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The Appellate Division, 1st Department, yesterday effectively ruled out the use by criminal defendants of the state’s Freedom of Information Law (FOIL) as a discovery device. The decision put the 1st Department in line with the 2nd Department in finding that a 1996 New York Court of Appeals ruling does not permit criminal defendants to use FOIL as an alternative discovery vehicle. In both the 1st and 2nd Department cases, defense lawyers had argued that the Court of Appeals’ ruling in Gould v. New York City Police Department, 89 NY2d 267, entitled them to access to some police department records that might not be available through discovery and others that might not be available until a case was actually on trial. In Gould, the Court of Appeals ruled that three people who had been convicted of crimes could use FOIL to obtain complaint follow-up reports and police activity logs, unless the police department provided a “particularized and specific justification” for not disclosing the material. In the 1st Department case, the Legal Aid Society as the lead plaintiff relied heavily on language in Gould to the effect that the discovery provisions of the Criminal Procedure Law did not restrict the use of FOIL as an alternative means of obtaining police department materials. But Justice Joseph P. Sullivan, writing for a unanimous panel in Legal Aid Society v. New York City Police Department, 205, concluded that the fact that the records were being sought for use in a pending criminal case created a “compelling circumstance” that was different from Gould. Sullivan’s opinion did not directly bar criminal defendants from using FOIL to obtain police department materials. Instead, it allowed the department to assert a blanket exemption because disclosure would interfere with a pending criminal prosecution. Such a denial, Sullivan wrote, was “sufficiently particularized.” Sullivan also embraced the approach adopted by the 2nd Department last year in P ittari v. Pirro, 696 NYS2d 167, when it held that “a generic determination” could be made that disclosing documents would interfere with a pending criminal matter. Justices Angela M. Mazzarelli, Betty Weinberg Ellerin, Alfred D. Lerner, and David Friedman joined in Sullivan’s decision. In both the 1st and 2nd Department cases, unlike in Gould, the police department relied upon the exemption from disclosure contained in FOIL, Public Officers Law Section 87(2)(e)(i), for records that could interfere with a pending criminal case. A different exemption had been relied upon in Gould, where there were no criminal proceedings pending because all three persons seeking police department records had already been convicted. In Gould, the denials of access to police department records had been based upon the exemption for intra-agency records contained in FOIL, Public Officers Law Section 87(2)(g). The 1st Department’s ruling reversed a decision by Justice Alice Schlesinger, who had certified a class action and ordered the police department to provide a “prompt, detailed, fact-specific reason” for non-disclosure of police materials. The 1st Department’s ruling also overturned a requirement in New York City’s rules, 43 Rules of the City of New York 1-05 (d), which instructed its agencies to act on record requests within 15 days after they are received. The 15-day rule, Sullivan wrote, is inconsistent with the state statute, FOIL, which specifies no time period within which an agency must respond to a request. Schlesinger had faulted the police department’s position that it would take 120 days to review requests for its records. Instead, she concluded that the city rule requires a response within 15 days except “in the extraordinary case.” The New York City Police Department was represented by Assistant Corporation Counsels Susan Rockford and Barry P. Schwartz. Steven B. Wasserman and Michele Maxian, both of the Legal Aid Society, represented the agency and seven criminal defendants who were seeking records relating to their cases. Sharon Y. Brodt and Richard E. Weill of the Westchester County District Attorney’s Office submitted an amicus curiae brief for the New York State District Attorneys Association.

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