Legal Document: The Jewish Press Inc. v. Nassau County Police Department

On June 21, 2023 a JUDGMENT - (PROPOSED) SUBMIT JUDGMENT PER JUDGES DECISION (Motion #001) was filed involving a dispute between The Jewish Press Inc., and Nassau County Police Department, for Special Proceedings - CPLR Article 78 in the District Court of Nassau County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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In the matter of

THE JEWISH PRESS, INC.,
SETTLE ORDER AND
Petitioner, [UDGMENT ON NOTICE

For a Judgment Pursuant to Article 78 of the Civil Practice
Law and Rules
-Vs—

NASSAU COUNTY POLICE DEPARTMENT,

Respondent.
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SIR/MADAM/COUNSEL:

PLEASE TAKE NOTICE, that the annexed proposed ORDER and JUDGMENT

will be presented to the Honorable, Denise L. Sher., one of the Justices of the within named Court,

at 100 Supreme Court Drive, Mineola, New Y ork 11501 on the January 5, 2024, at 9:30 in the

forenoon of that day, for settlement and signature.

The proposed ORDER AND JUDGMENT is being submitted in accordance with

this Court’s December 12, 2023 Decision and Order (NY SCEF Doc. No.18).

Dated: December 27, 2023
Brooklyn, New Y ork

Y ours, etc

IS|_ —------
AvivaY . Horowitz
Of Counsel
Aron Law PLLC
Counsel for Petitioner

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To:
Kevin L. Rice, Esq.
Attorney for Respondent
Via NY SCEF

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AtaTem of the Supreme Court, in
and for the County of Nassau,
100 Supreme Court Drive,
Mineola, New Y ork

PRESENT: DENISE L. SHER
AJ.S.C.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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In the matter of
ORDER AND
THE JEWISH PRESS, INC., JUDGMENT

Petitioner,

For a Judgment Pursuant to Article 78 of the Civil Practice
Law and Rules
-Vs—

NASSAU COUNTY POLICE DEPARTMENT,

Respondent.
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NOW, UPON reading Petitioner the Jewish Press, Inc.’s Notice of Petition and Verified

Petition, filed on June 21, 2023, with exhibits thereto; and

UPON reading Respondent’s Verified Answer filed on October 19, 2023, with exhibits

thereto; and

UPON reading Petitioner’s Memorandum of Law in Reply, filed on November 1, 2023,

with exhibits annexed thereto; and

UPON reading Petitioner’s Letter to the Court filed on November 29, 2023 and exhibit

attached thereto; and

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UPON reading Petitioner’s Affirmation in Support of Attorney’s Fees and Cost

Appliaction, filed on December 20, 2023, and Exhibits providing a detailed of accounting of its

costs and time from June 18, 2023 through December 18, 2023.

AND due deliberation having been had upon the parties’ arguments on submission;

AND the Court having issued a Decision dated December 12, 2023, a copy of which is

annexed hereto and incorporated herein by reference; it is hereby:

ORDERED AND ADJ UDGED that the Petition is granted as set forth in the Decision

dated December 12, 2023; and it is further

ORDERED AND ADJUDGED that Respondent produce a copy of the Case Report

Folder Number: 2023CR315995 with the street name displayed within 20 days of the signing of

this Order and Judgment;

NOW, on motion of Petitioner
The Jewish Press Inc. it is

ADJUDGED that Petitioner The Jewish Press, Inc. located at Aron Law PLLC, 3692

Bedford Avenue, Ste P2, Brooklyn, NY 11229 shall have judgment and recover of Defendant

Nassau County Police Department, located at Office of the Nassau County Attomey, 1 West

Mineola, NY 11501 in the amount of $ yo plus interest at 9% until the date of entry

of judgment, in the sum of $ ee plus costs and disbursements as taxed by the Clerk of

the Corut in the amount of $ ye , fora total sum of $ and that

Petitioner the Jewish Press, Inc. shall have execution thereon.

Dated: He 2023
aan
DENISE L. SHER
AJ.S.C.

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INDEX NO. 609887/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF 12/12/2023

SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK

PRESENT: HON, DENISE L. SHER
Acting Supreme Court Justice

TRIAL/IAS PART 29
THE JEWISH PRESS INC., NASSAU COUNTY

Petitioner, Index No.: 609887/2023
Motion Seq. No.: 01
for Judgment Under Article 78 of the Motion Date: 07/14/2023
Civil Practice Law and Rules, XXX

- against -

NASSAU COUNTY POLICE DEPARTMENT,

Respondent.

