FILED: APPELLATE DIVISION - 1ST DEPT 10/13/2020 12:59 PM 2020-00989

NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 10/13/2020

To be Argued by:
HENRY BELL
(Time Requested: 15 Minutes)
New York County Clerk’s Index No. 159740/18

New York Supreme Court

Appellate Division – First Department

Appellate
Case No.:
In the Matter of
2020-00989
ANDREW M. STENGEL,
Petitioner-Appellant,

For Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

– against –

CYRUS VANCE, JR., in his official capacity as District Attorney of

New York County, and SUSAN ROQUE,

Defendants-Respondents.

BRIEF FOR PETITIONER-APPELLANT

BELL LAW PLLC

Attorneys for Petitioner-Appellant
747 Third Avenue, Second Floor
New York, New York 10017
(347) 951-7743
[email protected]
 TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
QUESTIONS PRESENTED ......................................................................................1
STATEMENT OF THE CASE ..................................................................................2
STATEMENT OF FACTS ........................................................................................5
I. Petitioner requests “the List” from the District Attorney of New York
via the Freedom of Information Law and is denied access. ...................................5
II. Petitioner files an Article 78 proceeding to compel disclosure, and
the IAS Court denies and dismisses the Petition. ...................................................6
LEGAL STANDARD ................................................................................................7
ARGUMENT .............................................................................................................8
The Order denying and dismissing Petitioner’s Article 78 proceeding should
be reversed. ................................................................................................................8
I. The IAS Court incorrectly affirmed the FOIL denial on grounds not
invoked by Respondents in the June 7, 2018 FOIL denial.....................................8
II. POL § 89(3)(a) did not exempt the List from disclosure because
Petitioner adequately described the List. ..............................................................11
III. POL § 87(2)(a) did not exempt the List from disclosure ............................13
1. CPLR Article 31 and CPL § 240 are not statutes specifically
exempting the records from FOIL disclosure. ..................................................13
2. The List was not made in anticipation of litigation. ................................15
3. The List is not attorney work product. .....................................................17
4. Respondent waived any potential privilege by disclosing the
underlying information to third parties. ............................................................19
IV. The List is not sealed under CPL § 160.50. ................................................19
V. The List is not exempt from disclosure for privacy considerations ............20
VI. The List is not exempt intra-agency material under POL §87(2)(g). .........21
VII. Even if portions of the list are exempt, the List must be produced
with appropriate redactions. .................................................................................22

i
 VIII. Public policy mandates disclosure. ..........................................................22
IX. Petitioner was entitled to attorneys fees. .....................................................26
CONCLUSION ........................................................................................................27
PRINTING SPECIFICATIONS STATEMENT .....................................................28

ii
 TABLE OF AUTHORITIES

CASES

Aetna Cas. and Sur. Co. v Certain Underwriters at Lloyd's,

263 A.D.2d 367 (1st Dep’t 1999) ................................................................. 18

Bennett v Troy Record Co.,

25 A.D.2d 799 (3d Dep’t 1966) ................................................................... 16

Brady v United States,

397 U.S. 742 (1970) ..................................................................................... 23

Charter One Bank, F.S.B. v Midtown Rochester, L.L.C.,

191 Misc. 2d 154 (Sup. Ct. 2002) ................................................................ 19

Chem. Bank v Arthur Andersen & Co.,

143 Misc. 2d 823 (Sup. Ct. 1989) ................................................................ 16

Chem. Bank v Natl. Union Fire Ins. Co. of Pittsburgh, Pa.,

70 A.D.2d 837 (1st Dep’t 1979) ................................................................... 17

Dockery v New York City Hous. Auth.,

51 A.D.3d 575 (1st Dep’t 2008) ................................................................... 20

Ford v Rector,
111 A.D.3d 572 (1st Dep’t 2013) ................................................................. 17

Geffner v Mercy Med. Ctr.,

125 A.D.3d 802 (2d Dep’t 2015) ................................................................. 18

Giglio v United States,

405 U.S. 150 (1972) ..................................................................................... 23

Hoffman v Ro-San Manor,

73 A.D.2d 207 (1st Dep’t 1980) ............................................................. 17, 18

James, Hoyer, Newcomer, Smiljanich and Yanchunis, P.A. v

State, Off. of Atty. Gen.,
27 Misc. 3d 1223(A) (Sup. Ct. 2010) ........................................................... 17

iii
Matter of Barry v O’Neil,
185 A.D.3d 503 (1st Dep’t 2020) ............................................................. 9, 10

Matter of Bernstein v. Department of State, Div. of Licensing Services,

96 A.D.3d 1183 (3d Dep’t 2012) ................................................................... 8

Matter of Burke v Yudelson,

81 Misc. 2d 870 (Sup. Ct. 1975) .................................................................. 14

Matter of Data Tree, LLC v Romaine,

9 N.Y.3d 454, 463 (2007) .............................................................................. 7

Matter of Gould v New York City Police Dep’t,

89 N.Y.2d 267 (1996) ............................................................................. 7, 14, 21

Matter of Jewish Press, Inc. v N.Y.C. Dep't of Educ.,

183, A.D.3d 731 (2d Dep’t 2020) ................................................................ 12

Matter of Kirsch v Bd. of Educ. of Williamsville Cent. School Dist.,

152 A.D.3d 1218 (4th Dep’t 2017) .............................................................. 22

Matter of Konigsberg v Coughlin,

68 N.Y.2d 245 (1986) .................................................................................. 12

Matter of M. Farbman & Sons, Inc. v

New York City Health and Hosps. Corp.,
62 N.Y.2d 75 (1984) .............................................................................. 14, 22

