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Appeal
November 11, 2015
Mr. Jonathan David
Records Access Appeals Officer
New York City Police Department
One Police Plaza-Room 1406
New York, NY 10038-1497
RE: Appeal of Rejection of FOIL Request 2015-PL-10466
Dear Mr. David:
I write to appeal the rejection of my FOIL request for certain demographic data
kept and maintained by the New York City Police Department. My FOIL request was
assigned number 2015-PL-10466. The letter of rejection from which I appeal is dated
October 22, 2015, a copy of which is annexed, along with my original request.
My request is for information on the current residential zip codes for all NYPD
employees, as well as their precinct assignment. As an example, I provided the
following table:
[insert]
My request is for aggregate data. It was denied on the grounds of Public Officer
Law Section 87 (2)(a) referencing Civil Rights Law Section 50-a and Public Officer Law
Section 87 (2)(e). Neither claimed exemption from the Department’s duty of broad
public disclosure has merit.
1. Public Officer Law 87 (2)(a) and Civil Rights Law Section 50-a
First, I have not requested any personal information for specific employees, and
thus my request cannot be for disclosure of any private information. Second, I have not
requested any “personnel records”. Civil Rights Law Section 50-a exempts from public
disclosure “all personnel records used to evaluate performance toward continued
employment or promotion”. Nothing in my request can affect the performance
evaluation for continued employment for any employee as I have not asked for specific,
individual information. A plain language reading of the statute does not support the
NYPD position; neither does the legislative history offer any justification for the instant
rejection. See Prisoner’s Legal Services v. New York State Dep’t of Corrections, 73
N.Y.2d 26, 31-32 (1988) (“the legislative purpose underlying section 50-a …was the
same: to protect the officers from the use of records –including unsubstantiated and
irrelevant complaints of misconduct—as a means for harassment and reprisals and for
purposes of cross-examination by plaintiff’s counsel during litigation” citations omitted)
As the Court of Appeals has repeatedly held: there must be a showing that the
requested information "falls squarely within a FOIL exemption by articulating a
particularized and specific justification for denying access" Capital Newspapers Div. of
Hearst Corp. v. Burns, 67 N.Y.2d 576 (1986)
2) Public Officers Law Section 87 (2)(e).
Section 87 (2) (e) provides in pertinent part:
Each agency shall, in accordance with its published rules, make available for
public inspection and copying all records, except that such agency may deny
access to records or portions thereof that:
(e) are compiled for law enforcement purposes and which, if disclosed, would:
i. interfere with law enforcement investigations or judicial proceedings;
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating
to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine
techniques and procedures;
Public Officers Law Section 87 (2)(e) (McKinney’s 2015)
The law enforcement exemption fails for the same reason as the claimed
personnel records privacy exemption. My request is for aggregate demographic
employee information and not disclosure of individual law enforcement proceedings,
trials, confidential sources or information or investigatory techniques and procedures.
The NYPD’s rejection based on plainly inapposite exemptions must be reversed
and the information requested produced immediately. As the Court of Appeals has held:
“blanket exemptions for certain types of documents are inimical to FOIL’s policy of open
government.” Gould v. New York City Police Department, 89 N.Y.2d 267, 275 (1996)
Thank you.
Respectfully,
Alex Bell