[*1]
Matter of Jones v Town of Kent
2015 NY Slip Op 50323(U) [46 Misc 3d 1227(A)]
Decided on March 17, 2015
Supreme Court, Putnam County
Grossman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 17, 2015
Supreme Court, Putnam County


In the Matter of the Application of Ralph Jones, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

Town of Kent, TOWN OF KENT POLICE DEPARTMENT, JAMES OSTER, SOLELY IN HIS CAPACITY AS RECORDS ACCESS OFFICER OF THE TOWN OF KENT POLICE DEPARTMENT, and ALEXANDER W. DiVERNIERI, JR., SOLELY IN HIS CAPACITY AS CHIEF AND APPEALS OFFICER OF THE TOWN OF KENT POLICE DEPARTMENT, Respondents.




1841/2014



Craig T. Bumgarner, P.C.



Attorneys for Petitioner



1118 Route 52, Suite F



Carmel, New York 10512



Timothy J. Curtiss, Esq.



Attorney for Respondents



20 Church Street



Carmel, New York 10512


Victor G. Grossman, J.

The following papers, numbered 1 to 11, were considered in connection with Petitioner's Notice of Petition, dated August 27, 2014, seeking an Order, pursuant to Article 78 of the Civil Practice Law and Rules, for a Judgment, reviewing, reversing and annulling the final determination of Respondent Town of Kent Police Department.



PAPERSNUMBERED



Notice of Petition/Verified Petition/

Affidavit in Support/Exhs. A-D1-7



Respondent's Memorandum of Law/Affidavit

in Opposition/Verified Answer8-10



Reply Affidavit11

By Decision and Order dated December 19, 2014, this Court held in abeyance, pending the Court's in camera review of the files, Petitioner's application for relief. While the review was being undertaken, counsel for all parties requested the opportunity to orally argue the issues raised in the Petition, and the Court granted the request. Oral argument was held on March 10, 2015, and the Court reserved decision.

Petitioner Ralph Jones is a private criminal investigator associated with Special Ops Consulting Group. Jones was retained by CIA Compass Adjusters and Investigators, Inc., and Anthony DiPippo to investigate the facts and circumstances surrounding the October 3, 1994 rape and murder of a 12-year-old girl. DiPippo is currently serving a 25-year to life sentence for those crimes. This conviction was affirmed on May 28, 2014. People v. DiPippo, 117 AD3d 1076 (2d Dept. 2014).[FN1] DiPippo still maintains his innocence (Jones Affidavit at ¶¶3-4).

In August 2012, Amy Faranda contacted Jonathan Edelstein, Esq., DiPippo's lawyer at his second trial, and another investigator, who had been retained by the DiPippo family. Ms. Faranda explained to them that she had been raped in 1994 by Howard Gombert, Jr., when she was 17 years old. Ms. Faranda stated that she reported this rape to the Kent Police Department, who investigated the rape, "but nothing ever came of the investigation" (Jones Affidavit at ¶5). Gombert was called as a defense witness at DiPippo's second trial, but invoked his Fifth Amendment rights (Jones Affidavit at ¶6). According to Jones, Gombert is currently incarcerated in Connecticut for forcefully sexually abusing an 8-year-old girl (Jones Affidavit at ¶6). See State v. Gombert, 80 Conn.App. 477 (2003).

Ms. Faranda committed suicide on September 6, 2013, and her mother, Patricia Faranda, executed a HIPAA form, authorizing Compass Adjusters and Investigators, Inc. the ability to obtain the police files for the 1994 rape (Jones Affidavit at ¶11, Exhs. C-D).

Jones states that based on Ms. Faranda's information, on April 24, 2014, he requested the related police files on her case, but was denied (Jones Affidavit at ¶¶7-8, Exh. A). He filed an appeal, and his "appeal was denied in its entirety under section 87(a) of the Public Officers Law because of the release of information would interfere with an open law enforcement investigation" (Jones Affidavit at ¶9, Exhs. A-B).

Jones filed the instant petition, claiming that the denial of his request was contrary to law, illegal, and arbitrary and capricious. Respondents oppose the petition, standing by its determination and citing to Public Officers Law §87(2) and Civil Rights Law §50-b, as authority [*2]for its denial. Petitioner is entitled to the relief sought.

