record on appeal - the empire center for new york state policy

New York County Clerk’s Index No. 105839/10

New York Supreme Court Appellate Division—First Department

THE EMPIRE CENTER FOR NEW YORK STATE POLICY, a Project of the Manhattan Institute for Policy Research, Inc.,

Petitioner-Appellant,

– against –

NEW YORK CITY POLICE PENSION FUND,

Respondent-Respondent.

RECORD ON APPEAL

LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.

Attorneys for Petitioner-Appellant 321 West 44th Street, Suite 510 New York, New York 10036 (212) 850-6100 [email protected] MICHAEL A. CARDOZO CORPORATION COUNSEL

OF THE CITY OF NEW YORK Attorneys for Respondent-Respondent 100 Church Street New York, New York 10007 (212) 788-0303 [email protected]

PRINTED ON RECYCLED PAPER

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TABLE OF CONTENTS FOR RECORD ON APPEAL

The Empire Center for New York State Policy, a Project of the Manhattan Institute for Policy Research, Inc. (petitioner-appellant) v. New York City Police Pension Fund (respondent-appellee), State of New York,

Supreme Court, County of New York, Index No. 105839/10

Pre-Argument Statement ............................................................................................ 1 Notice of Appeal, dated January 12, 2011 ................................................................. 4 Decision and Order of Justice Carol E. Huff, dated December 6, 2010 and entered December 30, 2010 ................................................................................. 6 Notice of Petition, dated August 10, 2010 ............................................................... 10 Verified Petition, by The Empire Center for New York State Policy, dated April 23, 2010 .......................................................................................................... 11 Exhibit A to Petition: FOIL Request, dated January 22, 2010 ...................... 15 Exhibit B to Petition: Appeal of Denial of FOIL Request, dated March 4, 2010 ................................................................................................ 16 Exhibit C to Petition: Denial of Appeal, dated April 1, 2010 ....................... 17 Answer, by the New York City Police Pension Fund, dated July 26, 2010 ............ 19

Exhibit A to Answer: Appeal of Denial of FOIL Request, dated March 4, 2010 ................................................................................................ 24 Exhibit B to Answer: FOIL Request, dated July 14, 2009 ............................ 25

Respondent’s Memorandum of Law in Support of Answer, dated July 26, 2010 ............................................................................................................ 26 Affidavit of Kevin Holloran, for Respondent, in Support of Answer, sworn to July 26, 2010 ............................................................................................................ 32 Reply to Respondent’s Answer, dated August 20, 2010 ......................................... 37

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Reply Memorandum of Law in Opposition to Respondent’s Answer, dated August 20, 2010 ............................................................................................. 39 Affidavit of Timothy Hoefer, for Petitioner, in Support of Reply, sworn to August 20, 2010 ....................................................................................................... 44 Supplemental Affidavit of Lawrence P. Justice, for Petitioner, in Support of Reply, sworn to August 23, 2010, with Attachment ........................ 45 Certification Pursuant to CPLR § 2105 ................................................................... 48

PRE-ARGUMENT STATEMENT [1-3]

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SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT

THE EMPIRE CENTER FOR NEW YORK STATE POLICY, A Project of the Manhattan Institute for Policy Research, Inc.,

Index No. 105839110

Petitioner-Appellant, PREARGUMENTSTATMENT

-against-


Respondent-Respondent.

Petitioner-Appellant, The Empire Center for New York State Policy, by its attorneys,

Levine Sullivan Koch & Schulz, L.L.P., submits this pre-argument statement pursuant to

C.P.L.R. 5531 and 22 N.Y.C.R.R. § 600.17:

1 . The full title of this action is set forth in the caption.

2. The full name ofthe original parties are set forth in the caption.

3. The name, address, and telephone number of counsel for Petitioner-Appellant The

Empire Center for New York State Policy is:

David A. Schulz Levine Sullivan Koch & Schulz L.L.P. 321 West 44th Street, Suite 510 New York, NY 10036 (212) 850-6100

Lawrence P. Justice RICE & JUSTICE 111 Washington Avenue, Suite 604 Albany, NY 12210 (518) 434-8435

NE'WYO~f< ('~\":1?rr~~1(\~ OFflCE

t~~:rf \'\irT}~ (;-:(],,;<y t?!LE

4. The names, address, and telephone number of counsel for Respondent-

Respondent New York City Police Pension Fund is:

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Jesse 1. Levine Office of the Corporation Counsel

for the City of New York 1 00 Church Street, Room 2-182 New York, NY 1007 (718) 788-8119

5. This appeal is taken from the Decision and Order of the Supreme Court of the

State of New York, County of New York, filed December 30,2010, attached hereto as

Exhibit A. Petitioner-Appellant appeals from the portion of the Decision and Order denying its

petition and dismissing the proceeding.

6. This is a proceeding brought pursuant to Article 78 of the Civil Practice Law and

Rules seeking judicial review of Respondent's refusal to disclose information sought by

Petitioner-Appellant pursuant to the Freedom ofInformation Law, Public Office Law, §§ 84 et

seq. Specifically, Petitioner-Appellant seeks disclosure of the name, last employer, retirement

date and gross retirement benefit paid to each retired member of the New York City Police

Pension Fund. (See Petitioner-Appellant's Petition, attached hereto as Exhibit B.)

7. Justice Carol E. Huff, Part 32, disposed of the case by denying the petition and

dismissing the proceeding.

8. Petitioner-Appellant seeks reversal on the grounds that the lAS court committed

errors of fact and law. Respondent failed to meet its burden of establishing any basis in fact or

law to withhold from the public the names and other requested information about those receiving

retirement benefits from the New York City Police Pension Fund, and its refusal to disclose the

requested information is contrary to law.

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9. There are no related proceedings or appeals pending in any court.

Dated: New York, New York January 11,2011

LEVINE SULLN AN KOCH & SCHULZ, L.L.P.

~,~DsJl,2/ DaVASchulz 'go

321 West 44th Street, Suite 510 New York, NY 10036 (212) 850-6100

Lawrence P. Justice RICE & JUSTICE 111 Washington Avenue, Suite 604-Albany, NY 12210 (518) 434-8435

Counsel for Petitioner

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NOTICE OF APPEAL, DATED JANUARY 12, 2011 [4-5]

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK


Petitioner,

-against-


Respondent.

Index No. 105839110

NOTICE OF APPEAL

PLEASE TAKE NOTICE that Petitioner, The Empire Center for New York

State Policy, hereby appeals to the Appellate Division of the Supreme Court of the State of New

York, First Judicial Department, from a final order and memorandum decision of the Supreme

Court, County of New York (Huff, J.), filed on December 30,2010, a copy of which is annexed

hereto.

Dated: New York, New York January 121 2011

LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.

B~~ David A. Schulz

321 West 44th Street, Suite 510 New York, NY 10036 (212) 850-6100

Lawrence P. Justice RICE & JUSTICE III Washington Avenue, Suite 604 Albany, NY 12210 (518) 434-8435

Counsel for Petitioner .- .~

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TO: Jesse 1. Levine Michael A. Cardozo Corporation Counsel for the City of NY 100 Church Street, Room 2-182 New York, NY 1007 (718) 788-8119

2

DECISION AND ORDER OF JUSTICE CAROL E. HUFF, DATED DECEMBER 6, 2010 ANDENTERED DECEMBER 30, 2010 [6-9]

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SCANI'<ED ON 1I3i201'

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SUPR~ME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY

PRESENT: CAROL E. I1JIFF · ;ART j.2.

