Petitioners,: Memorandum of Law in Support of Verified Petition

CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO.
INDEX NO. UNASSIGNED

NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/08/2018
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
In re Application for a Judgment Pursuant to

Article 78 of the Civil Practice Law and Rules by
NAACP LEGAL DEFENSE & EDUCATIONAL

FUND, INC., and CENTER FOR
CONSTITUTIONAL RIGHTS,
Index No. ____________
Petitioners,
-against-
NEW YORK CITY POLICE DEPARTMENT, and

JAMES P. O’NEILL, in his official capacity as
Commissioner of the New York City Police
Department,
Respondents.
MEMORANDUM OF LAW IN SUPPORT OF VERIFIED PETITION
Marne L. Lenox
John S. Cusick
NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
40 Rector Street, 5th Floor
New York, NY 10006
Tel: (212) 965-2000
Fax: (212) 226-7592
Darius Charney
Britney Wilson
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
Tel: (212) 614-6464
Fax: (212) 614-6499
Attorneys for Petitioners
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 1 of 34
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 4
ARGUMENT ................................................................................................................................ 12
I. THE NYPD’S DENIAL OF THE REQUESTS MERITS ARTICLE 78 REVIEW. ....... 12
II. THE NYPD’S RESPONSE TO THE REQUESTS VIOLATES THE FREEDOM

OF INFORMATION LAW. ............................................................................................. 13
A. The NYPD Did Not Conduct a Diligent Search for

Requested Records. ................................................................................... 13
B. The NYPD Did Not Properly Certify Its Search for Record. ................... 20
C. The NYPD Failed to Provide a Particularized and Specific

Justification for Withholding Certain Records. ........................................ 21
III. PETITIONERS ARE ENTITLED TO LEGAL COSTS, INCLUDING

ATTORNEY’S FEES. ...................................................................................................... 25
CONCLUSION ............................................................................................................................. 28
This is a copy of a pleading filed electronically pursuant toi New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
TABLE OF AUTHORITIES
PAGE(S)
CASES:
Atlas Henrietta, LLC v. Town of Henrietta Zoning Bd. of Appeals,

995 N.Y.S.2d 659 (Sup. Ct. 2013),
aff’d, 992 N.Y.S.2d 667 (Mem.) (App. Div. 2014) .................................................................. 13
City of Newark v. Law Dep't of N.Y.,

760 N.Y.S.2d 431 (App. Div. 2003) ......................................................................................... 24
Church of Scientology of N.Y. v. State,

46 N.Y.2d 906 (1979) ......................................................................................................... 24, 25
Data Tree, LLC v. Romaine,

9 N.Y.3d 454 (2007) ................................................................................................................. 22
Daum v. Tessler,
804 N.Y.S.2d 920 (App. Div. 2005) ................................................................................... 13, 20
DJL Rest. Corp. v. Dep’t of Bldgs. of N.Y.,

710 N.Y.S.2d 564 (App. Div. 2000) ......................................................................................... 24
Fink v. Lefkowitz,
47 N.Y.2d 567 (1979) ......................................................................................................... 21, 26
Friedman v. Rice,
30 N.Y.3d 461 (2017) ............................................................................................................... 21
Gould v. NYPD,
89 N.Y.2d 267 (1996) ......................................................................................................... 14, 22
Hanig v. N.Y. Dep’t of Motor Vehicles,

79 N.Y.2d 106 (1992) ............................................................................................................... 22
Johnson v. NYPD,
694 N.Y.S.2d 14 (App. Div. 1999) ........................................................................................... 24
Law Offices of Perlmutter, P.C. v. NYPD,

999 N.Y.S.2d 26 (App. Div. 2014) ........................................................................................... 22
Madeiros v. N.Y.S. Educ. Dep’t.,

30 N.Y.3d 67 (2017) ........................................................................................................... 22, 23
This is a copy of a pleading filed electronically pursuant toiiNew York State court rules (22 NYCRR §202.5-b(d)(3)(i))
PAGE(S)
CASES:
Mulgrew v. Bd. of Educ. of N.Y.,

928 N.Y.S.2d 701 (App. Div. 2011) ......................................................................................... 13
Murphy v. N.Y. State Educ. Dep't, Office of Prof'l Discipline,

543 N.Y.S.2d 70 (App. Div. 1989) ........................................................................................... 12
N.Y.S. Defs. Ass’n v. N.Y.S. Police,

927 N.Y.S.2d 423 (App. Div. 2011) ................................................................................... 25, 26
Oddone v. Suffolk Cty. Dist. Att’y’s Office,

No. 14955/11, 2013 WL 2256301 (N.Y. Sup. Ct. 2013) .......................................................... 20
Oddone v. Suffolk Cty. Dist. Att’y’s Office,

No. 0149552011, 2014 WL 10321399 (N.Y. Sup. Ct. 2014) ................................................... 20
Oddone v. Suffolk Cty. Police Dep’t,

946 N.Y.S.2d 580 (App. Div. 2012) ....................................................................... 14, 17, 18, 19
Rattley v. NYPD,
96 N.Y.2d 873 (2001) ............................................................................................................... 20
Rauh v. de Blasio,
75 N.Y.S.3d 15 (App. Div. 2018) ............................................................................................. 25
Riley-James v. Vance,
971 N.Y.S.2d 74 (Table) (Sup. Ct. 2013) ................................................................................. 20
Schenectady Cty. Soc’y for the Prevention of Cruelty to Animals, Inc. v. Mills,
18 N.Y.3d 42 (2011) ................................................................................................................. 27
Scherbyn v. Wayne-Finger Lakes Bd. of Co-op. Educ. Servs.,

77 N.Y.2d 753 (1991) ............................................................................................................... 23
Tarantino v. NYPD,
25 N.Y.S.3d 601 (Mem.) (App. Div. 2016) .............................................................................. 20
Thomas v. Condon,
9 N.Y.S.3d 257 (App. Div. 2015) ............................................................................................. 13
W. Harlem Bus. Group v. Empire State Dev. Corp.,

13 N.Y.3d 882 (2009) ......................................................................................................... 24, 26
Whitfield v. Moriello,
895 N.Y.S.2d 405 (2010) .......................................................................................................... 21
This is a copy of a pleading filed electronically pursuant toiiiNew York State court rules (22 NYCRR §202.5-b(d)(3)(i))
PAGE(S)
CASES:
Wright v. Woodard,
68 N.Y.S.3d 778 (Mem) (App. Div. 2018) ............................................................................... 14
PAGE(S)
STATUTES & RULES
N.Y. PUB. OFF. LAW

§ 89(3)(a) (McKinney 2017)..................................................................................................... 13
§ 84 (McKinney 1977), et seq. ................................................................................................... 1
§ 89(4)(a) (McKinney 2017)............................................................................................... 22, 25
§ 89(4)(b) (McKinney 2017) .................................................................................................... 12
§ 89(4)(c) (McKinney 2006)..................................................................................................... 25
§ 89(4)(c)(i) (McKinney 2017) ................................................................................................. 25
§ 89(4)(c)(ii) (McKinney 2017) ................................................................................................ 25
N.Y. C.P.L.R.
217(1) (McKinney 1990) .......................................................................................................... 12
7803(3) (McKinney 2003) ........................................................................................................ 13
PAGE(S)
OTHER AUTHORITIES
Assembly Mem. in Support, at 1 Bill Jack, L. 1982 ..................................................................... 25
Chicagoans for an End to the Gang Database v. City of Chicago,

No. 18 Civ. 4242 (N.D. Ill. Filed June 19, 2018) ....................................................................... 2
Mick Dumke, Chicago’s Gang Database Is Full of Errors—And Records We Have Prove It,
PROPUBLICA ILL. (Apr. 19, 2018, 4:00 AM),
https://www.propublica.org/article/politic-il-insider-chicago-gang-database ............................ 2
Sean Garcia-Leys, Meigan Thompson & Christyn Richardson, Mislabeled: Allegations of Gang
Membership and Their Immigration Consequences, UCI SCH. OF L. IMMIGR. RTS. CLINIC
(Apr. 2016), http://www.law.uci.edu/academics/real-life-learning/clinics/ucilaw-irc-
MislabeledReport.pdf ................................................................................................................. 2
Joseph Goldstein and J. David Goodman, Frisking Tactic Yields to a Focus on Youth Gangs,
N.Y. TIMES (Sept. 18, 2013), http://www.nytimes.com/2013/09/19/nyregion/frisking-tactic-
yields-to-a-focus-on-youth-gangs.html....................................................................................... 1
This is a copy of a pleading filed electronically pursuant toivNew York State court rules (22 NYCRR §202.5-b(d)(3)(i))
PAGE(S)
OTHER AUTHORITIES
K. Babe Howell, Gang Policing: The Post-Stop-and Frisk Justification for

