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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF MONROE

NEW YORK CIVIL LIBERTIES UNION,

Petitioner, INDEX NO: _____________

vs.

CITY OF ROCHESTER and ROCHESTER POLICE

DEPARTMENT,

Respondents.

MEMORANDUM OF LAW IN SUPPORT OF VERIFIED PETITION

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TABLE OF CONTENTS

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

FACTUAL BACKGROUND & PROCEDURAL HISTORY ............................................1

ARGUMENT .......................................................................................................................4

I. THE RPD VIOLATED FOIL BY FAILING TO PRODUCE ANY RECORDS

OR RESPOND TO THE APPEAL WITHIN THE STATUTORY TIME..............4

II. THE NYCLU IS ENTITLED TO ATTORNEYS’ FEES .......................................6

CONCLUSION ...................................................................................................................8

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TABLE OF AUTHORITIES

Case Page

Acme Bus Corp v County of Suffolk, 136 A.D.3d 896 [2d Dept 2016] ............................................7

Matter of Beechwood Restorative Care Ctr. v Signor, 5 N.Y.3d 435 [2005]..................................5

Bottom v Fischer, 129 A.D.3d 1604 [4th Dept 2015]......................................................................7

Buffalo News, Inc. v Buffalo Enter. Dev. Corp., 84 N.Y.2d 488 [1994] .........................................4

Council of Regulated Adult Liquor Licensees v City of New York Police Dept.,
300 A.D.2d 17 [1st Dept 2002]..................................................................................................6

Gould v New York City Police Dept., 89 N.Y.2d 267 [1996] ..........................................................4

Legal Aid Soc. v New York State Dept. of Corr. & Community Supervision, 105
A.D.3d 1120 [3d Dept 2013] .....................................................................................................5

Lucas v Bd. Of Educ. of East Ramapo Cent. Sch. Dist., 57 Misc.3d 1207(A), 2017
NY Slip Op 51297[U] [Sup Ct, Rockland County 2017] ..........................................................7

Matter of Madeiros v New York State Educ. Dept., 30 N.Y.3d 67 [2017] ......................................6

South Shore Press, Inc. v Havemeyer, 136 A.D.3d 929 [2d Dept 2016] .........................................7

Village of Brockport v Calandra, 191 Misc.2d 718 [Sup Ct, Monroe County
2002], aff’d 305 A.D.2d 1030 [4th Dept 2003] .........................................................................5

Statutes

21 NYCRR 1401.7(f) .......................................................................................................................5

Civil Rights Law § 50-a ...............................................................................................................1, 2

Public Officers Law § 89 (3)(a) .......................................................................................................5

Public Officers Law § 89 (4)(a) .......................................................................................................5

Public Officers Law § 89 (4)(c) ...................................................................................................6, 7

ii

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PRELIMINARY STATEMENT

The New York Civil Liberties Union (“NYCLU”) seeks relief from this Court because the

City of Rochester and the Rochester Police Department (“RPD”) have constructively denied the

NYCLU’s September 15, 2020 request for records under the Freedom of Information Law

(“FOIL”). The request sought records involving the policies, practices, and conduct of the RPD,

many of which were made accessible by the June 2020 repeal of section 50-a of the Civil Rights

Law. These records are vital to the public’s understanding of police accountability in Rochester,

but nearly three months since the filing of the request, the respondents have not granted or denied

it or provided a substantive response of any kind in clear violation of its obligations under FOIL.

Having exhausted administrative remedies, the NYCLU now seeks judicial relief to require the

respondents to produce responsive records. The petitioner also seeks an award of attorneys’ fees

and costs in light of the respondents’ failure to adhere to FOIL’s statutory requirements.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

Until this summer, the greatest obstacle to police transparency in New York was section

50-a, which generally excluded from disclosure “police personnel records used to evaluate

performance towards continued employment or promotion” that were otherwise presumptively

public. (C.R.L. § 50-a [repealed June 12, 2020]). Although the intended breadth of section 50-a

when first enacted in 1976 was narrow, its scope quickly expanded, with police departments and

unions leading the charge. Indeed, according to a report from the Department of State Committee

on Open Government, by 2014, section 50-a had been “expanded in the courts to allow police

departments to withhold from the public virtually any record that contains any information that

could conceivably be used to evaluate the performance of a police officer” (see Exhibit A to the

Verified Petition). However, amid the nationwide reckoning with racism following the death of

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which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
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George Floyd, Governor Andrew Cuomo signed the #Repeal50a Bill (S8496/A10611) on June 12,

2020.