Matter of Madeiros v New York State Educ. Dep’t,

30 N.Y.3d 67 (2017) ................................................................................ 8, 11

Matter of Mantica v New York State Dep’t of Health,

248 A.D.2d 30 (3d Dep’t 1998) ..................................................................... 7

Matter of McCrory v Vil. of Mamaroneck,

34 Misc. 3d 603 (Sup. Ct. 2011) ............................................................ 14, 18

iv
Matter of Mulgrew v Bd. of Educ. of
City School Dist. of City of New York,
87 A.D.3d 506 (1st Dep’t 2011) ................................................................... 20

Matter of New York Civ. Liberties Union v

City of Saratoga Springs,
87 A.D.3d 338 (3d Dep’t 2011) ................................................................... 26

Matter of New York State Defenders Assn. v

New York State Police,
87 A.D.3d 193 (3d Dep’t 2011) ................................................................... 26

Matter of Pflaum v. Grattan,

983 N.Y.S.2d 351 (2d Dep’t 2014) .............................................................. 11

Matter of Schenectady Cnty. Soc’y for the

Prevention of Cruelty to Animals, Inc. v. Mills,
18 N.Y.3d 42 (2011) ........................................................................ 12, 13, 18

Matter of The Law Officers of Adam D. Perlmutter, P.C.

v New York City Police Department,
2013 N.Y. Slip Op. 32532(U) (Sup. Ct. 2013) ............................................ 25

Matter of The New York Times Co. v

City of New York Fire Dep’t,
4 N.Y3.d 477 (2005) .................................................................................... 20

Matter of Whitfield v Bailey,

80 A.D.3d 417 (1st Dep’t 2011) ..................................................................... 7

People v Kozlowski,
11 N.Y.3d 223 (2008) .................................................................................. 17

People v Ortiz,
85 A.D.3d 588 (1st Dep’t 2011) ................................................................... 23

People v Vilardi,
76 N.Y.2d 67 (1990) .................................................................................... 23

v
 People v Williams,
7 N.Y.3d 15 (2006) ....................................................................................... 23

People v. Simmons,
36 N.Y.2d 126 (1975) .................................................................................. 24

Spectrum Sys. Intern. Corp. v Chem. Bank,

157 A.D.2d 444 (1st Dep’t 1990) ........................................................... 17, 18

Venture v Preferred Mut. Ins. Co.,

153 A.D.3d 1155 (1st Dep’t 2017) ............................................................... 17

STATUTES
POL § 84 ........................................................................................................... 2

POL § 87 ............................................................................... 8, 9, 13, 20, 21, 22

POL § 89 ..................................................................... 4, 6, 9, 10, 11, 12, 20, 26

RULES

CPL § 160.50 .................................................................................................. 19

CPLR § 3101(d)(2) ............................................................................. 10, 15, 16

CPLR § 3101(c) .............................................................................................. 17

CPLR § 4503 ................................................................................................... 15

21 NYCRR § 1401.7(B) ................................................................................... 9

22 NYCRR 200.16 .......................................................................................... 24

22 NYCRR 200.27 .......................................................................................... 24

vi
 OTHER

27 Am. Jur. Proof of Facts 2d 133 § 1 (Sept. 2018 Updated) ........................ 24

Barry Scheck, Jim Dwyer & Peter Neufeld,

Actual Innocence (1st ed. 2001) ..................................................................... 23

Cynthia E. Jones, A Reason to Doubt:

The Suppression of Evidence and the Inference of Innocence,
100 J. Crim. L & Criminal 415 (2010) ........................................................... 23

N.Y. State Justice Task Force,

Report on Attorney Responsibility in Criminal Cases (Feb. 2017) ................ 24

www.manhattanda.org/district-attorney-vance-
announces-conviction-integrity-program ........................................................ 19

www.nycourts.gov/press/pdfs/pr17_17.pdf .................................................... 24

vii
 Petitioner-Appellant Andrew Stengel, respectfully submits this brief in

support of his appeal from the Decision and Order of the Honorable W. Franc

Perry, III, Supreme Court, New York County (the “IAS Court”) dated January 6,

2020 (the “Order”), which denied the petition and dismissed the proceedings.

QUESTIONS PRESENTED
1. May a court affirm a FOIL denial based on exemptions not raised in

an agency’s initial denial of a FOIL request?

2. Do the attorney work product and material made in anticipation of

litigation privileges in CPLR Article 38 and Criminal Procedure Law (“CPL”) §

240 specifically exempt documents from disclosure under FOIL?

3. Is a document prepared by the District Attorney of New York

(“DANY”) gathering factual information about the credibility of police officers

privileged attorney work product?

The IAS Court answered all of these questions in the affirmative.

1
 STATEMENT OF THE CASE
New York’s Freedom of Information Law (“FOIL”) recognizes the citizens

of New York the “right to know the process of governmental decision-making”

and grants them access the records of government to protect that right. 1 FOIL is

premised on the fact that “a free society is maintained when government is

responsive and responsible to the public.” 2 This appeal concerns the denial of

access to information that lies at the heart of a properly functioning and free

society. That information concerns whether the police officers enforcing the

criminal laws of New York are credible, and whether the prosecutors employed by

The District Attorney of New York County (“DANY”), who possess such

information about police officer credibility, are properly disclosing that

information during criminal prosecutions so that defense attorneys and their clients

can make fully informed decisions.

DANY maintains a police tracking spreadsheet, known as “the List,” which

contains information that bears on the credibility of New York City Police

Department (the “NYPD”) police officers. Petitioner Andrew Stengel requested

disclosure of this information via a FOIL request. DANY initially denied this

1
POL § 84.
2
Id.
2
request on very narrow grounds. DANY claimed that (i) even though they

maintained the requested information, it was not in the form of the list, and (ii) the

information was exempt from disclosure as material prepared in anticipation of

litigation. Stengel appealed this denial which DANY affirmed. In the appeal

denial, DANY raised new grounds for their denial. Stengel moved to compel

disclosure in an Article 78 proceeding, and DANY raised new grounds for their

denial in their Verified Answer. The IAS court denied and dismissed the petition.

