Professional Documents
Culture Documents
To be argued by
DANIEL A. MCGUINNESS
Table of Contents
Table of Authorities ...................................................................................... iii
Introduction .................................................................................................... 1
Argument........................................................................................................ 8
POINT I
THE DOCUMENTS ARE NOT EXEMPT FROM
DISCLOSURE UNDER POL 87(2)(e)(i) BECAUSE
THE REQUESTED DOCUMENTS WERE NOT
COMPILED FOR A LAW ENFORCEMENT PURPOSE. ................ 8
POINT II
C.
POINT III
THE DOCUMENTS ARE NOT EXEMPT FROM
DISCLOSURE UNDER POL 87(2)(A): CPL 240.20
DOES NOT PROHIBIT DISCLOSURE OF ANY OF
THE DOCUMENTS.......................................................................... 22
POINT IV
PUBLIC POLICY REQUIRES THAT
THIS INFORMATION BE DISCLOSED......................................... 25
POINT V
APPELLANTS HAVE ABANDONED THEIR APPEAL
OF THE LOWER COURT'S DECISION ORDERING
ATTORNEY'S FEES TO PETITIONER-RESPONDENT ............... 28
Conclusion.................................................................................................... 29
ii
Table of Authorities
Cases
Matter of Farberman & Sons v. New York
City Health & Hosps. Corp., 62 N.Y.2d 75 (1984) .................................. 23
Matter of Fink v. Leftkowitz, 47 N.Y.2d 567 (1979).................................... 12
Matter of Gould v. New York City Police
Dept., 89 N.Y.2d 267 (1996) ............................................ 13, 18, 21, 22, 23
John P. v. Whalen, 54 N.Y.2d 89 (1981) ............................................... 23, 24
Matter of Legal Aid Socy. of New York v.
New York City Police Dept.,
274 A.D.2d 207 (1st Dept. 2000) ................................................. 14, 15, 19
Lesher v. Hynes, 19 N.Y.3d 57 (2012)................................................... 16, 19
National Labor Relations Bd. v. Robbins Tire
& Rubber Co., 437 U.S. 214 (1978) ......................................................... 19
Matter of New York Civ. Liberties Union
v. City of Schenectady, 2 N.Y.3d 657 (2007)............................................ 13
Matter of New York Times Co. v. City of New
York Fire Dept., 4 N.Y.3d 477 (2005), .................................................... 15
People v. Hadzovic, Sup. Ct., Bronx Co.,
Docket No. 1236/04 .................................................................................. 20
People v. Hernandez, 31 Misc. 3d 208
(Rochester City Court 2011) ............................................................... 26, 27
People v. Pealer, 20 NY3d 447 (2013).................................................... 9, 10
People v. Summa, 140 Misc. 2d 763
(Dist. Court, Suffolk County 1986) .......................................................... 26
iii
iv
www.fdle.state.fl.us/ Content/Alcohol-Testing-Program/
Menu/Public-Records/Electronic-Data.aspx ............................................. 26
www.wsp.wa.gov/breathtest/wdms_home.htm ........................................... 26
Introduction
On July 3, 2009, an Intoxilyzer 5000EN used to test a drunk driving
suspect's blood alcohol level malfunctioned and went out of service (328).1
An NYPD technician made a note of the malfunction in the machine's
maintenance log. A year later, July 13, 2010, a different Intoxilyzer
machine went out of service, and the NYPD replaced it by putting the first
Intoxilyzer machine back into service, without any apparent repair or
diagnosis of the first machine (328). The NYPD technician wrote another
note in the maintenance log. On October 24, 2011, that Intoxilyzer
malfunctioned again, and was taken out of service permanently. The NYPD
technician made a final notation in the maintenance log. The NYPD
technician's small notes are part of a much larger story. The full story is
made up of thousands of similar documents. It is the story of the NYPD's
Intoxilyzer machines; the story of how they are maintained, how they work,
how they malfunction, and how they are repaired or not repaired when they
break. It is a story that only the NYPD and District Attorneys of New York
City know. They want to keep it that way.
To keep this story secret, Appellants have tried to raise a plausible
specter of harm that would occasion the release of these documents. None
1
Unless otherwise indicated, numbers in parenthesis refer to the Records on Appeal.
of these fears are founded nor do they provide a legal basis for exempting
these documents from disclosure. The District Attorneys of New York City
seek to join Appellants' cause by claiming that they prosecute thousands
upon thousands of people based on these Intoxilyzers. But this is not a
reason to keep the story of these machines hidden it is the reason the story
must be told.