Index Number: 105839/2010

EMPIRE CENTER FOR NYS POLICY VS.

NYC POLICE PENSION FUND

SEQUENCE NUMBER: 001

ARTICLE 78

Justice

INDEX NO.

MOTION DATE

MOTION SEQ. NO.

MOTION CAL. NO.

this motion to/for _____ _

PApeRS NUM~~RED

l\Iotici!Oflllrotionl Ortlerro snow l.i8USlr'"-" -ATTlOavnS exhibits .. ,

Answering Affidavits - Exhibits ___________ _

Replving Affidavits ______________ _

Cross-Motion: D Yes No

Upon the foregoing papers, it is ordered that this motion

Dated: ___ D_EC_O_6_l0_10 __ _

Check one: ~ FINAL DISPOSITION D NON-FINAL DISPOSITION

Check if appropriate: 0 DO NOT POST D REFERENCE

D SUBMIT ORDERI JUDG. SETTLE ORDERI JUDG.

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,-. .' •

• SUPREME COURT OF THE STATE OF NEW' YORK COUNTY OF NEW YORK: PART 32

------------------------------------------------------------------------x


Petitioner,

- against-


Respondent.

._.-----------------------------------•• -.------------------------------x

CAROL E. HUFF, J.:

Index No. 1058391 I 0

In this Article 78 proceeding, petitioner seeks an order directing full compliance with its

Freedom offnformation Law request, made pursuant to Public Officers Law § 89(4)(b), for

information in connection with all retired members of respondent, the New York City Police

Pension Fund (that is, all retired New York City police officers receiving a pension).

By letter dated January 22, 2010, petitioner sought the following information for each

retiree: name; retirement system registration number; last employer; gross retirement benefits for

calendar years 2006, 2007, 2008 and 2009; indication of which system the retiree belongs to;

retirement date; and date of commencement of retirement system membership.

The Pension Fund provided all of the information in its possession (it contends there is

no "retirement system registration number") except for the names of the retirees. Petitioner

appealed the decision not to provide the names, and the appeal was denied in a letter dated April

1,2010, on the grounds that POL § 89(7) exempts the names of beneficiaries of public

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employees' retirement systems, and that the di~ure of the names would endanger the retirees,

who are former police officers.

Respondent first contends that petitioner lacks standing as a self-described "project," but

petitioner does have standing as a non-profit corporation organized and existing under the laws

of New York. Respondent also contends that petitioner is barred by the four-month statute of

limitations pertaining to Article 78 proceedings (CPLR 217[1 D, arguing that its 2010 request is

merely duplicative of its 2009 request. However, petitioner's seeking an additional year's

information in its 2010 request is sufficient to establish a that it is non-duplicative.

Public Officers Law § 84 is a Legislative declaration that the public "should have access

to the records of government in accordance with the provisions of this article." Such access is

not unrestricted. For example, POL § 87 provides that agencies may deny access where the

information would constitute an unwarranted invasion of privacy (§ 87[2][b]) or could endanger

the life or safety of any person (§ 87[2][b D.

POL § 89(7) further provides that the name and address of a "beneficiary" of a public

employees' retirement system should not be disclosed. In New York Veteran Police Assn. v

New York City Police Dept. Article I Pension Fund, 61 NY2d 659, 660 (1983), the Court of

Appeals found that this provision applies to "all retirees of the New York City Po/ice

Department currently receiving pensions and annuities."

In addition, the argument that § 87(2)(b) applies is persuasive (endangering of life or

safety). Considering the ease with which internet searches using only a name can identify the

address associated with it, and the common perception that retired police officers possess

fireanlls, the possibility of such retirees becoming the target of burglaries is significant.

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Accordingly, it is

ADJUDGED that the petition is denied and the proceeding is dismissed.

Dated: DEC 0 6 20\0

CARO~.HUFF J.S.C .

. ~-" .

':'~~ ---" .... -. . /~

..... / '" ,; ~ "-,.~~.,

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NOTICE OF PETITION, DATED AUGUST 10, 2010

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RICE 8: JUSTICE

WASHINGTON AVENUE

SUITE 604

ANY, NEW YORK 12210

D

STATE OF NEW YORK SUPREME COURT, COUNTY OF NEW YORK

i 1------------------------------------------I, The Empire Center for New York State Policy

A Project of the Manhattan Institute for Policy Research, Inc.,

I

I Petitioner,

NOTICE OF PETITION !

-against- Index No.: 10105839

i New York City Police Pension Fund. ! '

I Respondent.

I PLEASE TAKE NOTICE, that upon the annexoxl verified PeHtion of the Empire Cente, foc

I New York State Policy, A Project ofthe Manhattan Institute for Policy Research, Inc .•

I verified on the 23rd day of April, 2010, and upon the exhibits attached thereto, an application

I will be made to Motion Submission Part, Room 130, to be held at the State Supreme I

, Courthouse, 60 Centre Street, New York, New York, on the 23rd day of August, 2010, at 9:30

in the forenoon of that day, or as soon thereafter as counsel can be heard, for a judgment

pursuant to CPLR Article 78 permitting Petitioner access to certain documents as set forth in

the annexed verified Petition, and for reasonable attorney's fees and costs, all together with

such other and further relief as to the Court may be just and proper.

PLEASE TAKE FURTHER NOTICE, that an answer and supporting affidavits, if any,

shall be served at least five (5) days before the aforesaid date of hearing.

Petitioner designates New York County as the place of triaL Venue is based upon the location

at which Respondent made the determination complained of as well as the location of

Respondent's principal office.

Dated: August 10, 20 I 0

Albany, New York

VERIFIED PETITION, BY THE EMPIRE CENTER FOR NEW YORK STATE POLICY,DATED APRIL 23, 2010 [11-14]

11

RICE 8< JUSTICE

T 1 WASHINGTON AVENUE

SUITE 604

~13ANY, NEW YORK 12210,

D

STATE OF NEW YORK SUPREME COURT, COUl\rry OF NEW YORK

The Empire Center for New York State Policy A Project of the Manhattan Institute for Policy Research, Inc.,

Petitioner,

-against-

New York City Police Pension Fund, Respondent.

To the Supreme Court ofthe State of New York:

PETITION Index No.:

The Petition of the Empire Center for New York State Policy respectfully states to this Court:

1. Petitioner is a project of the Manhattan Institute for Policy Research, Inc., a

not-for-profit corporation organized and existing under the laws of the State of

New York with offices located at 48 Columbia Street, Albany, New York.

2. Respondent is an agency as defined in the Freedom oflnformation Law

(Public Officers Law, Section 86(3)) and as such must comply with the provisions

of the Freedom ofInformation Law regarding access to public records.

3. On January 22,2010, Petitioner made a request to the Respondent's public

records access officer for a list of all retired members of Respondent, New York

City Police Pension Fund, to include the following information:

• name;

• retirement system registration number;

• last employer;

• gross benefit for calendar year 2006, 2007, 2008 & 2009;

• retirement date; and

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RICE & JUSTICE 1 WASHINGTON AVENUE

SUITE 604

8ANY, NEW YORK 122 t 01

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• date of commencement of retirement system membership

(Exhibit A)

4. The documents and/or information which Petitioner requested are public

records.

5. Respondent did not comply with Petitioner's request for the name,

retirement system registration number and the last employer of Respondent's

retired members.