The following papers have been read on this application:
Papers Numbered
Notice of Petition, Verified Petition and Exhibit
cnt 1
Verified Answer with Objections in Point of Law and Exhibits 2
Memorandum of Law in Reply and Exhibits 3

Upon the foregoing papers, it is ordered that the application is decided as follows:

Petitioner moves, pursuant to CPLR Article 78, New York Public Officers Law § 89

et seq. (the “Freedom of Information Law” or “FOIL”) and CPLR § 3001, for an order declaring

that respondent has acted unlawfully in withholding records from petitioner which are

not properly exempt from disclosure under FOIL; and moves for an order declaring that

respondent has partially denied petitioner’s FOIL request and that respondent must fully comply

with said request; and moves for an order directing respondent to provide petitioner with

immediate access to the records specified in the subject request; and moves, pursuant to

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Public Officers Law § 89(4)(c), for an order awarding petitioner its costs and attorneys’ fees.

Respondent opposes the application.

On or about February 11, 2023, an incident occurred whereby “at approximately

8:30 pm - 9:00 pm, . . . cars pulled up next to a number of Jewish teens and four perpetrators,

wearing ski masks, got out of the car, chased the young Jewish teens, and assaulted them”

(hereinafter “the Incident”). See NYSCEF Document No. 1 at § 9. In connection therewith,

on February 20, 2023, petitioner filed a FOIL request with respondent secking

“[c]opies of all reports including but not limited to incident reports, aided reports,

memo-book entries, arrest reports, and follow-up reports or any other written (typed) reports

prepared by the . . . [respondent] in connection with the report and investigation of” the Incident.

See id. On February 22, 2023, respondent denied petitioner’s request, maintaining that any

such disclosure would “constitute an unwarranted invasion of personal privacy” in violation of

Public Officers Law § 87(2)(b). See Petitioner’s Verified Petition Exhibit A.

On February 28, 2023, petitioner appealed respondent’s denial. See id. On March 1, 2023,

respondent, once again, denied petitioner's FOIL request. reiterating that release of

the requisitioned documents would contravene the provisions set forth in Public Officers Law

§ 87(2)(b). See id. In issuing this second denial, respondent stated that it was not in possession of

any records responsive to petitioner’s request for “aided reports, arrest reports, and

e-911 records.” See id. Respondent further noted that, even were it in possession of

“e-911 records,” same would not be discoverable since County Law § 308(4) only authorizes

release thereof to “the municipality’s public safety agency, another government agency or body,

or a private entity or a person providing medical, ambulance or other emergency services.”

See id.

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On or about June 21, 2023, petitioner commenced the within Article 78 proceeding for

a judgment compelling respondent to produce the requested documents. In its Verified Answer

with Objections in Point of Law, respondent’s counsel “certifies that . . . all responsive records

have been disclosed,” and, as such, the within proceeding has been rendered moot and

an award of counsel fees is accordingly unwarranted. See NYSCEF Document No. 9 at

49 25-27 and 30-31. More specifically, respondent’s counsel avers that, subsequent to

commencement of the within proceeding, he “directed a renewed diligent search for records

responsive to Petitioner’s request” and ultimately produced two case reports denominated

Case Report Folder Number: 2023CR315995 and Case Report Folder Number: 2023CR315997,

both of which were redacted to varying degrees with 2023CR315995 having the street name

obscured and 2023CR315997 explicitly identifying the name of the street where the

relevant activities occurred. See id. at {23 and 24; Respondent’s Verified Answer with

Objections in Point of Law Exhibits 3 and 4.

“To promote open government and public accountability, FOIL imposes a broad duty on

government agencies to make their records available to the public.” Matter of Abdur-Rashid v.

New York City Police Dept., 31 N.Y.3d 217, 76 N.Y.S.3d 460 (2018). The statute,

“proceeds under the premise that the public is vested with an inherent right to know and that

official secrecy is anathematic to our form of government.” Matter of Fink v. Lefkowitz,

47 N.Y.2d 567, 419 N.Y.S.2d 467 (1979); Matter of New York Times Co. v. District Attorney of

Kings County, 179 A.D.3d 115, L11 N.Y.S.3d 691 (2d Dept. 2019). Within the purview of the

statute, “[aJn agency must ‘make available for public inspection and copying all records”

unless it can claim a specific exemption to disclosure.” Matter of Data Tree, LLC v. Romaine,

9N.Y.3d 454, 849 N.Y.S.2d 489 (2007) quoting Public Officers Law § 87(2). ““Exemptions are

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to be narrowly construed to provide maximum access, and the agency seeking to

prevent disclosure carries the burden of demonstrating that the requested material falls squarely

within a FOIL exemption by articulating a particularized and specific justification for denying

access.’” Matter of Ortiz v. Zugibe, 144 A.D.3d 919, 41 N.Y.S.3d 125 (2d Dept. 2016) quoting

Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 505 N.Y.S.2d 576

(1986). In the event that an agency “fails to prove that a statutory exemption applies,

FOIL ‘compels disclosure, not concealment.” Matter of Aron Law, PLLC v. New York City

Fire Dept., 191 A.D.3d 664, 141 N.Y.S.3d 105 (2d Dept. 2021) quoting Matter of

Westchester Rockland Newspapers v. Kimball, 50 N.Y .2d 575, 430 N.Y.S.2d 574 (1980).

