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December 23, 2014

Police agency's records concerning breath alcohol measurement instruments may be obtained pursuant to a Freedom of Information Law request


Police agency's records concerning breath alcohol measurement instruments may be obtained pursuant to a Freedom of Information Law request
Law Offs. of Adam D. Perlmutter, P.C. v New York City Police Dept., 2014 NY Slip Op 08722, Appellate Division, First Department

The Law Offices of Adam D. Perlmutter, P.C., [Perlmutter] filed a Freedom of Information Law [FOIL] request seeking “all calibration and maintenance records for all Intoxilyzer machines owned or maintained by New York City Police Department [NYPD] since January 2008”.The Intoxilyzer is a breath alcohol measurement instruments manufactured by CMI, Inc.

In response to NYPD denial of Perlmutter’s FOIL demand, Perlmutter filed an Article 78 petition. Supreme Court seeking a court order annulling NYPD’s decision and an order directing the NYPD to disclose the records sought by Perlmutter.

Relying on provisions set out in Public Officers Law §87, NYPD had contended that the records "are compiled for law enforcement purposes and . . . , if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings," as such records are often requested in “Driving While Intoxicated” [DWI] cases involving Intoxilyzer test results and that thousands of such cases are pending in New York City.

The Appellate Division affirmed the lower court's ruling and rejected NYPD’s claim that the records sought by Perlmutter were exempt from disclosure pursuant to FOIL.

The court noted NYPD’s FOIL arguments are not properly before it because the exemption to FOIL was not cited by NYPD at the administrative level. However, the Appellate Division continued, “Were we to review it, we would reject [NYPD's arguments] on the merits, since the statute cited by [NYPD] does not exempt the records from disclosure.”

The decision is posted on the Internet at:

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