6. Respondent's failure to comply with Petitioner's request in a timely

manner, or to provide a written reason for a denial, constituted a constructive denial

of Petitioner's request. The Freedom ofInformation Law (Public Officers Law,

Section 89(4)(a»).

7. Petitioner, on March 4,2010, pursuant to the Freedom ofInformation Law,

(Public Officers Law, Section 89(4)(a» appealed Respondent's constructive denial

of its request for documents and/or information set forth in paragraph 5 to

Respondent's Freedom ofInformation Law Appeals Officer. (Exhibit B)

8. Respondent, on April 1, 2010, denied Petitioner's appeal for the requested ,-

documents and/or information. (Exhibit C)

9. Upon information and belief Respondent's reasons for its denial of

Petitioner's Freedom of Information Law request for the documents and/or

information set forth in paragraph 5 herein are without merit, are based upon

erroneous interpretation of the Freedom ofInformation Law, are conc1usory,

without factual support and fail to demonstrate with particularity that the

documents and/or information request fall within the exemptions relied upon by

Respondent.

2

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RICE 8: JUSTICE

11 WASHINGTON AVENUE

SUITE 604

,BANY, NEW YORK 12210

D

10. Based upon Respondent's denial and other actions, Petitioner will not be

furnished the requested documents and/or information without judicial compulsion.

WHEREFORE, Petitioner requests judicial review of Respondent's denial of

Petitioner's appeal and its refusal to provide Petitioner with the requested documents

and/or information, reasonable attorney's fees and costs, all together with such other and

further relief as the Court may deem just and proper.

Dated: April 23, 2010 New York, New York

3

The Empire Center for New York State Policy, A Project of the Manhattan Institute for Policy Research, Inc.

~~ Petitioner's Director of Operations

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STA TE OF NEW YORK COUNTY OF NEW YORK

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I, Timothy Hoefer, am the Director of Operations of the Petitioner in the above entitled

proceeding. I have read the foregoing petition and know the contents therein. The contents are

true to my knowledge except to those matters therein stated to be alleged upon information and

belief, and as to those matters I believe them to be true.

! ~ Subscribed and Sworn to before j me on IS 3rd day of April, 2010

I ~~~---

.~ICE & JUSTICE

WASH1NGTON AVENUE ( :

SUITE 504 1 ~ ANY. NEW YORK 12210j

: i

LAWRENCE . JUSTICE Notary Public. State of New York

Qualified in Albany Co. No. 02JU7132875 ""

Commission Expires May 31,c<(J/()

EXHIBIT A TO PETITION:FOIL REQUEST, DATED JANUARY 22, 2010

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EMPIRE

January 22, 2010

New York Police Department Pension Fund Records Access Officer 233 Broadway, 19th Floor New York, NY 10279

Dear Records Access Officer:

Pursuant to the Freedom of Information Law, I hereby request a list of all retired members of the New York Police Department Pension Fund (PPF). For each retiree, please include the following information:

• name; • retirement system registration number; • last employer; • gross retirement benefit for calendar years 2006,2007,2008 & 2009; • indication of which system retiree belongs to; • retirement date; and • date of commencement of retirement system membership.

If possible please transmit the requested information in electronic database document (preferably Excel) electronically or on a CD.

Please email me at [email protected], or call me at 518-434-3100 if you have any questions about my request. Thank you very much.

Sincerely,

Tim .Hoefer - Director of Operations Empire Center for New York State Policy PO Box 7113, Albany, NY 12224 518.434.3100 (0) 518.434.3130 (f)

EXHIBIT B TO PETITION:APPEAL OF DENIAL OF FOIL REQUEST, DATEDMARCH 4, 2010

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EMPIRE .CENTER F{JR Ni\V YORl- ST,\Tr POtley

March 4, 2010

New York City Police Pension Fund FOIL Appeal Officer 233 Broadway New York, NY 10279

Dear FOIL Appeal Officer:

On January 22, 2010, the Empire Center for New York State Policy filed a Freedom of Information Law (FOIL) request to the Records Access Officer at your agency (attached).

Although your office replied, the file we received did not include the former employee's name, a field included in our FOIL request. In response to our similar FOIL request in 2009, your office also denied access to the former employee's names (PPF's.denial of the Empire Center's appeal of denial from 10/16/09 attached).

Anticipating your agency will provide the same interpretation of various New York State and New York City laws, we offer the attached opinion of New York State Committee on Open Government assistant director Camille S. Jobin-Davis, Esq. We believe Ms. JobinDavis' analysis and deconstruction of your agency's interpretation of these laws adequately refutes your agency's previous reasons for denial.

On those grounds, I am appealing the agency's failure to provide access to public records. If you personally do not handle your agency's FOIL appeals, please forward this letter to the appropriate person.

Section 89(4)(a) of the law gives the "chief executive" (or person handling FOIL appeals) 10 business days to explain fully in writing reasons for denial, or provide the records sought. The agency must also file copies of the appeal and the determination with the Committee on Open Government at the New York Department of State in Albany.

The records sought are clearly accessible under FOIL. Be advised that FOIL now authorizes a court to award attorney fees when an applicant has substantially prevailed and the agency has failed to provide the documents or records within the limits imposed by law.

We look forward to your prompt response. Thank you.

smzz· # Tim Ho=t,m of Op,,."om Empire Center for New York State Policy PO Box 7113, Albany, NY 12224 [email protected] 518.434.3100 (p) 518.434.3130 (f)

cc: Camille Jobin-Davis, Esq. Larry Justice, Esq.

EXHIBIT C TO PETITION:DENIAL OF APPEAL, DATED APRIL 1, 2010 [17-18]

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New York City Police Pension Fund 233 Broadway New York, NY 10279 (212) 693-5100

Empire Center of New York State Policy Tim Hoefer, Communications Director P.O. Box 7113 Albany, NY 12224

Dear Mr. Hoefer:

Anthony J. Garvey Executive Director

April 1, 2010

'This is in response to your letter of March 4, 2010, in which you appeal the determination by this Agency's Records Access Officer to a January 22,2010 Freedom ofInformation Law ("FOIL") request.

The Records Access Officer did provide the gross retirement benefits for calendar years 2006,2007,2008, and 2009. The last employer for all requested data was the NYPD. The retirement date and date of commencement of retirement system membership, were all provided to your Agency.

I have reviewed your appeal and note the opinion of the Assistant Director of the NYS Committee on Open Government that you attached.

YOU! appeal from the denial of access to the name, retirement system, registration number, and last command is denied for the following reasons:

With regard to the names of former m(;.'t11bers ofPPF who retired, the appeal is denied because Public Officers Law (POL) section 89 (7) exempts from disclosure, inNr alia, the names of beneficiaries of a public employees' retirement system. A "beneficiary" is defined as any person in receipt of a pension or who is receiving a benefit from a public retirement system of the state. See, e.g., NYC Administrative Code Section 13-214(5) and NY Retirement and Social Security law Section 151 (1). Moreover, the PPI' is one of the entities defmedin NY Retirement & Social Security Law Section 152(6) as a public retirement system of the state. Therefore, former members of PPF who receive a retirement benefit are beneficiaries of the PPF, and their names are exempt from disclosure under POL Section 89(7).

