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In Pittari v. Pirro, 258 A.D.2d 202, 206–07, 696 N.Y.S.2d 167 (2d Dept.1999), petitioner sought documents pertaining to the arrest and prosecution of his client from law enforcement agencies under FOIL while the criminal proceeding was still pending.
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Argued June 3, 1999
August 16, 1999
APPEAL by the petitioner, in a proceeding pursuant to CPLR article 78 to compel the respondents to comply with requests for records and information pursuant to Public Officers Law § 87, from a judgment of the Supreme Court (Daniel D. Angiolillo, J.).
Stephen J. Pittari, White Plains, N.Y. (David B. Weisfuse of counsel), appellant pro se.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Richard E. Weill of counsel), respondent pro se.
Alan D. Scheinkman, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and Deborah Porder of counsel), for respondent Louis D'Aliso, Commissioner of the Department of Public Safety of Westchester County.
GUY JAMES MANGANO, P.J., CORNELIUS J. O'BRIEN, THOMAS R. SULLIVAN, GLORIA GOLDSTEIN, JJ.
OPINION OF THE COURT
At issue here is whether a defendant in a pending criminal proceeding may seek disclosure under the Freedom of Information Law (Public Officers Law § 87) (hereinafter FOIL) of records compiled for law enforcement purposes "pertaining to the arrest and prosecution" of the defendant.
In the instant case, the petitioner, the Chief Attorney of the Legal Aid Society of Westchester County, sought documents "pertaining to the arrest and prosecution" of his client, Carlos Cajigas, from the Office of the District Attorney of Westchester County and the Department of Public Safety of Westchester County, which are law enforcement agencies. He demanded all documents relating to Cajigas' arrest as well as all documents relating to the investigation of Cajigas' case. He further demanded all documents of related cases involving Cajigas' accomplices, including "[a]ll complaint reports and follow-up complaint reports", "[a]ll interviews of witnesses and follow-up interviews of [the] witnesses", and "[a]ll Police activity logs". These records were clearly compiled for law enforcement purposes ( see, John Doe Agency v. John Doe Corp., 493 U.S. 146; Matter of Knight v. Gold, 53 A.D.2d 694).
We find that the petitioner's FOIL requests, made while the criminal proceeding was still pending against Cajigas, were properly denied pursuant to Public Officers Law § 87(2)(e)(i). That statute exempts from disclosure those records "compiled for law enforcement purposes and which, if disclosed, would * * * interfere with law enforcement investigations or judicial proceedings".
In Matter of Gould v. New York City Police Dept. ( 89 N.Y.2d 267, 274-275), the Court of Appeals noted that "[a]ll government records are * * * presumptively open for public inspection and copying" under FOIL "unless they fall within one of the enumerated exemptions of Public Officers Law § 87(2)". Cajigas' status as a litigant in a criminal proceeding, with the respondents in effect acting as his adversary, did not preclude the petitioner from utilizing FOIL ( see, Matter of Farbman Sons v. New York City Health Hosps. Corp., 62 N.Y.2d 75). The petitioner's standing in an effort to seek disclosure under FOIL was based upon Cajigas' status as a member of the general public, which standing was neither restricted nor enhanced by his status as a litigant or potential litigant ( see, Matter of John P. v. Whalen, 54 N.Y.2d 89, 99). Nor did the fact that Cajigas, as a defendant in a criminal proceeding, was entitled to disclosure pursuant to CPL article 240 preclude him from seeking disclosure pursuant to FOIL ( see, Matter of Gould v. New York City Police Dept., supra; Matter of Farbman Sons v. New York City Health Hosps. Corp., supra; Matter of Moore v. Santucci, 151 A.D.2d 677).
The question is whether the nature of the records sought and the timing of the FOIL request rendered those records exempt from disclosure under FOIL. The Court of Appeals, in Matter of Fink v. Lefkowitz ( 47 N.Y.2d 567, 572), noted:
"[T]he purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution".
The thrust of the petitioner's argument is that the respondents were not entitled to "a blanket law enforcement exemption where there are pending criminal investigations". On this point, an examination of the Federal case law is "instructive", as "[t]he legislative history of the Freedom of Information Law indicates that many of its provisions, including the exemption at issue here, were patterned after the Federal analogue (US Code, tit 5, § 552, subd [b], par [7], cl [E]" ( Matter of Fink v. Lefkowitz, supra, at 572, n; 1977 Legis Ann 330-331).
The Federal analogue, 5 U.S.C. § 552(b)(7)(A), as currently written, exempts from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information * * * could reasonably be expected to interfere with enforcement proceedings".
The United States Court of Appeals for the Second Circuit noted, in Title Guarantee Co. v. N.L.R.B. ( 534 F.2d 484, 489, cert denied 429 U.S. 834), that this exemption, known as "Exemption 7(A)", originally granted what was, in effect, a blanket exemption for "investigatory reports compiled for law enforcement purposes". A 1974 amendment restricted its applicability to instances where, inter alia, "disclosure would interfere with enforcement proceedings" (emphasis supplied) to permit disclosure of investigation files in closed cases ( Title Guarantee Co. v. N.L.R.B., supra, at 491; see, Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 485, n 5). Thereafter, in 1986, 5 U.S.C. § 552(b)(7) was amended to substitute the word "would" with the words "could reasonably be expected" ( see, Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 777). The New York statute, however, was not so amended.