The Order is premised on multiple legal errors that require reversal. First,

the IAS Court exceeded the appropriate scope of review of the FOIL denial. In an

Article 78 proceeding, a court may only affirm a FOIL denial based upon the

exemptions the agency raised in its initial decision. The IAS Court based its

decision in part on the attorney-work product privilege, which Respondents did not

raise in their initial denial. But, if one were to ignore this insurmountable

procedural hurdle, the Petition still should have been granted.

Respondents argued that the information requested was exempt from

disclosure as privileged attorney work product or material prepared in anticipation

of litigation. However, this argument ignores the statutory framework of FOIL.

Records may be withheld only if they fall within one of the specifically

enumerated statutory exemptions from disclosure. FOIL does not specifically state

the two privileges relied upon by respondents, but it does contain catch-all

3
exemption for documents that “are specifically exempted from disclosure by state

or federal statute.” But, the Court of Appeals has held that both Article 31 of the

CPLR and CPL § 240 are not statutes specifically exempting documents from

disclosure under FOIL. Therefore, even if the documents were somehow

privileged under the CPLR or CPL, they would not be exempt from FOIL

disclosure.

Regardless, the List sought by Stengel was neither material made in

anticipation of litigation or work-product. Material made in anticipation is only

partially exempt from disclosure in the litigation for which it is made. It is not

privileged at all in other litigation, and this privilege would not apply to the List.

While the work product privilege is absolute, it only covers material that reflects

legal analysis and opinion. Factual information, like that contained in the List, is

not attorney work product.

The IAS Court also held that the List was exempt from disclosure under

POL § 89(3)(a) because it did not exist. This interpretation of POL § 89(3)(a) goes

against the public policy embodied in FOIL and the Court of Appeals proscription

that § 89(3)(a) should not be used as a device to withhold records. Petitioner

adequately described the List in his FOIL request, which is all that FOIL requires.

Respondents raised other equally inapplicable exemptions in their Verified

Answer, but the IAS Court did not discuss them.

4
 Finally, the overarching public policy of FOIL mandates disclosure of the

List and reversal of the order. The purpose of FOIL is to shed light on the

government. The DA has attempted to erect a black box around a matter of the

utmost importance: their records concerning the ability—or inability—of NYPD

Police Officers to tell the truth. How can the public trust the criminal justice

system when the DA hides information critical to the fair administration of justice?

STATEMENT OF FACTS

I. Petitioner requests “the List” from the District Attorney of New York via the
Freedom of Information Law and is denied access.

The District Attorney of New York (“DANY”) maintains a police tracking

spreadsheet, internally referred to as “the List,” which contains information

bearing on the credibility of New York City Police Officers. 3 Petitioner, Andrew

Stengel, is a criminal defense attorney formerly employed by DANY. 4 While

Stengel represented a defendant during a criminal trial, Jeffrey Levinson, a high-

ranking DANY employee, publicly disclosed the existence of the List. 5 He

specifically stated that DANY has “a list of officers” that “have adverse credibility

findings” or “have been found to have testified falsely.” 6 Stengel also had

independently learned of the list during his employment with DANY. 7

3
R-92-93.
4
R-37-38 ¶ i.
5
R-39.
6
Id.
7
R-41 ¶¶ 21-24.
5
 After the trial, Stengel sent a FOIL request to DANY seeking disclosure of

“the list of police officers of any rank or law enforcement agency indicating an

adverse credibility finding that is maintained by New York County District

Attorney’s Office.” 8 DANY denied the request in a letter dated June 7, 2018 (the

“Initial Denial”). 9 In the Initial Denial, DANY claimed that (i) while it did

“maintain information regarding a court’s adverse credibility finding,” this

information was not a “list” and thus exempt from disclosure pursuant to POL §

89(3); and (ii) the requested information was exempt from disclosure because it

was made in anticipation of litigation.” 10

Stengel administratively appealed the denial, and DANY affirmed itself on

appeal. 11 On appeal, DANY concurred with the reasoning of the Initial Denial and

additionally claimed that the requested information was exempt as attorney work

product. 12

II. Petitioner files an Article 78 proceeding to compel disclosure, and the IAS
Court denies and dismisses the Petition.

Following the appeal denial, Stengel filed an Article 78 Petition seeking to

compel DANY to comply with its FOIL obligations. 13 In DANY’s Verified

8
R-53.
9
R-57-59.
10
R-57.
11
R-59-61, 67-68.
12
R-67-68.
13
R-36-49.
6
Answer, they admitted that the requested information was maintained in an excel

spreadsheet which was internally referred to as “the List.” 14 The Verified Answer

raised several new potential exemptions including intra-agency material and

privacy considerations. 15 The IAS Court denied and dismissed the petition,

holding that the List was work-product and that it did not exist. 16

LEGAL STANDARD
“FOIL imposes a broad duty on government to make its records available to

the public.” 17 “It is axiomatic that government records are presumptively subject to

disclosure unless, specifically exempted by statute. The agency denying access

must demonstrate that the requested records fall squarely within a FOIL exemption

by articulating a particularized and specific justification. Moreover, FOIL is to be

read liberally and its exemptions read narrowly.” 18 If the agency “fails to prove

that a statutory exemption applies, FOIL compels disclosure.” 19 If a only portion

of a record is exempt, the record must be produced with the exempt portion

redacted. 20

14
R-92 ¶ 13, 93 n. 6.
15
R-101-102.
16
R-11, 12.
17
Matter of Gould v New York City Police Dep’t, 89 N.Y.2d 267, 274 (1996).
18
Matter of Mantica v New York State Dep’t of Health, 248 A.D.2d 30, 32 (3d Dep’t
1998), affd, 94 N.Y.2d 58 (1999) (quotation cleaned up).
19
Matter of Data Tree, LLC v Romaine, 9 N.Y.3d 454, 463 (2007).
20
Matter of Whitfield v Bailey, 80 A.D.3d 417, 418–19 (1st Dep’t 2011).
7
 ARGUMENT

The Order denying and dismissing Petitioner’s Article 78 proceeding should

be reversed.

