Petitioners Attorney Kenneth Puig and the Law Office of Kenneth Puig’s Freedom of Information Law Request (collectively referred to as “Petitioner”) commenced this proceeding pursuant to CPLR article 78 against Respondents New York State Police (NYSP) and Kevin P. Bruen, Superintendent of NYSP (collectively referred to as “Respondent”) seeking (1) to compel Respondent to disclose “police disciplinary/misconduct records of active New York State Police Troopers assigned to Orange, Dutchess, and Ulster counties” pursuant to the Freedom of Information Law (FOIL) (see Public Officers Law art 6); (2) to compel Respondent to be “trained or retrained to comply with their obligations under [FOIL]“; and (3) an award of attorneys’ fees and litigation costs (Verified Petition 1). FACTS/PROCEDURAL HISTORY The facts of this proceeding are set forth in this Court’s previous Decision, Order and Judgment dated November 10, 2022, and entered November 17, 2022. In that Decision, Order and Judgment, this Court, as relevant here, denied the petition and dismissed the proceeding on the ground Petitioner’s modified FOIL request for “police disciplinary/misconduct records of active New York State Police Troopers assigned to Orange, Dutchess, and Ulster counties” did not reasonably describe the records sought to enable Respondent to identify and locate the documents as is required under Public Officers Law §89 (3) (a). Specifically, this Court determined that the description of the documents “by county” was insufficient for purposes of locating and identifying the documents based upon Respondent’s representations that disciplinary records are maintained within the file of each individual employee; Respondent does not file, maintain or index employee records by what county within which they work; and Respondent is unable to search for disciplinary records based on the county a member is assigned to work because the personnel database utilized to query the work location of members does not include the ability to search by county. As this Court denied the release of the requested documents, the request for attorneys’ fees and costs was also denied. By Decision and Order dated and entered on January 19, 2023, the Appellate Division, Third Department modified the judgment “by reversing so much thereof as denied [P]etitioner’s modified requests for records, counsel fees and costs” and remitted the matter to this Court for further proceedings (Matter of Puig v. New York State Police, 212 AD3d 1025, 1027-1028 [3d Dept 2023]). The Third Department observed “that the three counties at issue in [P]etitioner’s modified request are served by only two of [R]espondent’s 11 troops — Troop F and Troop K” and troopers are assigned to work within a specific troop (id. at 1027). The Appellate Division held that “given that the records sought by [P]etitioner are confined to two identifiable troops,…the description in [P]etitioner’s modified request was reasonable and sufficiently detailed to enable [R]espondent to locate and identify the requested records” (id.). However, the Third Department concluded that the issue of whether the request was unduly burdensome was a separate issue that was not fully developed on the record on appeal. Consequently, this matter was remitted to this Court “for a determination as to whether it would be unduly burdensome for [R]espondent to comply with [P]etitioner’s modified request” and for reconsideration of whether Petitioner was entitled to counsel fees and costs under Public Officers Law §89 (4) (c) (ii) (id.). By Order dated February 21, 2023, this Court permitted the parties to submit supplemental briefs on the issues remitted. By electronic mail dated April 27, 2023, this Court permitted Respondent to submit a reply and, by letter dated May 2, 2023, this Court permitted Petitioner to submit a sur reply. ARGUMENTS In support of its contention that Petitioner’s modified request is unduly burdensome, Respondent principally relies upon affirmations of Shannon M. Brundige, Esq., Assistant Counsel for NYSP. Ms. Brundige initially represents that there are 958 total employees assigned to Troops F and K as of March 1, 2023 (see Affirmation of Shannon M. Brundige, Esq. dated March 22, 2023 [Brundige II Aff] 4). Of those 958 employees, there are 868 troopers of all ranks (see id.). Ms. Brundige indicates that since Petitioner’s FOIL request and appeal were processed by NYSP, its personnel database system was updated to permit searches to identify stations or barracks physically located within a specific county (see id. 5). Ms. Brundige explains that “[e]ach NYSP Troop is made up of two to four zones and then numerous stations within those zones, with each specific station given a unique identifier consisting of the Troop, Zone, Station (TZS) code” (id.). Ms. Brundige compiled a list of all TZS with a physical address in one of the three counties subject to Petitioner’s modified request and discovered Orange, Dutchess, and Ulster counties collectively contain 96 TZS with a total of 663 employees (id. 7). Of the 663 employees, 579 are sworn troopers of all ranks (see id.). Ms. Brundige qualifies these statistics by noting that they do not account for employees who may work in a different county at any given time or those personnel who may be transferred at any given time (see id.
7-8). Ms. Brundige explains that disciplinary records are indexed by individual employee and, thus, a search for the records subject to Petitioner’s modified FOIL request “would require an individualized and comprehensive review of personnel related files for all employees assigned to the locations identified by the [P]etitioner’s modified request” (id. 12). Ms. Brundige estimates “[t]he scope of records pertaining to any specific matter can vary from as little as 20 pages up to hundreds of pages” (id. 10). Ms. Brundige further maintains that once responsive documents are located, each record must be reviewed and evaluated to determine if it contains confidential, privileged, or exempt information subject to redactions (see id.
