The following papers, numbered 1, 2, 3, 4, 5, were read on this application to/for-5 ARTICLE 78 (BODY OR OFFICER)

Petitioner Robert Rodriguez brings this Article 78 proceeding challenging Respondent's June 6, 2023 and October 6, 2023 determinations concerning petitioner's Freedom of Information Law ("FOIL") requests pursuant to Public Officer's Law §§ 84, 86, 87, and 89. On April 3, 2023, Petitioner filed his initial FOIL request (FOIL No. 2023-056-08313), requesting the following documentation related to the police officers involved in his 1982 arrest; former detectives Louis Scarcella, William Shields, Robert Deri, and Joseph Ponzi:

"1) law enforcement disciplinary records of former detective Louis Scarcella shield #7794, 92;

2) former detective William Shields shield #3937;

3) former detective Robert Deri shield #2089;

4) former detective/investigator Joseph Ponzi of the King's County District Attorney's Office;

5) Any law enforcement disciplinary records from another agency or court in the possession of this office concerning detectives Scarcella, Shields Deri & Ponzi;

6) Any and all internal office letters, memorandums, reports, CD's, emails, fax, phone records, depositions, audio/video recordings concerning former detectives Scarcella, Shields, Deri & Ponzi;

7) Any and all internal office letters, memorandums, reports, CD's, emails, fax, phone records, depositions, audio/video recordings concerning former detective Scarcella, Shields, Deri & Ponzi between this office and the NYC Civilian Complaint Review Board (or its predecessor), NYPD Investigative Unit, NYPC advocates Office (or its predecessor), F.B.I. Kings County District Attorney's Office Kings County Supreme Court, NYC Dept of Law, NYS Attorney General's Office, or other agency;

8) All records of any investigation by this office concerning former detectives Scarcella, Shields, Deri & Ponzi;

9) All records of any investigation by this office concerning detective Scarcella concerning his cases Specifically the cases People v. Ranta, People v. Roger Logan, People v. Alvenna Jennette, People v. Darryl Austin, People v. Robert Hill, People v. Shabaka Shakur, People v. Derrick Hamilton, People v. Rosean Hargrave, People v. John Bunn, Vanessa Gathers, People v. Jabbar Washington, People v. Sundhe Moss, People v. Carlos Davis, People v. Shawn Williams, People v. Eliseo DeLeon, People v. Samuel Edmonson, People v. Thomas Malik, People v. James Irons, People v. Vincent Ellerbe. in light of the Kings County District Attorney's Conviction Review Unit's investigation of his cases;

10) Any and all internal office letters, memorandums, reports, CD's emails, fax, phone records, depositions, audio/video recordings concerning former detective Scarcella between this office and the Kings County District Attorney's Office in light of their investigation of his prior cases by the Conviction Review Unit." (petition, exhibit B).

On May 1, 2023, Petitioner amended his FOIL request to include the following further records:

"1) NYPD Central Personnel Index ("CPI") Records of detectives Louis Scarcella, William Shields, Robert Deri, and investigator Joseph Ponzi.

2) Chief of Department Records of detectives Louis Scarcella, William Shields, Robert Deri, and investigator Joseph Ponzi." (petition, exhibit D).

On June 6, 2023, Respondent provided redacted CPI histories of detectives Scarcella and Shields, officer resumes of detectives Scarcella and Shields and resume reports of detectives Scarcella and Shields. (petition, exhibits E, E2, E3, E4, E5, E6, E7). In their cross-motion to dismiss, Respondent states that redactions are needed pursuant to Public Officers Law §§ 87(2)(b) and (f), without further explanation. (petition, exhibit E). Moreover, Respondent's partial denial of Petitioner's request includes a referral to the Kings County District Attorney's Office for all records related to Joseph Ponzi. (Id.) In total, the documents provided were less than 10 pages in length. As Petitioner detailed, which information is undisputed, the Kings County District Attorney's Office Conviction Review Unit began investigating dozens of convictions that involved Detective Scarcella's due to his misconduct, resulting in several exonerations. (petition ¶ 7).

On June 30, 2023, Petitioner administratively appealed the Respondent's June 6, 2023 determination, requesting unredacted versions of the provided documents as well as the [*2]additional documents requested. (petition, exhibit F).

On October 6, 2023, Respondent denied petitioner's administrative appeal on the grounds that, "a diligent search has been conducted for any additional records responsive to [Petitioner's] request; however, no records were located". (petition, exhibit G).

Upon petitioner's filing of the instant Article 78 proceeding on March 7, 2024, Respondent claims that the NYPD extended their search pursuant to Petitioner's FOIL request to "determine if there were records responsive to Petitioner's request." (affirmation of respondent's counsel in support of cross motion to dismiss, ¶ 14). According to Nicole Moccio, counsel for Respondent, that further search turned up approximately 15,448 records of potentially responsive documentation. (Id.). This was confirmed by Ms. Moccio during oral argument on the Article 78 petition and Respondent's cross-motion to dismiss held on February 7, 2025.

