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FOIL: Police BodyCam

Agencies, such as various police agencies, need to demonstrate justification for an exemption under the Public Officers Law, Freedom of Information Law. Records are presumably open under the Freedom of Information Law, FOIL. "The people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality." New York law allows a citizen to request documentation and records via the Freedom of Information Law from the government and the government must respond.

While FOIL is relatively easy to use and there are free templates online, having a knowledgeable and experienced attorney can greatly assist in obtaining access to records. The Law Offices of Cory H. Morris can assist you in obtaining access to government records via the New York Freedom of Information Law. For a flat fee, the Law Offices of Cory H. Morris can handle your Freedom of Information Law Request, Appeal and/or Article 78.  

In NEW YORK LAWYERS FOR PUB. INTEREST v. NEW YORK CITY POLICE DEPT., 2020 N.Y. Slip Op 31778 (Sup. Ct. 2020), the issue was over body camera footage. A FOIL request was made by the New York Lawyers for Public Interest that was denied by the New York City Police Department. After appeal and a request to reconsider the appeal denial, the New York City Police Department, again, sought to keep the body camera footage secret. When an agency denies record access, the entity seeking the records may commence a special proceeding for judicial review of the denial of the FOIL request. The standard "affected by an error of law" applies to judicial review of FOIL requests rather than an "arbitrary and capricious" standard (Mulgrew v Board of Educ of City School Dist of City of New York, 87 Ad3d 506 [1st Dept 2011]). The Legislature enacted FOIL with a presumption of access to public records. "All agency records are presumptively available for public inspection and copying, unless they fall within 1 of 10 categories of exemptions, which permit agencies to withhold certain records" (Hanig v State Dept of Motor Vehicles, 79 NY2d 106, 108 [1992]).

The New York Freedom of Information Law (FOIL) allows the public access to government records. To hold the government accountability and for an informed citizenry, this right to access records through FOIL is vital to know what the government does on behalf of its people. If a governmental agency responds (with records and not delay) to a request, no litigation is required. Sometimes the administrative appeal to a FOIL request, when records are not provided, may suffice to obtain records from a governmental agency.

The Court notes the law, in releasing the footage albeit the New York City Police Department claims that there is an ongoing internal investigation, that:

Exceptions to disclosure must be narrowly construed. The burden rests on the agency to demonstrate that the requested material qualifies for an exemption (POL § 89[4][b]). POL § 87(2)(e)(i) exempts from disclosure records that "are complied for law enforcement purposes and which, if disclosed, would interfere with law enforcement investigations or judicial proceedings" (Matter of Legal Aid Society v New York City Police Dept 274 AD2d 207, 214-215 [1st Dept 2000], lv dismissed and denied 95 NY2d 956 [2000]; Matter of Pittari v Pirro, 258 AD2d 202, 206-208 [2d Dept 1999], lv denied 94 NY2d 755 [1999]). An assertion that disclosure of law enforcement records would interfere with a pending proceeding is a sufficiently particularized justification for the denial of access to the records (Lesher v Hynes, 19 NY2d 57, 63 [2012]). To invoke the law enforcement exemption, respondents must show that the records: (1) were complied for law enforcement purposes; and (2) if disclosed, would interfere with law enforcement investigations or judicial proceedings (Matter of Madeiros v New York State Ethic. Dep't, 30 NY3d 67, 74 [2017]).

The case is significant because it allows greater access to public records for entities that are paid for by the public and are supposed to be accountable to the public. It is the reason why the repeal of Civil Rights Law Section 50-a occurred, so that records of police and police misconduct are open to the public. Body camera footage, similarly, should be made available to the public.

The case is NEW YORK LAWYERS FOR PUB. INTEREST v. NEW YORK CITY POLICE DEPT., 2020 N.Y. Slip Op 31778 (NYC Sup. Ct. 2020).

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)


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