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HomeMy WebLinkAboutRequest 1 January 25, 2017 Joan M. Mangione Village Clerk & Treasurer Village of Cayuga Heights Marcham Hall 836 Hanshaw Road Ithaca, New York 14850 clerk@cayuga-heights.ny.us Re: Freedom of Information Law Appeal Dear Ms. Mangione: I am writing to appeal the Village of Cayuga Heights’ denial of my Freedom of Information request, sent on January 25, 2017.1 The records requested include files from the Village’s Police and Fire departments relating to a fire that took place at the Cornell Heights Residential Club on April 5, 1967. The Village denied my request on January 25, 2017 (“Response”).2 In its Response, the Village attempted to justify its denial under three subsections of Pub. Off. L. § 87 (2)(e), which exempts discreet categories of information “compiled for law enforcement purposes.” New York case law confirms that none of these subsections justify the Village’s blanket withholding of the records requested.3 Under FOIL, agency records are “presumptively available for public inspection.”4 The ten exemptions within FOIL that allow agencies to withhold requested information “are to be narrowly construed.”5 To meet its burden, the Village must give “a particularized and specific justification” for denying access to the records requested.6 First, the Village claims that the records are exempt under § 87(2)(e)(i), because disclosure “would interfere with the law enforcement investigation of this matter.”7 The Village’s only support for this invocation is that the 1967 investigation related to the crime of murder, for which there is no statute of limitations.8 But the lack of a statute of 1 See “Freedom of Information Request from Max Denning to the Village of Cayuga Heights,” January 22, 2017 (appended to this letter). 2 See “Village of Cayuga Heights’ Response to Max Denning’s Freedom of Information Request,” January 25, 2017 (appended to this letter). 3 Even if the requested records contain some exempt information, the Village must release those records as fully as possible with that information redacted. See Matter of Schenectady Cty. Soc’y for Prevention of Cruelty to Animals, Inc. v. Mills, 18 N.Y.3d 42, 45 (2011). 4 Hanig v. State Dept. of Motor Vehicles, 79 N.Y.2d 106, 109 (1992). 5 Id. 6 Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566 (1986). 7 See Response. 8 Id. 2 limitations at most suggests that there could be an open investigation into this matter. Yet even a “technically open investigation” is not necessarily covered by exemption (e)(i),9 which exclusively covers “prospective police activity.”10 Unless the Village’s authorities are still actively investigating the 1967 fire, § 87(2)(e)(i) does not justify this denial. 11 Second, the Village asserts that § 87(2)(e)(ii) exempts the records because “this case may be prosecuted in the future,” so “disclosure would potentially deprive a person of the right to a fair trial or adjudication.”12 Even if a trial were imminent, it is difficult to see how these records would deprive a person of the right to fair trial. Even if these records are published, it is unlikely that so many New Yorkers will view them as to make it impossible to find jurors who have not been exposed to the material. Finally, even if potential jurors in fact see these records, it is unclear how such exposure would prejudice a potential defendant, since the jurors will likely view the records at trial when they are introduced as evidence.13 Thus, because any harm to a hypothetical person’s fair trial rights is speculative and exceedingly unlikely, § 87(2)(e)(ii) does not justify the Village’s withholding. Third and finally, the Village assert s § 87(2)(e)(iv), claiming that disclosure would reveal “non-routine criminal investigative techniques and procedures.”14 This invocation of § 87(2)(e)(iv) is inconsistent with that exemption’s purpose, which is to prevent violators of the law to “be apprised of the nonroutine procedures by which an agency obtains its information.”15 Thus, the key question is “whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel.”16 The Village has given no explanation for how the Village’s investigation into this 1967 fire could possibly aid a criminal in evading detection, and it seems highly unlikely that the Village used any novel investigative procedures in 1967 that criminals remain unaware of. The Village’s “conclusory assertions that disclosure . . . would reveal nonroutine criminal investigative procedures” is insufficient to justify withholding records under § 87(2)(e)(iv).17 In sum, none of the Village’s three asserted justifications allow it to categorically withhold the records I requested. To the extent that portions of these records are covered 9 Estate of Glover v. City of New York, 195 A.D.2d 268, 269 (1st Dep’t 1993). 10 Council of Regulated Adult Liquor Licenses v. City of New York Police Dept., 300 A.D.2d 17, 18 (1st Dep’t 2002). 11 The Village’s use of the past tense in its Response suggests that the investigation is, in fact, closed. See id. (“The matter was investigated as arson and arson-related murder.” (emphasis added)). 12 Response. 13 See The New York Times Co. v. City of New York Fire Dep’t, 4 N.Y.3d 477, 490-91 (2005) (rejecting a similar argument in the context of the 9/11 terrorist attacks). 14 Response. 15 Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 572 (1979). 16 Id. 17 See Lyon v. Dunne, 180 A.D.2d 922, 924 (3d Dep’t 1992). 3 by exemption § 87(2)(e), please release the records to me as fully as possible with those portions redacted.18 If possible, please send me these records electronically to mdenning@ithaca.edu. If there are any fees in excess of $25.00 for copying the records requested, please inform me before filing the request. Please note that FOIL requires the Village to respond to this appeal within ten days of receipt.19 Should the Village fail to respond, or continue to deny this request, I will have the right to initiate a court proceeding, the costs of which will be charged to the Village if there was no legitimate basis for denying access to these records.20 Thank you for your assistance, Max Denning Max Denning 271 Pennsylvania Avenue Ithaca, NY 14850 503-407-2841 mdenning@ithaca.edu 18 See Matter of Schenectady Cty. Soc’y for Prevention of Cruelty to Animals, Inc. v. Mills, 18 N.Y.3d 42, 45 (2011). 19 Pub. Off. L. § 89(4)(a). 20 Id. § 89(4)(c).