I. The IAS Court incorrectly affirmed the FOIL denial on grounds not invoked
by Respondents in the June 7, 2018 FOIL denial.
Judicial review of administrative determinations, such as FOIL denials, is

“limited to the grounds invoked by the agency.” 21 Any issue or argument not

raised by the agency during the initial determination is unpreserved for review by

either administrative appeal or judicial review. 22 A court “is powerless to affirm [a

FOIL denial] by substituting what it considers to be a more adequate or proper

basis.” 23

In order to preserve a FOIL exemption, the agency must “articulate [a]

particularized and specific justification for denying disclosure.” 24 This means that

an agency must either cite to the specific Public Officers Law (“POL”) section

exempting disclosure or mirror the language of such section. 25 In Maideros, the

respondent denied a FOIL request citing POL § 87(2)(e). 26 During the Article 78

proceeding, the respondent argued that the records were exempt under POL §

21
Matter of Madeiros v New York State Educ. Dep’t, 30 N.Y.3d 67, 74 (2017).
22
Matter of Bernstein v. Department of State, Div. of Licensing Services, 96 A.D.3d 1183, 1184
(3d Dep’t 2012).
23
Madeiros., 30 NY3d 74.
24
Id.
25
Id.
26
Id.
8
87(2)(e)(iv). 27 The Court of Appeals refused to consider this argument because

respondents did not explicitly cite subsection (iv). 28 Any FOIL denial that fails to

reach this level of specificity is waived. 29

Despite these rules, the IAS Court held that “there is no requirement to

specify the reasons for the [FOIL] denial,” citing POL § 89(3). However, the IAS

Court’s interpretation of FOIL is directly contradicted by the rules and regulations

governing FOIL. 30 Under 21 NYCRR 1401.7(b), which governs the denial of

access to records under FOIL, a “denial of access shall be in writing stating the

reason thereof.”

The IAS Court’s holding is also foreclosed by this Court’s decision in

Barry. 31 The petitioner in Barry sought FOIL disclosure of records from the New

York City Police Department (the “NYPD”). 32 The NYPD initially denied the

request based entirely upon the exemptions for interference with a law enforcement

investigation and affirmed that decision on administrative appeal for the same

reason. 33 Following the commencement of an Article 78 proceeding, the NYPD

issued a second decision on administrative appeal and produced thousands of pages

27
Id.
28
Id.
29
Id.
30
See 21 NYCRR § 1401.7(b).
31
Matter of Barry v O’Neil, 185 A.D.3d 503 (1st Dep’t 2020).
32
Id. at 504.
33
Id.
9
of redacted documents. 34 The second decision relied upon exemptions for inter-

and intra-agency materials, nonroutine criminal investigation techniques, and

preserving the integrity of agency information technology assets. 35 The NYPD

moved to dismiss the Article 78 proceeding arguing that “judicial review was not

limited to the original determination.” 36 The Supreme Court granted the motion. 37

This Court reversed that decision on appeal because the NYPD “did not make any

contemporaneous claim that the requested materials fit the newly raised

exemptions” and “to allow them to do so would be contrary to Court of Appeals

precedent, as well as the spirit and purpose of FOIL.” 38

Accordingly, the IAS Court’s review of Respondents FOIL denial was

limited to the exemptions cited in the initial June 7, 2018, denial of Petitioner’s

FOIL request. That denial claimed that the list was exempt (i) under POL § 89(c)

because DANY allegedly did “not have a list directly responsive to the request”;

and (ii) as “records made in anticipation of litigation” under CPLR § 3101(d)(2). 39

However, the claim that the records were made in anticipation of litigation

was not sufficiently particularized and specific as to be preserved for judicial

34
Id.
35
Id.
36
Id. at 505.
37
Id.
38
Id. (quotation cleaned up).
39
R-57.
10
 review. 40 The initial denial cites to the CPLR, but it does not cite to any

corresponding provision of the POL which would exempt the documents from

disclosure. This level of specificity does not reach the standard laid out by this

court in Madeiros, and thus Respondents were precluded from relying upon that

exemption in either the administrative appeal or the Article 78 proceeding. 41

At the administrative appeal level Respondent cited a number of other

exemptions which were waived because they were not raised in the initial denial. 42

Thus the IAS Court erroneously based its review on whether the requested material

was attorney work product, 43 which Respondents did not raise in their initial

denial. 44 Despite this procedural defect, the remainder of this brief addresses all

FOIL exemptions on the merits.

II. POL § 89(3)(a) did not exempt the List from disclosure because Petitioner
adequately described the List.
“The requirement of POL § 89(3)(a) that requested documents be reasonably

described serves to enable an agency to locate and identify the records in

question.” 45 “Where the request is sufficiently detailed to enable the agency to

locate the records in question, the agency cannot complain about the nomenclature

40
See Madeiros, 30 N.Y.3d 74.
41
Id.
42
R-67-68.
43
R-9.
44
R-57-58.
45
Matter of Pflaum v. Grattan, 983 N.Y.S.2d 351, 352 (2d Dep’t 2014).
11
of the request as described.” 46 POL 89(3)(a) should not be used “as a device to

withhold records.” 47

The IAS Court erroneously affirmed Respondent’s FOIL denial pursuant to

POL § 89(3) holding that Respondents “confirmed that they do not have a list.” 48

However, in the initial denial Respondents admitted that they did “maintain

information regarding a court’s adverse credibility finding” but refused to turn that

document over because it was not a “list.” 49 In Respondent’s Verified Answer,

they further described the document sought as a “police tracking spreadsheet”

which was colloquially referred to as “the list.” 50 Respondents’ reliance on POL §

89(3) was nothing more than a complaint about the nomenclature of the request.

