Petitioner's petition seeking to challenge respondent's denial of his Freedom of Information Law (FOIL) request is granted and respondent is directed to disclose documents responsive to petitioner's request with redactions.

Petitioner seeks records from respondent pertaining to a December 1991 murder case in which Allen Porter was convicted of killing a rival drug dealer and his girlfriend. Petitioner claims that respondent demanded that he identify his relationship to the case and the victims or respondent would deny his records request. Petitioner insists that after explaining he was not [*2]required to provide this information, respondent eventually denied his request and asserted that the disclosure of the records would be an invasion of personal privacy and reveal confidential criminal investigative techniques. Petitioner characterizes this as an improper blanket denial and insists that he specifically asked respondent to redact identifying personal details in order to resolve any privacy concerns.

In opposition, respondent asserts that it conducted a diligent search for responsive records and identified 155 pages of responsive documents. Respondent insists that it attached six pages of responsive documents with minor redactions to its verified answer and that the rest of the records would reveal non-routine law enforcement investigative techniques as well as personal information about victims and witnesses. Respondent claims that the disclosure of this information would endanger the lives and safety of the victims' families and of the witnesses as well as revealing confidential sources. Respondent also contends that there are one to four additional perpetrators who remain at large.

Respondent details Allen Porter's attempt to obtain records through FOIL in 2011 and observes that his FOIL request was denied by the New York Supreme Court because it might endanger the victims' families and witnesses. Respondent concludes that res judicata bars disclosure.

Respondent insists that the requested information is exempt under Public Officers Law §§ 87(2)(b), 89(2)(b), 87(2)(e)(iii), 87(2)(e)(iv) and 87(2)(f).

"All government records are thus presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions . . . [B]lanket exemptions for particular types of documents are inimical to FOIL's policy of open government. Instead, to invoke one of the exemptions of section 87(2), the agency must articulate [a] particularized and specific justification for not disclosing requested documents" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274-75, 653 NYS2d 54 [1996] [internal quotations and citations omitted]).

"As a corollary to the legislative policy favoring full access to governmental records, we have interpreted the statutory exemptions set forth in section 87(2) of FOIL narrowly, imposing the burden upon the public agency to demonstrate that the material requested falls squarely within the ambit of one of these statutory exemptions" (Matter of Newsday, Inc v Empire State Dev. Corp., 98 NY2d 359, 362, 746 NYS2d 855 [2002] [internal quotations and citations omitted]).

As an initial matter, respondent correctly points out that it may present arguments that were not raised in prior administrative proceedings. "In proceedings sounding in mandamus to compel, a reviewing court may consider additional grounds for denial of disclosure not raised at the administrative level" (Collins v New York City, 2013 WL 181003, 2013 NY Slip Op 30032 (U) (Trial Order) [Sup Ct, NY County 2013]).

Respondent insists that the petition is moot because respondent produced 6 pages out of a total of 155 responsive pages. That argument fails because the disclosure of the remaining pages is in dispute. Respondent claims the rest of the documents are subject to exemptions and petitioner seeks disclosure of those pages. The Court must consider whether those exemptions apply in this proceeding. Respondent may not short-circuit this proceeding by producing four [*3]percent of the responsive pages and declare this matter resolved.

Respondent insists the documents responsive to petitioner's FOIL request are exempt under Public Officers Law § 87(2)(b) because disclosure would constitute an unwarranted invasion of personal privacy. Respondent cites to Matter of Johnson v New York City Police Dept. (257 AD2d 343, 694 NYS2d 14 [1st Dept 1999]), in support of its argument that disclosure of these records would discourage witness cooperation. However, respondent's reliance on Johnson is misplaced because the issue in that case was "the circumstances under which documents generated during a police investigation should be released to a criminal defendant pursuant to a [FOIL] request" (id. at 344 [emphasis added]). Here, petitioner is not the criminal defendant (Allen Porter).

Respondent's attempt to broaden the holding in Johnson would significantly expand the scope of this exemption to include any FOIL requests for documents relating to a criminal investigation by any member of the public. Respondent's reliance on the claim that witness cooperation would be discouraged is too vague to merit denial of petitioner's request in this proceeding. If this broad and non-specific reason were enough, then it would bar FOIL requests in every police investigation involving witnesses because respondent could always contend that witnesses would be hesitant to cooperate if their statements were subject to disclosure. This is not the purpose of FOIL and this Court will not contravene FOIL's clear legislative purpose.

In any event, petitioner states that he asked respondent to redact identifying details from the records in order to avoid any privacy issues. Public Officers Law § 87[2][c][i] permits agencies to redact records to ensure that there is not an unwarranted invasion of personal privacy. Petitioner agreed in his papers, and at oral argument before this Court, that he would accept redacted documents. This obviates concerns about personal privacy.

Respondent next argues that Public Officers Law § 87(2)(f) applies because disclosure could endanger the life or safety of a person. Respondent claims that one to four accomplices to this crime remain at large and therefore lives may be at risk if the information were disclosed.

