Gideon Orion Oliver

Attorney at Law
277 Broadway, Suite 1501
New York, New York 10007

(646) 263-3495 (phone) [email protected]*

(646) 349-2914 (fax)* *Not for service

March 1, 2017

BY E-MAIL TO [email protected] AND BY HAND

Sergeant Jordan S. Mazur
Records Access Appeals Officer
New York City Police Department
One Police Plaza Room 1406
New York, New York 10038

Re: Administrative Appeal FOIL # 2016-PL--11348

9/29/16 FOIL request regarding Ramarley Graham

Sgt. Mazur:

On February 2, 2012, after breaking into their apartment without a warrant,

consent, or other lawful justification, New York City Police Department (NYPD)
Officer Richard Haste shot and killed 18-year-old Ramarley Graham in front of his 6-
year-old brother and his grandmother.

I represent his parents, Constance Malcolm and Franclot Graham, along with
Communities United for Police Reform (http://changethenypd.org/), and The Justice
Committee (http://www.justicecommittee.org/) (collectively, the Requesters) in their
pursuit of access to the records described in my September 29, 2016 letter (the
Request), a copy of which is attached as Exhibit 1.1

The Requesters seek access to records regarding Hastes shooting and killing of
Ramarley Graham on February 2, 2012 and other, related topics, which are described
with particularity in pp. 12-23 of the Request against a detailed factual background set
forth in pp. 1-12 of the Request.2

1
The Request is made pursuant to the New York State Freedom of Information Law (FOIL), 84-90
of the Public Officers Law, 21 New York City Code of Rules and Regulations (NYCRR) Part 1401 (the
FOIL Implementing Regulations), as well as the Uniform Rules and Regulations for All City Agencies
Pertaining to the Administration of the Freedom of Information Law, Title 43, Rules of the City of New
York, Chapter 1 (Uniform FOIL Rules).
2
A copy of the Request can be accessed online at: http://changethenypd.org/releases/ramarley-
grahams-family-files-request-city-hall-nypd-records-teens-killing-police. As stated in the Request, the
Requesters seek disclosure of records regarding: NYPD Officer Richard Hastes shooting and killing of
Ramarley Graham on February 2, 2012; the underlying circumstances; misconduct related to the shooting,
investigations into the shooting, and statements made to or by the NYPD to the media and/or prosecutors;
investigations, disciplinary actions, and prosecutions undertaken or contemplated regarding the shooting
and related events (such as leaking confidential information to the media related to Mr. Graham and the
 PROCEDURAL BACKGROUND

On September 29, 2016, in addition to hand delivering the Request (Exhibit 1), I
sent the Request by e-mail directly to the NYPDs Records Access Officer (RAO).

Rather than responding by e-mail as requested and required (see Section 4 below),
by letter dated October 6, 2016, sent by regular postal mail, a copy of which is attached
as Exhibit 2 (the 10/6/16 Letter), the NYPD acknowledged receipt of the request and
stated: Before a determination can be rendered, further review is necessary to assess the
potential applicability of exemptions set forth in FOIL, and whether records can be
located. The 10/6/16 Letter estimated that this review will be completed, and a
determination issued, within ninety business days of October 6, 2016. See 10/6/16
Letter.

In a letter dated January 31, 2017, a copy of which is attached as Exhibit 3 (the
Denial), the NYPD denied access to the records described in the Request in full, citing
87(2)(e)(i) of the FOIL as such records/information, if disclosed would interfere with a
law enforcement investigations or judicial proceedings. The Denial did not include the
Records Access Appeals Officers e-mail address or provide any other e-mail address
through which to submit this appeal. See Denial.

I timely submit this Administrative Appeal by e-mail and by hand.

