City wrapped in another "Freedom Of Information" litigation, must pay $49K for withholding information

Acting Manhattan Supreme Court Justice Peter Moulton.

Brooklyn Daily Eagle

A Manhattan judge has ruled that the New York City Police Department failed to comply with a duly-filed Freedom of Information Law (FOIL) request by wrongfully withholding information requested by a non-profit organization. He ordered the city to pay over $49,000 in legal fees.

The Exoneration Initiative sought information on Richard Rosario, an inmate incarcerated since 1996, when he was convicted of a murder he claims he did not commit. To further its investigation, Exoneration Initiative filed a FOIL request on the NYPD, seeking documents related to Rosario’s case.  The NYPD, on numerous occasions, failed to respond to the FOIL requests in a timely manner.

The city argued that the NYPD receives approximately 8,000 FOIL requests a year, and that those requests take time to process.  For Acting Manhattan Supreme Court Justice Peter Moulton, this argument was a faulty one.

“The NYPD has enormous resources, and it could deploy sufficient resources to ensure that it timely responds to all its FOIL requests,” Moulton wrote, referring to the unnecessary need for the NYPD’s delays in responding to Exoneration Initiative. “[I]f the NYPD wants make the argument that the necessity of responding to thousands of FOIL requests a year diverts resources from its core mission, it should make that argument to the legislature,” Moulton chided.

The NYPD’s delays caused Exoneration Initiative to seek compensation from the city for their attorneys’ fees. In response, the city asserted that the four lawyers for the Exoneration Initiative were either “staff members of the Exoneration Initiative or are volunteers for the organization,” and therefore not entitled to legal fee compensation.

Moulton disagreed. The city’s argument, Moulton held, “ignores ample precedent that allows public interest legal organizations … to receive attorneys' fees after prevailing [in their suit].”

In its final attempt to avoid paying, the city argued that the requested attorneys’ fees were not equal to the fees charged by attorneys with similar experience, and that the hours billed were excessive.

Moulton replied that the hours Exoneration Initiative’s attorneys billed were “well within the range of hourly rates charged by private sector attorneys of similar experience in that community.”

The city further argued that one of Exoneration Initiative’s attorneys “has not practiced as an attorney in 23 years" and therefore was merely a “"pro bono case worker." Moulton found these characterizations “inaccurate and uncollegial.”

The lawyer in question is a former judge, who, Moulton noted, “do[es] not have clients” per se as one would expect of a private attorney. Simply because a judge’s “clients” are the “public at large,” does not take away from the fact that they “use their legal training to do their jobs,” Moulton said.

Moulton awarded Exoneration Initiative $49,276.94 in attorneys' fees, subtracting $780 for one attorney's fees for an instance where three attorneys appeared at a hearing, but the court felt that only two were needed.

This is not the only FOIL litigation that the NYPD has recently been involved in. In April, the Brooklyn Daily Eagle reported that Remapping Debate, a not-for-profit news website that analyzes data related to public policy matters, sued the NYPD for allegedly denying them access to parade permit and sound device applications requested via FOIL.  

In May, Bronx Supreme Court Justice Alexander Hunter Jr., denied a FOIL lawsuit brought by the Asian American Legal Defense and Education Fund and Muslim Advocates requesting that the NYPD disclose a broad range of documents relating to its intelligence and counter-terrorism operations since September 11, 2001. Hunter, Jr., held that the information was withheld for legitimate reasons, such as the fact that their disclosure would interfere with law enforcement investigations or judicial proceedings; identify a confidential source or disclose confidential information relating to a criminal investigation; reveal criminal techniques or procedures, and endanger the lives and safety of law enforcement personnel, confidential informants and members of the public.

June 17, 2013 - 3:15pm


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