Profile-Based Policing,
5 UNIV. DENVER CRIM. L. REV. 1 (2015). ............................................................................... 1, 5
Nereida Moreno, Chicago Settles Suit with Immigrant Falsely Accused of Gang Ties,
CHI. TRIB. (Dec. 7, 2017, 7:35 AM), http://www.chicagotribune.com/news/immigration/ct-
met-immigration-lawsuit-settled-1206-story.html ...................................................................... 2
Off. of Bill de Blasio, Pub. Advoc. for the City of New York, Breaking Through Bureaucracy:
Evaluating Government Responsiveness to Information Requests in
New York City (April 2013) ........................................................................................................ 3
Patrol Guide 202-30, Youth Officer, N.Y.C. POLICE DEP’T (June 26, 2018),
https://www1.nyc.gov/assets/nypd/downloads/pdf/public_information/public-pguide1.pdf ..... 5
Patrol Guide 212-13, Reporting Gang-Related Criminal Activity, N.Y.C. POLICE DEP’T
(Dec. 31, 2015), https://www1.nyc.gov/assets/nypd/downloads/pdf/public_information/
public-pguide2.pdf. ..................................................................................................................... 5
R.C. v. City of New York, No. 153739/2018 (N.Y. Sup. Ct. filed Apr. 24, 2018) ........................ 19
Josh Saul, In a First for the Nation, Portland Police End Gang List to Improve Relations with
Blacks and Latinos, NEWSWEEK (Sept. 15, 2017, 6:40 AM),
http://www.newsweek.com/2017/10/06/gang-violence-portland-police-tear-gang-member-
list-effort-rebuild-community-665374.html ............................................................................... 2
Transcript: Oversight–NYPD’s Gang Takedown Efforts, N.Y.C. COUNCIL COMM.

