Papers considered: 1. Notice of Petition dated August 4, 2023, Petition of Diana E. Benoit dated August 4, 2023 with Exhibits A-O and Memorandum of Law in Support. 2. Answer dated October 13, 2023, with Exhibits A-J, Affirmation of Shannon M. Brundige, Esq., in Opposition, dated October 13, 2023, and Memorandum of Law in Opposition. 3. Reply Affirmation of Daniel A. Benoit, Esq., dated October 20, 2023 and Supplemental Memorandum of Law. DECISION/ORDER Petitioner, Diana E. Benoit, brings this Petition pursuant to Article 78 of the CPLR to compel the production of records maintained by the Respondent, New York State Police, (“NYSP”), pursuant to the Freedom of Information Law (“FOIL”), Public Officers Law §§84, et seq., and seeks an award of counsel fees. NYSP opposes. BACKGROUND Benoit is a retired NYSP Bureau of Criminal Investigation (“BCI”) Senior Investigator who, in the Fall of 2018, announced her candidacy for Greene County Sheriff in the 2019 general election seeking the Republican, Conservative and Independence Parties’ nomination. At the same time, another NYSP Senior Investigator, Peter J. Kusminsky, assigned to the NYSP Catskill Station, was intending to seek the nomination for the same position from the same political parties. Benoit was approached by Investigator Stephan Williams, an investigator under Kusminsky’s command, who alleged that another investigator at NYSP Catskill Station, Joseph Caputo, had been stealing gun parts and accessories from firearms stored at NYSP Catskill’s BCI evidence locker. Williams told Benoit that Kusminsky was aware of Caputo’s alleged thefts but failed to investigate same or report the allegations to his superiors. Over the ensuing months, Benoit was in contact with Williams to obtain information regarding the specific cases involved before making a report to the NYSP Professional Standards Unit (“PSU”), also referred to as the Internal Affairs Bureau (“IAB”). In early 2019, Benoit reported the alleged evidence locker thefts to the NYS Attorney General’s Office, who in turn provided information to the PSU, which then commenced an internal investigation on or about March 15, 2019. Benoit provided evidentiary materials to the PSU. Shortly thereafter, Kusminsky retired from NYSP and officially announced his candidacy for the position of Greene County Sheriff. On November 6, 2019, believing that the PSU’s investigation had concluded, Benoit emailed a FOIL request to the NYSP FOIL unit, requesting “the entirety of the records” relating to the investigation. The NYSP FOIL unit acknowledged receipt of the FOIL request and advised that a written response would be provided on or before April 30, 2020. When no response was received by June 10, 2020, Benoit requested status of same. When Benoit received no answer to her June 10, 2020, status request, she wrote to the NYSP Records Appeal Officer (first appeal) asserting that the failure to respond was a constructive denial of her FOIL request. By letter dated September 8, 2020, NYSP Records Access Officer, Major Frank Keyser, provided 3 pages of records and stated that additional responsive records existed but did not provide same. Keyser advised that more time was needed to “determine releasability”, and that a further response would be forthcoming by October 2, 2020, unless notified otherwise in writing. Keyser failed to provide any further records by October 2, 2020, and did not otherwise notify Benoit in writing of any further information. By letter dated November 3, 2020, Benoit appealed (second appeal) the constructive denial. In response, Lt. Col. Scott A. Wilcox advised that Benoit’s second appeal was being held in abeyance “in light of pending litigation regarding the impact of the repeal of Civil Rights Law 50-a”. Following the voluntary dismissal with prejudice of the relevant litigation, Benoit reached out to Wilcox for the requested records. In response, Lt. Col. George K. Nohai advised that a written determination would be sent by July 16, 2021. On July 16, 2021, Nohai determined that Benoit’s FOIL request should be granted and he directed the records access officer to provide the requested records by July 30, 2021. Despite the granting of her FOIL request, Benoit received no response for more than a year. By letter dated January 19, 2023, Benoit demanded a response on or before February 15, 2023, or she would consider non-release of the records to be a constructive denial. On February 7, 2023, NYSP provided 162 pages of records. Despite Nohai’s unconditional granting of her FOIL request, Benoit was advised that additional responsive records exist but were being withheld from disclosure because they (1) would constitute an unwarranted invasion of privacy as they pertain to unsubstantiated allegations of misconduct which did not result in any disciplinary action; and/or (2) could endanger the life or safety of the public or members of the NYSP; and/or (3) the records constitute intra-agency material; and/or (4) the records are exempt from disclosure by CPL §§160.50 or 160.55. Benoit then filed a third appeal. By letter dated April 5, 2023, Nohai reversed his earlier, unconditional determination, upholding the grounds asserted for non-disclosure. Benoit then filed this Article 78 petition. PARTIES’ CONTENTIONS Benoit asserts that NYSP bears the burden