The Nassau County Police Department’s blanket assertion of an ongoing investigation falls far short of any justification for withholding records from the family of a college student inadvertently shot and killed by an officer, a judge has held.
Supreme Court Justice Karen Murphy said a police agency, to justify denying a claim under the Freedom of Information Law (FOIL), must provide more than just a vague claim that releasing the information would hinder its work.
Murphy, in Rebello v. Dale, 11906/13, echoed the sentiments of several other judges in recent FOIL matters involving police agencies.
Her decision stemmed from a tragic incident last year when a gunman took several Hofstra University students captive, and a police officer inadvertently killed a 21-year-old hostage. The family is pursuing a wrongful death claim and sought police records of the matter, but the department largely rejected the request.
“Apart from the unelaborated assertion that they are ‘investigating the shooting,’ the respondents have not described precisely what sort of investigation they are currently conducting, thereby complicating the task of assessing precisely what risks, if any, would ensue upon release of the requested materials,” Murphy wrote.
Robert Freeman, executive director of the state Committee on Open Government, said the ruling is significant “because the court has taken seriously the requirement that an agency must meet the burden of proof” when denying access records.
“It is clear that an agency cannot merely cite an exception to rights of access and prevail,” Freeman said. “Rather, the law and its construction by the courts require that an agency demonstrate how and why the harmful effect of disclosure described in an exception would in fact arise.”
The decision came in response to an appeal by attorney David Roth of Roth & Roth in Manhattan after the police department refused to reveal records related to the May 17, 2013 accidental shooting of Hofstra student Andrea Rebello. Roth represents Rebello’s estate.
Rebello was among four students who were taken hostage by Dalton Smith at an off-campus residence in Uniondale. Dalton, an armed ex-con on parole for an armed robbery, held the residents at gunpoint, demanding cash and valuables.
According to a report issued April 2 by Nassau County District Attorney Kathleen Rice, Officer Nikolas Budimlic responded to a 911 call of a robbery and, as he approached the California Avenue residence Rebello’s twin sister came running out and reported that an intruder with a gun was inside the house.
Budimlic went inside, where Smith was restraining Rebello and threatened to kill both the officer and the hostage, according to the report. The officer fired eight shots at Smith, killing him, but one of the bullets struck Rebello in the head, killing her. Rice concluded that there was no basis to charge Budimlic with criminal wrongdoing.
“While Officer Budimlic intentionally used deadly physical force against Smith, he acted upon a clearly reasonable belief that Smith was armed with a gun and was about to use deadly physical force,” she said in her report.
Rice noted that Smith “was a violent individual, who was armed with a weapon, was in the process of committing a home invasion burglary, and was holding two civilians at gunpoint.” She said the “tragedy” was caused by Smith, not the police officer.
“Her death was caused by Dalton Smith’s decisions: his decision to invade a residence in the early hours of the morning; to rob at gunpoint the occupants of the house; to take hostage all of the residents; to repeatedly threaten to kill them (and various police officers, including Budlimic); to use Andrea Rebello as a human shield; and to ignore multiple orders from uniformed police officers to drop his gun and release his hostages,” Rice wrote.
Roth, however, is pursuing a wrongful death action against the police department and sought various records related to the incident, citing the Freedom of Information Law. But the department denied the FOIL request, citing a provision in the Public Officers Law that allows agencies to withhold information or documents that would compromise an ongoing investigation.
Murphy said the department “failed to demonstrate their entitlement” to a statutory exemption.
“Here, the respondents’ principal evidentiary submission, the one-and-a half page affidavit supplied by [a detective] is conclusory and contains virtually no descriptive facts upon which this court can meaningfully weigh the viability of the claimed exemption,” Murphy wrote. “[W]hile properly framed ‘generic’ descriptions and statements may suffice, the statements provided [here] are not even sufficiently detailed to qualify as generically descriptive in content.” The police department was represented by Assistant County Attorney Brian Libert, who was not available for comment. Roth and the police department each declined to comment.