Despite this push for transparency in New York, the respondents continue to shield crucial

information regarding police misconduct from the public. This year, the City of Rochester

withheld body camera footage of RPD officers’ interaction with Daniel Prude, a Black man who

died one week after being hooded and pinned to the ground by RPD officers on March 23, 2020

(see Exhibit B to the Verified Petition). The City of Rochester spent months hiding this footage

from the public, despite a FOIL request submitted by the Prude family’s attorney on April 3, 2020

(see Exhibit C to the Verified Petition). This footage was not released to Prude’s family until

August 12, 2020 (id.).

Rochester’s Deputy Mayor James P. Smith issued a report dated September 14, 2020

(revised September 16, 2020), finding that the City’s “handling of the initial FOIL and appeal filed

by the attorneys for Mr. Prude’s family seemed disorganized,” that the Municipal Attorney who

handled the request appeared to “completely miss the significance of the subject matter,” and that

the Records Access Officer failed to review the body camera footage and notify the Mayor of his

findings. Following the release of Deputy Mayor Smith’s report detailing their failure to

adequately respond to the Prude family’s FOIL request, the Records Access Officer, Justin Roj,

and Corporation Counsel, Tim Curtin, were suspended for 30 days without pay (see Exhibit B to

the Verified Petition).

The NYCLU’s FOIL Request to the RPD

The NYCLU submitted a FOIL request to the RPD on September 15, 2020, seeking records

related to RPD conduct, many of which had previously been shielded from the public by section

50-a. The request sought documents related to RPD disciplinary records, use of force, stops,

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which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
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civilian complaints, policies, investigative reports, diversity, trainings, and collective bargaining

agreements (see Exhibit D to the Verified Petition). Mr. Roj acknowledged the request in an email

dated September 22, 2020. His email stated that “[d]ue to the volume or complexity” of the request

and because the “records are extensive and require more time for a complete search, legal review

and redaction,” the City estimated that the request “will be completed on or about 3/31/21.” The

email did not clarify whether the City was granting or denying any part of the request, and it

implied that the City would not make even that threshold determination until March 2021, over six

months after the request was filed (see Exhibit E to the Verified Petition).

Following that acknowledgment, the NYCLU has received no further response to its FOIL

request even though the NYCLU’s counsel made several follow-up phone calls to inquire about

its progress. On a September 24, 2020 phone call, City of Rochester employee Amalia Bellucci

referred the NYCLU’s counsel to Rochester Municipal Attorneys Stephanie Prince and Shani C.

Mitchell, who she said would be handling the request. However, when asked for details about the

delay on a September 28, 2020 phone call, Ms. Mitchell stated that she is not the Records Access

Officer and did not know details about how the request was being handled. Ms. Mitchell

memorialized this phone call in an email dated September 28, 2020, in which she directed the

NYCLU to file an administrative appeal directly with her and stated that she was not aware of

where the request was “in the queue” or “how it was currently being handled” (see Exhibit F to

the Verified Petition).

Mr. Roj then acknowledged the original FOIL request for a second time in an email dated

October 5, 2020, but again did not clarify whether the City was granting or denying the request or

whether the City would make any substantive determination before March 2021 (see Exhibit G to

the Verified Petition). By letter dated October 16, 2020, the NYCLU requested a phone call with

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which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
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Mr. Roj to discuss a sensible path forward with respect to the request (see Exhibit H to the Verified

Petition). Mr. Roj did not respond to this letter.

By letter dated November 10, 2020, eight weeks after the City first acknowledged receipt

of the FOIL request but failed to grant or deny it, the NYCLU filed an administrative appeal for

the constructive denial of its FOIL request with Mr. Roj and Ms. Mitchell (see Exhibit I to the

Verified Petition).