of proving an entitlement to an exemption from disclosure, which exemptions are to be narrowly construed. To invoke an exemption set forth in Public Officers Law §87(2), an agency must articulate particularized and specific justification for not disclosing requested documents. She contends that the April 5, 2023, denial letter merely restates the statutory exemptions without specificity as to how the requested material falls within the cited exemptions. Additionally, it is not clear what part of the requested records involve sealed criminal dispositions, exempted by CPL §§160.50 or 160.55, as Benoit requested the records of an internal investigation which NYSP says was “determined to be unfounded”. Respondent has failed to meet its burden to demonstrate that there are responsive documents covered by this exemption. Benoit further challenges the assertion that the release of firearm serial numbers are exempt from disclosure because such release would create the possibility of endangerment to the life or safety of the public and/or employees of the NYSP. Respondent has failed to explain how the release of a serial number could endanger anyone. Furthermore, the personal privacy exemption may not be invoked to deny the release of unsubstantiated complaints of police misconduct following the repeal of Civil Rights Law §50-a. The retroactivity of the repeal of Civil Rights Law §50-a may not be raised for the first time in this proceeding where it was not raised as a reason for denial during the administrative phase. Finally, Benoit claims the records which were disclosed contain excessive, unauthorized redactions. NYSP responds by asserting that the administrative report from the investigation, as well as the depositions provided, are exempt from disclosure as an unwarranted invasion of personal privacy in that they pertain to unsubstantiated allegations of criminal misconduct which did not result in any disciplinary actions or charges and are also exempt as intra-agency material. NYSP further contends that the records withheld include 37 Incident Reports involving the confiscation of guns during the relevant time. Eight of those reports are exempt under CPL §§160.50 or 160.55, four concerned responses to mental health situations, and three involve a suicide or attempted suicide. NYSP contends that disposition of the charges in the remaining 22 reports are “not apparent and would have to be obtained” to determine if they had ever been sealed by the court. Benoit, as an investigator in this region would have a “potential familiarity” with the incidents and no amount of redactions could be made “to prevent an unwarranted invasion of the personal privacy of those concerned”. Additionally, NYSP contends that the repeal of Civil Rights Law §50-a may not be applied retroactively to authorize release of law enforcement personnel records created prior to the effective date of the repeal, June 12, 2020. This contention was never raised by NYSP during the administrative process. Furthermore, the recent amendments to POL §86 which include definitions for “law enforcement disciplinary record” and “law enforcement disciplinary proceeding” do not mandate release of all records concerning “the complaints, allegations and charges against [an] employee”. Additionally, NYSP contends that redactions would fail to mitigate the personal privacy concerns because identities and personal information would still be easily deduced by Benoit from the details left unredacted, requiring that the FOIL request be denied as the only way to protect against unwarranted invasion of personal privacy. NYSP asserts that Benoit had not administratively appealed the redactions made to the Personnel Complaint Tracking document and has therefore failed to exhaust her administrative remedies relative to same. Finally, it objects to the award of counsel fees on the ground that it has made good faith objections to disclosure which are supported by abundant legal authority. DISCUSSION/FREEDOM OF INFORMATION LAW FOIL provides the public with broad “access to the records of government” (Public Officers Law §84). “It is settled that FOIL is based on the overriding policy consideration that ‘the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government’ ” (Matter of Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 NY2d 246, 252, 505 NE2d 932, 513 NYS2d 367 [1987]) As a result, the Court of Appeals has required that FOIL “be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government” (Capital Newspapers, 69 NY2d at 252); Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 18 N.Y.3d 652, 656-657, 967 N.E.2d 652, 654, 944 N.Y.S.2d 429, 431 (2012); Matter of Data Tree, LLC v. Romaine, 9 NY3d 454, 462 (2007). An agency must “make available for public inspection and copying all records” unless it can claim a specific exemption to disclosure (see Public Officers Law §87 [2]; §89 [3]). An agency denying access to records bears the burden of demonstrating that the material requested falls within a statutory exemption. See, Public Officers Law §89(5)(e), (f); Matter of West Harlem Bus. Group v. Empire State Dev. Corp., 13 NY3d 882, 885 (2009). In doing so, the agency is required to “articulate particularized and specific justification” for non-disclosure. Id., at 885; Matter of Fink v. Lefkowitz, 