The IAS Court used the exemption as a “device to withhold records” which the

Court of Appeals has held is inappropriate.

Respondents’ argument also ignores the fact that “there is a difference

between creating a new record and redacting an existing one.” 51 In the Prevention

of Cruelty to Animals case, a petitioner sought access the names and business

addresses of veterinarians licensed by the Department of Education in Schenectady

46
Matter of Jewish Press, Inc. v N.Y.C. Dep't of Educ., 183, A.D.3d 731, 731 (2d Dep’t 2020).
47
Matter of Konigsberg v Coughlin, 68 N.Y.2d 245, 251 (1986).
48
R-12.
49
R-57.
50
R-93.
51
Matter of Schenectady Cnty. Socy’ for the Prevention of Cruelty to Animals, Inc. v Mills, 18
N.Y.3d, 42, 46 (2011).
12
 County. 52 The Department maintained this information in an electronic file but

was unable to distinguish a business address from a residential address. 53 The

Court of Appeals acknowledged that FOIL does not require an agency to create

new records, but nevertheless held that “the Department had the choice of

producing the existing record in full or removing the information that it did not

want to produce and that petitioner did not demand.” 54 Therefore, Respondents

argument that they would have to create a new document to respond to Stengel’s

FOIL demand has already been rejected by the Court of Appeals.

III. POL § 87(2)(a) did not exempt the List from disclosure

1. CPLR Article 31 and CPL § 240 are not statutes specifically exempting
the records from FOIL disclosure.
A state agency may deny access to information that is “specifically

exempted from disclosure by state or federal statute.” 55 Relying on this exception,

Respondents claimed that the disclosure exceptions found in CPLR § 3101 and

CPL § 240 specifically exempted the List from disclosure. 56 However, neither

section of law exempts records from FOIL disclosure.

The Court of Appeals has stated that neither Article 31 of the CPLR nor

CPL § 240 specifically exempt documents from disclosure under FOIL. In

52
Id. at 45.
53
Id.
54
Id. at 46.
55
POL § 87.
56
R-67.
13
Farbman, the Court of Appeals held “that CPLR Article 31 is not a statute

specifically exempting public records from disclosure under FOIL.” 57 The court

limited its holding and refused to address whether the work product and

anticipation of litigation doctrines exempted documents from FOIL disclosure. 58

The Court of Appeals in Gould extended this reasoning to the CPL. 59 There, the

court held that CPL § 240, which governs disclosure in criminal prosecution, did

not exempt records from FOIL disclosure because the CPL “does not specifically

preclude defendants from seeking these documents under FOIL.” 60

While the Court of Appeals has not conclusively resolved the issue, other

courts have concluded that the relevant privileges do not exempt records from

FOIL disclosure. 61 In Burke, the court specifically held that the privileges found in

CPLR Article 31 do not exempt records from disclosure via FOIL. 62 The court

reasoned that the “specifically exempted from disclosure” exemption instead

57
Matter of M. Farbman & Sons, Inc. v New York City Health and Hosps. Corp., 62 N.Y.2d 75,
81-82 (1984) (quotation cleaned up).
58
Id.
59
See Gould, 89 N.Y.2d 267.
60
See Id. at 274.
61
The 1st Department has not directly addressed whether the Article 31 exemptions apply to
FOIL. Cases have assumed that the exemptions apply without grappling with the holdings in
Farbman or Gould. It appears that this argument would be a matter of first impression in the 1st
Department.
62
Matter of Burke v Yudelson, 81 Misc. 2d 870, 877–78 (Sup. Ct. 1975), affd, 51 A.D.2d 673
(4th Dep’t 1976).
14
referred to “to such information as income tax and juvenile and youthful offender

proceedings.” 63

This holding is further supported by the plain language of CPLR § 3101 or

CPL § 240. As the Farbman and Gould courts noted, neither section explicitly

exempts records from FOIL disclosure. The legislature could have included such

language and in fact did so in other sections of the CPLR. For example, CPLR §

4503 extends the attorney client communications privilege to administrative

proceedings, which would include FOIL. The legislature chose not to include this

language in CPLR Article 31 or CPL § 240, and thus they do not specifically

exempt any records from disclosure under FOIL.

Even if these procedural laws specifically exempted the records requested by

Petitioner by FOIL, they would not apply to the records at issue as discussed

below.

2. The List was not made in anticipation of litigation.

Under CPLR § 3101(d)(2), material prepared in anticipation of litigation is

privileged from disclosure in a civil action unless the party seeking discovery has a

substantial need for the material and cannot obtain it without undue hardship. 64

This privilege however is limited in scope. Materials prepared in anticipation of

63
Id.
64
CPLR § 3101(d)(2).
15
litigation are not protected from discovery in a separate litigation. 65 In other

words, a party may only invoke this protection in the litigation for which the

materials were prepared. 66

The scope of this privilege in the context of a FOIL request was directly

addressed by the court in McCrory. 67 There, respondents denied a FOIL request by

claiming that the requested material was prepared in anticipation of separate

litigation 68 The court disagreed and compelled disclosure because the requested

material was not prepared in anticipation of the Article 78 proceeding. 69

This same reasoning applies to Petitioner’s request. Respondents admitted

that the requested material is prepared for use in “the office’s prosecution.” 70 This

admission conclusively establishes that the requested material was prepared for

separate litigation, and thus they are not protected by CPLR § 3101(d)(2).

