You are on page 1of 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

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK: CIVIL TERM

In the Matter of the Application of

ANDREW M. STENGEL,

Petitioner,

For a Judgment Under CPLR Article 78,

-against-

CYRUS VANCE, JR. in his official capacity as District Attorney of New York

County, and SUSAN ROQUE,

Respondents.

VERIFIED ANSWER

Index No. 159740/2018

NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE


One Hogan Place

New York, New York 10013

(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

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK: CIVIL TERM

In the Matter of the Application of


Index No. 159740/2018

ANDREW M. STENGEL, (Eileen Rakower, J.)


Petitioner, Calendar Date: Nov. 30, 2018

For a Judgment Pursuant to Article 78 of


the Civil Practice Law and Rules VERIFIED ANSWER

-against-

CYRUS VANCE, JR., in his official capacity as

District Attorney of New York County,


And SUSAN ROQUE,

Respondents.

ROBIN A. McCABE, an attorney duly admitted to practice law in the courts of this state,

states under penalty of perjury that:

1. I am an Assistant District Attorney ("ADA"), of counsel to Cyrus R. Vance, Jr.,

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

are not specifically admitted should be deemed denied.

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

informed about its status. Jee (VP, Exhs. C and D).

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

Bureau, who could be reached at the same address. Id. at p. 2.

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

not disclose any substantive information. See (VP, Exh G. at p. 2).

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

reasonable basis to deny access.

STANDARD OF REVIEW

9. Initially, review of an administrative denial of a FOIL request in an Article 78

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

to grounds invoked by agency not applicable in an Article 78 proceeding involving a writ of

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.

1 are inapplicable. For example,


Both cases cited by Plaintiff on this point the Court of Appeals case,
Madeiros v New York State Educ. Dept., 30 NY3d 67 (2017), refers to new grounds raised for first time in an
appeal of an Article 78 judgment, not the Article 78 proceeding itself.
2 Note: The section of CPLR 3101 cited by RAO Gray, contains within it protection of attorney work
product in materials prepared in anticipation of litigation, as follows: "...the court shall protect against

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

A Pr -disclosure Attorney Work Product and Deliberative Matenal.

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

prosecution. In addition, there is no indication on the spreadsheet if a criminal prosecution case, in

sealed.5
which an adverse credibility finding was made, has been

14. Recently DANY developed an internal information/database search application for

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

involving an underlying adverse credibility finding.

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

Brady/ Giglio Committee.

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

admitted Petitioner in his Verified paragraphs 21 - 23. that this


essentially by Petition, Thus,

compilation of information has the potential for disclosure further illustrates that it should be

categorized internal work product of an attorney. Winfeld v City 15-cv-


as the Cf of New York, No.

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

context. See (VP Exh. G, p. 2).

18. In general, Brady/Gglio material is defined as information tending to exculpate a

defendant or impeaching information relating to a prosecution witness whose reliability may be

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

adverse credibility finding with respect to law enforcement witnesses.

B. Waiver By Prior Disclosure.

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

does not result in a waiver of the privilege as to other documents").

"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.

24. Petitioner's effort to undermine the RAO's affirmation of due diligence -


by reasoning

"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

requested a list that does not exist.

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

undue burden on the - if the subject case is pending or which a


agency including determining sealed,

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

that basis alone. Id.

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

prosecution and as well as determining disclosure obligations in an assigned case. Oftentimes

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

process material. As such, the spreadsheet consists of pre-decisional communications and

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,

644 (1st Dept 2018).

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

ultimately made is not tabulated in the database.


14 The database also includes private information subject to redaction under POL §87(2)(b).

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

Times Co. v NYC Fire Dep't., 4 NY3d 477, 488 (2005).

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

regarding the disclosure of the requested material. Id.

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

34. Even if an agency is ultimately unsuccessful in asserting a particular FOIL exemption

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

Fanslau, 54 AD3d 537, 538 (3d Dept 2008).

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

is not in list form.

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

petitioner and "repeated interventions by the court").

WHEREFORE, the petition for a judgment pursuant to CPLR Article 78 should be

dismissed and the relief sought denied.

Dated: New York, New York


November 26, 2018

Robin A. McCabe
Assistant District Attorney
Senior Investigative Counsel

Attorney for Respondents

cc: Henry Bell, Esq. (via NYSCEF and U.S. Mail)


Attorney for Petitioner

747 Third Avenue, Second Floor


New York, NY 10017

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

STATE OF NEW YORK }


} ss.:
COUNTY OF NEW YORK }

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

CPLR §3020(d)(2) and §3021.

Robin A. McCabe

Sworn to and subscribed before me


26"
this day of November, 2018

Notary Public

EVA MARIE DOWDELL


Notary Public, State of New York
Registration #02D06258131
Qualified In Bronx County
Commission Expires March 26, 20/J)

21

22 of 22