47 NY2d 567, 571 (1979); Matter of Data Tree, LLC v. Romaine, 9 NY3d 454, 462-463 (2007). Record Access Officer William H. Gorman’s letter of February 7, 2023, fails to specify which documents fall within each of the four claimed statutory exemptions. This practice was specifically rejected by the Court of Appeals in Matter of West Harlem Bus. Group v. Empire State Dev. Corp., supra, 13 NY3d at 884-885; see also, Matter of Moody’s Corp. & Subsidiaries v. NYS Dept. of Taxation & Fin., 141 AD3d 997, 999 (App. Div. 3 Dept., 2016) (agency’s response must not “merely parrot” the statutory language of the FOIL exemptions but must adequately describe the documents withheld and set forth the reasons for withholding them). Furthermore, Gorman’s letter of February 7, 2023, does not mention Nohai’s July 16, 2021, determination of Benoit’s second appeal, or offer any explanation for his disregarding same. Nohai had approved the disclosure of the requested records without limitation and directed the Records Access Officer to disclose them to Benoit by July 30, 2021. Nohai’s letter of July 16, 2021 states, “[A]fter carefully reviewing your request, the records, and the relevant statutory provisions, I have determined it should be granted.” One and one-half years later, in response to Benoit’s demand letter, some records were provided and a new determination was made, in contravention of Nohai’s decision, to withhold unspecified records citing to the four claimed statutory exemptions noted above. No authority is cited by NYSP justifying its failure to adhere to Nohai’s determination of Benoit’s second appeal. Nohai’s own letter of April 5, 2023, makes no mention of his earlier determination, and provides no reason or legal authority for overruling his own prior determination. Benoit’s third appeal objects to Gorman’s failure to specify the individual responsive records being withheld and failure to identify the specific statutory exemption claimed. Benoit sought “a particularized and specific justification for each and every non-disclosed document, or portion thereof”. Nohai’s determination of the third appeal refers broadly to “the records you seek that were denied” and fails to specify which documents fall within the personal privacy exemption (POL §87[2]). The personal privacy exemption is measured by what would be “offensive and objectionable to a reasonable [person] of ordinary sensibilities”. See, Beyah v. Goord, 309 AD2d 1049 (App. Div. 3 Dept., 2023) (wherein the Third Department held that accident reports which reveal medical histories would constitute an unwarranted invasion of personal privacy). POL §89(2)(b) contains a non-exhaustive list of examples of information which would constitute an unwarranted invasion of personal privacy, none of which are applicable here. Here, Nohai considers the allegations which were the subject of the internal investigation, to wit: the alleged theft of gun parts from the NYSP evidence locker and Kusminsky’s knowledge of same, to be “offensive and objectionable” and thereby determines, because the allegations were unfounded, that the privacy interests of those who provided statements or depositions outweigh the public interest in disclosure of the records. Nohai fails to explain how one who provides information to the police during an official investigation retains a personal privacy interest in the statements provided. This is not akin to the release of medical histories. Also unexplained is how the unidentified records which were withheld to protect personal privacy are distinguished from the 162 pages of records released to Benoit which obviously relate to the same “offensive” allegations. In any event, it has been recently held that the personal privacy exemption under POL §87(2)(b) does not categorically exempt documents from disclosure in a case where the FOIL request concerns release of unsubstantiated allegations or complaints of police misconduct. Mungeer v. Hochul (In re Police Benevolent Ass’n of the NY State Troopers, Inc.), 2022 N.Y. Misc. LEXIS 8031 (Sup. Ct., Albany Co., 2022); relying upon New York Civil Liberties Union v. City of Syracuse, 210 A.D.3d 1401, 2022 NY Slip Op. 06348, 2022 WL 16848033 (App. Div. 4 Dept., 2022); New York Civil Liberties v. City of Rochester, 210 AD3d 1400 (App. Div. 4 Dept., 2022). In the absence of a personal privacy categorical exemption grounded upon allegations of police misconduct determined to be unfounded, NYSP has failed to meet its burden of demonstrating how the personal privacy exemption protects from disclosure specific records generated during this internal police investigation. Similarly, Nohai refers to unnamed individuals within unspecified “criminal reports and related documents attached to the investigation records” who have a “privacy interest associated with the records”. No description of the nature of this privacy interest or how same is relevant to these records is provided, apparently Nohai is concluding that when complaints or reports of police misconduct are unsubstantiated, a blanket personal privacy exemption to disclosure applies pursuant to POL §87(2)(b). Accordingly, the Court determines that NYSP has failed to meet its burden of articulating a particularized and specific ground for exemption. Additionally, Nohai mentions, but does not