65
Bennett v Troy Record Co., 25 A.D.2d 799, 799–800 (3d Dep’t 1966) (“the phrase in
preparation for litigation refers exclusively to the instant litigation and does not grant immunity
from disclosure to material prepared for prior litigation”); Matter of McCrory v Vil. of
Mamaroneck, 34 Misc. 3d 603, 623 (Sup. Ct. 2011) (“CPLR 3101(d)(2) applies only to material
prepared in anticipation of the litigation in which the protection is invoked”); Chem. Bank v
Arthur Andersen & Co., 143 Misc. 2d 823, 826 (Sup. Ct. 1989) (material prepared for other
litigation was not protected because “it was not prepared for the case at bar”).
66
Id.
67
McCrory, 34 Misc. 3d at 623.
68
Id.
69
Id.
70
R-68.
16
 3. The List is not attorney work product.
Under CPLR § 3101(c), attorney work product is absolutely privileged from

disclosure in civil proceedings. However, this privilege only applies if the

materials: (1) were prepared by an attorney; (2) were uniquely the product of the

lawyer’s learning and skills; and (3) reflect legal research, analysis, or opinion on a

legal position. 71 If any of these conditions are not met, the work product privilege

does not apply. 72 The work product exception must be construed narrowly. 73

The privilege does not cover all of an attorney’s labors. 74 For example,

information obtained as part of an attorney’s “investigative efforts” is not work

product even though legal training may be useful in such situations. 75 Even an

attorney’s report on a factual investigation does not qualify “if a lay person could

have done the same thing.” 76 Ultimately, the privilege only protects material

reflecting an attorney’s “mental impressions, opinions, or legal theories.” 77 Courts

71
Venture v Preferred Mut. Ins. Co., 153 A.D.3d 1155, 1159 (1st Dep’t 2017); Ford v Rector,
111 A.D.3d 572, 574 (1st Dep’t 2013) (materials were not work product because they did not
contain legal research or analysis nor render any legal opinion).
72
See Id.
73
Chem. Bank v Natl. Union Fire Ins. Co. of Pittsburgh, Pa., 70 A.D.2d 837, 837–38 (1st Dep’t
1979).
74
Hoffman v Ro-San Manor, 73 A.D.2d 207, 211 (1st Dep’t 1980) (“[n]ot every manifestation of
a lawyer's labors enjoys the absolute immunity of work product”).
75
Spectrum Sys. Intern. Corp. v Chem. Bank, 157 A.D.2d 444, 449 (1st Dep’t 1990), affd as
mod, 78 N.Y.2d 371 (1991).
76
James, Hoyer, Newcomer, Smiljanich and Yanchunis, P.A. v State, Off. of Atty. Gen., 27 Misc.
3d 1223(A) (Sup. Ct. 2010).
77
People v Kozlowski, 11 N.Y.3d 223, 245 (2008).
17
consistently hold that information and facts gathered by an attorney are not work

product. 78

Under these standards, the List does not qualify as work product.

Respondent “maintains information regarding a court’s adverse credibility

finding.” 79 The gathering of this information could have been done by a lay

person, does not require the unique skills of a lawyer, and does it reflect legal

analysis. This material reflects only investigative work performed by attorneys,

which does not qualify as privileged. To the extent that the List contains some

privileged information, Respondents were required to produce the List with the

exempt information redacted. 80

78
See e.g. Spectrum, 157 A.D.2d 448-9 (factual reports prepared by attorney acting as
investigator are not work product and “attorney-client privilege extends only to communications
and not facts”); Geffner v Mercy Med. Ctr., 125 A.D.3d 802, 802–03 (2d Dep’t 2015) (audio
recording of interview conducted by attorney not work product); Hoffman, 73 A.D.2d at 211
(“the discovery of witnesses, even though the result of the attorney's zeal and investigative
efforts, does not qualify as an attorney's work product”); Aetna Cas. and Sur. Co. v Certain
Underwriters at Lloyd's, 263 A.D.2d 367, 368 (1st Dep’t 1999) (interview minutes and
interviewee list prepared by attorneys was not work product”); McCrory, 34 Misc. 3d at 623
(“Transcripts memorializing the statements of witnesses obtained during the discovery process
do not constitute attorney's work product”).
79
R-57.
80
Schenectady Cnty. Soc’y for the Prevention of Cruelty to Animals, Inc. v. Mills, 18 N.Y.3d 42,
46 (2011) (an agency “cannot refuse to produce the whole record simply because some of it may
be exempt from disclosure).
18
 4. Respondent waived any potential privilege by disclosing the underlying
information to third parties.

“When a party voluntarily gives to its adversary documents that share the

thought processes of counsel, the work-product privilege disappears.” 81

Respondent admitted that the requested materials are complied so that “DANY can

comply with [its] relevant disclosure obligations” in criminal prosecutions. If the

records and information contained therein are maintained specifically to turn over

to defendants who are charged with crimes, they are not privileged and must be

produced.

Additionally, Respondents admit that the “Conviction Integrity Program”

has access to the list. 82 This program includes the “outside Conviction Integrity

Policy Advisory Panel” compromised of individuals who are not employed by the

District Attorney of New York. 83 Disclosure of the list to this non-government-

employee panel constitutes a waiver of any claimed privilege.

IV. The List is not sealed under CPL § 160.50.

Under CPL § 160.50, all “official records and papers” relating to criminal

prosecution are sealed upon the termination of a case in favor of a defendant. This

does not mean that any records relating in anyway whatsoever is sealed; for

81
Charter One Bank, F.S.B. v Midtown Rochester, L.L.C., 191 Misc. 2d 154, 160 (Sup. Ct.
2002).
82
R-93 ¶ 15.
83
https://www.manhattanda.org/district-attorney-vance-announces-conviction-integrity-program.
19
example, 911 calls are not official records subject to such sealing. 84 Respondents

made no showing that the list is an official record or paper subject to sealing, and

thus it is irrelevant whether the list contains information related to determinations

of witness testimony, but not the witness testimony itself, in cases that have been

sealed. Respondents would also bear the burden of proving which cases if any

have been sealed and may not withhold information because they do not keep track

of what cases have been sealed.

V. The List is not exempt from disclosure for privacy considerations

Under POL § 87(2)(b), any record that would be an unwarranted invasion of

privacy under POL § 89(2)(b) is exempt from disclosure. If the record does not

fall under one of the six enumerated categories in § 89(2)(b), then the court must

balance the invasion of privacy against the public interest in disclosure. 85

Because the list does not fail within the specific exemptions, this court must

balance the invasion of privacy against the public interest in disclosure.