As of the filing of this petition, the respondents still have not responded further to the

request, provided a single document, claimed any exemptions, or responded to the administrative

appeal. Having exhausted administrative remedies, the NYCLU files this Article 78 proceeding

seeking immediate production of responsive documents, as well as attorneys’ fees and costs.

ARGUMENT

I. THE RPD VIOLATED FOIL BY FAILING TO PRODUCE ANY RECORDS OR

RESPOND TO THE APPEAL WITHIN THE STATUTORY TIME.

By failing to provide any response to the initial FOIL request or the administrative appeal

within the statutory time, the respondents have constructively denied the FOIL request in its

entirety. Accordingly, the Court should order the respondents to immediately provide responsive

documents.

The New York State Legislature, in enacting FOIL, created a broad right of public access

to government records to foster transparency and accountability in government (Public Officers

Law § 84). “All government records are thus presumptively open for public inspection and

copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87(2)”

(Gould v New York City Police Dept., 89 N.Y.2d 267, 274-275 [1996]; Buffalo News, Inc. v Buffalo

Enter. Dev. Corp., 84 N.Y.2d 488, 492 [1994] [“All records of a public agency are presumptively

open to public inspection, without regard to need or purpose of the applicant.”]). In response to a
4

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which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
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written request for records, “an agency must either disclose the record sought, deny the request

and claim a specific exemption to disclosure, or certify that it does not possess the requested

document and that it could not be located after a diligent search” (Legal Aid Soc. v New York State

Dept. of Corr. & Community Supervision, 105 A.D.3d 1120, 1121 [3d Dept 2013], quoting Matter

of Beechwood Restorative Care Ctr. v Signor, 5 N.Y.3d 435, 440-441 [2005]; see Public Officers

Law § 89 (3)(a)). An agency is required to respond to a FOIL request within five business days,

or provide a statement of the approximate date, which should be reasonable under the

circumstances, when such request will be granted or denied. Public Officers Law § 89 (3)(a). The

respondents failed to grant or deny the request and suggested that it would not respond until March

31, 2021, over six months after the request was made.

Considering the City’s failure to comply with its FOIL obligations, the NYCLU appealed

pursuant to Ms. Mitchell’s instruction and Public Officers Law Section 89 (4). Despite being

statutorily required to respond “within ten business days” by “explain[ing] in writing . . . the

reasons for further denial, or provid[ing] access to the record sought,” the respondents again failed

to respond (Public Officers Law § 89 (4)(a)).

The respondents’ actions constitute a constructive denial and entitle the petitioner to initiate

an action in state court (see 21 NYCRR 1401.7(f) [“A failure to determine an appeal within 10

business days of its receipt by granting access to the records sought or fully explaining the reasons

for further denial in writing shall constitute a denial of the appeal.”]; see Council of Regulated

Adult Liquor Licensees v City of New York Police Dept., 300 A.D.2d 17, 18 [1st Dept 2002]

[“Petitioners exhausted all administrative remedies when, after submitting their appeal of the

Department’s initial denial of their request, they received no reply from the Department within the

statutorily mandated 10-day response period.”]; Village of Brockport v Calandra, 191 Misc.2d

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
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718, 727 [Sup Ct, Monroe County 2002], aff’d 305 A.D.2d 1030 [4th Dept 2003] [“[w]here an

appeal is not addressed within 10 days, the requesting party has exhausted its administrative

remedies and may initiate a challenge to a constructive denial of access under CPLR article 78”]).

Under these circumstances, the petitioner is entitled to an order requiring immediate compliance

with FOIL including production of responsive documents.

II. THE NYCLU IS ENTITLED TO ATTORNEYS’ FEES.

The petitioner respectfully requests an award of reasonable attorneys’ fees and litigation

costs on two separate grounds, given the respondents’ complete failure to adhere to FOIL’s

requirements. First, the petitioner is entitled to attorneys’ fees and costs because the respondents

failed to provide any basis, reasonable or otherwise, for denying access to the records. Second,

even if the petitioner were not entitled to mandatory fees—which it is—it is within this Court’s

discretion to grant fees when a government agency flouts its legal obligations under FOIL by

failing to respond to a FOIL request within the statutory time, as the City has done here.