specifically identify, exempted “records [containing] various serial numbers for weapons associated with incidents documented in the above-referenced criminal reports”. Nohai asserts, without elaboration, that the release of documents mentioning serial numbers of weapons involved in criminal matters creates the possibility of endangerment to life or safety of the general public and/or employees of the NYSP. While it is true that, in applying this exemption, an agency need only demonstrate a possibility of endangerment (see, Prisoners’ Legal Services of New York v. New York State Dept. of Corrections and Community Supervision, 209 AD3d 1208 {App. Div. 3 Dept., 2022]), conclusory characterizations are insufficient to meet an agency’s burden of establishing that the documents are exempt from disclosure. See, Matter of West Harlem Bus. Group v. Empire State Dev. Corp., 13 NY3d at 885. Consequently, NYSP has failed to establish its claim of exemption for records containing the serial numbers of weapons involved in the investigation. Accordingly, NYSP failed to meet its initial burden of properly identifying the documents withheld and explaining how they fall within the statutory exemptions cited. In Moody’s, supra, the Appellate Division, Third Department stated, “Where, as here, a party is challenging an administrative determination to withhold or redact documents that are responsive to a FOIL request, the proper procedure is to commence a CPLR article 78 proceeding where the agency’s burden to “articulat[e] a particularized and specific justification for denying access” (Matter of Rose v. Albany County Dist. Attorney’s Off., 111 AD3d 1123, 1125, 975 NYS2d 258 [2013] [internal quotation marks and citations omitted]) may be satisfied through the submission of the responsive documents with a privilege log (see Matter of Mazzone v. New York State Dept. of Transp., 95 AD3d 1423, 1425, 943 NYS2d 648 [2012]; Matter of Kaufman v. New York State Dept. of Envtl. Conservation, 289 AD2d at 827)”. Moody’s, 141 AD3d at 999. Here, NYSP has failed to submit the responsive documents to this Court with a privilege log. Consequently, the Court is directing NYSP to provide to the Court within 14 days of the date of this Decision/Order all withheld documents for in camera review together with a privilege log identifying the relevant documents which were withheld and describing in detail the basis for the claimed exemption. Additionally, NYSP raises herein, for the first time, an objection to release of police disciplinary records created prior to June 12, 2020, the effective date of the repeal of Civil Rights Law §50-a, on the ground that said repeal does not have retroactive effect. The Court of Appeals has held that “[J]udicial review of an administrative determination is limited to the grounds invoked by the agency” and “the court is powerless to affirm the administrative action by substituting what it considers a more adequate or proper basis”. Matter of Madeiros v. NYS Educ. Dept., 30 NY3d 67, 74 (2017). The Appellate Division, Fourth Department, relying on Madeiros, supra, held that Supreme Court erred in relying on the retroactivity of the repeal of Civil Rights Law §50-a when partially denying the petition on this ground, because same was not a ground relied upon in the agency’s denial of the FOIL request. Matter of New York Civil Liberties Union v. City of Rochester, 210 AD3d 1400, 1400-1401 (App. Div. 4 Dept., 2022), lv to appeal granted, 39 NY3d 915 (2023). (Cf., Matter of Abbatoy v. Baxter, 77 Misc.3d 711, 715, fn.16 [Sup. Ct., Albany Co., 2022], wherein the Court did address the retroactivity of the repeal of Civil Rights Law §50-a noting that the agency had cited this ground in denying the requested records). Accordingly, this Court will not consider whether the repeal of Civil Rights Law §50-a may be applied retroactively when conducting its in camera review. The Court also finds that any reports or associated documents ordered to be sealed pursuant to CPL §§160.50 or 160.55 are exempt from disclosure. Nonetheless, NYSP must identify any documents withheld pursuant to this exemption on its privilege log for purposes of judicial review. Likewise, intra-agency emails are properly exempted from disclosure, but NYSP must also identify any documents withheld pursuant to this exemption on its privilege log. DISCUSSION/COUNSEL FEES The awarding of counsel fees is dependent, in part, upon a demonstration that petitioner has substantially prevailed. As such, the Court defers the issue of a counsel fee award until after the in camera review of the withheld records and a final determination is made as to the exemptions claimed. Any other contentions of the parties have been considered and are either without merit, unripe or rendered academic by this Decision/Order. Accordingly, it is hereby ORDERED, that NYSP shall, within 14 days of the date of this Decision/Order, provide all withheld documents to the Court for in camera review, together with a privilege log identifying the specific ground(s) claimed for exemption as to each document. This shall constitute the Decision/Order of the Court. The Court is e-filing the original of this Decision/Order but that does not relieve the parties of the provisions of CPLR §2220 regarding notice of entry. Dated: January 19, 2024