Statement of Facts
A.
B.
denied the appeal (383). Records Access Appeals Officer Jonathan David
denied the records under POL 87(2)(e)(i) and (ii), stating "because
disclosure of the requested records to just one party would interfere with the
ordinary course of court supervised discovery and deprive other parties of
their right to a fair trial or impartial adjudication in ongoing litigation." Id.
The NYPD also denied the appeal under POL 87(2)(e)(iv) "because
disclosure would reveal non-routine criminal investigative techniques or
procedures," and POL 87(2)(g) "to the extent that said records contain
preliminary data and information." Id.
C.
(18). The court ordered that the NYPD comply within 30 days of the order,
and directed Petitioner-Respondent to submit an accounting of costs and
attorneys' fees within 60 days (19).
On October 29, 2013, Appellant-Respondents filed a notice of appeal
from "each and every part" of the court's decision, judgment and order (6),
thereby staying the court's orders, pursuant to CPLR 5519(a)(1).
Argument
POINT I
THE DOCUMENTS ARE NOT EXEMPT FROM
DISCLOSURE UNDER POL 87(2)(e)(i) BECAUSE
THE REQUESTED DOCUMENTS WERE NOT
COMPILED FOR A LAW ENFORCEMENT PURPOSE.
The NYPD creates these records for administrative purposes. The
NYPD must keep these documents to ensure that the Intoxilyzers perform
properly. The records are not compiled in response to or in anticipation of
any complaint, incident, investigation, or prosecution. The Court of Appeals
and the District Attorneys' Association of New York State have
acknowledged that the documents sought by Petitioner-Respondent are
created for administrative and not law enforcement purposes.
Appellants argue that the requested documents "are compiled
specifically to ensure that evidence gathered for DWI prosecutions is
reliable." Appellants' Brief at 15. Citing to affirmations submitted by
District Attorneys' Offices from the Bronx, Brooklyn, Queens, Staten Island,
and New York County, Appellants argue that, because there are thousands of
pending criminal cases for which the records are relevant, "those records are
clearly created for a law enforcement purpose." Id.
The form and content of the documents was further proof that
the technicians' primary purpose was not to create documents
that would be introduced at a trial but to record the fact that
tests were done and that the breath test machinery was working
properly...
Vance Amicus at 21-22 (emphasis in original). District Attorney Vance
further explains that breathalyzer maintenance is administratively required
by 10 NYCRR 59.4(c), which states that breathalyzer machines may not be
used unless the agency has verified that such machines operate properly. Id.
at 20. District Attorney Vance concluded, "The fact that the same records
might also make their way into a criminal trial is incidental to both the
creation of the reports and the certification of the results." Vance Amicus at
24.
The Court of Appeals agreed with District Attorney Vance. The
Pealer Court held that the documents were not compiled for law
enforcement purposes, but rather to ensure the proper functioning of the
machines:
It may reasonably be inferred that the primary motivation for
examining the breathalyzer was to advise the Penn Yan Police
Department that its machine was adequately calibrated and
operating properly . . . The fact that the scientific test results
and the observations of the technicians might be relevant to
future prosecutions of unknown defendants was, at most, an
ancillary consideration when they inspected and calibrated the
machine.
20 N.Y.3d at 455.
10
11
POINT II
DISCLOSURE OF THE REQUESTED DOCUMENTS
WOULD NOT INTERFERE WITH ANY ONGOING CRIMINAL
INVESTIGATIONS OR JUDICIAL PROCEEDINGS: ANY
POSSIBLE HARM FEARED BY APPELLANTS IS ILLUSORY
A.
12
13
14
who had not given courtroom testimony" and disclosure "would reveal
confidential information relating to a criminal investigation or nonroutine
investigatory techniques" prior to trial. 274 A.D.2d at 210. In Pittari, the
Second Appellate Division limited the scope of exemption to the release of
records that could "result in destruction of evidence, chilling and
intimidation of witnesses, and revelation of the scope and nature of the
Government's investigation." 258 A.D.2d at 205 (internal quotations and
citations omitted).
After Legal Aid Society and Pittari, the Court of Appeals has clarified
the need for the withholding agency to show an actual risk of interference in
order to claim the exemption. In Matter of New York Times Co. v. City of
New York Fire Dept., 4 N.Y.3d 477, 490 (2005), the Court held that six
tapes which the United States intended to use in the trial of accused terrorist
Zacarias Moussaoui were not shielded by the law enforcement exemption
because "there is no showing that disclosure would interfere with the
Moussoui trial or cause any unfairness." The Court explained that in order
for the United States Department of Justice to be entitled to this exemption,
it must demonstrate why disclosure would "create problems in the criminal
case." Id.
