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In re Luongo

Supreme Court of New York, First Department

March 30, 2017

In re Justine Luongo, etc., Petitioner-Respondent,
v.
Records Access Officer, Civilian Complaint Review Board, Respondent-Appellant, Officer Daniel Pantaleo, Intervenor Respondent-Appellant. Communities United for Police Reform, The Association of Muslim American Lawyers, Center for Constitutional Rights, Center for Popular Democracy, JustLeadershipUSA, Katal Center for Health, Equity, and Justice, LatinoJustice PRLDEF, New York Civil Liberties Union, The Public Science Project, Urban Justice Center, Alliance for Quality Education, Arab American Association of New York, Bill of Rights Defense Committee/Defending Dissent Foundation, The Black Institute, Brooklyn Movement Center, CAAAV Organizing Asian Communities, Citizen Action of New York NYC Chapter, Equality for Flatbush, FIERCE, Filipino American Democratic Club of NY, The Gathering for Justice/Justice League NYC, Girls for Gender Equity, Jews for Racial & Economic Justice, Justice Committee, Make the Road New York, Malcolm X Grassroots Movement, NAACP New York State Conference, New York City Gay and Lesbian Anti-Violence

          Project, New York Communities for Change, The Peace Poets, Picture the Homeless, Queens Neighborhood United, T'ruah: The Rabbinic Call for Human Rights, UPROSE, The Progressive Caucus and Black, Latino, and Asian Caucus of the New York City Counsel, United States Congressman Hakeem Jeffries, Manhattan Borough President Gale Brewer, New York City Public Advocate Letitia James, The Reporters Committee for Freedom of the Press, Advance Publications, Inc., The Associated Press ("AP"), BuzzFeed, Daily News, LP, Dow Jones & Company, Inc., The E. W. Scripps Company, First Look Media Works, Inc., Gannett Co., Inc., Gawker Media LLC, Hearst Corporation, MPA-The Association of Magazine Media ("MPA"), The National Press Club, The National Press Photographers Association ("NPPA"), The New York Times Company, News 12, The News Guild - CWA, Newsday LLC ("Newsday"), Online News Association ("ONA"), Radio Television Digital News Association ("RTDNA") and The Tully Center for Free Speech, Amici Curiae.

          Respondent Records Access Officer, Civilian Complaint Review Board (CCRB) and intervenor respondent Officer Daniel Pantaleo appeal from the order and judgment (one paper) of the Supreme Court, New York County (Alice Schlesinger, J.), entered July 27, 2015, directing CCRB to produce to petitioner, pursuant to the Freedom of Information Law (FOIL), a summary of its records indicating (a) the number of substantiated complaints brought against Officer Pantaleo before the July 17, 2014 death of Eric Garner and (b) any CCRB recommendations made to the Police Department based on such complaints.

          Zachary W. Carter, Corporation Counsel, New York (Aaron M. Bloom, Richard Dearing and Devin Slack of counsel), for Records Access Officer, Civilian Complaint Review Board, appellant.

          Worth, Longworth & London, New York (Mitchell Garber of counsel), for Officer Daniel Pantaleo, appellant.

          Seymour W. James, Jr., The Legal Aid Society, New York (Cynthia Conti-Cook of counsel) and Kramer Levin Naftalis & Frankel LLP, New York (Jeffrey L. Braun and Anna K. Ostrom of counsel), for respondent.

          Rankin & Taylor, PLLC, New York (Jane L. Moisan, David B. Rankin and Vanessa Selbst of counsel), for Communities United for Police Reform, The Association of Muslim American Lawyers, Center for Constitutional Rights, Center for Popular Democracy, JustLeadershipUSA, Katal Center for Health, Equity, and Justice, LatinoJustice PRLDEF, New York Civil Liberties Union, The Public Science Project, Urban Justice Center, Alliance for Quality Education, Arab American Association of New York, Bill of Rights Defense Committee/Defending Dissent Foundation, The Black Institute, Brooklyn Movement Center, CAAAV Organizing Asian Communities, Citizen Action of New York NYC Chapter, Equality for Flatbush, FIERCE, Filipino American Democratic Club of NY, The Gathering for Justice/Justice League NYC, Girls for Gender Equity, Jews for Racial & Economic Justice, Justice Committee, Make the Road New York, Malcolm X Grassroots Movement, NAACP New York State Conference, New York City Gay and Lesbian Anti-Violence Project, New York Communities for Change, The Peace Poets, Picture the Homeless, Queens Neighborhood United, T'ruah: The Rabbinic Call for Human Rights and UPROSE, amici curiae.