ADDITIONAL FACTUAL BACKGROUND

At a December 14, 2016 appearance related to Hastes administrative trial, the

presiding officer denied Hastes lawyers bid to join his trial with those of the only two
other NYPD employees who might face internal NYPD discipline in connection with
shooting Mr. Graham or any subsequent NYPD misconduct - NYPD Sergeant Scott
Morris and Officer John Mcloughlin3 and Hastes trial was scheduled to begin on
January 17, 2017.4

shooting); the outcomes of any such investigations, disciplinary actions, or prosecutions; relevant NYPD
procedures and practices; communications between the NYPD and City Hall and other agencies about Mr.
Grahams shooting or related investigations, disciplinary actions, and prosecutions; and the other records.
3
According to The New York Times, Morris is charged with failure to notify police communications and
failure to supervise members during a police incident and Mcloughlin is charged with conduct prejudicial
to the good order of the Police Department. Southall, Ashley. (Jan. 16, 2017). Officer Faces Possible
Discipline in Fatal Shooting of Bronx Teenager. The New York Times. Retrieved from
https://www.nytimes.com/2017/01/16/nyregion/ramarley-graham-officer-richard-haste-shooting-
bronx.html?_r=2.
4
Meminger, Dean. (Dec. 15, 2016). Officers Involved in Ramarley Graham Shooting to Face
Department Trial in January. NY1. Retrieved from http://www.ny1.com/nyc/all-boroughs/criminal-
justice/2016/12/15/officers-involved-in-ramarley-graham-shooting-to-face-department-trial-in-
january.html; Kapp, Trevor and Mays, Jeff. (Dec. 14, 2016). NYPD Trial for Officer Who Fatally Shot
Ramarley Graham Set for January. DNAInfo.com. Retrieved from https://www.dnainfo.com/new-
york/20161214/wakefield/nypd-trial-officer-fatally-shot-ramarley-graham-january .

2
 Hastes disciplinary trial began on January 17, 2017 and ended on January 23,
2017. The proceeding was open to the public and widely attended by the public and the
press, at which Haste and other NYPD officers testified and some or many of the records
and information sought through the Request were revealed publicly.

Links to coverage available online of Hastes administrative trial in three of New

York Citys major newspapers are included as Appendix A. Those are only a small
sample of the many pieces of publicly disseminated and available reporting and other
publications containing details about the trial and evidence, including the testimony and
other evidence.

Additionally, summaries of each appearance are available publicly online here:

http://www.riseup4ramarley.org/news/?category=court+summary.

The Department has announced that it will publicize NYPD Commissioner James
ONeills ultimate decision in Hastes case.5

GROUNDS FOR APPEAL

The FOIL means to provide reasonably prompt, presumptive access to agency

records unless they fall within statutory exemptions enumerated in FOIL 87(2), which
are to be narrowly construed to maximize public access. See FOIL 84, 87(2), 89(3)(a);
Matter of Gould v. NYPD, 89 NY2d 267, 275 (1996).

The FOIL, the FOIL Implementing Regulations, and the Uniform FOIL Rules
require that the Department conduct reasonably prompt, diligent searches for records
sought through the FOIL, and that the Department disclose them unless the records or
portions of them fall within the enumerated exemptions, in which case the Department
must provide an appropriate, appealable, written denial stating the reasons for
withholding access with sufficient particularity to allow for meaningful review.6

When followed, those provisions aim to guarantee public access to agency records
or a timely, appropriate, appealable, written denial.7

5
Editorial. (Jan. 30, 2017). A crack in the blue wall. New York Daily News. Retrieved from
http://www.nydailynews.com/opinion/crack-blue-wall-article-1.2957813
6
See, e.g., FOIL 87(2) (Each agency shall, in accordance with its published rules, make available for
public inspection and copying all records, . . . ); FOIL 84 (Legislative declaration); 21 NYCRR 1401.1
(Purpose and Scope); 21 NYCRR 1401.5 (Responses to requests for records); 43 RCNY 1-01 (Scope)
(including 1-01(b) (Agency personnel shall furnish to the public the information and records required to
be made available by the [FOIL], as well as records otherwise available by law. Any conflicts among laws
governing public access to records shall be construed in favor of the widest possible availability of public
records).
7
See, e.g., FOIL 89(3)(a) (requiring access or denial in writing within specific time periods); 21 NYCRR
1401.5(c) (same); 43 RCNY 1-05(c) (same); FOIL 89(4)(a) ("any person denied access to a record
may within thirty days appeal in writing such denial to the head, chief executive or governing body of the
entity, . . . who shall within ten business days of the receipt of such appeal fully explain in writing to the
person requesting the record the reasons for further denial, or provide access to the record sought); 21
NYCRR 1401.7(b) (Denial of access shall be in writing stating the reason therefor and advising the