15
criminal matter. Instead, Appellants submit that there are thousands of open
DWI matters, and production of the requested materials "would result in the
disclosure of records to which a criminal defendant is not entitled under
New York Criminal Procedure Law 240.20(1)(k)." Appellants' Brief at
16
18. Appellants fail to identify how the disclosure of these documents would
actually interfere with any DWI prosecutions. They instead claim that
"[D]isclosure of the requested documents would interfere with the criminal
courts' ability to manage pretrial discovery in thousands of cases. . ."
Appellants' Brief at 22. This concern is unfounded.
Appellants express concern that the production of non-discoverable
records may somehow rob criminal courts of their discovery purview.
Appellants also imply that requests of both the non-discoverable records and
discoverable records may upset the timing of pretrial discovery. The
disclosure of these documents would have no effect on criminal courts
ability to manage pretrial discovery.
With respect to the non-discoverable records, a FOIL request would
have no effect on the scope of pretrial discovery. Appellants suggest that a
defendant should not be allowed to obtain material via FOIL that is outside
the scope of Article 240. In the context of any particular criminal matter,
however, there is an infinite universe of items that are not discoverable
under Article 240. Appellants do nothing to narrow this field. Appellants'
view would prohibit a DWI criminal defendant from obtaining any material
under FOIL (e.g., New York State legislative committee reports), since it is
not discoverable under Article 240. A criminal defendant would entirely
17
lose his rights under FOIL for the pendency of the criminal matter. This
categorical limitation has been rejected by the Court of Appeals in Matter of
Gould v. New York City Police Dept., 89 N.Y.2d 267, 274 (1996). (Gould
discussed further infra at Point III.)
A FOIL request for the non-discoverable records would have no
adverse effect on the timing of pretrial disclosure. A criminal court judge
would not allow a FOIL request for any non-discoverable records to delay
the proceedings. In order for the judge to deem the documents nondiscoverable, the judge determines them irrelevant to the current proceeding.
Otherwise the judge would find the records discoverable, and order their
production within the criminal case. Certainly, criminal court judges will
not delay proceedings for defendants to conduct fishing expeditions for
documents they have deemed irrelevant. In fact, Appellants cite to a
criminal case in which an Assistant District Attorney from the Manhattan
District Attorney's Office instructs Respondent to file a FOIL request for
materials that the court has denied. See Appellants' Brief at 20; Record at
340. The court in that matter did not offer any delay in the criminal matter
for Respondent to file a FOIL request for the materials (340-341). Indeed,
that case proceeded forward and has since been resolved.
18
19
The requested documents in this matter pose no such risk. They are
administrative documents not part of any particular investigation. The
timing of their disclosure is not governed by any provision of law.
As a practical matter, with only 28 machines, and thousands of DWI
prosecutions, copies of documents reflecting a particular check of a
particular Intoxilyzer are commonly distributed to multiple different
defendants. These documents are given to the defendants at different
intervals. Any defendant is free to distribute or duplicate these Intoxilyzer
records, and defense counsel is free to collect them as a partial history of the
Intoxilyzer. To a limited extent, these records are already available early to
many defendants. Appellants cannot point to any harm ever caused by such
early disclosure.
C.
20
21
POINT III
THE DOCUMENTS ARE NOT EXEMPT FROM
DISCLOSURE UNDER POL 87(2)(A): CPL 240.20 DOES NOT
PROHIBIT DISCLOSURE OF ANY OF THE DOCUMENTS.
Appellants claim that the documents are exempt under POL 87(2)(a)
because they would not be discoverable under Article 240. POL 87(2)(a)
permits an agency to withhold documents that "are specifically exempted
from disclosure by state or federal statute." (emphasis added.) Article 240
sets forth items that a prosecutor is required to disclose in a criminal matter,
not items that are exempted from disclosure.
POL 87(2)(a) is entirely inapplicable and inapposite to Article 240
because Article 240 contains no prohibitions on disclosure. Article 240
simply governs discovery in a criminal case; it does not deem any
information confidential, sensitive, or otherwise restricted. Indeed,
Appellants point to no language within Article 240 prohibiting disclosure,
since none exists.