The First Department has held that an agency citing this exemption "need only demonstrate a possibility of endangerment" (Bellamy v New York City Police Dept., 87 AD3d 874, 875, 930 NYS2d 178 [1st Dept 2011] [internal quotations and citation omitted]). Here, respondent has not supplied any evidence about the possibility of danger in a 26-year old case where the shooter was convicted.

Although respondent argues that certain accomplices have not been apprehended, respondent did not proffer any evidence about these accomplices, current efforts to locate these suspects or any information about potential threats to witnesses or victims other than generalized 'danger.' Respondent did not even attempt to justify its argument with an affidavit from a detective or a prosecutor assigned to this matter. Instead, respondent essentially argues that an allegation that there are unidentified accomplices bars a FOIL request even if no effort is made to locate these suspects. If these accomplices posed a significant danger, then resources would be expended to locate these accomplices and respondent would have submitted such evidence in this proceeding. Rather than show the Court this information, respondent relies on its circular [*4]argument that releasing this information is dangerous because it is dangerous.^[FN1]

As stated above, petitioner has agreed to receive documents that contain redactions of witnesses' identifying information. This prevents petitioner from receiving a witness' telephone number, home address or other personal contact information.

Respondent's focus on the gruesome details of this heinous murder is similarly misplaced. The severity of the crime, standing alone, does not shield these documents from disclosure under FOIL. Further, given the severe sentences rendered after a murder conviction, respondents are likely well aware that such cases often generate interest by journalists, members of the public, or those studying wrongful convictions. In any event, access to these records is not dependent on the purpose for which petitioner seeks these documents (see Matter of Bellamy v New York City Police Dept., 59 AD3d 353, 355, 874 NYS2d 60 [1st Dept 2009]).

Respondent also speculates, without any support, that Allen Porter hired or told petitioner to access these records on his behalf. Respondent's baseless speculation cannot defeat this FOIL request.

This exemption is not applicable because respondent failed to meet its burden to show how it applies in this matter.

Respondent also maintains that disclosure of the records would reveal confidential information or confidential sources. As stated above, petitioner will accept redacted copies of the documents.

Critically, in citing to this exemption, respondent does not make any representations whatsoever about the existence of confidential sources in the homicide investigation (see e.g., respondent's memo of law at 11 ["Witnesses provided information as part of a homicide investigation, and would likely believe that such information, including their identities would be made public"]). Notably absent from respondent's argument is any suggestion that there were confidential sources in this investigation, that the accounts of confidential sources are in the requested documents or how the information sought is confidential. Respondent even insists that "While the witnesses may not have been provided with express assurances of confidentiality, the circumstances and contents of the information provided to the police as part of a homicide investigation give rise to a presumption of confidentiality" (id. at 12). This argument is preposterous— it suggests that any work done in a homicide investigation is unavailable pursuant to a FOIL request.

Further, to the extent that the documents reference statements made by four witnesses (Ms. Thomas, Ms. Aviles, Mr. Wright and Ms. Castro), those statements are not confidential since those witnesses testified at trial (Matter of Laureano v Grimes, 179 AD3d 602, 604, 579 NYS2d 357 [1st Dept 1992]; see also Porter v Grenier, 2005 WL 3344828 [ED NY 2005] [denying Porter's federal habeas petition and identifying witnesses who testified at Porter's trial]).[*5]If respondent is aware of, for instance, the use of a confidential informant in this matter or express promises that all witness statements would be confidential, then respondent should have provided evidence in support of that argument.

Respondent argues that the disclosure of these records would reveal non-routine criminal investigative techniques or procedures. Respondent claims that it utilized complaint follow-up reports, latent print reports containing fingerprinting methods and crime scene unit reports discussing the trajectory of the bullets. Respondent insists that the techniques in these records would assist criminals in employing countermeasures to circumvent these techniques.

Respondent failed to specify how the techniques and procedures used to investigate a murder in 1991 were non-routine.

It cannot be the case that every homicide investigation is non-routine and any documents about such an investigation is exempt from disclosure. Respondent did not claim, for instance, that the techniques used in the Porter homicide investigation were different from a typical homicide investigation. Instead, the 'techniques' respondent identifies simply appear to be methods used to investigate a homicide. It is no surprise that witnesses were interviewed or that the trajectory of the bullets were analyzed. Further, these were methods used in 1991; the Court hopes that techniques, such as the fingerprint analysis, have changed in the last 26 years. Again, as stated above, respondent appears to suggest that all records pertaining to the investigation of a murder are exempt. But the public has a right to review the records associated with investigations into violent crimes. This is the express purpose of FOIL.

Respondent also maintains that disclosure of these records, which were compiled for law enforcement purposes, would interfere with an ongoing investigation pursuant to Public Officers Law § 87[2][e][i]). Even though respondent stresses that there is an ongoing investigation, respondent also insists that "Although no arrests other than Allen Porter, have been made at this time, if additional evidence surfaces at some future date, a person could be charged with the crime and a prosecution could result since there is no statute of limitations for homicide" (respondent's memo of law at 14). The mere hope or desire to apprehend purported accomplices is not, by itself, evidence of a ongoing investigation. This is not a case where the criminal prosecution is pending (see e.g., Legal Aid Soc. v New York City Police Dept., 274 AD2d 207, 713 NYS2d 3 [1st Dept 2000] [denying FOIL requests by criminal defendants who had pending criminal prosecutions]).