In addition, the names, retirement system registration numbers, and last command data ate also exempt from disclosure pursuant to POL Section 87{2)(t), POL Section 87(2)(b), and POL Section 89(2). The risk of harm to the life, safety and privacy of these former police officers is significant, given the wide range of searches available on the internet. The disclosure of a list of

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names of former police officers could easily permit any person to obtain the addresses of former officers, thereby raising serious concerns for their lives, safety, and privacy. These privacy, life, and safety interests are protected by POL 87(2) (b), which exempt records where disclosure would create an unwarranted invasion of privacy, and POL 87(2)(£), which proscribes disclosure where disclosure could endanger a person's life or safety. The assumed presence of firearms in the homes of active and retired police officers gives rise to safety concerns since an officer's home may become a target for burg.lru:ies of firearms. I note in this connection that the home addresses of police officers are statutorily privileged pursuant to CPL Section 240.60(4), and are therefore also exempt from FOIL disclosure pursu.mt to POL Section 87(2)(a). Moreover, disclosure of the requested list of the names of all retired members of the PPF and of their retirement system registration numbers and parts of their employment histories would facilitate identity theft or impersonation of police officers in addition to constituting an unwarranted invasion of their privacy.

You may seek judicial review of this determination by commencing an Article 78 proceeding within four months of the date of this decision.

AJG/vd

cc: Committee on Open Government

ANSWER, BY THE NEW YORK CITY POLICE PENSION FUND, DATED JULY 26, 2010[19-23]

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SUPREME COURT OF THE STATE OF NEW YORK COI..JNTY OF NEW YORK . --.. ------....... -----... - ..... ---.------.-.---~--........ ------ x

THEEMPIRE CENTER FOR NEW YORK STATE POLICY

Petitioner,

-against-

NEW YORK CITY POLICE PENSION FUND

Respondent

--.. -------,.--------.... --------.... ...... .1.-....... ----.. X

ANSWER

105139/10

Re$pondent, by its attorney, Michael A. Cardozo. Corporation Counsel of the City

of New York, for its Answer to the Petition alleges as follQws;

1. Denies knowledge or information sufficient to form a belief as to the truth of

the allegations set furth in paragraph "1" of the petition.

2. Admits the allegations set forth in paragraph "2" of the petition.



S. Denies the allegations set forth in paragraph tiS" of the petition except avers

that Respondent did not respond to Petitiollet in a. time frame deemed acceptabJe by

Petitioner ..

6; Denies the allegations set forth in paragraph "6" of the petition ..

1. Denies the aHegations set forth in paragraph "7" of the petition. except admits

that Petitioner wrote to Respondent purporting to appeal what it called Respondent's

constructive denial of tits FOIL request.

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8. Denies the allegations set forth in paragraph "S" of the petition except admits

that on April. 1, 2010. n.cSpondent wrote to Petitioner explaining that some of the

infonnation requested by P~titioner had already been provided, and that other portions of

the request were denied pul'Suant to varlOtlS provisions of the Public Officers Law

because the publication of such information wouJd adversely ::dlect the safety and privacy

of retirees.

9. Denies the allegations set forth in paragraph "9" of the petition.

10. Denies the allegations set forth in paragraph "10" of the petition.

AFFIRMATIVE STATEMENT OF FACTS

11. In 1983, Gov. Cuomo signed into law amendments to the FOIL article of the

Public Officers Law designed to protect the safety and privacy of. inter alia. retired

members of police departments throughout the state.

12. Those amendments prohibited generally the disclosure of the horae addresses

of retirees and the riatnes and'home addresses oil'etirees} beneficiaries.

13. For several years thereafter, ReSpondent be1ieved that the sta:tutory provisions

adequately protected the retirees' interests and provided the names of individual retirees

when properly requested to do so.

14. However; specific incidents of ha:rasmlent of retirees has prompted

Respondent to reevaluate that policy. See Affidavit of Kevin Holloran, submitted

herewith.

15, Additionally, based on advances in technology and inc~d capacity and

con.tent of the various search ensines, the statute is no longer sufficient to provide tile

intended protections. as merely providing the name of an individual can easily

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compromise that safety and privacy. Therefore, the statute directly addressing the issue

should be read in cOnjunction with other FOIL provisions designed to protect those

interests. not as preempting those other protections. including Publi~ Officers law

§§87(2)(b) and 87(2)(f).

16. On January 22, 2010 Petitioner requested (the "2010 FOIL Reque~'') pllrSuant

to FOIL the following categories of information relating to each retiree who was a

membel' of the PPF:

Name; retirement system registtatioll number; last employer; gross retirement

benefit for calendar years 20061 2007.2008 and 2009; indication Qfwhioh system retiree

be~onis to; retirement date; and date of commencement of retirement system

membership.

17. Thereafter, Respondent provide to Petitioner data with respect to the

following information requested: Gross retirement benefit for calendar years 2006, 2007.

2008 and 2009; last employer (NYPD); r~ent date. and service commencement date.

18. Thus, the only fields not provided to Petitioner were the names of the

individual retirees and the, "t'eti:rtment .system registration number".

19. Respondent does not maintain a list of 'Tetirement system registration

numbers",

20. On March 4, 2010, Petitioner wrote to Respondent ( see Exhibit A at.t<whed

hereto, referred to as the "Appeal !A;tter") complaining that information provided to

. Petitioner did not include the fonner employees' names,

21. Although. the Appeal Letter clearly indicates that Responde'nt did in fact reply

to the 2010 FOIL request and provide information in response thereto, the petition herein

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characterizes that letter as an appeal from Respondent's "constructive denial" of the

original FOIL request (see Petition, 17).

22. Such characterization and failure to describe the information provided. As

most of infonnation l'tsponsive requested was providee4 the only oategory of infonnation

at issue is thellames oftbe individual retirees.

23. On July 14, 2009, Petitioner made a FOIL (the "2209 FOIL Request') reqllest

identical to the 2010 FOIL Request in all respects except the addition of the ealend.ar year

in lhe: 2010 FOIL Request. (See Exhibit "B" attached hereto.)

24. That request was denied in October, 2009.

FOR A FIRST OBJECTION IN POINT OF LAW:

25. Petitioner, which describes itself asa "Project", lacks ~ity to su~.

FOR A SECOND OBJECTION IN POINT OF LAW:

26. As the 2010 FOIL Request is duplicative of the 2009 FOn.. Request, this

proceeding is barred by the Four Month Statute of Limitation governing proceedings

under CPLR Article 78.

FORA FIRST DEFENSE:

27. Respondent's denial of Petitioner's FOIL request was lawfll1 and proper in

every respect, as such denial was intended to and does protect the safety and privacy of fanner

police officers pursuant to Public Officers law §§87(2)(b) and 87(2)(f).

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WHE'REFORE, defendants request judgment dismissing the petition and

denying all relief req\lested therein, together with such other and fUrther relief as the Court

deems just and proper.

Dated: New York, New York July 26, 2010

MICHAEL A. CARDOZO Corporation Counsel of the

City of New York Attorney for Defendants 100 Church Street, Room 2~ 1 06 New York, New York 10007 (212) 442-3329

By:

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elise I. Levixle, ,A stant Corporation Counsel ". Janice Silverberg, Assistant Corporation COllllSel

EXHIBIT A TO ANSWER:APPEAL OF DENIAL OF FOIL REQUEST, DATED MARCH 4, 2010

24

.1

March 4, 2010

D

EMPIRE ... CENTER FOR Nrw You STATF POLICY

.~ p, .. ,".1 d ,"" 41 ... ",.' .... fM4l/_ 1M f'!Ihtr "'-A

New York City Policu- PeNian Fund FOIL Appeilf Offlw 233 Bra.dway New York. NY 10279

Dear FOIt. Appeal Officer:

. . .