ON PUB. SAFETY
(June 13, 2018, 10:17 AM), https://on.nyc.gov/2vdi681 ............................................................ 3
Ali Winston, NYPD Attempts to Block Surveillance Transparency Law with Misinformation,
THE INTERCEPT (July 7, 2017, 10:59 AM), https://theintercept.com/2017/07/07/nypd-
surveillance-post-act-lies-misinformation-transparency/ ........................................................... 3
Richard Winton, California Gang Database Plagued with Errors, Unsubstantiated Entries,
State Auditor Finds, L.A. TIMES (Aug. 11, 2016, 9:10 PM),
http://www.latimes.com/local/lanow/la-me-ln-calgangs-audit-20160811-snap-story.html ....... 1
This is a copy of a pleading filed electronically pursuant tov New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
PRELIMINARY STATEMENT
Petitioners, the NAACP Legal Defense & Educational Fund, Inc. (“LDF”) and the Center
for Constitutional Rights (“CCR”), respectfully submit this memorandum of law in support of
review under Article 78 of the New York Civil Practice Law and Rules. This petition contests the
New York City Police Department’s (“NYPD” or “the Department”) denial of LDF and CCR’s
Requests for records under the Freedom of Information Law (“FOIL”) regarding the NYPD’s
classification of individuals as members of local street gangs or crews.1
Over the past decade, the NYPD has targeted local street gangs/crews—“informal groups
of teenagers and young men who are organized geographically, around a housing project, a block
or single building”—under the guise of precision policing.2 Accordingly, the Department
maintains a Criminal Group Database that indiscriminately designates thousands of New Yorkers
as members of local street gangs or crews. These designations are overinclusive, racially
discriminatory, and likely error-ridden.3
Nationwide, gang databases like the Criminal Group Database have widespread
inaccuracies and lack due process protections. In California, an audit revealed that its statewide
gang database erroneously included the names of forty-two toddlers one year of age or younger;
twenty-eight of these babies allegedly admitted gang membership.4
1
See generally N.Y. PUB. OFF. LAW § 84 (McKinney 1977) et seq.
2
Joseph Goldstein and J. David Goodman, Frisking Tactic Yields to a Focus on Youth Gangs, N.Y. TIMES
(Sept. 18, 2013), http://www.nytimes.com/2013/09/19/nyregion/frisking-tactic-yields-to-a-focus-on-
youth-gangs.html.
3
K. Babe Howell, Gang Policing: The Post-Stop-and Frisk Justification for Profile-Based Policing, 5
UNIV. DENVER CRIM. L. REV. 1, 15-16 (2015).
4
Richard Winton, California Gang Database Plagued with Errors, Unsubstantiated Entries, State Auditor
Finds, L.A. TIMES (Aug. 11, 2016, 9:10 PM), http://www.latimes.com/local/lanow/la-me-ln-calgangs-
audit-20160811-snap-story.html.
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
The Chicago Police Department’s gang database is similarly error-ridden. A Freedom of
Information Act request revealed that Chicago’s gang repository included more than 160 people
in their 70s or 80s, along with two people who were allegedly 132 years old.5 Chicago now faces
a federal lawsuit challenging the lack of due process afforded to individuals included in its gang
database.6 In Portland, the response to a Freedom of Information Act request suggested that the
Portland Police Department’s gang database merely served as a tool for racial profiling. As a result,
the City voluntarily dismantled its gang database.7
Individuals entered in these gang databases face extraordinary consequences. These boys
and young men of color are subject to heightened police surveillance; elevated aggression during
police encounters; enhanced bail recommendations; elevated charges; enhanced sentencing
recommendations; and, for some, the loss of housing and threat of deportation.8
These concerns led LDF and CCR to submit two FOIL Requests to the NYPD seeking
information about how the Department identifies an individual as a member of a gang or crew and
what procedures, if any, exist to safeguard their due process rights. Petitioners also sought a list of
other agencies with whom the NYPD shares information about individuals it has identified as
members of a gang.
5
Mick Dumke, Chicago’s Gang Database Is Full of Errors—And Records We Have Prove It, PROPUBLICA
ILL. (Apr. 19, 2018, 4:00 AM), https://www.propublica.org/article/politic-il-insider-chicago-gang-
database.
6
Chicagoans for an End to the Gang Database v. City of Chicago, No. 18 Civ. 4242 (N.D. Ill. Filed June
19, 2018).
7
Josh Saul, In a First for the Nation, Portland Police End Gang List to Improve Relations with Blacks and
Latinos, NEWSWEEK (Sept. 15, 2017, 6:40 AM), http://www.newsweek.com/2017/10/06/gang-violence-
portland-police-tear-gang-member-list-effort-rebuild-community-665374.html.
8
See Nereida Moreno, Chicago Settles Suit with Immigrant Falsely Accused of Gang Ties, CHI. TRIB. (Dec.
7, 2017, 7:35 AM), http://www.chicagotribune.com/news/immigration/ct-met-immigration-lawsuit-
settled-1206-story.html; Sean Garcia-Leys, Meigan Thompson & Christyn Richardson, Mislabeled:
Allegations of Gang Membership and Their Immigration Consequences, UCI SCH. OF L. IMMIGR. RTS.
CLINIC (Apr. 2016), http://www.law.uci.edu/academics/real-life-learning/clinics/ucilaw-irc-
MislabeledReport.pdf.
This is a copy of a pleading filed electronically pursuant to2 New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
Since serving the Requests, Petitioners have gained limited insight into the Department’s
Criminal Group Database. First, entry in the database is racially disproportionate. Ninety-nine
percent of individuals in the database are people of color. Second, the database operates with
limited due process protections. The NYPD has admitted to sharing information about individuals’
gang affiliation with local District Attorneys’ Offices and the New York City Department of
Correction, but it does not notify individuals of their inclusion in the database. 9 Nor does the
Department provide a mechanism to challenge gang designations.10 While the NYPD has publicly
claimed to review its database for errors and purge outdated entries,11 the Department maintains a
list of “inactive” members of gangs/crews.12
“The NYPD is notorious for flouting the New York State Freedom of Information Law
for even the most routine requests about police activity, contracts, and policies.” 13 The
Department failed to provide a particularized and specific justification for withholding certain
records, as required by law. Further, the NYPD now claims that after conducting a “diligent
search,” it could not locate most of the requested records. This includes policies and procedures
memorializing the criteria used to enter individuals in its gang database and the process by which
9
Transcript: Oversight–NYPD’s Gang Takedown Efforts, N.Y.C. COUNCIL COMM. ON PUB. SAFETY (June
13, 2018, 10:17 AM), https://on.nyc.gov/2vdi681.
10
See Statement of Chief Dermot Shea, Chief of Detectives, New York City Police Department, Before the
New York City Council Committee on Public Safety, Committee Room, City Hall at 4 (June 13, 2018),
attached hereto as Ex. A.
11
Id. at 3, 4.
12
See NYPD Excel Spreadsheet of Inactive Criminal Group Members, attached hereto as Ex. B.
13
Ali Winston, NYPD Attempts to Block Surveillance Transparency Law with Misinformation, THE
INTERCEPT (July 7, 2017, 10:59 AM), https://theintercept.com/2017/07/07/nypd-surveillance-post-act-lies-
misinformation-transparency/. As Public Advocate, now-Mayor Bill de Blasio issued a scathing report
criticizing, in part, the NYPD’s lack of transparency and responsiveness under FOIL. The report gave the
NYPD an overall grade of “F” for its responsiveness to FOIL Requests. According to the report, nearly
one-third of all requests never received a response while 28% of answered requests took more than 60 days
to process. Off. of Bill de Blasio, Pub. Advoc. for the City of New York, Breaking Through Bureaucracy:
Evaluating Government Responsiveness to Information Requests in New York City 14, 26 (April 2013)
(available via download through the N.Y.C. Pub. Advocate archive,
http://archive.advocate.nyc.gov//foil/report).
the Department reviews and modifies its database for accuracy. Yet in June 2018, just days prior
to the Department’s final administrative decision on Petitioners’ FOIL Requests, the Chief of
Detectives testified publicly that, four years ago, the NYPD established policies and procedures
on the criteria for entry and removal of individuals in its gang database.
Without robust procedural safeguards, the NYPD’s Criminal Group Database places
innocent New Yorkers, mainly people of color, at substantial risk of harm. The public thus has a
strong interest in knowing the precise policies and procedures the NYPD uses to designate
individuals as gang or crew members, audits its database for accuracy, and removes an erroneously
designated individual from its database. Without transparency, innocent New Yorkers—especially
Black and Latino youth—will continue to suffer the consequences of the NYPD’s imprecise
policing practices.
For these reasons, LDF and CCR request that this Court grant the Verified Petition and
require the NYPD to disclose the requested information about its gang policing tactics.
STATEMENT OF FACTS
LDF is the nation’s first civil rights law organization. Through litigation, advocacy, public
education, organizing and outreach, LDF strives to secure equal justice under the law for all
Americans, and to eliminate barriers that prevent African Americans and other people of color
from realizing their full civil and human rights. Since its inception, LDF has sought to eliminate
the arbitrary role of race on the administration of the criminal justice system by challenging laws,
policies and practices that disproportionately affect African Americans and other communities of
color.
CCR is a national non-profit legal and educational organization dedicated to advancing
and protecting the rights guaranteed by the United States Constitution, federal civil rights law, and
the Universal Declaration of Human Rights. Since its founding in 1966, CCR has engaged in
litigation, advocacy and public education campaigns challenging racially discriminatory and
unconstitutional policies and practices within the American criminal justice system.
Access to public information, specifically, records generated and maintained by law
enforcement agencies, enables LDF and CCR to advance their missions.
To hold the NYPD accountable for its gang policing practices, LDF and CCR together
submitted two separate FOIL Requests (“the Requests” or “Petitioners’ Requests”) to the
Department seeking information about the NYPD’s gang-related policies and practices, and in
particular, its gang database.
At the time of the Requests, academic research suggested that the NYPD used a centralized
repository to surveil and collect data on alleged members of local street gangs and crews.14 In
addition, the NYPD’s publicly available Patrol Guide confirmed the existence of a gang database.
According to the Patrol Guide, Youth Officers and Field Intelligence Officers must “identify youth
gangs and maintain [a] youth gang file, including the names of known members, locations, colors,
rivals, etc.”15 Similarly, Gang Division Supervisors or Members must enter relevant information
into “pertinent Gang Division databases (ECMS).”16
Based in part on this information, Petitioners served their initial FOIL Request on
December 20, 2017, seeking public records for five separate categories of information: (1) criteria
used to designate individuals as gang/crew members; (2) criteria used to identify groups of people
14
See, e.g., Howell, supra note 3, at 15-16.
15
Patrol Guide 202-30, Youth Officer, N.Y.C. POLICE DEP’T (June 26, 2018),
https://www1.nyc.gov/assets/nypd/downloads/pdf/public_information/public-pguide1.pdf (pp. 77-78 of
electronic document).
16
Patrol Guide 212-13, Reporting Gang-Related Criminal Activity, N.Y.C. POLICE DEP’T (Dec. 31, 2015),
https://www1.nyc.gov/assets/nypd/downloads/pdf/public_information/public-pguide2.pdf (pp. 458-461 of
electronic document).
as gangs/crews; (3) de-identified demographic information for individuals labeled as gang/crew
members; (4) a copy of the NYPD’s Gang/Group Incident Report (PD377-158); and (5) the use of
the NYPD’s Domain Awareness System to monitor and identify individuals as members of gangs
or crews.17
On February 22, 2018, Petitioners served a second Request seeking additional public
records about (1) the NYPD’s definition of the terms “crew” and “gang”; (2) how, if at all, the
NYPD notifies individuals it has entered into its gang database; (3) how, if at all, individuals in
the database may challenge their designation as a gang/crew member; (4) information about
individuals’ challenges to their designation as gang/crew members; (5) how the NYPD reviews,
audits, or modifies its gang database; and (6) a list of companies/agencies with which the NYPD
has shared its gang database.18
The NYPD timely responded to each Request. Acknowledging receipt of the Requests, the
Department wrote, “further review is necessary to assess the potential applicability of exemptions
set forth in FOIL, and whether the records can be located.”19 The Department agreed to issue a
final determination on the requested documents within ninety business days of each
acknowledgement letter.
On February 12, 2018, after submitting the first Request, the undersigned LDF counsel
spoke by phone with Detective Steven Halk, the NYPD Detective assigned to the Request.
Detective Halk conveyed that he had contacted “a couple different units” to gather the records
requested.20 He did not provide details about the information sought or collected. Detective Halk
17
December 20, 2017 FOIL Request, attached hereto as Ex. C.
18
February 22, 2018 FOIL Request, attached hereto as Ex. D.
19
December 28, 2017 and March 1, 2018 NYPD Acknowledgement Letters, attached hereto collectively
as Ex. E.
20
Conversations with Detective Halk spanned several months, from February 2018 through April 2018. In
total, LDF counsel spoke with the Detective on five separate occasions about the FOIL Requests.
anticipated having the Request “wrapped up in the next couple weeks,” though he provided no
date certain by which Petitioners could expect a determination from the NYPD. When asked,
Detective Halk assured LDF that the NYPD would respond to the Request “well before” the
Department’s ninety-day deadline.
On March 15, 2018, one month after the initial call with Detective Halk, LDF counsel again
contacted him by telephone. The Detective confirmed that he had been assigned to both of
Petitioners’ Requests. He assured counsel that he was “actively looking into” each Request and
said he was “hoping” but “cannot guarantee” that he would have a response to the Requests “within
the next week or two.”
Three weeks later, Petitioners again spoke with Detective Halk, who revealed that he
received responses from “several” units concerning the Requests but was still waiting to hear back
from the School Safety Division. In a fourth conversation on April 23, 2018, Detective Halk told
LDF counsel that he should be able to provide some Patrol Guide Procedures “this week” but said
the remainder of the responsive records collected were under review.
Nearly five months after Petitioners served the initial FOIL Request and more than two
months after submitting the second FOIL request to the NYPD, the NYPD sent a determination
letter for each request (“Determination Letters”).21 The Determination Letters were identical.
Enclosed with each letter were eight NYPD Patrol Guide Procedures and two PowerPoint
presentations that the Department redacted or withheld portions of, citing, without explanation,
four distinct FOIL exemptions to justify the redactions and withholdings. The NYPD withheld the
remainder of the requested records, broadly citing without explanation six distinct exemptions to
disclosure in New York Public Officers Law.
21
See May 1, 2018 NYPD Determination Letters to Dec. 20, 2017 & Feb. 22, 2018 FOIL Requests, attached
hereto collectively as Ex. F.
Petitioners administratively appealed each of the NYPD’s Determination Letters (“the
Appeals” or “Petitioners’ Appeals”).22 The Appeals contended that the Department’s recitation of
the FOIL subsections was inadequate to meet its burden of providing a “particularized and
specific” justification for both the redacted/partially withheld documents provided and the
nondisclosure of the remainder of the requested records. Petitioners argued that the NYPD
improperly invoked or incorrectly applied several FOIL exemptions to deny records.
Before responding to Petitioners’ Appeals, NYPD officials gave public, sworn testimony
about the records that the Department claimed were subject to FOIL exemptions. On June 13,
2018, NYPD Chief of Detectives Dermot Shea appeared at a New York City Council Committee
on Public Safety hearing entitled, “NYPD Gang Takedown Efforts.” The Chief testified about the
criteria the Department uses to designate individuals as members of gangs and provided statistics
revealing that ninety-nine percent of the individuals in its Criminal Group Database are people of
color. The Department also testified that it does not notify individuals of their entry in the database,
nor is there a process for individuals to challenge their inclusion in the database.
A week after the hearing, the NYPD responded to Petitioners’ Appeals (“Appeal
Determination”).23 The Appeals were granted in part and denied in part. The NYPD claimed that
“a diligent search was conducted” and “no records were located” on (1) the criteria for an
individual’s entry into the Criminal Group Database; (2) the criteria used to determine what groups
22
May 31, 2018 Petitioners’ Appeals to Dec. 20, 2017 & Feb. 22, 2018 FOIL Requests, attached hereto
collectively as Ex. G.
23
June 20, 2018 NYPD Appeal Determination, attached hereto as Ex. H. The NYPD responded to
Petitioners’ Appeals six days late. New York Public Officers Law Section 89(4)(a) requires that an agency
respond to an administrative appeal “within ten business days of the receipt of such appeal.” Petitioners’
sent the Appeals to the NYPD by email on May 31, 2018. By statute, therefore, the NYPD had until June
14, 2018 to respond to Petitioners’ Appeals. On June 15, 2018, LDF counsel called the NYPD’s FOIL
Appeals Unit and spoke with Evelyn Cordero, who referred LDF counsel to Lisa Moore, Assistant Counsel
at the NYPD Appeals Unit. Ms. Moore said the Records Appeals Access Officer was out of the office and
would respond when he returned the next week.
of individuals constitute a gang or crew; (3) how the NYPD uses its Domain Awareness System
to monitor or identify gang members; (4) the process for reviewing/auditing/modifying the
database; (5) the process for notifying individuals about their inclusion in the database; (6) the
process for individuals to challenge their inclusion in the database; (7) individual challenges to
inclusion in the database; and (8) companies/agencies with which the NYPD shares its database.24
The NYPD did produce some records in response to the Appeals. The Department provided
three Microsoft Excel spreadsheets with “statistics that were previously disclosed pursuant to a
separate FOIL request.”25 The NYPD also disclosed a copy of the NYPD’s now-retired
Gang/Group Incident Report (PD377-158), along with a copy of the Interim Order revoking the
Incident Report. Finally, the Department provided an already public copy of the June 13, 2018
written testimony that Chief of Detectives Dermot Shea gave to the New York City Council
Committee on Public Safety.26
The lack of documentation provided by the NYPD in response to Petitioners’ FOIL
Requests stands in sharp contrast to the Department’s public assurances of “robust safeguards” for
its gang database. At a City Council hearing in June 2018, Chief Shea testified that in 2014, the
NYPD “realized it needed to establish procedures to regulate the circumstances under which a
person’s name would be entered into the database, as well as criteria for removal.”27 The
Department stated that the process for adding an individual to the database demands “a formal
24
Ex. H at 1.
25
Email from Sgt. Jordan Mazur, Records Access Appeals Officer, NYPD, to Matt Bailey, Paralegal,
NAACP LDF (June 20, 2018, 1:26 P.M.) (on file with LDF counsel), attached hereto as Ex. I. A later email
from Sergeant Mazur clarified that the spreadsheets were responsive to the third category of requests from
the December 2017 Request seeking the demographic information of every individual in its gang database.
See Email from Sgt. Jordan Mazur, Records Access Appeals Officer, NYPD, to Marne Lenox, Assistant
Counsel, NAACP LDF (June 25, 2018, 9:17 AM) (on file with LDF counsel), attached hereto as Ex. J.
26
See Ex. A.
27
Id. at 3.
recommendation requiring a written narrative and supporting documentation that justify such
individual’s inclusion.”28
Chief Shea testified that the NYPD may include an individual in the gang database if he
admits to gang membership or is identified by “two independent and reliable sources” as being
gang affiliated.29 Alternatively, the NYPD may enter an individual into its gang database if two of
the following are true: 1) the person frequents a “known gang location;” 2) the person possesses
“gang-related documents;” 3) the person associates with known gang members; 4) the person
appears in social media posts possessing “known gang paraphernalia;” 5) the person has scars and
tattoos associated with a particular gang; or 6) the person “frequent[ly]” wears colors and
“frequent[ly]” uses hand signs associated with particular gangs.30 According to Chief Shea, “These
actions must be a consistent course of conduct.”31
Despite this specific standard for entry in its Criminal Group Database, the NYPD’s Appeal
Determination claims the Department cannot locate a single record memorializing these criteria.32
The City Council testimony also contends that “the Department has created three avenues
to exit the database, reviewing each person every three years, and on their 23rd and 28th birthdays
to determine if their actions and records still warrant their inclusion in the database. These
safeguards are robust.”33 Like the criteria for entry in the database, the Appeal Determination
asserts that the agency cannot locate any records reflecting these “avenues to exit the database.”34
28
Id. at 4.
29
Id.
30
Id. at 4. One record turned over by the NYPD lists the colors associated with four different gangs as
follows: 1) Bloods: Black, Red, Green, Brown, Khaki; 2) Crips: Black, Blue, Gray, Purple, Orange; 3) Latin
Kings: Black, Gold/Yellow, Red, Purple, Green; 4) Dominican Gangs: Blue, Red, White, Black, Purple,
Lime Green. PowerPoint Presentation, Colors, attached hereto as Ex. K.
31
See Ex. A at 4.
32
See Ex. H.
33
See Ex. A.
34
See id. at 4; see also Ex. H at 2.
10New York State court rules (22 NYCRR §202.5-b(d)(3)(i))

