law, is granted solely to the extent that PD shall conduct a search of the second part of Category 2 documents and provide a response to the request for such documents within 90 days of the date of this Order. Oral application by petitioner to amend the FOIL request is granted and the FOIL request is to be limited to: (1) the Borough of Manhattan; and (2) the period from September 2006 through September 2008.

For legal problems, contact us here in Stephen Bilkis and Associates. We have our Nassau County Criminal attorneys who handled various cases with positive feedbacks. Specifically, our Nassau County Sex Crimes lawyers handles these kind of cases with due care and diligence.

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