Respondents did not explain the privacy interest in the list, but whatever that may

be, there is an overwhelming public interest in disclosure: the ability of a police

officer to perform his or her job properly. 86 An NYPD officer’s lack of credibility,

84
Dockery v New York City Hous. Auth., 51 A.D.3d 575 (1st Dep’t 2008).
85
Matter of The New York Times Co. v City of New York Fire Dep’t, 4 N.Y3.d 477, 485 (2005).
86
Mulgrew v Bd. of Educ. of City School Dist. of City of New York, 87 A.D.3d 506, 507-08 (1st
Dep’t 2011) (“the reports concern information of a type that is of compelling interest to the
public, namely, the proficiency of public employees in the performance of their job duties”).

20
 propensity to lie under oath, and any other information contained within the list

directly affects their fitness to be police officers.

In addition, impeaching information about a witness a prosecutor will or

may call at trial has an enormous effect on the trajectory of a case. Material

concerning the impeachment of prosecution witnesses is usually disclosed by the

prosecutor immediately prior to trial, if at all. Thus, the public also has a right to

know whether Respondents are complying with their disclosure obligations and

whether they withhold crucial information from criminal defendants. If

Respondents do not take their FOIL obligations seriously, there is serious concern

that they may also not take their Brady and Giglio disclosure obligations seriously.

The public has a right to know whether the police officers who are on the list

and prosecutors making disclosures are capable of performing their vital job duties,

and any potential privacy interest is outweighed. Thus, the list must be disclosed.

VI. The List is not exempt intra-agency material under POL §87(2)(g).
Under POL §87(2)(g), an “agency may deny access to records or portions

thereof that are intra-agency material which are not statistical or factual tabulations

or data.” 87 Factual data, which is not exempt from disclosure, “simply means

objective information, in contrast to opinions, ideas, or advice.” 88 “Intra-agency

87
(quotation cleaned up).
88
Gould, 89 N.Y.2d at 276.
21
 documents that contain statistical or factual tabulations or data are subject to FOIL

disclosure, whether or not embodied in a final agency policy or determination.” 89

Because the information requested by Petitioner is objective and factual in nature,

POL §87(2)(g) does not apply.

VII. Even if portions of the list are exempt, the List must be produced with
appropriate redactions.
If the list truly does contain exempt information, which Petitioner maintains

it does not, then “the appropriate remedy is an in camera review and disclosure of

all nonexempt, appropriately redacted material.” 90

VIII. Public policy mandates disclosure.

The public policy embodied in FOIL would be thwarted if Respondent were

allowed to withhold the records at issue. “FOIL implements the legislative

declaration that government is the public’s business. 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. Full disclosure by public

agencies is, under FOIL, a public right and in the public interest.” 91

These policy considerations are magnified in this instance given the

importance of a police officer’s credibility in criminal prosecutions. Adverse

89
Id.
90
Matter of Kirsch v Bd. of Educ. of Williamsville Cent. School Dist., 152 A.D.3d 1218, 1219-20
(4th Dep’t 2017), lv to appeal denied, 155 A.D.3d 1610 (4th Dep’t 2017), lv to appeal denied, 31
N.Y.3d 904 (2018).
91
Farbman, 62 N.Y.2d at 79–80 (portions of quotation omitted and quotation cleaned up).
22
credibility findings and other negative information about law enforcement

witnesses must be disclosed by prosecutors to the defense. 92 In many cases the

“credibility [of a police officer] is intertwined with the guilt or innocence of [a]

defendant and raises Sixth Amendment concerns.” 93 Prosecutors have a continuing

obligation to disclosure so-called Brady and Giglio information to a defendant,

which is either exculpatory in nature or impeaching of a prosecution witness. 94

However, criminal defense practitioners are frequently reminded of the

epidemic of wrongful convictions based on the failure to disclose Brady material. 95

A study by the Innocence Project determined that nearly three quarters of the first

74 DNA-based exonerations were wrongful convictions based in part on Brady

violations. 96

Unfortunately, prosecutors seeking convictions may not give proper weight

to their Brady and Giglio obligations. This injustice has prompted reforms to the

criminal justice system. Recently, the New York Justice Task Force announced

new rules that require judges presiding over criminal trials to issue an order

notifying and reminding prosecutors and (defense attorneys) appearing before them

92
See Brady v United States, 397 U.S. 742 (1970); Giglio v United States, 405 U.S. 150 (1972).
93
People v Williams, 7 N.Y.3d 15, 25 (2006).
94
See People v Vilardi, 76 N.Y.2d 67, 76 (1990); People v Ortiz, 85 A.D.3d 588, 599 (1st Dep’t
2011).
95
See, e.g., Cynthia E. Jones, A Reason to Doubt: The Suppression of Evidence and the
Inference of Innocence, 100 J. Crim. L & Criminal 415 (2010).
96
Barry Scheck, Jim Dwyer & Peter Neufeld, Actual Innocence (1st ed. 2001).
23
of their professional responsibilities with respect to disclosure of Brady and Giglio

material. 97 Effective as of January 1, 2018, the rules are codified in the Uniform

Rules for New York State Trial Courts. 98 The Order requires timely disclosures of

Brady and Giglio material, at least 15 days before the commencement of a hearing,