          Cleary Gottlieb Steen & Hamilton LLP, New York (Avram E. Luft, Nefertiti J. Alexander, Mark E. McDonald and Grace J. Kurland of counsel), for Progresive Caucus of the New York City Council, Black, Latino, and Asian Caucus of the New York City Council, United States Congressman Hakeem Jeffries, Manhattan Borough President Gale Brewer and New York City Public Advocate Letitia James, amici curiae.

          Davis Wright Tremaine LLP, Washington, DC (Alison Schary of counsel), for The Reporters Committee for Freedom of the Press, Advance Publications, Inc., The Associated Press ("AP"), BuzzFeed, Daily News, LP, Dow Jones & Company, Inc., The E. W. Scripps Company, First Look Media Works, Inc., Gannett Co., Inc., Gawker Media LLC, Hearst Corporation, MPA-The Association of Magazine Media ("MPA"), The National Press Club, The National Press Photographers Association ("NPPA"), The New York Times Company, News 12, The News Guild - CWA, Newsday LLC ("Newsday"), Online News Association ("ONA"), Radio Television Digital News Association ("RTDNA") and The Tully Center for Free Speech, amici curiae.

          John W. Sweeny, Jr., J.P., Rolando T. Acosta, Karla Moskowitz, Barbara R. Kapnick, Marcy L. Kahn, JJ.

          SWEENY, J.P.

         The issues before us stem from the extensively publicized arrest and death of Eric Garner on July 17, 2014. Intervenor Police Officer Daniel Pantaleo was depicted in a bystander video applying a choke hold to Mr. Garner during the incident. An investigation followed, and on December 2, 2014, a grand jury declined to indict Officer Pantaleo in connection with Mr. Garner's death.

         Petitioner submitted a Freedom of Information Law (FOIL) letter request to respondent Records Access Officer, Civilian Complaint Review Board (CCRB), dated December 18, 2014, seeking eight categories of records concerning Officer Pantaleo, dating from 2004 to the date of Mr. Garner's death. Petitioner sought: (1) the number of complaints filed against Officer Pantaleo; (2) the number of allegations contained within each complaint; (3) the outcome of CCRB's investigation of each allegation; (4) any prosecution by CCRB in response to such finding; (5) the outcome of any prosecution by CCRB; (6) any charges and specifications filed by the New York City Police Department's (NYPD) Department Advocate Office; (7) the outcome of any Department Advocate Office proceedings; and (8) any other agency actions in response to the above requests.

         On December 24, 2014, CCRB denied the request, citing the statutory exemption from disclosure provided for police personnel records contained in Public Officers Law § 87(2)(a) and Civil Rights Law § 50-a. In addition to the statutory exemptions, CCRB noted that the request for records relating to unsubstantiated matters would constitute "an unreasonable invasion of privacy." Finally, CCRB noted that it was not possible to redact any responsive records "in a way that will disassociate allegations against [Officer Pantaleo] given the nature of" petitioner's request. Petitioner appealed to the CCRB on December 29, 2014, but received no response.

         This article 78 proceeding was commenced on February 17, 2015, and sought an order directing the CCRB to produce "a summary of the number of allegations, complaints and outcomes brought against" Officer Pantaleo. Much of petitioner's broader initial request was thus abandoned. During the proceedings, petitioner further narrowed its FOIL request, seeking only information as to "whether the CCRB substantiated complaints against Officer Pantaleo and, if so, whether there were any related administrative proceedings, and those outcomes, if any." Officer Pantaleo applied for and was granted intervenor status as a party respondent. His opposition papers alleged, among other things, that even the requested summary of the CCRB records was exempt from disclosure because it would endanger his life and the lives of his family members. In support, he referenced online, unsubstantiated reports of alleged misconduct on his part that resulted in the arrest of a Michigan man in February 2015 for posting Facebook death threats against him. Officer Pantaleo also stated that the NYPD's Threat Assessment Unit had assigned police officers to watch over him and his family 24 hours a day, 7 days a week, and implemented other security measures as well. He also agreed with the CCRB that the requested documents constituted "personnel records" within the meaning of Civil Rights Law § 50-a(1) and were therefore exempt from disclosure.

         Supreme Court found, without conducting an in camera review of the requested information, that the summary sought by petitioners did not constitute a "personnel record" exempted from disclosure by Civil Rights Law § 50-a because the CCRB is "a city agency independent of the NYPD." The court further found that even if the summary constituted a "personnel record, " nondisclosure would not be " reasonably necessary to effectuate the purposes of [Civil Rights Law 50-a] to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer'" (quoting Matter of Daily Gazette Co. v City of Schenectady, 93 N.Y.2d 145');">93 N.Y.2d 145');">93 N.Y.2d 145');">93 N.Y.2d 145, 157-158 [1999]). Finally, the court was "not convinced" that release of the records was likely to cause harm to Officer Pantaleo, finding that intervenor had not established a causal connection between the online, unsubstantiated reports and the Facebook death threats. The ...


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