Respondent failed to identify support in its exhibits, which were submitted without tabs in violation of this part's rules, for its claim that there is an ongoing investigation. Respondent did not, for example, submit an affidavit from a detective swearing that there is an ongoing investigation and that he or she has expended resources looking for Porter's accomplices (c.f. Matter of Loevy & Loevy v New York City Police Dept., 139 AD3d 598, 599, 33 NYS3d 185 [1st Dept 2016] [denying petition for documents relating to an unsolved homicide where the "NYPD submitted an affidavit by a detective averring that he was handling an active ongoing investigation into the homicide, and had recently pursued potential leads"]). Instead, respondent offers pure speculation.

Respondent's curious claims even theorize that the "release of specific details of the crime [*6]and the subsequent, ongoing investigation would be detrimental because it could lead to false confessions" (id. at 15). The Court is unaware how a false confession could arise from the disclosure of these records. Respondent may be arguing that knowledge of non-public details might wrongly implicate someone as one of Porter's accomplices. But that is far removed from someone admitting to a crime that they did not commit. This baffling argument is unpersuasive.

Respondent insists that this petition is barred under res judicata. Under res judicata, "the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action. This principle . . . is grounded on the premise that once a person has been afforded a full and fair opportunity to litigate a particular issue, that person may not be permitted to do so again" (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485, 414 NYS2d 308 [1979] [citations omitted]).

Respondent claims that a prior decision of Justice Moulton denying Allen Porter's request for documents under FOIL bars petitioner's request here. This argument fails. First, petitioner was not a party to the prior proceeding and there has been no showing that Allen Porter and petitioner are in privity. The Court cannot speculate that there is a relationship merely because that argument would permit respondent to deny disclosure. This point is critical because, as has been stated above, courts are often hesitant to provide information about a criminal prosecution to the criminal defendant. But mere speculation is insufficient to establish privity between petitioner and Porter. Second, petitioner's FOIL request are not identical to Porter's request (compare verified petition, exh A with verified answer, exh 8).^[FN2] Therefore, there is no basis to apply res judicata to deny petitioner's request.

Whenever documents are requested relating to a murder investigation, the Court must be sensitive to the victim(s) and witnesses when evaluating a FOIL request. When the requester is an accused criminal defendant with a pending criminal prosecution, courts have rightly hesitated to give details about witnesses and victims. Here, petitioner is not the criminal defendant and more than a quarter century has passed since the murders. Although respondent might believe that petitioner is making this request on Porter's behalf, respondent did not submit any evidence to support that theory. Petitioner even stated, in response to respondent's constructive denial letter, that he has no personal connection to the murder case (verified answer, exh 5).

If the legislature wishes to amend FOIL to mandate that requesters seeking information in a criminal investigation identify their relationship, if any, to a criminal defendant, then they may change the law. But this Court cannot change FOIL and respondent may not refuse to disclose records to a member of the public, especially where redacting certain information can ensure safety (see Exoneration Initiative v New York City Police Dept., 114 AD3d 436, 980 NYS2d 73 [1st Dept 2014] [holding that redaction of witnesses' information was proper]).

In the instant proceeding, respondent made only generalized arguments about why disclosure should not be permitted. Respondent failed to provide any details supporting its [*7]claims or request that the Court review documents in camera to substantiate its arguments. This leaves the Court with respondent's circular and speculative contentions that certain exemptions apply. Respondent is effectively asking the Court to credit its claims even though they lack any support.

Under these circumstances, respondent must produce the documents in response to petitioner's request with the redactions necessary to protect witnesses' personal information. This Court cannot ignore the clear purpose of FOIL and permit respondent to make generalized, unsupported claims to prevent disclosure.

Public Officers Law § 89[4][c] provides that the "court in such a proceeding may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, when: [i] the agency has no reasonable basis for denying access; or [ii] the agency failed to respond to a request or appeal within the statutory time."

Respondent claims it should not have to pay litigations costs because it receives over 10,000 FOIL requests a year and that is why it took respondent so long to respond to petitioner's request. Respondent also claims that it had a reasonable basis to deny petitioner's FOIL request.

Here, the Court finds that petitioner substantially prevailed and respondent did not identify a reasonable basis for denying disclosure. However, petitioner is not entitled to attorney's fees because he is not a lawyer and did not hire a lawyer to represent him in this proceeding (see Matter of Leeds v Burns, 205 AD2d 540, 540, 613 NYS2d 46 [2d Dept 1994] lv denied 84 NY2d 811 [1994]). But petitioner is entitled to costs upon proper presentation of papers to the county clerk.

Accordingly, it is hereby

ORDERED and ADJUDGED that the petition is granted and respondent must produce responsive documents with the necessary redactions on or before May 31, 2017; and it is further

ORDERED and ADJUDGED that the clerk is directed to enter judgment for petitioner and the clerk may enter a money judgment for costs upon proper presentation of papers therefor.

This is the Decision and Order of the Court.