3
 Where, as here, some of the records and information sought have already been
publicly disclosed, in the context of a multi-day, public administrative disciplinary
attended by members of the press and the public and widely reported on by the press,
those records and information cannot be withheld from disclosure based on sweeping
invocations of confidentiality purporting to rely on FOIL 87(2)(e)(i) such as those in
the Denial. 8

1. THE RAO FAILED TO CONDUCT A DILIGENT SEARCH FOR

RECORDS RESONSIVE TO THE REQUEST AND THE
DEPARTMENT CONSTRUCTIVELY DENIED THE REQUEST.

The FOIL, the FOIL Implementing Regulations, and the Uniform FOIL Rules
require that any estimated date given by an agency for a FOIL response must be
reasonable under the circumstances of the request.9

In this case, although the initial acknowledgement of receipt in the 10/6/16 Letter
was arguably timely, the estimated date provided by Respondents within which to
provide a final response to the Request- within 90 business days of 10/6/16 - was
unreasonable under the circumstances. Additionally, because the 90-day estimate in the
Departments 10/6/16 Letter was unreasonable under the circumstances, the Department
constructively denied the Request.10

person denied access of his or her right to appeal to the person or body designated to determine appeals,
and that person or body shall be identified by name, title, business address and business telephone number.
The records access officer shall not be the appeals officer); and 43 RCNY 1-05(6) (Each writing
denying a request in whole or in part shall inform the requesting party of his right to appeal the
determination of the agency within thirty days and shall state the name of the person or body designated in
the agency to hear such appeals. Such person or body shall be identified by name, title, business address
and telephone number).
8
See, e.g., Moore v. Santucci, 151 A.D.2d 677, 679 (2nd Dept. 1989) (Once the statements have been used
in open court, they are available for inspection by a member of the public); see also Rainbow News 12
Co. v. Dist. Attorney of Suffolk Cty., No. 1487/92, 1992 WL 427579, at *2 (N.Y. Sup. Ct. June 8, 1992)
(videotaped statements were placed in the public domain when they were played in open court thereby
vitiating and potential confidentiality); see also statement by Robert Freeman, Executive Director of the
New York State Committee on Open Government that Once records that could be withheld under FOIL
are introduced in a quasi-judicial setting, the agency loses the cloak of confidentiality (quoted in Rayman,
Graham. (Feb. 4, 2017). NYPD denies Freedom of Information request for trial records of cop Richard
Haste who fatally shot Ramarley Graham. New York Daily News. Retrieved from
http://www.nydailynews.com/new-york/nypd-denies-foi-request-fatally-shot-ramarley-graham-article-
1.2963817 .
9
See FOIL 89(3)(a) ([e]ach entity . . . shall . . .furnish a written acknowledgment of the receipt of such
request and a statement of the approximate date, which shall be reasonable under the circumstances of the
request, when such request will be granted or denied) 21 NYCRR 1401.5(c)(3) (requiring that
approximate date when the request will be granted or denied in whole or in part be reasonable under the
circumstances of the request).
10
See FOIL 89(3)(a) (requiring access or denial in writing within specific time periods); 21 NYCRR
1401.5(c) (same); 43 RCNY 1-05(c) (same); 21 NYCRR 1401.5(e)(3) (A failure to comply with the
time limitations described herein shall constitute a denial of a request that may be appealed. Such failure
shall include situations in which an agency:. . . (3) furnishes an acknowledgment of the receipt of a request
within five business days with an approximate date for granting or denying access in whole or in part that is

4
 Simply put, it is obvious that, during that ninety-day time period, the Department
failed to conduct the required diligent search for records responsive to the Request,
because the Department did not ultimately even a single piece of paper to Mr. Grahams
family related to Mr. Grahams shooting or any of the other related topics covered in the
Request.

It is beyond belief that, during the 90-day time period within which the
Department estimated it would respond to the Request, the Department made a good faith
and diligent search for the records sought in the Request, found them, reviewed them, and
determined that all of the responsive records found were subject to the exemption cited to
in the Denial.

This is particularly evident in light of the blanket nature of the improper, blanket
denial, discussed in the next section.

To the extent the Department may claim that the Department in fact conducted
diligent search(es), in anticipation of litigation regarding the nature and extent of any
such search(es) conducted to date, please preserve, and be prepared to produce, records
reflecting the nature and extent of the actual search(es) the Department conducted.

2. THE DENIAL IS AN IMPROPER BLANKET DENIAL THAT FAILS

TO DESCRIBE THE RECORDS WITHHELD OR TO PROVIDE ANY
BASIS FOR WITHHOLDING THEM.

The Denial improperly sweeps all of the records and information sought in the
Request under the same blanket exemption. As seen in the next section, the exemption
invoked is inapplicable, and the Department has not established its entitlement to rely on
it. Even setting that aside, the blanket nature of the Denial is itself improper.

[B]lanket exemptions for particular types of documents are inimical to FOIL's

policy of open government. Gould, 89 NY2d at 275. An agencys "blanket invocation of
. .. statutory exemptions, without enumerating or describing any of the documents
withheld and without offering a specific basis for any of the claims of exemption does
not pass muster. City of Newark v. Law Dep 't of City of New York, 305 A.D.2d 28, 34 (1st
Dep't 2003). Instead, to invoke one of the exemptions of section 87(2), the agency must
articulate particularized and specific justification for not disclosing requested
documents. Gould, 89 NY2d at 275, quoting Matter of Fink, 47 N.Y.2d at 571.

The lack of an appropriately detailed written denial including particularized

reasons for withholding access to particular records and categories of records has
frustrated not only my clients rights to access the records and information sought in the
Request, but also to seek meaningful and speedy judicial review of the Departments

unreasonable under the circumstances of the request); 21 NYCRR 1401.7(c) (If an agency fails to
respond to a request as required in section 1401.5 of this Part, such failure shall be deemed a denial of
access by the agency).

5
handling of the Request.

3. THE DENIAL IMPROPERLY INVOKES THE EXEMPTION IN FOIL

87(2)(e)(i) WITHOUT PROVIDING THE REQUIRED
PARTICULARIZED JUSTIFICATIONS.

FOIL 87(2)(e)(i) provides for withholding of records compiled for law

enforcement purposes and which, if disclosed, would i. interfere with law enforcement
investigations or judicial proceedings.

It is the withholding agencys burden to set forth appropriately particularized and

specific justifications for denying access to specific responsive records, showing its
entitlement to withhold disclosure of documents, or of information withheld by means of
redaction, establishing that one of the statutory exemptions justifies withholding the
documents or information from disclosure, despite the strong statutory presumptions in
favor of such disclosure. See, e.g, Gould, 89 NY2d at 275. An agency must explain and
justify its reliance on an exemption in more than just a plausible fashion. Data Tree,
LLC v. Romaine, 9 NY3d 454, 462 (2007). That includes setting for a factual basis for
claiming exemption from the duty to disclose. See, e.g., Church of Scientology of N.Y. v.
State of New York, 46 N.Y.2d 906, 908 (1979). Conclusory assertions that certain
records fall within a statutory exemption are not sufficient; evidentiary support is
needed. Mater of Baez v. Brown, 124 A.D.3d 881, 83 (2nd Dept. 2015). A [f]ailure to
establish the factual existence of [a] claimed exemption ... renders [the] claim for
exemption unavailing. Matter of New York Assn. of Homes and Servs. for the Aging, Inc.
v. Novello, 13 A.D.3d 958, 96061, 786 N.Y.S.2d 827 (3rd Dept. 2004) (internal citations
omitted).Loevy & Loevy v. New York City Police Dep't, 38 Misc. 3d 950, 954-55 (Sup.
Ct. 2013). Mere references to sections, subdivisions and subparagraphs of the applicable
statute and characterizations of the records sought to be withheld will not suffice.
Church of Scientology of N.Y, 46 N.Y.2d at 908.

Records compiled for law enforcement purposes may be withheld if

disclosure while a case is pending would generally interfere with
enforcement proceedings. Lesher v. Hynes, 19 N.Y.3d 57, 67, 945
N.Y.S.2d 214, 968 N.E.2d 451 (2012). It is the agency's burden to
articulate a factual basis for the exemption by identifying generic kinds
of documents for which the exemption is claimed, and the generic risks
posed by disclosure of the categories of documents. Id.; see Public
Officers Law 89(4). Put slightly differently, the agency must still fulfill
its burden under Public Officers Law 89(4)(b) to articulate a factual
basis for the exemption.

Asian Am. Legal Def. & Educ. Fund v. New York City Police Dep't, 41 Misc. 3d 471, 476
(Sup. Ct. 2013), aff'd, 125 A.D.3d 531 (1st Dept. 2015), leave dend, 26 NY3d 919
(2016). Thus, even when a specific criminal investigation or prosecution is ongoing, an
agency must always at least articulate a factual basis for the exemption by identifying

6
generic kinds of documents for which the exemption is claimed, and the generic risks
posed by disclosure of the categories of documents. Lesher, 19 N.Y.3d at 67.

Additionally, when an investigation or judicial proceeding is over, the exemption

ceases to apply:

Of course, Public Officers Law 87(2)(e)(i) ceases to apply after

enforcement investigations and any ensuing judicial proceedings have run
their course. Thus, the exemption does not bar disclosure of records
compiled for law enforcement purposes in a criminal matter where the
prosecution has been completed, absent some unusual circumstance such
as the prospect that disclosure might compromise a related case.

Lesher, 19 N.Y.3d at 68.

The exemption does not apply where criminal investigations have been completed
and no further action is contemplated. See, e.g., Council of Regulated Adult Liquor
Licensees v. NYPD, 300 A.D.2d 17, 18 (N.Y. App. Div. 2002); Church of Scientology,
403 N.Y.S.2d at 226 (finding that disclosure of the requested records would not interfere
with criminal investigations where it was apparent from the facts submitted that the
letters of complaint had already been responded to, have been the subject of inquiry, have
resulted in no further action, and there presently exists no intention to commence any
further action with regard to them).

In this case, no law enforcement investigations or judicial proceedings within

the sweep of the exemption exist.11

The Department has not named or even suggested which law enforcement
investigation(s) or judicial proceeding(s) might be impacted by disclosure of any
particular record or category of record.

Even a short read of the exhaustive Request makes it clear that there are numerous
categories of records, the disclosure of which could not possibly impact any hypothetical
law enforcement investigations or judicial proceedings. To cite just a few examples:

A. How could records from the Office of the Chief Medical Examiner for the
City of New York related to Mr. Grahams shooting, injuries, medical
treatment, body, or autopsy, adversely impact law enforcement investigations
or judicial proceedings? (See Request Paragraph 25.)

11 In fact, the possibility of the sort of law enforcement investigations or judicial proceedings

contemplated in the exemption is foreclosed in this case. Rather, the only potential future proceedings are
administrative. The Request itself establishes that there is no possibility that any criminal or civil rights
proceedings may be brought against Haste or any of the other involved due to statute of limitations
concerns, and since the Request was submitted, Hastes internal disciplinary proceedings have concluded.

7
 B. How could the disclosure of communications with the press by the NYPD
regarding Mr. Graham, Mr. Grahams shooting, and related events, including
the notes they relied on in making certain specifically enumerated statements
to the press, adversely impact law enforcement investigations or judicial
proceedings? (See Request Paragraphs 27-29.)

C. How could the disclosure of records reflecting NYPD searches for Mr.
Grahams criminal history information that was sealed yet leaked to The Wall
Street Journal between February 2, 2012 and February 5, 2012, or
investigations into the unauthorized release of that information to the press,
adversely impact law enforcement investigations or judicial proceedings? (See
Request Paragraphs 30-33.)

D. How could the disclosure of records reflecting NYPD policies and training in
2012, including publicly available Patrol Guide provisions, regarding
enumerated topics in Paragraphs 39-40 of the Request, adversely impact law
enforcement investigations or judicial proceedings?

At any rate, even assuming, arguendo, that any qualifying investigation or judicial
proceeding exists, the Department has not met or even made a good faith effort to
attempt to meet its burden to establish that the responsive records it searched diligently
for and found are subject to withholding based on the claimed exemption.

4. THE DEPARTMENT HAS FAILED TO COMPLY WITH THE

REQUIREMENTS TO ACCEPT AND RESPOND TO THE REQUEST
ELECTRONICALLY.

FOIL 89(3)(b) and 87(5)(a) require the NYPD to accept and respond to FOIL
requests by e-mail and to respond by providing responsive records in electronic format if
requested as long as it has reasonable means available.12 The NYPD has the ability and
reasonable means available to receive and respond to requests via e-mail.

However, in September of 2016, the NYPD did not accept and respond to FOIL
requests by e-mail or publicize any e-mail address to which to submit FOIL requests.13

12
Under 89(3)(b) of the FOIL,

All entities shall, provided such entity has reasonable means available, accept requests for records
submitted in the form of electronic mail and shall respond to such requests by electronic mail,
using forms, to the extent practicable, consistent with the form or forms developed by the
committee on open government pursuant to subdivision one of this section and provided that the
written requests do not seek a response in some other form.

See FOIL 89(3)(b). This requirement has been in place since 2006. Under FOIL 87(5)(a), An agency
shall provide records on the medium requested by a person, if the agency can reasonably make such copy
or have such copy made by engaging an outside professional service.
13
For example, Keegan Stephan v. NYPD, NYS Supreme Court Index No. 101285-2016, filed in August of
2016, explicitly challenges the NYPDs refusals to respond to an e-mail request made to the NYPDs RAO
by e-mail, and related policies and practices. During the pendency of the case, in around mid- December of

8
 The Request was sent by e-mail directly to the RAO and specifically seeks
responses by e-mail, electronic copies of responsive records, and the e-mail address of
the Records Access Appeals Officer in the event of a denial. See Request at pp. 2, 23.

The Department communicated twice related to the request by regular postal mail
rather than e-mail, and has refused to provide the e-mail address of the Records Access
Appeals Officer.

The Departments refusals to accept and respond to the Request by electronic

means violate 89(3)(b) and 87(5)(a) of the FOIL.

CONCLUSION

The NYPDs violations of the FOIL the FOIL Implementing Regulations, and the
Uniform FOIL Rules, including its constructive denial of the Request and other failures
to grant access or to deny access in an appropriately detailed written communication,
along with its refusals to accept and respond to the Request electronically, have violated
and continued to violate the Requesters rights to access the records and information
sought under the FOIL, as well as their related rights to access and disseminate the
records and information sought, including their rights under the First Amendment to the
United States Constitution as well as Article I 8 and 9 of the New York State
Constitution. These violations of their rights are serious and ongoing and the lack of
access to the documents and information sought has caused and continues to cause
irreparable harm.

I reiterate my requests for responses by e-mail and including electronic versions

of responsive documents consistent with the requirements of the FOIL. I look forward to
the Departments prompt and complete response by e-mail within ten business days.
Please expect litigation on the eleventh business day or shortly thereafter in the event the
Department does not provide the required response, including disclosure of the records
sought or an appropriately fulsome final determination, by e-mail, within ten business
days.

Very truly yours,

Gideon Orion Oliver

cc: Committee on Open Government

New York State Department of State
41 State Street
Albany, New York 12231

2016, the NYPD changed its website to include an e-mail address to which FOIL requests may be
submitted, [email protected].