As noted, respondent denied petitioner’s access to “e-911 records,” as the

disclosure thereof would directly contravene the afore-cited provisions of County Law § 308(4).

As relevant here, Public Officers Law § 87(2)(a) provides, in pertinent part, that “{e]ach agency

shall... make available for public inspection and copying all records, except that such agency

may deny access to records or portions thereof that: (a) are specifically exempted from disclosure

by state or federal statute.” Thus, inasmuch as the “e-911 records” are insulated from disclosure

by County Law § 308 (4), respondent’s denial was proper. See Matter of Data Tree, LLC v.

Romaine, supra at 462.

However, contrary to respondent’s contentions, its initial denial of petitioner’s request

for written reports relevant to the Incident premised upon concerns attendant to an

“invasion of personal privacy” was inappropriate. See Matter of Aron Law, PLLC v.

New York City Fire Dept., supra at 665-666. Public Officers Law § 89 (2)(c)(i) provides that

“disclosure shall not be construed to constitute an unwarranted invasion of personal privacy .. .

when identifying details are deleted.” In the instant matter, while the Court agrees that

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certain redactions were required so as to comply with Public Officers Law § 87(2)(b),

once such redactions were undertaken, respondent’s claimed statutory barrier to disclosure

was eliminated, and production of the requested documents was thereafter statutorily compelled

without the necessity of petitioner having to commence the within proceeding. See id.

Moreover, the Court finds that respondent’s redaction of the street name from

Case Report Folder Number: 2023CR315995 was not necessary to comply with the

privacy provisions codified in Public Officers Law § 87(2)(b), as the identification of a street -

as opposed to an actual address - does not in any respect reveal personal information regarding

the individuals involved in the Incident. See id.

The Court now addresses petitioner’s request for reasonable counsel fees incurred

in commencing the within proceeding. **In order to create a clear deterrent to

unreasonable delays and denials of access [and thereby] encourage every unit of government

to make a good faith effort to comply with the requirements of FOIL, the Legislature has
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provided for the assessment of an attorney’s fee and other litigation costs in FOIL proceedings.

Matter of McNerney v. Carmel Cent. Sch. Dist.,204 A.D.3d 1012, 165 N.Y.S.3d 348 (2d Dept.

2022) quoting Matter of Cook v. Nassau County Police Dept., 140 A.D.3d 1059, 34 N.Y.S.3d

150 (2d Dept. 2016). “Thus, ‘[t]he court... shall assess, against such agency involved,

reasonable attorney’s fees and other litigation costs reasonably incurred by such person

in any case under the provisions of’ Public Officers Law § 89 ‘in which such person

has substantially prevailed and the court finds that the agency had no reasonable basis for

denying access.’” Lane v. County of Nassau, __ A.D.3d __, 2023 NY Slip Op 06139, *3

(2d Dept. 2023) quoting Public Officers Law § 89(4)(c)(ii). “A petitioner has

‘substantially prevailed’ within the meaning of Public Officers Law § 89(4)(c) when the

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commencement of the CPLR Article 78 proceeding ultimately succeeds in obtaining the records

responsive to the FOIL request, whether by court order or by voluntary disclosure.”

Matter of McDevitt v. Suffolk County, 183 A.D.3d 826, 123 N.Y.S.3d 689 (2d Dept. 2020):

Public Officers Law § 89(4)(c). Here, petitioner is entitled to an award of counsel fees

having substantially prevailed as contemplated by the statute by obtaining a portion of

the requested documents subsequent to the commencement of the withing proceeding.

See Lane v. County of Nassau, supra at *3. Further, the record sub judice establishes that

respondent did not possess a reasonable basis referable to its initial denial of the entirety of

petitioner’s FOIL request. See id.

Based upon the foregoing, it is hereby

ORDERED that the respondent is directed to produce a copy of Case Report

Folder Number: 2023CR315995 with the street name displayed. And it is further

ORDERED that the branch of petitioner’s application pursuant to Public Officers Law

§ 89(4)(c), for an order awarding petitioner its costs and attorneys’ fees, is hereby GRANTED.

And it is further

ORDERED that petitioner’s counsel is directed to submit a Judgment on Notice,

together with an affirmation of services reciting the amount of counsel fees incurred.

All applications not specifically addressed are denied.

This constitutes the Decision and Order of this C Oul

N vade,
ENTE

NY _ DENISE L SHER, AJS.C,

Dated: Mineola, New York
December 12, 2023

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