This is a copy of a pleading filed electronically pursuant to
After receiving the Appeal Determination, LDF counsel spoke with Sergeant Jordan
Mazur, the Records Access Appeals Officer. While the exact parameters of the NYPD’s search for
requested records remain unclear, Sergeant Mazur confirmed that his search encompassed the
search conducted at the pre-appeal level. The Sergeant noted that the search did not extend to the
NYPD Detective Guide (which differs from the NYPD Patrol Guide) and that the search likewise
did not encompass Youth Officer files.
LDF counsel also spoke with Sergeant Mazur about the December 2017 request for records
on the relationship between the NYPD’s Domain Awareness System and gang or crew
identification.35 The Appeal Determination denied this request “because your appeal does not
reasonably describe a specific record in a manner that could lead to its retrieval” under Public
Officers Law § 89(3).36 Following discussion over the phone, Sergeant Mazur conceded that the
written request did provide sufficient detail to allow the NYPD to search for the requested records.
He stated, however, that such records do not exist.
Days later, Petitioners sought additional clarification from the NYPD about its Appeal
Determination. The Determination failed to address the records that the Department originally
disclosed but redacted and partially withheld, which Petitioners had raised on appeal. By email,
Sergeant Mazur stated that the Department “maintains that any of that information
redacted/withheld is exempt from disclosure under the same subsections of Public Officers Law
cited by Lt. Mantellino” in the May 1, 2018 Determination Letters.37
35
See Ex. C at 2.
36
Ex. H. at 1-2.
37
See Ex. J, Email from Sgt. Jordan Mazur (June 25, 2018, 9:17 AM) (on file with LDF counsel).