"All government records are presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2). To ensure maximum access to government documents, the exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption.'" Gould v. New York City Police Dept., 89 NY2d 267, 274-75 (1996), quoting Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 NY2d 106, 109 (1992). "Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld." Matter of Fink v. Lefkowitz, 47 NY2d 567, 571 (1979). "[T]o invoke one of the exemptions of section 87(2), the agency must articulate particularized and specific justification' for not disclosing requested documents." Gould v. New York City Police Dept., supra at 275, quoting Matter of Fink v. Lefkowitz, supra at 571. "If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material." Gould v. New York City Police Dept., supra.

Petitioner is entitled to the relief sought. The records sought involve a rape that occurred in 1994. While Respondent claims, as a basis for denial of the request, that disclosure "would interfere with an open law enforcement investigation,"[FN2] upon a review of the file, it is apparent that such a statement is contrary to the facts herein. Either Respondent Chief has not reviewed the file in a long time and his memory may be a bit faulty, or he is attempting to deceive the Court. There is absolutely nothing in the file to suggest that anything is "ongoing." The Chief of Police's Affidavit, asserting such falsity, is very troubling to this Court. The statute of limitations expired in or about 1999. The victim has passed away. There are indications within the file (which need not be disclosed by the Court) to suggest a total absence of investigative activity for many years.

Although not included as grounds for denial of the request, Respondent additionally asserts herein that disclosure would: (1) interfere with investigative techniques; and (2) would endanger the safety of witnesses. These claims fall far short of the requirement in Matter of Lesher v. Hynes, 19 NY3d 57, 67 (2012), as the agency must "fulfill its burden under Public Officers Law §89(4)(b) to articulate a factual basis for the exemption." Unlike the explanation offered by the District Attorney in Lesher, here, there is nothing more than the incantation of the words of the statute. In addition, Public Officers Law §87(2)(e)(I) ceases to apply where Judicial proceedings have run their course. Lesher, supra at 68. Here, nothing is shown that disclosure of the records would interfere with any proceedings. Respondent also asserts that notwithstanding the age of the case, a DNA "hit" is possible, but Respondent has done nothing to seek a DNA match or "hit", and the Court sees no reason for Petitioner to wait for the lightning strike, a [*3]winning lottery ticket, or some other unusual confluence of events.

The Court is also guided by Matter of Loevy & Loevy v. New York City Police Dept., 46 Misc 3d 1214(A) (Sup.Ct. [NY Cty.] 2015).[FN3] There, access was sought to a file of a "cold case" rape and homicide investigation which occurred more than 27 years ago "in which no real active investigation is underway." Id., citing Matter of Loevy v. Loevy v New York City Police Dept., 41 Misc 3d 1216(A) (Sup.Ct. [NY Cty.] 2013). Like the present case, Petitioner claims his client is pursuing proof of a wrongful conviction and seeks this file in the hope that it will "help implicate the true perpetrator of the murder" and clear his client. Also like the present case, the police department asserted its position with "conclusory repetition of the statutory language" and repeatedly failed "to articulate a factual basis for the claimed exemption." Matter of Loevy v. Loevy, 38 Misc 3d at 954, supra. Put simply, the Court is not provided with any facts to support the assertions of statutory language which would create a "blanket exception" to disclosure, and the Court is not inclined to accept similar claims here.

Respondent's invocation of Civil Rights Law §50-b as a bar to the release of the file must also fail. Civil Rights Law §50-b confers a statutory right of privacy for victims of sex offenses, but here, it does not apply. In the first instance, not every item in the file identifies the victim of a sex offense. Secondly, there is an asserted waiver by the victim by her voluntarily disclosing information to the attorney and the investigator for the incarcerated defendant. Third, the victim is no longer alive. Fourth, the victim's mother executed a HIPAA release purporting to authorize the release of information.[FN4]