15 days before the commencement of a misdemeanor trial and 30 days before

commencement of a felony trial. 99

The new rule rings hollow to many defendants charged with a crime because

they never reach weeks of a hearing or trial. “Most criminal charges . . . ultimately

are disposed of by means of guilty pleas, and an overwhelming majority of all

criminal convictions result from guilty pleas. While no exact figures are available

it has been estimated that up to 95 percent of all criminal convictions are achieved

by means of guilty pleas. 100 Unfortunately, even if exculpatory or impeaching

material is uncovered after a guilty plea post-conviction Brady claims cannot be

raised unless the evidence is “highly material to the defense.” 101

In the environment of evidence that is withheld from the defense and the

high rate of plea bargains there is a strong public policy for the disclosure of the

records sought by Petitioner. The public policy consideration of a recent case

97
See www.nycourts.gov/press/pdfs/pr17_17.pdf.
98
See 22 NYCRR 200.16/200.27.
99
N.Y. State Justice Task Force, Report on Attorney Responsibility in Criminal Cases (Feb.
2017) App. B.
100
27 Am. Jur. Proof of Facts 2d 133 § 1 (Sept. 2018 Updated).
101
People v. Simmons, 36 N.Y.2d 126, 132 (1975).
24
supports Petitioner’s argument for release of the records sought. Adam Perlmutter,

a former New York-based criminal defense attorney, sent a FOIL request to the

New York City Police Department (“NYPD”) for the maintenance records for

breathalyzer instruments associated with testing of arrestees for driving while

intoxicated; the NYPD denied the FOIL request. 102 In an Article 78 proceeding,

the Court ordered disclosure of the records. The Court reasoned that disclosure of

the breathalyzer maintenance records would benefit the public regardless of what

the records indicated. 103 The court stated that if the breathalyzers were well

maintained it would bolster public confidence in the handling of DWI cases, and if

they were fault or defective it would bolster the public interest in preventing

improper prosecutions. 104

The same benefit to the public applies to disclosure of the List. If a police

officer has never had an adverse credibility finding, it will increase confidence in

the handling of criminal prosecutions. On the other hand, if a police officer’s

name is contained within the records, the disclosure of such to Petitioner will

support the public interest in preventing improper prosecutions. Respondent’s

102
See Metter of The Law Officers of Adam D. Perlmutter, P.C. v. New York City Police
Department, 2013 N.Y. Slip Op. 32532(U) *1 (Sup. Ct. 2013).
103
Id. at *7.
104
Id.
25
 refusal to turn over the records exemplifies a convict-at-any-cost mentality that

erodes the public trust in the criminal justice system.

IX. Petitioner was entitled to attorneys fees.

Under POL § 89(4)(c), a court shall award attorneys fees to a petitioner who

has substantially prevailed if the agency had no reasonable basis for denying

access to the records. Where an agency issues a blanket denial of a request, it must

show that it had a reasonable basis for the entire withholding, and not just a

portion. 105

The fee provision was enacted was to overcome “the ‘sue us’ attitude of

some agencies, a stance found to be contrary to FOIL’s legislative intent.” 106 In

2006, the legislature expanded the bases on which a Petitioner could recover in an

effort 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.” 107

As discussed above, Respondent had no reasonable basis for withholding the

records and Petitioner have been awarded attorney’s fees.

105
See Matter of New York State Defenders Assn. v. New York State Police, 87 A.D.3d 193, 197
(3d Dep’t 2011)
106
See Matter of New York Civ. Liberties Union v. City of Saratoga Springs, 87 A.D.3d 338 (3d
Dep’t 2011) (quoting, Assembly Memorandum in Support, Bill Jacket, Ch. 73, L.1982).
107
Id. (quoting, Senate sponsor's Memorandum in Support, Bill Jacket, Ch. 492, L.2006).
26
 CONCLUSION
There is no question that the List should have been disclosed. It was not

prepared in anticipation of litigation and is not work product. In any event, it has

also been disclosed to third parties, waiving any potential privilege. The records

should have been disclosed initially. Instead, the DA adopted a sue me attitude

and has fought to protect potentially meritless criminal prosecutions. This can

only serve to corrode the public trust in the fair operation of the criminal justice

system. FOIL was specifically designed to remedy these indignities. The IAS

Court ignored the statutory framework of FOIL and refused to construe the

exemptions narrowly.

For these reasons, the Order should be reversed, the petition should be

granted, Respondent should be ordered to comply with the FOIL disclosure request

of June 7, 2018, and Petitioner should be awarded his attorneys fees and litigation

costs.

By:_____________
Henry Bell
Bell Law PLLC
747 Third Ave, Second Floor
New York, NY 10017
347-951-7743
[email protected]
Attorney for Petitioner-Appellant

27
 PRINTING SPECIFICATIONS STATEMENT
I hereby certify pursuant to 22 NYCRR 1250.8(f) and (j) that the foregoing

brief was prepared on a computer using Microsoft Word using a proportionally

spaced typeface.

Name of Typeface: Times New Roman

Point Size: 14

Line Spacing: Double

The total number of words in this brief, inclusive of point headings and footnotes

and exclusive of pages containing the table of contents, table of citations, proof of

service, and this statement is 6,048.

Dated: New York, NY

October 12, 2020
By:_____________
Henry Bell
Bell Law PLLC
747 Third Ave, Second Floor
New York, NY 10017
347-951-7743
[email protected]
Attorney for Petitioner-Appellant

28
 STATEMENT PURSUANT TO CPLR 5531

New York Supreme Court

Appellate Division – First Department


In the Matter of

ANDREW M. STENGEL,
Petitioner-Appellant,

For Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

– against –

CYRUS VANCE, JR., in his official capacity as District Attorney of

New York County, and SUSAN ROQUE,

Defendants-Respondents.

1. The index number of the case in the court below is 159740/18.

2. The full names of the original parties are as above. There have been no changes.

3. The proceeding was commenced in Supreme Court, New York County.

4. The proceeding was commenced on or about October 22, 2018, by the filing of a
Verified Petition. The Verified Answer was served thereafter on
November 26, 2018.

5. The nature and object of the action is as follows: CPLR Article 78 Proceeding /
Administrative Review.

6. The appeal is from a Decision and Order of the Honorable W. Franc Perry, III,
entered on January 10, 2020.

7. This appeal is being perfected on a full reproduced record.