On Jal\~ry 22, 2010, the Bmpil"e Ce:nter for New York State Policy Ciled a Preedom of InformaDon Law (POlL) requGtt to the Recwds Accelll Officer at yOW' agency (l'Ittached).

Although yow office l'1.'Plled, the file we received did not Include die IoTmer mployte'$ name, a fiQlu mCNded in Olll flOIL request. In response to our sttnlJar FOIL nquest In 2009, your ofllee also denitd lecess to the former employe,'s nam~ (FPl"s,den.iaJ of the Empire Center's appeelol detnial from 10/16/09 attached).

Antidpeting your age'I'ICY wiD provide the same /ntetprel<ltion 01 various New York State tild New York at)' !.awe, wo Qilfrr the atl'llched opfn.IOJ1 01 New York Slate Committee on 0pI!n GOvertlmllnt M6iS\anl director ClmWIl S.lobin-Davl8, &q. We bellII'Ve Ms. JobinDava' lMIIly. lU'Id d~trut:lion 01 your agency's interpretation of theft lawaadeqlliltely refutes your .gIUlty's prevtO\lll roa!1OJU for denial.

On those grounds, I am apphUng the agency's fallllN to provide IltteSII to public recorda. Ii you personally ao not handle your lIgeney'. FOJL appeals, pllllSe torward thlB leiter to \b(! appropriate person.

SectIon 89(4)(a) of tne law gives me "chief f,l)Cf!CUIive" (or person handling POlt app!lab) 10 busl~ daYI to explain f.uI1y in writing re!l8OlUl for denial, OJ' provilN the rec»rdlllOUgIIt The agol!ncy must also CUe copies of the Ilppealll1ld the determination with the CoIJ'\mitt:IIJe on Open Government ilt the New York Deptll'ltllent of State In AJbany.

"!be w:oW lQu,ht Ill!! cJwlx ~ un4Ir am.. Be 1Isb;ise4 tM! fOIL %lIUY ~ i CQgtt to gward attoIJ\9.Y fit! whm NluwIml bM!UbQmtiaI1y ateXllil!d _ Ult a,prn;x has rtik4 tR lIroyJde the sJacwne.vII PJ' rem,rdr wjlhin Uw tImiW img,gGSiUZY law, We look forward to your prompt ~ Thank you.

$m~~# Tlm Hoof<lr - .,(''te!CtfJr of OpeZ'lltions Emptfe Cente, lot New \'ork State Policy PO Bnx 7113, A1b4lny, NY ) 2224 ~!O!?mmreQmwr.9l& 51B..434,31oo (p) SlS.434.:mO (f)

ct: CAmille Tobln-Dav". &q. Larry Ju.tI~ E:Iq.

EXHIBIT B TO ANSWER:FOIL REQUEST, DATED JULY 14, 2009

25D

EMPI'RE '~- CENTER FOR NEW YORK STATE POLICY

,---" A prrJiec:t of th~ M,lnhatt.an Insl/lute fOr PoUr:y Researt:ll

July 14, 2009

New Yark Police Deparbnent PeNion Fund Record3 Acces6 Officer 233 Broadway, 19th Floor New York. NY 10279

Dear Records Acces:s Officer:

PuX'SUant to the Freedom of Information Law, I hereby request a liat of allletired members of the New York Police Department PtmBion Fund (pPF). For each retkee, please mci'llde., the following information:

• name; • retirement system registration number; • last employer; _'--__

gross retirement bendit for calendar years 2Ol]'b,"'"2007 & 2008; .. indication of which &ystem retiree belongs to; .. retirement da.te; and • date of commencement of retirement system membership,

If possible please transmit the requested in£onnation in electronic database document (preferably Excel) electronically or on a CD.

Please email me at moeldEmpireCenter.Qtg;, or call me at 518-434-3100 if you have any questions about my request. ~ you very much.

Sincerely,

~~----7' JI'?J¥#/~ ~.. ~.,.,&.-, Jr' ,..:,,, ,/7,%" £---•• _-., ...... ,.' •• ' 'y. ?"/~

/" ~

Tim Hoefer - Communications Director Empire Center for New York State Policy PO Box 71l3, Albany. NY 12224 518.434.3100 (0) 518.434.3130 (f)

'.!:' ." .. , •. ': " : ':. : I!t Ito

RESPONDENT’S MEMORANDUM OF LAW IN SUPPORT OF ANSWER, DATED JULY 26,2010 [26-31]

26D

SUPREME COURl' OF THE STArE OF NEW YORK COUNTY OF NEW YORK --~-•• -.-------.~---••••• - ••••••• ------.--. x

THE EMPIRE CENTER FOR NEW YORK STATE POLICY

Petitioner.

-against-

NEW YORK. CITY POLICE PENSION FUND

Respondent

RESPONDENT'S MEMORANDUM OF LAW IN SUPPORT OF ANSWER

105139/10

PRELIMINARY STATEMENT

Respondent New York City Police Pension Fund submits this Memorandum of

Law in support of the Answer to the Petition herein. The fundamental issue involved is whether

the Respondent is required to disclose the xwnes of individual retired police officers to

Petitioner. where such disclosure presents a threat to the safety and privacy of tho~ reti:ree$.

FAcrs

In 1983, Gov. Cuomo signed into law amendments to the FOIL article of the

Public Officers Law designed to protect the safety and privacy of; inter alia. retired members of

police departments throughout the state.

Those amendment5 prohibited generally the disclosure of the home addresses of

retirees and the names and home addresses oflfitb:ees' beneficiaries. For several years thereafter,

Respondent believed that the statutory provisions adequately protected the retirees' interests and

provided the names ofiudividual retirees when properly :requ_d to do so.

However, specific incident5 of ha:rassment of retirees has prompted ~espondent

to reevaluate that policy. See Affidavit of Kevin Holloran, submitted herewith. Those incidents,

27D

as well as the many mor" mun~us incidents involving current members ofNYPD, l.'alse a well

grounded fear that· disch:~sUl'e of the names of the retirees poses a threat which outweighs

Petitioner's ostensible right to know the names.

Additionally. based on advances in tet:hnology and increased capacity and

content of the various search engines, the statute is no longer sufficient to provide the intended

protections, as merely pm'\li.dmg the name of an individual can easily compromise that safety

and privacy. Therefore, the statu.te directly addressing the issue should be read in conjunction

vvith other FOIL provisions designed tD protect those iuterests. not as preempting those other

protections, including Public Officers law §§87(2)(b) and 87(2)(f).

On January 22.2010 Petitioner requested (the "2010 FOIL Request") pursuant to

FOIL the following categories of infon.nation rela:tlng to each retiree who was a member of the

PPF:

Name; retirement system registration number~ last employer; gross retirement

benefit for calendar years 20()6, 2007.2008 and 2009; indication of which system retiree belongs

to; retirement date; and date of C{)mmencement of retirement system membership.

Thereafter, Respondent provide to Petitioner data with respect to the following

information requested: Gross retirement benefit for calendar years 2006, 2007. 2008 and 2009;

last employer (NYPD); retirement date; and service commencement date. Thus, the only fields

not provided to Petitioner were the names of the individual retirees and the "retirement system

registration number"

Respondent does not maintain a list of ''wtixeroent sy&em registrntion numbers".