The NYPD has made this argument before, and the Court of Appeals
refused to accept it. In Matter of Gould v. New York City Police Dept., 89
N.Y.2d 267 (1996), the NYPD argued that the Petitioner-Appellants should
be barred from utilizing FOIL because they sought items related to a
criminal case, which is governed by Article 240. The Gould Court rejected
22
that argument stating, "insofar as the Criminal Procedure Law does not
specifically preclude defendants from seeking these documents under FOIL,
we cannot read such a categorical limitation into the statute." Id at 274. In
reaching this conclusion, the Court adopted reasoning from Matter of
Farberman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75
(1984), which addressed a similar attempt to exempt documents based upon
disclosure requirements in CPLR Article 31 the civil procedure analogue to
CPL Article 240:
[I]n Farbman, the Court also concluded that "[g]iven FOIL's
purpose, and its broad implementing language, and the
narrowness of its exemptions, [CPLR] article 31 cannot be read
as a blanket exemption from its reach. . . Nowhere in FOIL . . .
is there specific reference to records already subject to
production under article 31, and no provision of FOIL bars
simultaneous use of both statutes." (62 NY2d, at 81). Because
CPL article 240 likewise fails to specifically exempt criminaldisclosure documents from FOIL, we are, just as in Farbman,
not free to disregard the open-government mandate of FOIL
based on what is perceived as some generalized tension
between FOIL and a distinct statutory disclosure scheme.
Gould at FN1, 274.
The only support Appellants offer for their claim that POL 87(2)(a)
justifies nondisclosure is John P. v. Whalen, 54 N.Y.2d 89, 96-97 (1981). It
concerns a FOIL request for information protected by New York Public
Health Law 230(9), which explicitly prohibits disclosure of state board
professional medical conduct proceedings for reasons of confidentiality. Id.
23
24
POINT IV
PUBLIC POLICY REQUIRES THAT
THIS INFORMATION BE DISCLOSED
Appellants warn this Court that the revelation of these documents
would be in Respondent's interest, but against Appellants: Respondent's
DWI practice may benefit from this information, but revelation of improper
maintenance could disturb DWI prosecutions. Respondent respectfully
submits that these arguments are distractions from the central inquiry of
what is in the public interest.
Justice Ling-Cohan aptly and succinctly summarized this litigation by
stating that there were two possible outcomes: the Intoxilyzers are properly
maintained and working properly, or the Intoxilyzers are not properly
maintained or not accurate (18). The first outcome is in the public interest,
as it would increase public confidence in the Intoxilyzers. Id. Justice LingCohan explains that this second outcome is also in the pubic interest, as it
would prevent improper prosecutions. Id.
Appellants' Brief signals that the second outcome should be expected.
Appellants write, "[Old maintenance records] may be used generally to
impugn the trustworthiness of the equipment and its operators." Appellants'
Brief at 21. Maintenance records showing proper maintenance could not be
25
26
Misc. 3d 208, 221 (Rochester City Court 2011) ("[A]n Internet library
containing read-only copies of [records relating to calibration of breath
testing instruments] made available to prosecutors and defense counsel
would expedite discovery and might facilitate plea negotiations.") The
lower court stated that granting Petitioner-Respondent's request, and making
these records public may actually result in greater efficiency for the courts,
since they would receive fewer applications for greater disclosure of such
records (18).
Appellants argue that these records should be withheld from Petitioner
in this FOIL action because they would be withheld from a defendant in a
criminal action. Appellants seek to create a situation where there no citizen
may ever obtain a complete set of these records. These records, created by
the NYPD, made while inspecting the NYPD's machines, and kept in the
NYPD's offices, would be available to only the NYPD, as they prosecute
cases for as long as 15 years. See Record at 453 (showing an open DWI
case from 1999). This is precisely the type of government secrecy and lack
of citizen oversight that FOIL exists to remedy.
27
POINT V
APPELLANTS HAVE ABANDONED THEIR APPEAL OF
THE LOWER COURT'S DECISION ORDERING
ATTORNEY'S FEES TO PETITIONER-RESPONDENT
Appellants' Notice of Appeal indicated that they intended to appeal
"each and every part" of the lower court's decision (6), thereby triggering an
automatic stay, pursuant to CPLR 5519(a)(1), of the portion of the court's
order regarding determining attorneys fees. The Appellants have failed to
raise this issue on appeal. That issue should be deemed abandoned, and the
lower court's award of attorney's fees, including fees related to the instant
appeal, should be granted to Respondent.
28
Conclusion
Adam
c
ess
. Perlmutter
29
Dated: