Nassau County Traffic and Parking Violations Agency - Accepting Freedom of Information Law Requests
The Nassau County Traffic and Parking Violations Agency is subject to the New York Freedom of Information Law ("FOIL"). This Law Office, the Law Offices of Cory H. Morris, sued Nassau County and the Nassau County Traffic and Parking Violations Agency and received a favorable decision from the Second Department that the Traffic and Parking Violations Agency is subject to the New York Freedom of Information Law.
This action involved the subject of an enormous amount of revenue and controversy, the Nassau County Speed Camera Program. Nassau County entered into a Pilot Program for the installation of a Photo Speed Monitoring System (herein referred to as "speed cameras" or "Nassau County speed cameras"), which has been the subject of public scrutiny and confusion. See Long Island News & PRs, Governor Cuomo Signs Legislation Authorizing School Zone Speed Cameras on Long Island, LongIsland.com (Jun. 25 2014), http://www.longisland.com/news/06-25-14/cuomo-long-island-school-zone-speed-cameras-legislation.html. The Nassau County speed cameras operated on the basis of tracking a given cars speed through what Nassau County has designated a school zone and issuing a ticket to a car travelling in excess of the speed limit to which a fine and administrative fee is assigned.
There was little public discourse or opinion received prior to the enactment of the Nassau County speed cameras and, shortly after the enactment of the speed camera legislation, problems began to arise over the tickets issued by such cameras. See, e.g., Robert Brodsky, Edward Mangano dismisses $2.4 million in speed camera tickets, Newsday (Aug. 22, 2014, 10:08 PM), http://www.newsday.com/long-island/nassau/edward-mangano-dismisses-2-4-million-in-speed-camera-tickets-1.9126860. The FOIL request was made because it was unknown where such speed cameras would be operational, when such speed cameras would be in effect, what was a speed zone or area in which someone could be subjected to the speed cameras and, therefore, receiving a ticket for speeding through a school zone. There was public outcry against validity of the tickets issued, the veracity of the system and the speed cameras' hours of operation. For instance, Nassau County Executive Edward “Mangano said cameras at five locations malfunctioned” on certain occasions and little has been disclosed about how these cameras function or, specifically, malfunctioned. Id. (Edward Mangano publicly admitted that the cameras were giving tickets on days that schools were not in session, raising doubts about the maintenance of these speed cameras). These speed cameras increasingly became the subject of scrutiny, public outcry and debate with little to no information being released as to their functioning, malfunctioning, the actual locations (i.e. how large is a school zone) of the cameras, days and times on which such cameras were active, calibration, veracity and trustworthiness of such cameras, as well as the proximity of the speeding zones or which of the hundreds of long island schools were subject to this pilot program. See Newsday, Letters: School speed cameras debate, Newsday (Sept. 4, 2014, 5:58 PM); http://www.newsday.com/opinion/letters/school-speed-cameras-debate-letters-1.7612617; see also Judy Cartwright, Watchdog: Confusion over school-zone speed cameras hits new high, Newsday (Sept. 5, 2014 5:36 PM), http://www.newsday.com/long-island/columnists/judy-cartwright/confusion-over-school-zone-speed-cameras-hit-new-high-1.9236338.
The public was kept in the dark about a process that drew millions of dollars from drivers who received speed camera tickets. See Joye Brown, Going public with speed-zone camera details not so easy, Newsday (October 8, 2014), http://www.newsday.com/long-island/columnists/joye-brown/goingpublic-with-speed-zone-camera-details-not-so-easy-1.9482206. Now, arguably, defunct, Petitioner’s efforts drew light upon a program that seized millions of dollars yet operated in complete secrecy. See Paul LaRocco and Robert Brodsky, Speed Camera repeal to trigger tougher revenue choices in Nassau, Newsday (Dec. 14, 2014), http://www.newsday.com/long-island/nassau/speed-camera-repeal-could-trigger-tough-revenue-choices-in-nassau-1.9713128; see also Matt Clark, Accident data doesn't support school zone speed camera locations, Newsday Analysis shows, Newsday (Dec. 11, 2014), http://data.newsday.com/projects/long-island/accident-data-doesnt-support-school-zone-speed-camera-locations-newsday-analysis-shows/.
Although the Nassau County Legislature repealed the speed camera legislation, Petitioner’s efforts was the driving force in changing Respondents’ legal position and requiring Respondents to now answer FOIL requests directed to the TPVA. See CBS New York, Nassau County Lawmakers Repeal Speed Camera Program, CBS New York (Dec. 15, 2014), http://newyork.cbslocal.com/2014/12/15/nassau-county-lawmakers-expected-to-repeal-speed-camera-program-monday/; see also Timonthy Bolger, Nassau Repeals School Zone Speed Cameras, Long Island Press (December 15, 2014), http://www.longislandpress.com/2014/12/15/nassau-repeals-school-zone-speed-cameras/.
On April 20, 2015, The Law Offices of Cory H. Morris commenced an Article 78 action against Respondents Nassau County and the Nassau County Traffic and Parking Violations Agency (“TPVA”) (collectively “Respondents”), seeking the disclosure of records made pursuant to a Freedom of Information Law (“FOIL”) request and costs and attorney’s fees. The action was assigned Index No. 02591/2015.
The Decision and Order of the Honorable Antonio I. Brandveen dated June 8, 2015 decided that Petitioner was not entitled to records based upon Respondents’ representations that Respondent TPVA was a court. An agency in name, designation and function, Respondents had specious arguments to maintain that the TPVA was a Court and persisted in its position on appeal. Petitioner was forced to endure an Article 78 special proceeding through an appeal and oral argument in Brooklyn New York.
A unanimous panel of Judges sitting on the Second Judicial Department of the New York Supreme Court Ordered that the Nassau County Traffic and Parking Violations Agency was a hybrid agency, subject to New York’s Freedom of Information Law on or about February 7, 2018. See Matter Of Law Offices Of Cory H. Morris v. County of Nassau, 158 A.D.3d 630, 72 N.Y.S.3d 95 (2d Dep’t. 2018). As noted, Respondents’ position was completely at odds with the law which, as stated explicitly by the Second Department, “The Court of Appeals expressly recognized in Matter of Dolce v Nassau County Traffic & Parking Violations Agency that the TPVA is a ‘hybrid agency that exercises both prosecutorial and adjudicatory responsibilities,’ and that the prosecutorial function is ‘distinct from the adjudicatory function’ ” Matter Of Law Offices Of Cory H. Morris v. County of Nassau, 158 A.D.3d 630, 72 N.Y.S.3d 95 (2d Dep’t. 2018) (quoting Dolce v Nassau County Traffic & Parking Violations Agency, 7 NY3d 492, 498 (2006)).
The Second Department did “remit the matter to the Supreme Court, Nassau County, for an in camera examination of the TPVA documents requested by the petitioner and a new determination thereafter, including as to whether the petitioner may be entitled to an award of an attorney's fee.” Id at 632. In May, 2018, Respondents did submit six hundred pages of records without redaction and absolutely no exemption cited for withholding records. On or about May 23, 2018, This Honorable Court issued a Short Form Order stating, in toto, “After reviewing the letter from the respondents’ counsel and after conducting an in camera inspection of the documents furnished by the respondents, the Court directs that all of these documents be turned over to the petitioner and that the petitioner shall pick up said documents from the court on May 29, 2018. The Court further directs that pursuant to the order of the Appellate Division, the petitioner must formally move for an award of reasonable counsel fees, either by order to show cause or by notice of motion. The foregoing constitutes the decision and order of this Court.”
On or about June 13, 2018 Petitioner attempted to enter settlement negotiations for an award of outstanding attorney’s fees. On June 13, 2018, Cory H. Morris transmitted a letter to Respondent’s counsel, Andrew Scott, and Nassau County Attorney John Genua to address outstanding records and obtain a reasonable resolve of the attorney’s fees issue in an attempt to settle this matter. The June 13, 2018 letter was disregarded by Respondents’ counsel and Petitioner received no response from Respondents.
A subsequent conversation with Andrew Scott proved to be futile as Mr. Scott acknowledged there was no reason to withhold the records requested in this matter under the guise that the TPVA is not an agency but, even so, that the Petitioner should not be entitled to an award of reasonable attorney’s fees and costs for substantially prevailing under the Public Officers Law. To add insult to injury, Respondent Scott was informed and did acknowledge another matter due to be argued before the Second Department on January 7, 2019 where the TPVA, again, refused to produce records because it considered itself a court, exempt from FOIL.
Respondents, through counsel, acknowledged that no reasonable basis existed in law or fact to withhold such documentation both before the commencement of this matter and after the remand of the same matter. Accordingly, as per the Second Department, an award of fees is appropriate because none of the records produced, there being no records (allegedly) withheld, were judicial in nature. Specifically, the Second Department stated that “Without examination of the records that the petitioner seeks, the Supreme Court cannot make a determination as to whether they are exempt from disclosure as records of the "judiciary" (Public Officers Law § 86 [1], [3]).” Matter Of Law Offices Of Cory H. Morris v. County of Nassau, 158 A.D.3d at 632. After the determination by the Nassau County Supreme Court, the matter has been remitted for a hearing as to the amount of fees that this office should receive for prevailing in the litigation.
The litigation continues in Nassau County Supreme Court as to the amount of attorney's fees to which The Law Offices of Cory H. Morris. If you are available, come support these efforts in showing that these attorney's fees must be awarded as a deterrent to the agency from withholding agency records and to allow attorneys to take on such cases in the public interest.
Do you have Freedom of Information Law case? Article 78? Appeal? Looking for agency records