27143SU.OOC 011261105:24 PM

28D

:. On March 4,2010, Petitionet wrote to Respondent (see Exhibit A attached to the

Answer. ref",rred to as the co Appeal Letter") complaining that infOrmation provided to Petitioner

did not incl;ude the fonner employees' na.m~.

Althougb the Appeal Letter clearly indicates that Respondent did in fact repJy to

the 2010 FOIL request and prov;de infonnation in response thereto. the petition herein

characterizes that letter as an appeal from Respondent's "constructive denial" of the original

FOIL request (see Petition, ,7).

Such cha:mcterization and failure to describe the information provided is

deceptive. As most of information responsive requested was provided. the only category of

infonnation atis8UC is the names of the individual retirees.

Previously, on July 14, 2009, Petitione., made a FOIL (the "2009FOlL Request')

request identical to the 2010 FOIL Request in all respects except the addition of the calendar

year in the 2010 FOIL Request. (See ElI.'bi.bit ''B'' attaohed to the Answer .. ) That request was

denied:in October, 2009.

ARGUMENT

POINT!

PETITIONER LACKS TIlE CAPACITY TO SUE

In its petition, Petitioner describes itself as a "Project" of the Manhattan

Institute for Policy Research, Inc, a not-far-profit corporation ... " Petitioner does allege th.;rt it

has a jural existence giving it the legal capacity to bring this proceeding. Accordingly. the

petition is fatally defective. ProvQsty v. Lydia E. Hall Hospital. 91 A.D. 2d 658 (2d Dept. 1982);

From its very nature, the rule that a judgment on the merits is b:inding on the parties to the litigation assumes the existence of such parties. II ( M!K:Afi'er v. Boston &; Maine R. Rot 268 N. Y. 400, 403 [Lebman, J.].) There must be existence in law as well as existence in fact. since a party to an action other than a governmental unit must be a

2714S5:U .DOC 07126110 $;24 PM

29D

natural person or a corporation (Royal Norwegian Navy v. Smith Steel Co., 185 Misc. 880), mtcept as provided specifically by law for partnerships (CPLR 1025; Partnership Law, § 1 15-a) and for unmcorporated associations (CPLR 1025; General Associations Law, §§ 12, 13). It is existence .in law which creates for entities ~ legal capacity to SUG.

Little Shoppe Al;ound the Comer v, Carl. 80 :Misc. 2d 711. 718 (N.Y. County Ct 1975)

POINTll

AS THE 2019 FOn. REQUEST IS DUPLICATIVE OF THE 2009 FOIL REQUEST. IT IS TIME }JARRED

As set forth above, on July 14, 2009 Petitioner made a request for infonnation

pursuant to FOIL which was identical to the :request made on January 22, 201 0, except that the

2010 request included the calendar year. The 2009 request was denied in October 2009, and thus

the four month statute of limitation that governs Article 78 proceedings expired in February

2010. Thb proceeding was not commenced until April 23, 2010 and is thus time barred.

The service of the identical duplicative request in January 20 I 0 does not extend

the stanrte of limitation.

Pursuant to CPLR 217, an article 78 proceeding accrues, and the four-month statute of limitations begins to nm. after the "respondent's refusal, upon the [request] of the petitioner Of the person whom he represents. to perfonn its dutY' (see CPLR 211). A FOIL request made by a representative of the petitioner cannot be considered an independent request; mther it is a request on behalf of his or her client. Furthel11lote. HNSthe statute of limitations does not ton or extend when a. subsequent FOIL request is duplicative of the prior request (Matter ofKelJy v New York City PoUce Dept. 286 A.D.2d 581, 730 N. Y.Sold 84 [1st Dept 2001 ]) . .A subsequent FOIL request that is nearly identical to a prior request, except that the request is more speci,fic, would be duplicative (see Matter of Garcia v DivisioD. of State Police. 302 AD.2d 7SS, 754 N. Y.S.2d 913 [3d Dept 2003D. Thus, if two FOIL requests are duplicative. the court may dismiss the prcx:eediDg challenging a determination of the ~ request, as 8. belated attmnpt to seek judicial review of the denial of the first request (Kelly v New Yark City Police Dept., 286 A.D.2d 581, 730 N.Y.S.2d 84 (2001]. supra).

Greenev. Cin: of New York. 196 Misc. 2d l~, 13!l{N,Y. Sup. Ct. 2003)

The Appellate Divi$ion. Third department, has taken a similar view.

Upon our rev;ew of the record, we find that petitioner's instant FOIL request is essentially identical to his prior requests, the denials ofwhlch, except for one in 1994,

2714533).DOC -4- 07126110 S:Z4 PM

30D

petitioner failed to seekjudioial review. "Accordingly. this proceeding constitutes nothing mo~ than a belated attempt to chaUenge {the] previQus responses to petitioner's requests and is, therefore. barred by the statute of limitations" (Matter of Mixon v McMahon, 302 AD2d 714, 714. 754 NYS2d 589 [2003], Jv denied 100 NY2d 502, 790 NE2d 1194,760 NYS2d 765 [2003J [citation omitted]; Bee Matter of Garcia v Division of State Police, 302 AD2d 755. 756, 754 NYS2d 913 [2003]; Matter of Mendez v New York City Police Dept, 260 AD2d 262, 262·263, 688 NYS2d 538 [1999]). As such. Supreme Court properly dismissed the petition. Vann v, Callahan, ] 6 A.D.3d 849, 8S!J (NX AVD. DiY. 3d Peg'! 200Sl

See also Pennington v. Clark. 1 A.D. 3d 912 (4111 Dept. 2003), citing Greene.

Clearly, as the 2010 Request is duplicative oftha 2009 request, the proceeding

must be Qismissed.

POINTm'

RESPONDENT PROPERLY DENIED THE REQUEST FOR TIlE NAMES OF INDIVIDUAL RETIREES

Respondent's concern in denying part of Petitioner's request is the safety and

privacy of the individUal retirees who served the pubUo as police officers. It hatd1y needs .

discussion to realize that cuuent and funner police officers are potential targets for harassment

and intimidation. Petitioner's FOIL requeSUl.U'e clearly designed to obtain infonnation about the

costs of the pension systenu; for New York City employees, including policemen. There is no

need fol' the identities of the individual retirees.

While we recognize that the "motive" of the requestor does not generally

determine whether a FOIL request should. be denied, we respectfully submit that a balancing of

the interests to be served should sustain Respondent's detennination to deny the request with

respect to personal identifiers. It has been the clear policy of the state, as expressed through the

1983 legislation granting extensive privacy rights to retirees and beneficiaries to protect refu'es

-5- 071261105:24 PM

31D

from unwarranted intrusion into their lives. That legislation has since proven inadequate, in that

the publication of a: name can lead almost inevitably to a home address.

It is the possibility of danger to life or safety, not certainty of danger, that gives

rise to the right to withhold the personal identifiers. Matter of Nalo Vf Sullivan, 125 AD 2d 311

(2d Dept 1986); Matter of Connolly v, New York Guard, 115 AD 2d 372 (3d Dept. 1991);

Matter of StrQnZa v. Hoke. 148 AD 2d 900 (3d Dept 1989). The possibil~ty exists here, and the

petition should be dismissed.

CONCLUSION

THE Petition should be dismIssed with all relief requested therein,

Dated: New York, New York July 26,2010

MICHAEL A. CARDOZO Corpotation Counsel of the

City of New York AttQrney fur Defendants 100 Church Street, Room 2-106 New York. New York 10007

(212) 442·3329 . ~

BY:~ . I. Levine. Assistant Corporation ~.