ARGUMENT
I. THE NYPD’S DENIAL OF THE REQUESTS MERITS ARTICLE 78 REVIEW.
After exhausting administrative remedies, “a person denied access to a record in an appeal
determination … may bring a proceeding for review” of the agency’s determination under Article
78 of the New York Civil Practice Law and Rules.38 This proceeding “must be commenced within
four months after the determination to be reviewed becomes final and binding upon the
petitioner.”39
Petitioners have met the threshold for filing an Article 78 petition in New York Supreme
Court. To begin, Petitioners have exhausted the administrative review process. The NYPD issued
a determination on Petitioners’ two FOIL Requests on May 1, 2018.40 On May 31, 2018,
Petitioners timely filed administrative appeals challenging the Department’s Determination
Letters.41 In response, the NYPD sent Petitioners an Appeal Determination on June 20, 2018,
exhausting the administrative review process.42 Petitioners then timely filed this petition on August
8, 2018, less than four months after the agency’s decision became “final and binding.”
When reviewing an Article 78 petition challenging a FOIL determination, courts apply the
“affected by an error of law” standard of review.43 Generally, this “involves an allegation that the
agency improperly interpreted or applied a statute or regulation.”44 Here, the NYPD’s Appeal
38
N.Y. PUB. OFF. LAW § 89(4)(b) (McKinney 2017); see also Murphy v. N.Y. State Educ. Dep't, Office of
Prof'l Discipline, 543 N.Y.S.2d 70, 73 (App. Div. 1989) (noting that a petitioner must exhaust
administrative remedies before seeking judicial relief for a FOIL Request).
39
N.Y. C.P.L.R. 217(1) (McKinney 1990).
40
See Ex. F.
41
See Ex. G; see also N.Y. PUB. OFF. LAW § 89(4)(a) (noting that “any person denied access to a record
may within thirty days appeal in writing such denial”).
42
The NYPD issued its June 20, 2018 Appeal Determination six days after the statutory deadline. See id.
43
Mulgrew v. Bd. of Educ. of N.Y., 928 N.Y.S.2d 701, 702 (App. Div. 2011) (citing N.Y. C.P.L.R. 7803(3)
(McKinney 2003)); Thomas v. Condon, 9 N.Y.S.3d 257, 258 (App. Div. 2015) (finding the application of
“abuse of discretion” and “arbitrary and capricious” legal standards of review to be reversible error).
44
Atlas Henrietta, LLC v. Town of Henrietta Zoning Bd. of Appeals, 995 N.Y.S.2d 659, 666 (Sup. Ct. 2013),
aff’d, 992 N.Y.S.2d 667 (Mem.) (App. Div. 2014).

Determination violates the Freedom of Information Law in three distinct ways. First, the
Department flouted FOIL by failing to conduct a diligent search for the records Petitioners
requested. Second, the NYPD violated FOIL by neglecting to certify properly its search for
records. Third, the NYPD failed to provide a particularized and specific justification for
withholding records.
For these reasons, judicial review of the NYPD’s Appeal Determination is warranted.
II. THE NYPD’S RESPONSE TO THE REQUESTS VIOLATES THE FREEDOM OF

INFORMATION LAW.
A. The NYPD Did Not Conduct a Diligent Search for Requested Records.
The NYPD claims that for most records sought in Petitioners’ FOIL Requests, “a diligent
search was conducted” and “no records were located.”45 Yet Petitioners have reason to believe that
the NYPD maintains records that it claims could not be located. Petitioners therefore contest the
thoroughness of the NYPD’s search for records.
Under FOIL, an agency claiming not to have records must “certify that it does not have
possession of such record or that such record cannot be found after diligent search.”46 Generally,
proper certification of such a search ends the inquiry for public records.47 But a petitioner is entitled
to a hearing on the agency’s possession of requested documents when the petitioner “articulate[s]
a demonstrable factual basis to support his contention that the requested documents existed and
were within [the agency’s] control.”48
45
Ex. H at 1.
46
N.Y. PUB. OFF. LAW § 89(3)(a).
47
See, e.g., Daum v. Tessler, 804 N.Y.S.2d 920, 921 (App. Div. 2005). See infra Section II.B for discussion
about the NYPD’s certification of its search for records.
48
Gould v. NYPD, 89 N.Y.2d 267, 279 (1996); see also Oddone v. Suffolk Cty. Police Dep’t,
946 N.Y.S.2d 580, 584 (App. Div. 2012) (“[E]ven where an entity properly certifies that it was unable to
locate requested documents after performing a diligent search, the person requesting the documents may
nevertheless be entitled to a hearing on the issue where he or she can ‘articulate a demonstrable factual
basis to support [the] contention that the requested documents existed and were within the [entity’s]
control.’”) (internal citations omitted); cf. Wright v. Woodard, 68 N.Y.S.3d 778 (Mem), 778 (App. Div.

As explained in detail below, there is a “factual basis” to believe that the NYPD maintains
records that it claims cannot be located. First, the NYPD’s original response to Petitioners’
Requests signaled that the Department possessed responsive records that it withheld under FOIL
exemptions. It is records of this type that Petitioners now seek. Second, the NYPD’s June 13, 2018
City Council hearing testimony avers that in 2014, the Department “established procedures” to
regulate the criteria for inclusion in its Criminal Group Database and “instituted oversight
mechanisms” to ensure the accuracy of its database. This public declaration undermines the claim
that no such records could be located, providing Petitioners the basis to believe requested records
exist.
We first turn to the NYPD’s direct response to Petitioners’ FOIL Requests. On May 1,
2018, the NYPD issued two identical Determination Letters granting Petitioners’ FOIL Requests
in part and denying the Requests in part. Along with the Determination Letters, the Department
disclosed eight NYPD Patrol Guide procedures and two PowerPoint presentations, noting that the
Department made “[r]edaction[s] and withholdings” to these records under FOIL exemptions. The
NYPD denied the remainder of the requests, citing six different FOIL exemptions to withhold the
requested records.49 The NYPD’s Determination Letters contained no indication that the requested
records could not be located. Instead, the Letters suggested that the Department possessed
responsive records but believed the records were exempt from disclosure under FOIL.
Conversations with the NYPD about the Requests also evidence the existence of requested
records. Between February and April 2018, LDF counsel spoke with the Detective assigned to the
2018) (holding FOIL certification requirements satisfied and petition properly dismissed when there is no
reason to disbelieve an affidavit from the agency’s custodian of records averring that the records sought do
not exist).
49
Ex. F.

FOIL Requests, Detective Steven Halk, four times.50 Each time, the Detective suggested he was
collecting responsive records from a wide array of units within the Department. These records,
according to Detective Halk, required review and vetting by his superiors before disclosure.
Nearly two months after sending the Determination Letters, however, the NYPD responded
to Petitioners’ administrative appeal without citing a single FOIL exemption as justification for
withholding records. Instead, the Records Access Appeals Officer stated that after conducting a
“diligent search”—including review of the pre-appeal search—he could not locate most of the
records Petitioners requested.51 The records he purportedly could not locate include (1) the criteria
for an individual’s entry into its Criminal Group Database; (2) the criteria used to determine what
groups of individuals constitute a gang or crew; (3) documents about how the NYPD uses its
Domain Awareness System to monitor or identify gang members; and (4) the process to review,
audit, or modify the database.52 In other words, on May 1, 2018, the NYPD asserted multiple
statutory exemptions to withhold records that on June 20, 2018 it claimed not to have been able to
locate.
The records that the NYPD did disclose further undermine the Department’s position that
it could not locate additional responsive records. In particular, the written copy of Chief of
Detectives Dermot Shea’s June 13, 2018 sworn testimony before the New York City Council
Committee for Public Safety belies the NYPD’s contention that it could not locate certain
requested records.
50
Telephone interviews occurred on the following dates: Feb. 12, 2018; Mar. 15, 2018; Apr. 6, 2018; and
Apr. 23, 2018.
51
Telephone Interview with Sgt. Jordan Mazur, Records Access Appeals Officer, NYPD (June 21, 2018).
52
Sgt. Jordan Mazur claimed not to have found records for more categories than this, but these are the only
categories LDF counsel contests. Telephone Interview with Sgt. Jordan Mazur, supra note 51.

Chief Shea testified before the New York City Council that around 2014, the NYPD
“establish[ed] procedures to regulate the circumstances under which a person’s name would be
entered into the database, as well as criteria for removal.”53 Describing the “two paths” for entry
into the NYPD’s Criminal Group Database, the Chief testified:
The first path requires that one of the following occur: a self-admission of gang
membership to a member of the Department; being identified as a gang member by two
independent and reliable sources; or social media posts admitting to membership in a gang.
The second path requires two of the following to be true: frequent presence at a known
gang location; possession of gang-related documents; association with known gang
members; social media posts with known gang members while possessing known gang
paraphernalia; scars and tattoos associated with a particular gang, frequent wearing of the
colors and frequent use of hand signs that are associated with particular gangs. It is not
enough for a person to be in a gang location, or to flash hand signs, or to wear gang colors
on a certain day. These actions must be a consistent course of conduct.54
According to Chief Shea, these paths to entry in the database are closely guarded. Only a
“limited number of people” may recommend a person for entry in the database, and the Department
has “instituted oversight mechanisms to ensure the recommendation is backed up by evidence.”55
Chief Shea swore, “This is a formal recommendation requiring a written narrative and supporting
documentation that justify [an] individual’s inclusion [in the database].”56 The Chief insisted that
Gang Squad supervisors review the recommendations to ensure the accuracy of gang designations.
Despite Chief Shea’s testimony about the Department’s specific procedures for entering
individuals in the database, the NYPD claims to have been unable to locate any records
memorializing the criteria for entry in its gang database. In lieu of written policies and procedures,
Sergeant Mazur claimed that NYPD personnel communicate this information verbally. Rookie
officers, he said, sit down with seasoned detectives who communicate the criteria for entry in the
53
See Ex. A at 3 (emphasis added).
54
See id. at 4.
55
See Ex. A at 4.
56
Id.

database.57 This cannot be true. It defies belief that for the past four years, detectives have been
meeting with each other to assess and apply a set of criteria that exists nowhere in writing.
Chief Shea’s testimony also casts doubt on the Department’s assertion that it could not
locate records on the process by which the NYPD reviews, audits, or modifies its Criminal Group
Database. According to Chief Shea, “the Department has created three avenues to exit the database,
reviewing each person every three years, and on their 23rd and 28th birthdays to determine if their
actions and records still warrant their inclusion in the database.” The Chief proclaimed, “These
safeguards are robust.”58
Yet according to the Records Access Appeals Officer, the Department has no written
policies, procedures, or training materials reflecting these “robust” safeguards. The NYPD would
have us believe that the Department has implemented the safeguards outlined in Chief Shea’s
testimony absent a single enshrined departmental policy or procedure. If the NYPD has adopted
the policies and procedures it touts in its City Council testimony, there must be internal records
reflecting such.
The facts here mirror those in Oddone v. Suffolk County Police Department.59 In Oddone,
the petitioner filed a FOIL Request for records related to his own criminal case maintained by the
Suffolk County Police Department.60 In response, the police department disclosed some
documents responsive to petitioner’s FOIL Request and stated that no other responsive documents
could be located.61 The petitioner then brought an Article 78 proceeding against the police
department arguing that the police department neglected to search thoroughly for records related
57
Telephone Interview with Sgt. Jordan Mazur, supra note 51.
58
Ex. A at 4.
59
946 N.Y.S.2d 580.
60
Id. at 582.
61
Id.

to his criminal case. The petitioner reasoned that the disparity between the volume of documents
a Suffolk County Police Department officer brought to the petitioner’s criminal trial “and the
documents produced in response to the petitioner’s request indicated the existence of additional
responsive documents.”62
In response, the police department relied on its Appeals Officer’s determination that “after
a diligent search, no other responsive documents could be located.”63 Still, the court found that
“the allegations contained in the petition, if proven, would provide a factual basis to support the
petitioner’s contention that additional documents relating to the criminal investigation of the
petitioner’s case exist and are within the Police Department’s control.”64 Petitioners were therefore
entitled to a hearing to determine whether additional responsive documents exist within
respondent’s control.
As in Oddone, LDF and CCR have documents that evidence the existence of records the
NYPD claims to be unable to locate. The NYPD cannot reconcile its alleged lack of records with
Chief Shea’s assurances that the Department has implemented robust safeguards to protect
individuals’ constitutional rights.
As additional evidence of the NYPD’s deficient search, Sergeant Mazur conceded that his
search for records was not exhaustive. When LDF counsel spoke with him, the Sergeant stated that
his search did not include the NYPD Detective Guide—which differs from the Patrol Guide—nor
did he request to search Youth Officers’ files.65 Because Youth Officers must “identify youth
62
Id.
63
Id. at 583.
64
Id. at 584.
65
Telephone Interview with Sgt. Jordan Mazur, supra note 51.

gangs and maintain [a] youth gang file, including the names of known members, locations, colors,
rivals, etc.” the NYPD should have reviewed these officers’ files for responsive records.66
These are just two instances of searches known to Petitioners that the Department should
have conducted but did not. There are likely others. Rather than conduct a diligent search for
records, it appears the Records Access Appeals Officer did little more than review and rubber
stamp Detective Halk’s pre-appeal search for records. For these reasons, “the allegations in th[is]
petition are sufficient to make out a claim that the determination of the Appeals Officer was ‘made
in violation of lawful procedure.’”67
Petitioners also have reason to doubt the NYPD’s claim that it could not locate records
about the relationship between its Domain Awareness System and gang policing. In April 2018,
the Bronx Defenders and the law firm Cleary Gottlieb Steen & Hamilton LLP filed a class action
complaint on behalf of aggrieved New Yorkers challenging the NYPD’s use of sealed arrest
information in violation of New York law.68 Exhibit B of the complaint is a Domain Awareness
System Snapshot, which contains information about an individual in the system, including a field
labeled “Gang Affln.”69 This Snapshot establishes that the Domain Awareness System in some
way monitors or identifies individuals alleged to be members of a gang. Thus, there is reason to
believe that records about the NYPD’s use of the Domain Awareness System to monitor or identify
members of gangs exist despite the Department’s assertion to the contrary.
66
Patrol Guide 202-30, Youth Officer, supra note 15.
67
Oddone, 946 N.Y.S.2d at 584 (internal citations omitted).
68
R.C. v. City of New York, No. 153739/2018 (N.Y. Sup. Ct. filed Apr. 24, 2018).
69
Domain Awareness System Snapshot, attached hereto as Ex. L.

For the reasons stated above, at a minimum, the Court should grant a hearing to determine
whether additional documents responsive to Petitioners’ FOIL Requests exist and are within the
NYPD’s control.70
B. The NYPD Did Not Properly Certify Its Search for Records.
When an agency cannot locate records requested under FOIL, New York Public Officers
Law Section 89(3) requires the agency to certify that “such record cannot be found after diligent
search.” While “[t]he statute does not specify the manner in which an agency must certify that
documents cannot be located,”71 certification demands “something more than a bare-faced
allegation.”72 To certify that records requested under FOIL do not exist, an agency must tender a
sworn document submitted under penalty of perjury.73
In contrast to this rule, the NYPD’s response to Petitioners’ FOIL Requests “lack[s] any
supporting affidavits from respondent to certify that the [agency] performed a diligent search for
the requested documents but could not find them.”74 Instead, the NYPD merely submitted a letter
stating that, with respect to most of the records sought, “a diligent search was conducted” but “no
70
See Oddone v. Suffolk Cty. Dist. Att’y’s Office, No. 14955/11, 2013 WL 2256301, at *5 (N.Y. Sup. Ct.
2013) (ordering a hearing on the existence of documents respondent claimed not to exist in response to
petitioner’s FOIL Request); Oddone v. Suffolk Cty. Dist. Att’y’s Office, No. 0149552011, 2014 WL
10321399, at *1 (N.Y. Sup. Ct. 2014) (granting petitioner’s motion for issuing so-ordered subpoenas related
to the subject of petitioner’s FOIL Request); cf. Daum, 804 N.Y.S.2d at 921 (“Petitioner has offered no
persuasive reason to reject respondents’ statement of diligent efforts to locate the subject documents.”).
71
Rattley v. NYPD, 96 N.Y.2d 873, 875 (2001).
72
Riley-James v. Vance, 971 N.Y.S.2d 74 (Table) (Sup. Ct. 2013).
73
See Rattley, 96 N.Y.2d at 875 (finding an affirmation that the agency could not locate records requested
under FOIL satisfied the certification requirement); Riley-James, 971 N.Y.S.2d at 74 (noting that “sufficient
certification is not provided by the allegations in the denial that [the agency] does not possess the requested
documents” where the allegations are unsworn); Tarantino v. NYPD, 25 N.Y.S.3d 601 (Mem.), 601 (App.
Div. 2016) (finding “respondents sufficiently established” that they did not possess materials sought in
petitioner’s FOIL request “by submitting their attorney’s certification to that effect”).
74
See Riley-James, 971 N.Y.S.2d at 74.

records were located.”75 This statement is insufficient to certify the Department’s search for
records that were not located.76
If the NYPD intends to maintain its untenable position that certain requested records cannot
be located, the Department must provide a supporting affidavit or confirmation in its verified
answer indicating such.
C. The NYPD Failed to Provide a Particularized and Specific Justification for

Withholding Certain Records.
The NYPD neglected to provide sufficient justification for redacting and partially
withholding portions of records that it disclosed to Petitioners. In its Determination Letters, the
NYPD disclosed eight NYPD Patrol Guide Procedures and two PowerPoint presentations with the
caveat that the Department redacted and withheld unspecified portions of the disclosed documents
pursuant to four cited FOIL exemptions. After issuing the Appeal Determination, Sergeant Mazur
cited these four exemptions, along with two additional exemptions, as justification for continuing
to redact and withhold responsive documents. The email citing these six exemptions merely
parroted the statutory language and failed to provide a particularized and specific justification for
invoking each exemption, as required under FOIL.77
The Freedom of Information Law “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.”78 “To promote open government and public accountability, the FOIL imposes a
75
See Ex. H at 2.
76
See Whitfield v. Moriello, 895 N.Y.S.2d 405, 406 (2010) (finding search for records properly certified
when responded “provide[d] affidavits from two of its officers stating that they had diligently searched the
two facilities where the records might be stored, and documents showing that, prior to petitioner’s FOIL
request, 2050 boxes of inmate records stored in one of the facilities had been ruined in a flood and destroyed
pursuant to administrative order”).
77
Ex. J, Email from Sgt. Jordan Mazur, (June 25, 2018, 9:17 AM).
78
Fink v. Lefkowitz, 47 N.Y.2d 567, 571 (1979); see also Friedman v. Rice, 30 N.Y.3d 461, 475 (2017).

