NYPD FOILED - FOIL Contempt of Court
When persons violate a court order, the remedy is to seek contempt. In a Freedom of Information Law Case (Public Officers Law Sections 84-89), the means of enforcement of that Court Order are the same - contempt. In MATTER OF JEWISH PRESS INC. v. NEW YORK CITY POLICE DEPT., 2022 N.Y. Slip Op 30162 (Sup. Ct. 2022), the New York City Police Department (NYPD) failed (for various reasons) to comply with the Court Ordered FOIL production.
In addition to the fees associated with contempt, pursuant to Judiciary Law § 773, Petitioner sought an order awarding costs and attorneys' fees pursuant to Public Officers Law § 89(4)(c) for substantially prevailing in the litigation.
Most individuals become aware of contempt when it comes to the violation of an Order of Protection, an all too common scenario for orders routinely handed out against domestic partners. Upon violation, typically there is an arrest. This is quite different, here, where the New York City Police Department, NYPD, are not complying with a FOIL Order:
At the outset, the court notes that respondent's attempt to provide other reasons for withholding the records as requested in the initial FOIL request, is unavailing. The record indicates that respondent denied the requested records based on the judicial interference exemption at the administrative level and this was the basis of denial addressed in the underlying article 78 proceeding...
Id. (external quotation marks omitted and internal citations preserved), With all of these arguments in mind, the Court not mentioning that the continued denial of access to records under FOIL is very limited after a court order (such as when a municipality appeals) is issued, the Court holds that " petitioner met its burden to establish that respondent was aware of, and violated, the Appellate Division orders, when respondent failed to provide petitioner with all documents requested in the underlying FOIL request." The Court denies a finding of criminal contempt, the violation not rising to the burden of proof in such a proceeding ("Judiciary Law § 750, requires a showing of willfulness and must be proven beyond a reasonable doubt"), and now the Court now goes from declaring the violation to the punishment that must issue.
The case is MATTER OF JEWISH PRESS INC. v. NEW YORK CITY POLICE DEPT., 2022 N.Y. Slip Op 30162 (Sup. Ct. 2022) and the Court holds that
The court finds that respondent may be held in contempt without a hearing, as the affidavits submitted present "no question of fact as to what [the contemnor] accomplished [, and] the parties dispute only whether what was done did indeed comply with the [O]rder". Matter of Spinnenweber v New York State Dept. of Envtl. Conservation, 160 AD2d 1138, 1140 (3d Dept 1990). Reimbursement to petitioner for its counsel fees and costs in connection with the motion is an appropriate punishment for respondent's civil contempt (see Judiciary Law § 753[A][1])
Id. (external quotation marks omitted and internal citations preserved), Freedom of Information law requires not only a remedy but a deterrent. Here, for the New York City Police Department, it is the counsel fees together with the Court Order to comply.
It might seem unfair as the NYPD FOIL Court Orders do not mean that someone is hauled away, like in the domestic violence Order of Protection context, but it is progression toward a more free and open democratic society. In Florida, the penalties are harsher for municipalities under the Sunshine Law but this case is a marker of positive progress true to the intent of the lawmakers in creating the Freedom of Information Law.
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)
Do you need legal services in obtaining information under the Public Officers Law, FOIL? Call 631-450-2515 or E-Mail info@CoryHMorris.com to arrange for a flat-fee price quote. We work on a sliding scale, depending on the amount of the request and whether the request is in the public interest.