-6-

Counsel JaniCe Silverberg, Assistant CoIporation Counsel

AFFIDAVIT OF KEVIN HOLLORAN, FOR RESPONDENT, IN SUPPORT OF ANSWER,SWORN TO JULY 26, 2010 [32-36]

32D

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK. .. -... --... --""' ... - ....... -----.--.... --... -.--.---... -.----~- x

The Empire Center for New York State Policy A Projea of ~ Manhattan Institute for Policy Research.Inc.

-ftgaWt-

New York City Police Pension Fund,

Petitioner,

Respondent

.--.-.-"-"-~-.-----""""~--•• --------.----~---.-~ X

STATEOFNEWYORX ) : $S.:

COUNTY OF NEW YORK. )

AFFIDA VlT OF KEVIN HOLLORAN IN SUPPORT OF RESPONDENT'S VERlFlED ANSWER

Index No. 105139/10

Kevin HoDoran, being duly sworn deposes and says.:

1. l was appointed to the position of Executive Director of the New York City

Police Pension Fund ("'PPF") on JWle 30, 2010.

2. Prior to this appointment, I was employed by the New York City Police

Depa.rtnJent ("NYPDj for over twenty years. Following my appointment as a Police Officer

in January. 1989 I served in various patrol and 'training assignments until I was promoted to the

rank of Captain in 2001. I was then transferred to the Medical Division where I served as

Executive Officer, and then became the Commanding Officer. where I attained the rank of

Inspector and remained until I assumed my cUttent position.

3. I am thoroughly familiar with the facts in this matter, based on my persooal

experience~ as well as upon the books and records of the PPF, consultation with the previous

33D

Executive Dlractor of the PPF, and C1!l;lent PPF staff and Trustees, and members of the NYPD.

This affidavit is submitted in support of the Answer to the Petition berein.

4. I submit this affidavit in support ofPPF's position,that releasing the names

of retired NYPD officers constitutes an undue invasion of privacy and a clear risk to the safety

of these officers. and thus are exempt from FOIL requests.

S. Although in fact, PPF did reJease this information on a number of occasions

in the past this practice was based upon the belief that protecting just the home addresses of

cetired police officers, was sufficient to protect retirees from an invasion of their privacy,

harassment and annoyance, a view no longer held by PPF and its Board of Trustees.

6. Respondent should not be placed in the position of publishing informa~on,

based merely on the fact of payment of retire:ment benefits. and thereby compromising the

safety and pdW!Cy of retired members of the NYPO. whQ performed their full service, or

whose service was curtailed through a disability; and who become imperiled just as their ties to

the pl'otettions afforded by daily interaction with the NYPD are lessening.

7. It was certainly not anticipated that the release of individual names would

endanger those individual retirees whose careers were ~t protecting the residents of New

Yark, or would place them at personal risk.

8. Unfortunately, 1bat is exactly wliat has happened, and PPF has now

determined that release of: the names of individual retirees poses exactly such a risk to 111e

officers' privacy and safety; and that as beneficiaries of the PPF such release of the names of

individual retirees is not required. Several examples are s-=t forth below.

9. On February 9, 2009. PPF received a FOIL request from the New York

~ and provided thC requested infonnatioll including pensioners' names. Subsequently, a

\\lll'ftlISO!\um1Ilt;\\dI()UoranIMy ~Is\empm: state IIffidllYit.doG

2 07126110 10:53 AM

34D

~ photographer and reporter. approached a retired NYPD Captain. The Captain was advised

that the Post planned to print his identification and photograph in art article they were to do

about a then current' proposal by the City to change the retirement age for members of the

service.

10. the retired Captain had participated in various organized crime related

investigations and family members of those whose arrests he was involved in lived in the same

neighborhood as tbe retired officer's family. Upon information and belief, the Captain's

Endowment Association was prepared to litigate, regarding the release of this information to the

public. The identifYing information was not published. It was evident, however. that the

newspaper was able to find this individual retiree based on the information provided by PPF.

11. It is also clear that the actual identification of a particular retiree was not

necessary to write about the PPF~ or pending legislation, or indeed to analyze any particular

data regarding that system.

12. This situation also illustrates that although an arrested person will have the

identification of the arresting officer, the criminal defendant will likely not be aware Qf the

identification of investigating or undetoover officers. Also the officer s likeness will not be

known to relatives and associates of the criminal defendant.

13. Threats to active members of the NYPD occur regularly and are taken very

seriously; such threats are investigated by that agency's Threat Assessment Unit There bave

been 90 such events to date in 2010, 131 in 2009 and 173 in 2008. Additionally when the

NYPD is alerted to jtems in social networking and similar sires providing identifying and/or

threatening information posted regarding members of the service, the site is requested to

remove such information and I am advised that it does.

\~pfnlSQ l\lI$lll'file\klloiJQfa)l\My DocumenlS\einpiJe stato 1Iffid8YitdlXl

O1l!6ll0 10:53 AM

35D

14. Animus toward police officers does not dissipate because of the change in

the officer's status. The connection howevert to the active~ uniform presence and protection of

the NYPD becom.es attenuated. Accordingly the vulnerability of the retired officer becomes

greater-it shouJd be noted tbat approximately 30 percent of retired officers do not live in New

York State.

15. This point is illustrated by an incident in June. 2007 where a tetired member

of the service who was at a restaurant with his family and was recognized and assaulted by a

<:riminal defendant who he had arrested in 2003. The attack was preceded by statements in

words or substance that the criminal defendant knew where the retired officer lived and knew

that he bad a new baby.

16.Jt is my understanding that in 1981 when the Public Officer's Law

("POL")§ 89(7) was amended to prQbibit the disclosure of home addresses for police officers

or former offic:ers Assemblyman Lento} r«:ognized that " .•. release of a home address Qr

telephone can cause injury to the officer or his family, or at the very least cQIltinued

harassment. It is quite common that police and their families are threatened by criminals, and

it is unwise to release such information without cause:'

17. It is clear that the legislation written in the early 19808 was designed to

protect the safety and privacy of retirees and their families. Based on advances in technology

and increased capacity and content of the various search engines, the statute .is no longer

sufficient to provide the intended protections as m.erely providing the name of an individual

can easily compromise that safety and privacy. Therefore, the statute directly addressing the

issue should be read in eoxijunction with other FOIL provisions designed to protect those

interests. not as preempting those other protections.

4 . 07126(10 W;S3 AM

36D

18. Based on my experience as a police officer, as a manger in the NYPD and

now as the Executive Director of the PPF, I submit that the plaintiff's jmportant function in

serving as a watchdog for pension abuses can be met through the data already provided. Its

need for the name of the officer cannot outweigh the privacy and safety inferests of the

individual retired police offiCer.

19. I t is simply unacceptable to put our retired police officers in hann's way by

disclosing their names to any source who asks, as experience has now shown this allows for tire

identification of horne addresses. These names fall under the specific exemptions to. FOlL

w..ios.I'C for Blvasionofprivacy and risk "1110 ~

. K~ a

Sworn to before me this .2b.'f1l.ay of July, 2010.