Respondent argues that it provided copies of the requested disciplinary records of detective Louis Scarcella and detective William Shields. First, Respondent only provided 10 pages, which cannot possibly be the extent of responsive documents in Respondent's possession given the extensive investigation concerning Detective Scarcella. Further, the only reason given by Respondent for not providing all the FOIL records requested is that production of the remaining correspondence and other documentation requested is unreasonably burdensome and requires extraordinary efforts not required under FOIL. However, most of the subsequently discovered 15,448 pages of potentially responsive documentation are in electronic form and, according to Respondents, primarily consist of correspondence between NYPD and other agencies/entities. Respondent gives no other justification for withholding the remaining FOIL documents and raises no other objection to turning over the requested FOIL documents by submitting a privilege log or any detailed response to Petitioner's request or Article 78 proceeding.

The Court recognizes that 15,448 pages of documents, even if electronic, is voluminous. Respondent states that, "their certification that all responsive documents had been disclosed, and that a diligent search had been conducted for the documents it could not locate, satisfied the requirements of Public Officers Law § 89(3)." (Robles v. Borakove, 6 AD3d 216 [1st Dept 2004]). However, in this case it turns out that a diligent search was not conducted. Respondent's argument that the NYPD does not have enough staff to review and produce the documents is unavailing. Courts have held that, "an agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy." (Public Officers Law § 89 [3] [a]; see Legal Aid Socy. v Records Access Officer, 227 NYS3d 71, 75 [1st Dept 2025]).

Judicial review of an administrative determination is limited to whether the determination was made "in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion . . . " CPLR 7803(3). In Matter of Pell v Board of Educ. (34 NY2d 222, 231 [1974]), the Court of Appeals held that an action is "arbitrary and capricious" when it is " . . . without sound basis in reason and is generally taken without regard to the facts." If the Court finds that the determination is supported by a rational basis, it must sustain the determination. (Id.)

Respondent seeks to, on the one hand, uphold the October 6, 2023 determination on the grounds that it was correct at the time it was rendered, while also claiming that their subsequent [*3]findings of responsive records are subject to exemptions related to the burdensome nature of disclosure. The Court finds that the October 6, 2023 determination was, "in violation of lawful procedure" insofar as it relates to respondent's claim that no responsive documentation could be provided. (Matter of Pell, 34 NY2d 222, 231). Respondent's own admission of over 15,000 records having been located shows that the administrative decision was not based in fact.

"An agency may not evade the broad disclosure provisions of FOIL by merely asserting that compliance could potentially require the review of a large volume of records" (New York Civ. Liberties Union v New York State Police, 228 AD3d 1162, 1167 [3d Dept 2024], quoting Matter of Puig v. New York State Police, 212 AD3d 1025, 1027, 181 N.Y.S.3d 759 [3d Dept. 2023]). The First Department recently rejected the NYPD's assertion of burdensomeness for a FOIL request of approximately 165,000 documents in a matter very similar to the instant matter. (Legal Aid Socy. v Records Access Officer, 227 NYS3d 71, 75 [1st Dept 2025]). Here, respondent's claim that there are about 15,448 responsive documents, falling well under the amount in Legal Aid Society.

The argument that the NYPD lacked the appropriate staffing qualified to review the documents was rejected by the First Department when the NYPD "failed to explain why other NYPD employees could not be trained to do so." (Id. at 77). Respondent does not explain why others within the NYPD would be unable to be trained, and as such the Court is not persuaded by this argument. The assertion that outside firms could not be employed was also rejected when the NYPD "did not explain why a nondisclosure agreement would be insufficient to protect the exempt portions of the documents." (Id.). The same is true in the instant matter, where respondent does not explain why such types of agreements would not be sufficient.

Petitioner also requests that the documents already provided and those to be provided be unredacted. However, documents must be redacted to the extent of removing any personal identifying information of any person, such as addresses, dates of birth, and telephone numbers. (see Matter of Exoneration Initiative v. NYC Police Dept., 114 AD3d 436 [1st Dept 2014]).

As for Petitioner's request for costs, litigation costs "must be awarded where the petitioner has substantially prevailed in the proceeding and the agency had no reasonable basis to deny access to the records." (Whitfield v Foil Appeals Officer, Dept. of Corrections and Community Supervision, 221 AD3d 1341, 1345 [3d Dept 2023]). However, the Court is denying petitioner's request for litigation fees only because he filed the petition as an unrepresented litigant and an award of costs would not be appropriate.

For the foregoing reasons; it is hereby

ORDERED that Respondent's cross-motion to dismiss the article 78 petition is denied; and it is further

ORDERED that Plaintiff's Article 78 petition is granted; and it is further

ORDERED that Respondent shall produce to Petitioner, all documents responsive to the subject FOIL request on a monthly basis, beginning on or before April 30, 2025, and continuing every month thereafter, on the 30th of each month, for a period of 6 months or until all production has been made, which shall be no later than 6 months from this order; and it is further

ORDERED that along with such documents, Respondent shall provide a status update of compliance with the FOIL request to the Petitioner.

The foregoing constitutes the decision and order of the Court.