broad duty on government to make its records available to the public.”79 Therefore, “[a]ll
government records are [ ] presumptively open for public inspection and copying unless they fall
within one of the enumerated exemptions of Public Officers Law § 87(2). To ensure maximum
access to government documents, the ‘exemptions are to be narrowly construed, with the burden
resting on the agency to demonstrate that the requested material indeed qualifies for exemption.’”80
Here, the NYPD relies on several FOIL exemptions—§ 87(2)(b), 87(2)(g), 87(2)(i),
87(2)(e)(iii), 87(2)(e)(iv), 87(2)(f), and 87(2)(g)(iii)—to justify redacting or partially withholding
some of the records disclosed to Petitioners. The NYPD’s reliance on these exemptions lacks merit
because the NYPD failed to provide a “particularized and specific” justification for withholding
and redacting the requested records.
When an agency denies access to records requested under FOIL, it must “fully explain in
writing to the person requesting the record the reasons for [ ] denial.”81 The Court of Appeals has
interpreted this to mean the agency shoulders the burden to “articulate particularized and specific
justification … to exempt its records from disclosure.”82 “Only where the material requested falls
squarely within the ambit of one of the [ ] statutory exemptions may disclosure be withheld.”83
Equally important, “[j]udicial review of an administrative determination is limited to the
grounds invoked by the agency” during the administrative process.84 This procedural safeguard
79
Gould, 89 N.Y.2d at 274.
80
Id. at 274-75 (citing Hanig v. N.Y. Dep’t of Motor Vehicles, 79 N.Y.2d 106, 109 (1992)).
81
N.Y. PUB. OFF. LAW § 89(4)(a).
82
Fink, 47 N.Y.2d at 571.
83
Id. (noting that an “agency does not have carte blanche to withhold any information it pleases”); see also
Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462-63 (2007) (noting that when an agency “fails to prove that
a statutory exemption applies, FOIL compels disclosure, not concealment”) (quotations and citation
omitted); Condon, 9 N.Y.S.3d at 258.
84
Madeiros v. N.Y.S. Educ. Dep’t., 30 N.Y.3d 67, 75 (2017) (rejecting agency’s reliance on an exemption
that the agency failed to invoke in its denial of petitioners’ FOIL request); see also Law Offices of
Perlmutter, P.C. v. NYPD, 999 N.Y.S.2d 26, 27 (App. Div. 2014) (rejecting the NYPD’s attempt to invoke
an exemption during the Article 78 proceeding because it “was not cited by [the NYPD] at the
administrative level”).

ensures that an agency does not invoke additional exemptions after the administrative proceeding,
which would unfairly disadvantage a petitioner. Consequently, when determining whether to
compel disclosure of the records sought, this Court must consider only the exemptions cited by
NYPD in the administrative appeal record.85
Here, the NYPD neglected to articulate a “particularized and specific justification” for
withholding records in both its Determination Letters and Appeal Determination. In the
Determination Letters, the Department disclosed eight NYPD Patrol Guide Procedures and two
PowerPoint presentations, asserting:
Redaction and withholdings have been made to the documents on the basis of
Public Officers Law Section 87(2)(e)(iv) as such information, if disclosed,
would reveal non-routine techniques and procedures; Public Officers Law
Section 87(2)(e)(iii), in that the release of such information would identify a
confidential source or disclose confidential information; Public Officers Law
Section 87(2)(b) as such information, if disclosed, would constitute an
unwarranted invasion of personal privacy; and Public Officers Law Section
87(2)(f) as such records/information would endanger the life or safety of any
person.86
In contravention of the Freedom of Information Law, the Department’s Determination Letters
merely recited statutory language with no factual support for the assertion that these FOIL
provisions exempted records from disclosure.
The Appeal Determination neglected to address the redactions and withholdings made to
the eight Patrol Guide sections and two PowerPoint presentations. When asked about the
redactions and withholdings to these materials, the Records Access Appeals Officer expanded on
85
Madeiros, 30 N.Y.3d at 74 (noting that “the court is powerless to affirm the administrative action by
substituting what it considers to be a more adequate or proper basis”), (citing Scherbyn v. Wayne-Finger
Lakes Bd. of Co-op. Educ. Servs., 77 N.Y.2d 753, 758 (1991)) (“It is the settled rule that judicial review of
an administrative determination is limited to the grounds invoked by the agency.”).
86
Ex. F.

the exemptions cited in the Determination Letters, invoking two additional exemptions without
explanation. In the text of an email, Sergeant Mazur stated:
Where the appeal determination failed to address the exemptions/withholdings claimed by

the RAO as it pertains to Patrol Guide procedures and Instructor’s Guide/PowerPoint
presentations, the NYPD maintains that any of that information redacted/withheld is
exempt from disclosure under the same subsections of Public Officers Law cited by Lt.
Mantellino [i.e., 87(2)(b); 87(2)(e)(iii); 87(2)(e)(iv); 87(2)(f); 87(2)(g); 87(2)(i)].87
Again, the Sergeant Mazur simply listed statutory exemptions to FOIL without a shred of support
to justify withholding responsive records.
The NYPD’s Determination Letters, its Appeal Determination, and Sergeant Mazur’s
email epitomize the “wholly insufficient” response to FOIL Requests that courts caution against.88
The NYPD has “tendered only references to sections, subdivisions, and subparagraphs of the
applicable statute and conclusory characterizations of the records sought to be withheld.”89 “This
falls short of the showing FOIL requires to establish the applicability of an exemption.”90
New York State courts have continuously held that parroting the statutory language of
FOIL exemptions cannot justify withholding records under FOIL.91 This Court should therefore
87
Ex. J, Email from Sgt. Jordan Mazur, (June 25, 2018, 9:17 AM).
88
See Church of Scientology of N.Y. v. State, 46 N.Y.2d 906, 907-08 (1979).
89
See id.
90
City of Newark v. Law Dep't of N.Y., 760 N.Y.S.2d 431, 436-37 (App. Div. 2003) (noting that the agency
“withheld all of the requested records on the basis of a blanket invocation of three statutory exemptions,
without enumerating or describing any of the documents withheld and without offering a specific basis for
any of the claims of exemption”).
91
See, e.g., W. Harlem Bus. Group v. Empire State Dev. Corp., 13 N.Y.3d 882, 884-85 (2009) (finding an
agency’s appeals officer’s sole reliance on FOIL statutory exemptions to deny requested records without
more constituted a failure to explain fully in writing the reasons for the denial as required by FOIL); DJL
Rest. Corp. v. Dep’t of Bldgs. of N.Y., 710 N.Y.S.2d 564, 566 (App. Div. 2000) (“Affidavits merely
repeating the statutory phrasing of an exemption are insufficient to establish the requirement of
particularity.”); Johnson v. NYPD, 694 N.Y.S.2d 14, 20 (App. Div. 1999) (“NYPD’s failure to present a
more expansive ‘particularized and specific justification for denying access’ and instead seeking a blanket
exemption on privacy or safety grounds is unfortunate, and precludes a summary disposition of petitioner’s
FOIL request.”) (internal citation omitted).

compel disclosure of the withheld/redacted records.92
III. PETITIONERS ARE ENTITLED TO LEGAL COSTS, INCLUDING

ATTORNEY’S FEES.
Petitioners request attorney’s fees and litigation costs stemming from this Article 78
petition. Under FOIL’s fee provision, a court must assess fees and costs against an agency in an
Article 78 proceeding if petitioners: (1) “substantially prevailed” and (2) “the court finds that the
agency had no reasonable basis for denying access.”93
This mandatory assessment is intended to encourage agencies to comply with FOIL and
deter costly litigation.94 Originally adopted in 1982, the New York State Legislature drafted
Section 89(4) to discourage agencies from waiting until petitioners filed lawsuits before complying
with FOIL.95 In 2006, the Legislature amended the fee provision to expand access to attorney’s
fees in two ways. First, the amendment eliminated the statutory requirement that the records must
be of clearly significant interest to the general public.96 Second, the amendment authorized fee
recovery when an agency fails to meet statutory timeframes.97 These modifications sought to
92
See Church of Scientology, 46 N.Y.2d at 907-08 (holding petitioner is entitled to records when “[t]here
is no tender of any factual basis on which to determine whether the materials sought either fell outside the
scope of mandated disclosure … or come within the exceptions specified [under FOIL]”).
93
N.Y. PUB. OFF. LAW § 89(4)(c)(ii). See also Rauh v. de Blasio, 75 N.Y.S.3d 15, 15 (App. Div. 2018)
(noting that the statute “evinces an unmistakable legislative intent that attorney’s fees are to be assessed
against an agency when the other party has substantially prevailed and the agency had no reasonable basis
for denying access”).
94
Petitioners could also be entitled to attorney’s fees and litigation costs because the NYPD failed to provide
an Appeal Determination letter within the ten-day statutory timeframe. N.Y. PUB. OFF. LAW
§ 89(4)(a). A court may access costs against an agency in an Article 78 proceeding if petitioners: (1)
“substantially prevailed” and (2) “when the agency failed to respond to a request or appeal within the
statutory time.” N.Y. PUB. OFF. LAW § 89(4)(c)(i) (emphasis added). Petitioners received the NYPD’s
Appeal Determination on June 20, 2018, three days after the statutory timeframe. Although the NYPD
failed to meet this statutory obligation, Petitioners do not request attorney’s fees and litigation costs under
this subsection of the fee provision.
95
N.Y.S. Defs. Ass’n v. N.Y.S. Police, 927 N.Y.S.2d 423, 423 n.2 (App. Div. 2011) (citing Assembly Mem.
in Support, at 1 Bill Jack, L. 1982, ch. 73).
96
Id.; for statutory history, see N.Y. PUB. OFF. LAW § 89(4)(c) (McKinney 2006).
97
N.Y. PUB. OFF. LAW § 89(4)(c)(i).

“create a clear deterrent to unreasonable delays and denials [and thereby] encourage every unit of
government to make good faith efforts to comply with the requirements of FOIL.”98
The NYPD’s inadequate response to Petitioners’ FOIL Requests is the precise type of
unreasonable agency action the fee provision aims to deter. The NYPD’s Determination Letters
flouted the requirement under FOIL that agencies articulate a particularized and specific
justification to redact or withhold responsive documents.99 Petitioners appealed the agency’s
determination, noting that failure to justify the redactions and withholdings to documents violates
FOIL. In response, the NYPD at first failed to articulate any basis for the redactions and
withholding. When pressed through email, the NYPD invoked six FOIL exemptions and again
merely parroted statutory exemptions to withhold responsive records.100 Thus, Petitioners were
compelled to commence an Article 78 proceeding. Had the NYPD complied with FOIL, “this
litigation could have been avoided, or significantly limited.”101
Equally important, Petitioners took significant steps to minimize the possibility of
litigation. After serving the FOIL Requests, Petitioners called the NYPD Detective assigned to the
Requests, Detective Halk, several times to follow up on the Requests. Then, in response to the
Determination Letters, Petitioners filed two administrative appeals.102 The Records Access
Appeals Officer did not timely respond to the administrative appeals, prompting Petitioners to
follow up with a phone call and subsequent email.103 After receiving the Appeal Determination,
98
N.Y.S. Defs. Ass’n, 927 N.Y.S.2d at 423 n.2 .
99
See Fink, 47 N.Y.2d at 571-72.
100
W. Harlem Bus. Group, 13 N.Y.3d at 885-86 (finding the agency failed to meet its burden of
“establishing that the documents [requested] are exempt from disclosure”).
101
Id. at 885.
102
Petitioners filed one administrative appeal for each of the two FOIL Requests.
103
Response was received six days late (see supra note 23).

Petitioners followed up by phone and then email for clarification. Time and again, Petitioners
sought to resolve this matter without resorting to litigation, to no avail.
Unreasonable responses and costly litigation are inconsistent with the letter and spirit of
FOIL. Petitioners should not have to sue an agency to ensure its compliance with FOIL, especially
when an agency has been put on notice of its legal duties during the administrative process. Had
the NYPD been “sensitive to its FOIL obligations,” it could have complied with its “obligations
in a more efficient way.”104 But the Department flouted its obligations.
Accordingly, this Court should grant Petitioners’ request for attorney’s fees and litigation
costs.
104
Schenectady Cty. Soc’y for the Prevention of Cruelty to Animals, Inc. v. Mills, 18 N.Y.3d 42, 46 (2011).

CONCLUSION
For these reasons, LDF and CCR request that the Court grant the Verified Petition, enter a
judgment directing the NYPD to undergo a more thorough search for records and disclose the
documents requested in the Requests, award Petitioners litigation costs and reasonable attorney’s
fees, and any other relief the Court considers necessary and proper.
Dated: August 8, 2018
Respectfully submitted,
s/ Marne L. Lenox
Marne L. Lenox
John S. Cusick
NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
40 Rector Street, 5th Floor
New York, NY 10006
Tel: (212) 965-2000
Fax: (212) 226-7592
Darius Charney
Britney Wilson
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
Tel: (212) 614-6464
Fax: (212) 614-6499
Attorneys for Petitioners


Petitioners,: Memorandum of Law in Support of Verified Petition

Uploaded by

Copyright:

Available Formats

Petitioners,: Memorandum of Law in Support of Verified Petition

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Petitioners,: Memorandum of Law in Support of Verified Petition

Uploaded by

Copyright:

Available Formats

CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO.

INDEX NO. UNASSIGNED

SUPREME COURT OF THE STATE OF NEW YORK

In re Application for a Judgment Pursuant to

NAACP LEGAL DEFENSE & EDUCATIONAL

NEW YORK CITY POLICE DEPARTMENT, and

MEMORANDUM OF LAW IN SUPPORT OF VERIFIED PETITION

Attorneys for Petitioners

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 4

I. THE NYPD’S DENIAL OF THE REQUESTS MERITS ARTICLE 78 REVIEW. ....... 12

II. THE NYPD’S RESPONSE TO THE REQUESTS VIOLATES THE FREEDOM

A. The NYPD Did Not Conduct a Diligent Search for

C. The NYPD Failed to Provide a Particularized and Specific

III. PETITIONERS ARE ENTITLED TO LEGAL COSTS, INCLUDING

Atlas Henrietta, LLC v. Town of Henrietta Zoning Bd. of Appeals,

City of Newark v. Law Dep't of N.Y.,

Church of Scientology of N.Y. v. State,

Data Tree, LLC v. Romaine,

DJL Rest. Corp. v. Dep’t of Bldgs. of N.Y.,

Hanig v. N.Y. Dep’t of Motor Vehicles,

Law Offices of Perlmutter, P.C. v. NYPD,

Madeiros v. N.Y.S. Educ. Dep’t.,

Mulgrew v. Bd. of Educ. of N.Y.,

Murphy v. N.Y. State Educ. Dep't, Office of Prof'l Discipline,

N.Y.S. Defs. Ass’n v. N.Y.S. Police,

Oddone v. Suffolk Cty. Dist. Att’y’s Office,

Oddone v. Suffolk Cty. Dist. Att’y’s Office,

Oddone v. Suffolk Cty. Police Dep’t,

Scherbyn v. Wayne-Finger Lakes Bd. of Co-op. Educ. Servs.,

W. Harlem Bus. Group v. Empire State Dev. Corp.,

STATUTES & RULES

N.Y. PUB. OFF. LAW

Assembly Mem. in Support, at 1 Bill Jack, L. 1982 ..................................................................... 25

Chicagoans for an End to the Gang Database v. City of Chicago,

K. Babe Howell, Gang Policing: The Post-Stop-and Frisk Justification for

Transcript: Oversight–NYPD’s Gang Takedown Efforts, N.Y.C. COUNCIL COMM.

classification of individuals as members of local street gangs or crews.1

or single building”—under the guise of precision policing.2 Accordingly, the Department

discriminatory, and likely error-ridden.3

twenty-eight of these babies allegedly admitted gang membership.4

The Chicago Police Department’s gang database is similarly error-ridden. A Freedom of

the City voluntarily dismantled its gang database.7

police encounters; enhanced bail recommendations; elevated charges; enhanced sentencing

list of “inactive” members of gangs/crews.12

CCR is a national non-profit legal and educational organization dedicated to advancing

Access to public information, specifically, records generated and maintained by law

enforcement agencies, enables LDF and CCR to advance their missions.

particular, its gang database.

into “pertinent Gang Division databases (ECMS).”16

as gangs/crews; (3) de-identified demographic information for individuals labeled as gang/crew

has shared its gang database.18

Department’s ninety-day deadline.

the next week or two.”

the remainder of the responsive records collected were under review.

disclosure in New York Public Officers Law.

Petitioners administratively appealed each of the NYPD’s Determination Letters (“the