There is no common law right of privacy in New York. By statute, Civil Rights Law §50



created a right of privacy for living persons in 1903, as a response to the decision of the Court of Appeals in Roberson v. Rochester Folding Box Co., 171 N.Y.538 (1902). The Court has been unable to locate any authority holding that a right of privacy extends to those person no longer living. In fact, the holdings are to the contrary. See Waldron v. Ball Corp., 210 AD2d 611 (3d Dept. 1994) (medical records of decedent); Matter of Tri-State Publ. Co. v. City of Port Jervis, 138 Misc 2d 147 (Sup.Ct. [Orange Cty.] 1988)(death certificate of AIDS victim); Schumann v. Loew's Incorporated, 135 N.Y.S.2d 361 (Sup.Ct. [NY Cty.] 1954)(no cause of action by grandchildren on a claim that motion picture depicted their grandfather as insane). While Civil Rights Law§50-b confers a right of privacy for victims of sex offenses, it may be said the goals and purpose of such a statute is the laudable effort to spare such victims from the emotional pain and psychological trauma that accompany the disclosure of the details of a sexual crime, but that [*4]it does not extend beyond the life of the victim.[FN5] In People v. Burton, 189 AD2d 532 (3d Dept. 1993), the Third Department indicated that such a right was personal to the victim, holding it was "constrained to conclude that, as a result of the victim's death and the previous disclosure of her identity thereafter, Civil Rights Law §50-b cannot be invoked to justify nonaccess to the court files in the instant case." Id. at 534-35. According to People v. Burton, supra, "there is nothing in the statutory language of Civil Rights Law §50-b or its legislative history suggesting any legislative intent to create statutory rights beyond the personal right of a sex offense victim to confidentiality of his or her identity." The court stated that to broadly construct Civil Rights Law §50-b to result in a flat mandate of the denial of public access to court documents in all sex offense cases would raise serious constitutional questions under the First Amendment. People v. Burton, supra at 535.Here, the victim's coming forward and making disclosures to an attorney and an investigator during her lifetime adds weight to approving the disclosure sought here. While the Chief of Police may have thought he was protecting the sensibilities of the family from the public disclosure of the details, there is nothing in the legislation that justifies his actions.

Respondents are reminded that the Freedom of Information law (FOIL) (Public Officers Law §84, et. seq.), creates a presumption of access. The provisions of the law are to be read liberally, and its exemptions are to be read narrowly. Pittari v. Pirro, 179 Misc 2d 241 (Sup.Ct. [West. Cty.] 1998), aff'd, 258 AD2d 202 (2d Dept.), lv. to appeal denied, 94 NY2d 755 (1999). Any basis for denial must be supported by a specific and articulated factual basis. Statutory phrases unsupported by specific facts tailored to the specific case are insufficient. False statements can never be justified, and Respondents, charged with enforcing the law, cannot justify resort to falsehoods to avoid complying with the law.

Lastly, Petitioner seeks an award of counsel fees and costs. The Court will entertain such an application in accordance with Public Officer's Law §89(4)(c).

Accordingly, it is hereby

ORDERED, that the Petition is granted to the extent that all documents held by Respondent Town of Kent Police Department and submitted to this Court for in camera review shall be copied and made available to Petitioner; and it is further

ORDERED, Petitioner may submit an application for counsel fees and costs;

The foregoing constitutes the Decision and Order of the Court.



Dated:Carmel, New York

____________[*5]______________________

HON. VICTOR G. GROSSMAN, J.S.C.

Footnotes


Footnote 1:On December 23, 2014, the Court of Appeals granted leave to appeal. People v. DiPippo, 24 NY3d 1083 (2014).

Footnote 2:This was the reason given by Respondents in denying the FOIL request. In pleadings before this Court, additional grounds are asserted, including disclosure would: (1) interfere with investigative techniques; (2) would endanger the safety of witnesses; and (3) disclosure is prohibited by Civil Rights Law § 50-b. Although technically outside the Record of the FOIL request, the Court, in the exercise of discretion, will address these issues.

Footnote 3:The January 21, 2015 Decision, in Matter of Loevy, is the third decision. In the first decision, 38 Misc 3d 950 (Sup. Ct. [NY Cty.] 2013), the Court rejected the position of the New York City Police Department seeking a "blanket exception" without any factual basis. On reargument, the Court adhered to its original decision. 41 Misc 3d 1216(A) (Sup. Ct. [NY Cty.] 2013).

Footnote 4:This authorization is of little value, as there is no indication that the victim's mother is her personal representative or otherwise authorized to act for her daughter, who was married at the time of her death. In any event, the authorization is unnecessary.

Footnote 5:By analogy, Civil Rights Law Sections 50-a, 50-d and 50-e confer a level of confidentiality of certain personnel records only upon the individuals involved; the wording of the statute provides no indication that such protection extends beyond the lives of the individuals. The language of Section 50-b is limited to the victim, or "other person legally responsible for the care of the victim" (emphasis added).