In National Labor Relations Board v. Robbins Tire Rubber Co. ( 437 U.S. 214, 222), the Supreme Court of the United States, in interpreting the meaning of the language "would interfere with enforcement proceedings" held that neither the legislative history nor statutory language of 5 § U.S.C. § 552(b)(7) supported the proposition that the determination of whether disclosure "would interfere with enforcement proceedings" must be made on an individual case-by-case basis. Rather, "generic determinations" may be made that in "particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally 'interfere with enforcement proceedings'" ( National Labor Relations Board v. Robbins Tire Rubber Co., supra, at 236). The court applied a blanket exemption of that nature to the statements of witnesses in labor law enforcement cases, recognizing that such disclosure could have a chilling effect on witnesses' willingness to provide information.
Exemption 7(A) applies to documents applicable to a pending criminal investigation, since disclosure of such information "could result in destruction of evidence, chilling and intimidation of witnesses, and revelation of the scope and nature of the Government's investigation" ( see, Solar Sources, Inc. v. U.S., 142 F.3d 1033, 1039). Where, as in the instant case, the disclosure sought seeks information with respect to other individuals whose cases have already been concluded, that information is still exempt from disclosure if it "is part of the information * * * compiled for an ongoing investigation" ( Solar Sources, Inc. v. U.S., supra, at 1040).
The determination of the Court of Appeals in Matter of Gould v. New York City Police Dept. ( 89 N.Y.2d 267, supra) does not contradict this analysis. That case held that complaint follow-up reports (commonly referred to as DD5's) and police activity logs (commonly referred to as memo books) are agency records subject to disclosure under FOIL. The question of whether those records were exempt from disclosure on the ground that disclosure would interfere with law enforcement investigations or judicial proceedings was not explored ( see, Matter of Gould v. New York City Police Dept., supra, at 277). It is apparent in Gould that the petitioners' criminal proceedings had concluded.
Similarly, the other cases relied upon by the petitioner in support of his claim that disclosure is warranted do not refer to pending criminal proceedings ( see, Burtis v. New York Police Dept., 240 A.D.2d 259; Brown v. Town of Amherst, 195 A.D.2d 979; Matter of Buffalo Broadcasting Co. v. New York State Dept. of Correctional Servs., 155 A.D.2d 106). In Matter of Buffalo Broadcasting Co. v. New York State Dept. of Correctional Servs. (supra, at 110), the Appellate Division, Third Department, held that the respondents failed to demonstrate that all of the material requested, including videotapes of prison conditions after a prison uprising was quelled, was "necessary in connection with the investigation of the incident".
In the instant case, on the other hand, the petitioner acknowledged in his FOIL requests that the documents requested were "pertaining to his arrest and prosecution". Nor was there any dispute that the criminal action was pending when the FOIL request was made. Based upon these undisputed facts, a generic determination could be made that disclosure under FOIL would cause interference ( see, Faulk v. State's Atty. for Hartford County, 299 Md. 493, 511, 474 A.2d 880; see also, Matter of De Luca v. New York City Police Dept., 261 A.D.2d 140 [1st Dept., May 6, 1999]; Newman v. King County, 133 Wn.2d 565, 947 P.2d 712). Such disclosure during the course of a criminal proceeding would have a chilling effect on the pending prosecution ( see, Matter of Huston v. Turkel, 236 A.D.2d 283; Hawkins v. Kurlander, 98 A.D.2d 14, 16).
If a criminal proceeding is pending, mandating FOIL disclosure would interfere with the orderly process of disclosure in the criminal proceeding set forth in CPL article 240. The rules set forth in CPL article 240 are "essentially creatures of legislative policy" ( People v. DaGata, 86 N.Y.2d 40, 44). It is true that we are "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" ( Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 274, 275, n 1, supra). While the criminal proceeding is still pending, however, there is more than a "generalized tension" between FOIL and CPL article 240. CPL article 240 not only limits what material is subject to disclosure in the course of the criminal proceeding ( see, Matter of Catterson v. Jones, 229 A.D.2d 435), but further specifies the timing for such disclosure. Disclosure with respect to the prior statements or criminal history of any witness testifying for the prosecution is generally delayed until that witness testifies at the pretrial hearing or the commencement of trial ( see, CPL 240.44; 240.45 Crim. Proc.; Matter of Catterson v. Rohl, 202 A.D.2d 420). During the course of a criminal action, it is not within the authorized powers of the courts to compel disclosure which is not provided for in CPL article 240 ( see, Matter of Catterson v. Jones, supra; Matter of Catterson v. Rohl, supra), and attempts to do so generally warrant issuance of a writ of prohibition ( see, Matter of Pirro v. LaCava, 230 A.D.2d 909). If a defendant in a pending criminal prosecution was capable of obtaining such disclosure under FOIL, many of the provisions of CPL article 240 would be rendered meaningless.
Moreover, FOIL disclosure in the course of a pending criminal proceeding would "create * * * a substantial likelihood of delay in the adjudication of that criminal proceeding" generated by administrative appeals of the denial of disclosure ( Faulk v. State's Atty. of Hartford County, 299 Md. 493, 509, 474 A.2d 880, supra). Further delays would result from ancillary proceedings challenging the administrative determinations. While discovery rulings in a criminal proceeding are generally not reviewable until after a final judgment is rendered ( see, CPL article 450), judgments in proceedings challenging administrative determinations are subject to immediate appeal ( see, CPLR 5701). The adjudication of the criminal proceeding would be delayed pending the ultimate resolution of such appeals.
Thus, it is apparent that FOIL disclosure of materials pertaining to the arrest and prosecution of a defendant in a pending criminal proceeding would interfere with the adjudication of the criminal proceeding ( see, Faulk v. State's Atty. of Hartford County, supra).
We have considered the petitioner's remaining contentions and find them to be without merit.
Accordingly, the judgment appealed from is affirmed, without costs or disbursements.
MANGANO, P.J., O'BRIEN, and SULLIVAN, JJ., concur.
ORDERED that the judgment is affirmed, without costs or disbursements.