Regarding the first ground supporting the award of attorneys’ fees, courts are required to

assess reasonable attorneys’ fees and costs when a party has “substantially prevailed” and the

agency had “no reasonable basis for denying access” to the records in dispute (Public Officers Law

§ 89 (4)(c)). The respondents constructively denied both the initial FOIL request and the

administrative appeal. They therefore failed to articulate any basis, let alone a reasonable one, for

denying access to the records. Further, if this Court orders the respondents to disclose the

requested documents in response to this Petition, the NYCLU will have “substantially prevailed”

for the purposes of this provision (Matter of Madeiros v New York State Educ. Dept., 30 N.Y.3d

67, 79 [2017] [finding that the petitioner “substantially prevailed” when the respondent had “made

no disclosures, redacted or otherwise, prior to petitioner’s commencement of this CPLR article 78

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which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
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proceeding”]; Bottom v Fischer, 129 A.D.3d 1604, 1605 [4th Dept 2015] [petitioner substantially

prevailed when respondent made disclosures only after “the court directed it to justify their

nondisclosure”]). Having made no disclosures—redacted or otherwise—prior to the petitioner’s

commencement of this proceeding, the petitioner is statutorily entitled to attorneys’ fees and costs.

Regarding the second ground supporting the award of attorneys’ fees, this Court has

discretion to grant fees when a party has “substantially prevailed” and the “agency failed to

respond to a request or appeal within the statutory time” (Public Officers Law § 89 (4)(c)). The

Supreme Court in Rockland County held that where a respondent was “delinquen[t]” in adhering

to FOIL’s statutory time, the petitioner was entitled to fees (Lucas v Bd. Of Educ. of East Ramapo

Cent. Sch. Dist., 57 Misc.3d 1207(A), 2017 NY Slip Op 51297[U], *4 [Sup Ct, Rockland County

2017]). The Court found that because the respondent “failed to either grant or deny Petitioners’

FOIL requests and failed to render a decision with respect to Petitioners’ appeals of the

constructive denials of their FOIL requests,” that the “purpose in permitting an award of attorney’s

fees and costs in a proceeding such as this—to deter unreasonable delays and denials of access—

is entirely warranted” (id.). Similarly, the respondents failed to respond to the NYCLU’s appeal

within the statutory time-frame provided by New York Public Officers Law § 89 (4)(c)(ii) (see

South Shore Press, Inc. v Havemeyer, 136 A.D.3d 929 [2d Dept 2016] [finding attorneys’ fees

warranted where entity failed to comport with the statutory time limits of FOIL]; Acme Bus Corp

v County of Suffolk, 136 A.D.3d 896, 898 [2d Dept 2016] [finding an award of attorneys’ fees

appropriate, when, among other things “the respondents did not timely decide the petitioner’s

agency appeal”]). As in Lucas, this Court should grant attorneys’ fees in order to dissuade further

improper behavior such as the respondents’ actions here.

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CONCLUSION

For the foregoing reasons, the petitioner the NYCLU respectfully requests that the Court

order the City of Rochester and the Rochester Police Department to produce the records the

petitioner requested in its September 15, 2020 FOIL request, and to pay reasonable attorneys’ fees

and costs associated with this litigation.

DATED: New York, New York

December 14, 2020

By: /s/ Joshua Ebersole________

Joshua Ebersole
SHEARMAN & STERLING LLP
599 Lexington Avenue
New York, NY 10022
(212) 848-4000

Philip Urofsky (pro hac vice forthcoming)

SHEARMAN & STERLING LLP
401 9th Street, NW
Washington, DC 20004
(202) 508-8000

NEW YORK CIVIL LIBERTIES UNION

FOUNDATION, by:
Robert Hodgson
Lisa Laplace
125 Broad Street, 19th Floor
New York, NY 10004
(212) 607-3300

Counsel for Petitioner the New York Civil

Liberties Union

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