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Petitioner, a prison inmate, demanded the production of certain records

Petitioner, a prison inmate, demanded the production of certain records under the Freedom of Information Law (FOIL) (Public Officers Law §§ 84-90). The documents relate to an investigation conducted by Respondent New York City Police Department (NYPD) into a sex crime that led to petitioner’s arrest and conviction. The Crime Lawyer said that the NYPD Records Access Officer denied, in part, the request. Petitioner then commenced this Article 78 proceeding to compel production in accordance with his request. Subsequently, sources said that the Court held that the NYPD had not established an exception from FOIL’S disclosure requirements for all documents and ordered an in camera inspection of the documents as to which an exemption was claimed. The records responsive to his Freedom of Information Law (FOIL) request consist of an Aided Report, five Complaint Follow-up Reports and a Latent Print Evaluation/Comparison Report. On April 30, 2009, the NYPD submitted those documents for an in camera inspection pursuant to the Court’s Order and Decision filed on April 1, 2009.

The issue in this case is whether respondent has met its burden of proving exemption for the repots requested by the petitioner concerning his rape case.

The Court, after reviewing the documents in camera, finds that the NYPD has met its burden of proving exemption for these reports. An agency does not need to make available for disclosure records specifically exempted from disclosure by other state statutes. Notably, the Court of Appeals has held that not even redacted materials may be disclosed in those circumstances. In a 1982 case decision, petitioner sought copies of 29 medical claim records, arguing that the records could be disclosed by deleting personal identifying information. The Court of Appeals found that the only claimed exception for which a responding agency is required to attempt redaction is the exemption of unwarranted invasion of personal privacy contained in Public Officers Law (POL) 87 (2) (b).

In that case, section 87 (2)(a) of the Public Officers Law authorized the agency to deny access to records that “are specifically exempted from disclosure by state or federal statute.” The Court noted that Public Officers Law sections 87 (2)(b)and 89 (2) explicitly provide for the deletion of identifying details relating to unwarranted invasions of privacy, however, no such provision was made regarding any of the other seven categories of exemptions in Public Officers Law 87 (2). The Court reasoned that “under familiar canons of construction, the explicit authorization of the deletion device with respect to this one category of records imports a legislative intention to restrict the deletion device to that single category” and does not extend to records excepted in consequence of specific exemption from disclosure by state or federal statute. Because the medical records were specifically exempt from disclosure under the state’s Public Health Law, the Court of Appeals refused to characterize the records as “otherwise available,” hence subject to deletion of identifying details. Therefore, the Court concluded that the medical facility was not required to create a “cleaned-up” version of the requested medical records. Similarly, the Court of Appeals in a 2001 case decision, afforded victims of sexual crimes the same protection. Petitioner convicted of a sexual offense, sought documents which pertained to his arrest. The Court of Appeals stated that: “insofar as the requested records are exempt from disclosure pursuant to State statute, the police are not obligated to provide the records even though redaction might remove all details which ‘tend to identify the victim.”

Respondent argues that the state’s civil rights statute protects the privacy of victims of sex crime offenses. Specifically, Civil Rights Law section 50-b(l) and Public Officers Law section 87 (2) (a) provide a statutory exemption from disclosure for documents that tend to identify the victim of a sexual offense. Civil Rights Law section 50-b(l) states, in part: “No report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document which tends to identify such a victim except as provided in subdivision two of this section.”

Respondent essentially contends that the sentence “no paper which identifies the victim shall be made available for public inspection” constitutes an absolute statutory prohibition on disclosure that applies to any public officer or employee in possession of such a record, with the exceptions provided by Civil Rights Law section 50-b(2). Civil Rights Law section 50-b(2)(a) allows disclosure of such documents to a person charged with a sex offense. That particular statutory exemption, however, is unavailable to petitioner since he already stands convicted.
While Civil Rights Law 50-b(l) mandates caution by imposing civil liabilities upon governmental agencies that violate the statute, it does not require a blanket denial of a request for documents relating to a sex crime. Accordingly, in cases where a requested document does not contain Information that tends to identify a victim and the FOIL request is otherwise valid, the document must be disclosed. If there exists a legitimate dispute as to whether the information contained in any given document tends to identify the victim, the agency bears the burden of making a particularized showing as to why it should not be disclosed.

Each of the eight pages of records submitted for the Court’s review contains the name,
address, or other identifying information of the victim of a sex crime. These records were afforded confidentiality under the state’s civil rights laws thus “bringing them squarely within the exception of Section 87 (2) (a) of the Public Officers Law.” Releasing the requested documents, even in redacted form, would be releasing some portion of a document that tends to identify the victim of a sex crime and thereby would violate the statute. Accordingly, the Court held that respondent has made the requisite showing that the documents requested are exempt from disclosure under FOIL. Accordingly, the cross-motion to dismiss the petition is granted.

The right to information and public documents is not absolute, especially in a sex crime case. Records of which were afforded confidentiality under the state’s civil rights laws thus, bringing them squarely within the exception of Section 87 (2) (a) of the Public Officers Law. Seek the advice of a Nassau Sex Crime Attorney and/or Nassau Criminal Attorney in order to be guided with your request for criminal reports. Call us at Stephen Bilkis and Associates.

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