Obtaining police department records concerning a traffic accident pursuant to the Freedom of Information Law

As the Court of Appeals held in Fappiano v New York City Police Dept., 95 NY2d 738, "[a]ll government records are presumptively open for public inspection unless specifically exempted from disclosure as provided in the Public Officers Law" and further explained in Gould v New York City Police Dept., 89 NY2d 267, a government agency may withhold records sought pursuant to FOIL only if it "articulate[s] particularized and specific justification for not disclosing requested documents."

In this CPLR Article 78 proceeding Supreme Court denied a petition seeking, among other things, to compel the New York City Police Department [NYPD] to disclose certain records concerning a traffic accident pursuant to the Freedom of Information Law.

NYPD had relied on the FOIL exemption from disclosure records that were compiled "for law enforcement purposes and which, if disclosed, would . . . interfere with . . . judicial proceedings," contending that disclosing the records demanded "would tip the hand of the Traffic Violations Bureau's [TVD] prosecuting attorney or prevent the prosecutor from testing the recollection of witnesses."

The Appellate Division unanimously reversed the Supreme Court's ruling "on the law."

Noting that TVB was an administrative agency that was legislatively created to adjudicate traffic violation charges for the purpose of reducing caseloads of courts in New York City, the court said that the accused motorist has a right to be represented by counsel and the administrative law judge presiding over the hearing must determine whether the police officer has established the charges by clear and convincing evidence.

Holding that NYPD failed to meet its burden of showing a particularized justification for withholding the records at issue within the meaning of the interference exemption provision of FOIL in this instance, the Appellate Division's decision noted that the recollection of witnesses and the basis of their testimony "would certainly be determined by questioning and cross examination at the hearing" and the court opined that NYPD's "blanket denial of document release fell short of meeting its admittedly low burden."

Click here to access the Appellate Division's decision.

 

Audits issued by the New York State Comptroller during the week ending January 22, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending January 22, 2021.

MUNICIPAL AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following local government audits have been issued.

Town of Delhi – Pool Project Donations and Disbursements (Delaware County)

The board did not properly manage pool project donations or disbursements. The board also inappropriately used town funds to pay at least $8,000 for fundraising activities. Auditors found the board did not properly document donations it received totaling $117,300. In addition, 77 of the pool checks were improperly disbursed. The town supervisor, as the town disbursing officer, should have signed the checks. However, the committee treasurer, a private citizen or a board member signed them.

 

Village of Little Valley – Capital Project Management (Cattaraugus County)

The board properly planned the waste water treatment plant (WWTP) project but could have better managed certain aspects of the project. Auditors determined the board developed a financial plan that addressed the impact of project debt payments. Village officials incurred $67,000 in additional expenses because they were unable to comply with certain grant funding requirements. In addition, project delays and project scope changes added an additional $220,000 to the WWTP project costs. The initial project completion date was December 2017 but was completed in October 2020.

 

SCHOOL DISTRICT AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following school district audit was issued.

East Rockaway Union Free School District – Extra-Classroom Activity Funds (Nassau County)

The extra classroom activity (ECA) clubs did not maintain adequate records. As a result, auditors could not determine whether all money collected was accounted for, properly remitted and deposited. Other than minor exceptions, disbursements were properly supported and for legitimate purposes; however, ECA deposits were not always timely. Managing the finances of ECA activities is meant to be a learning experience for student club members. By not properly managing ECA finances, students miss this learning opportunity and district officials have little assurance that ECA funds are adequately safeguarded and properly accounted for.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest

Determining if a workers' compensation benefit claimant is eligible for a reduced earnings award

In 2008 a claimant [Appellant] for workers' compensation benefits established his eligibility for benefits as a result of a work-related injury. In September 2017, Appellant retired and claimed that his retirement was, at least in part, due to his 2008 injury. The employer contested Appellant's claim for benefits, contending that Appellant's retirement was voluntary and not causally related to his disability.

Ultimately a Workers' Compensation Law Judge [WCLJ] found that Appellant's retirement was not due to his compensable disability, but that Appellant "had reattached himself to the labor market by obtaining part-time employment in November 2018. The WCLJ directed Appellantto produce records of his wages in order to determine his possible eligibility for "a reduced earningsclaim."* The employer appealed the WCLJ's ruling.

The Workers' Compensation Board [Board] modified the WCLJ's decision, finding that the record "was devoid of any credible evidence of a nexus between work-related back injury" and Appellant'salleged reduced earnings and thus he was not entitled to a reduced earnings award. 

The Board also rejected Appellant'srebuttal to the employer's appeal, in which he argued that his retirement was involuntary. The Board rejected the rebuttal on the grounds Appellant failed to file a timely appeal from the WCLJ's decision.

The Appellate Division sustained the Board's ruling, explaining:

1. A claimant who has voluntarily retired, but claims to have later "reattached to the labor market," has the burden of demonstrating "that his or her earning capacity and his or her ability to secure comparable employment has been adversely affected by his or her compensable disability";

2. The claimant may satisfy this burden by showing that the adverse effect on his or her earning capacity was not caused by factors totally unrelated to his or her disability"; and

3. The issue of whether a claimant's reduced earnings are causally related to the work-related injury "is a factual one for the Board to resolve, and its findings will not be disturbed [by the court] if supported by substantial evidence."

The Appellate Division opined that "[t]he credited evidence established that [Appellant] worked for the employer for more than nine years following his 2008  injury and that his decision to retire in 2017 "was influenced by economic factors, including a retirement incentive package offered by the employer."

Although Appellant claimed that his disability restricted the types of positions available to him after his voluntary retirement, the Appellate Division held that Appellant's claim was undermined by the fact that he was able to perform his required administrative work for many years after sustaining his work-related injury. Under the circumstances, the court found that Appellant's voluntary retirement has a "significant bearing" upon his claim to entitlement to a reduced earnings award, and ruled that there was no error in the Board's consideration of these factors.

Finding substantial evidence existed in the record to support the Board's decision, the Appellate Division held that "there is no basis upon which to disturb it."

*  In the event a claimant's post-injury wages are less that the claimant's pre-injury wages due to the claimant's workplace injury or illness, New York's workers' compensation law permits payments not to exceed two-thirds of the difference to eligible claimants.

Click here to access the full text of the Appellate Division's decision.

 

Executive Order addressing preventing and combating discrimination on the basis of gender identity or sexual orientation issued

On January 20, 2021, the President of the United States, Joseph R. Biden Jr., issued a number of Executive Orders including an Executive Order stating that that gay and transgender people are protected against discrimination by Title VII of the Civil Rights Act of 1964. Title VII prohibits unlawful discrimination “because of sex.”

The Order states that "This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person."

Click here to access this Executive Order.

Courts apply the substantial evidence standard when considering a challenge to the penalty imposed following a disciplinary action

A police detective [Plaintiff] was terminated from his position after being found guilty of possessing and ingesting methamphetamine. The Appellate Division found that there was substantial evidence in the record supporting the finding that Petitioner possessed and ingested methamphetamine.

Noting that "[T]hree samples of hair from [Plaintiff's] [leg] were subjected to repeated testing by independent laboratories and yielded positive results," the court opined that to the extent there were conflicting expert opinions as to the efficacy of drug testing using hair, as well as character witness testimony tending to show that petitioner did not use drugs, "courts may not weigh the evidence or reject the choice made" by the hearing officer to accept or reject particular testimony.

As to the penalty imposed, dismissal from his position, the Appellate Division said it found "no grounds" to vacate the penalty as "[t]he [appointing authority's] dismissal of a police officer for using illegal drugs is not so disproportionate to the offense as to be shocking to one's sense of fairness."

Rejecting Petitioner's contention that the employer "failed to apply the preponderance of the evidence standard," the Appellate Division observed that its review "is limited to a consideration of whether [the penalty imposed] was supported by substantial evidence upon the whole record," citing 300 Gramatan Ave. Assoc., 45 NY2d at 181.

Click here to access the text of the Appellate Division's decision