~ 4&+ Jf:-e~.; NOTARY PUBLIC

"pplbl5Ol \uRd1le\khollOl3nWy Do~~lIlpire stall: .affidavit.doI;

1lI!26I1fJ 1(1:53 AM

REPLY TO RESPONDENT’S ANSWER, DATED AUGUST 20, 2010 [37-38]

37

RICE Be JUSTICE t I WASHINGTON AVENUE

SUITE 604

_BANY, NEW YORK 12210

D

jSTATE OF NEW YORK ,SUPREME COURT, COUNTY OF NEW YORK

I iThe Empire ~enter for New York State Policy

i I A Project of the Manhattan Institute for Policy Research, Inc., I

I Petitioner,

I -against-REPLY Index No.: 10105839

I INew York City Police Pension Fund,

I Respondent.

I ITo the Supreme Court of the State of New York:

I jPetitioner by its attorneys Rice & Justice, for its Reply to Respc,ndent's Answer alleges as I follows: . I

I'

iII. Respondent in paragraph "4" of its Answer admits that the records , 1

i requested, i.e. the names of the retirees, the retirees' retirement system registration

I

' !

number and the retirees' last employer are public records.

2. Respondent's letter to Petitioner dated April 1, 2010 in the fourth paragraph

states that "Your appeal...is denied for the following reasons". (Emphasis supplied)

(Exhibit C)

3. This Petition was served on Respondent on May 18,2010 well within the

four month statute of limitations for Article 78 proceedings. Thereafter the parties

entered into Stipulations of Adjournment and an amended Notice of Petition was

served.

4. The legislative declaration set forth in Chapter 677 of the Laws of 1980

recognized the magnitude of the information contained in data banks maintained by

the many agencies of the State of New York which in rr:.any cases contained

sensitive and personal information.

38

RICE Be JUSTICE 1 WASHINGTON AVENUE

SUITE 604

8ANY, NEW YORK 12210

I

D

5. Recognizing the sensitive nature of much of this information, the legislature

limited the disclosure of information regarding the retirees of public employers'

retirement systems by allowing the withholding of the home address of a retiree of

a public employer's retirement system. (Public Officer Law (hereinafter POL)

89(7)).

6. There is nothing in POL 89(7) limiting disclosure of information from a

police pension fund such as Respondent.

7. Exemptions to disclosure of public records must be narrowly construed and

the burden rests upon Respondent to demonstrate that the request for information

falls squarely within a statutory exemption.

8. Petitioner is clearly entitled to Respondent's retirees names (89(7)) and its

suggestion that the releasing the names of retired police officers may cause harm

while police departments throughout the state routinely release the names of other

police officers does not follow.

9. Petitioner in paragraph 1 of its Petition clearly sets forth that it is a domestic

not-for-profit corporation and therefore has capacity to bring this Petition. The title

in this proceeding also sets forth that the Petitioner is a corporation.

WHEREFORE, Petitioner requests that the relief sought in its Petition be

granted.

Rice & Justice Attorneys for Petitioner 111 Washington Ave. Ste. 604 Albany, New York 12210 (518) 434-

IDated: Albany, New York I I August 20, 2010

I ,

REPLY MEMORANDUM OF LAW IN OPPOSITION TO RESPONDENT’S ANSWER,DATED AUGUST 20, 2010 [39-43]

39

RICE & JUSTICE

1 WASHINGTON AVENUE

SUITE 604

::!ANY, NEW YORK 12210

D


, The Empire Center for New York State Policy A Project of the Manhattan Institute for Policy Research, Inc.,

Petitioner,

-against-


Respondent.

PRELIMINARY STATEMENT

MEMORANDUM OF LAW Index No.: 10105839

Petitioner, the Empire Center for New York State Police, A Project of the

Manhattan Institute of Policy Research, Inc. submits this Memorandum of Law in

opposition to Respondent's Answer and in support of its Petition.

Point I

The Legislature Has Recognized the Public's Right to Know the Basis of

Governmental Decision Making

The legislative declaration set forth in the Freedom of Information Law clearly

acknowledges the people's right to know the process of governmental decision making

through the review of documents leading to those determinations and that information

should not be shrouded with the cloak of secrecy or confidentiality. (Public Officer Law

(hereinafter POL) §84).

I Subsequently in enacting amendments to the Freedom of Information Law the i I I i legislature recognized the massive increase in number, size and complexity of data banks

and information and the resultant potential threat to the right of privacy. (Chapter 677

Laws of 1980).

40

RICE 8< JUSTICE 1 WASHINGTON AVENUE

SUITE 604

.ANY, NEW YORK 12210

D

Recognizing this potential threat, with regard to public employee retirement

systems the legislature limited the information which public employee retirement systems

1 had to disclose by, among other things, requiring the disclosure of retirees' names but not

their addresses. (POL 89(7)).

In this proceeding Respondent acknowledges that the information requested by

Petitioner, i.e. names of retirees, retirement system registration number and last employer,

are public records. (Answer #4).

Respondent sets forth in its Answer that it does not maintain retirement system

registration numbers and that all of its retirees' last employer was the New York City

Police Department. (Answer ~ J 7, ~ J 9)

Even though POL 89(7) applies to all public employee retirement systems,

Respondent maintains that it does not have to supply the names of its retirees (a public

record) because to do so would present a threat to their safety and privacy as they are

former police officers.

While Petitioner maintains that POL 89(7) mandates that the names of retirees of

public employee retirement systems be supplied pursuant to a Freedom of Information

Law request, Respondent suggests that POL §§ 87(2)(b) and 87(2)(f) permit Respondent

to withhold the names of its retirees. Even if these exemptions were available to public

employee retirement systems, Respondent has not met its burden to avail itself of these

statutory exemptions.

As indicated above, the legislature in POL 89(7) has addressed the issue of privacy

by limiting the disclosure by public employee retirement systems to only the names and

I not the addresses of its retirees.

2

41

RICE 8c JUSTICE

I WASHINGTON AVENUE

SUITE 604

BANY, NEW YORK 12210

D

As set forth in the affidavit of Petitioner's Director of Operations attached hereto

Petitioner has made numerous Freedom ofInformation Law requests from which

Petitioner has been provided with the names of virtually all active and retired members of

local and state police agencies in the State of New York and therefore to suggest that

releasing the names of Respondent's retirees would pose a threat just does not follow.

Furthermore the various search engines referred to by Respondent do provide a

tremendous amount of information which would allow the discovery of the names and

addresses of many of Respondent's retirees and to claim the release of their names, as

expressly required by statute, poses a specific threat is insufficient to support a claim of

exemption.

It is clear that the Freedom of Information Law ... "is to be liberally construed and

its exemptions narrowly interpreted so that the public is granted maximum access to the

records of government." (Matter of Capital Newspapers, Div. of Hearst Corp. v. Whalen

69 NY 2d 246,252 (1987)).

The burden is on Respondent to show that the release of the names of its retirees

falls squarely within a statutory exemption and Respondent must articulate particularized

and specific justification for denying access. (Fappiano v. New York City Police

Department, 95 NY 2d 738 (2001)).

In this case, Respondent acknowledges the existence of vast sources of

information from which information about individuals may be gleaned. These sources of

information would likely produce the names and much more information regarding

Respondent's retirees independent of releasing their names to Petitioner pursuant to its

Freedom of Information Law request.

As indicated above, police agencies throughout New York State routinely provide

the names oftheir police officers. Additionally the Civil List published by the City of

New York provides all of the names of New York City employees, including the names of

members of the New York City Police Department.

3

42

RICE & JUSTICE 11 WASHINGTON AVENUE

SUITE 604

_BANY. NEW YORK 12210

D

Clearly Respondent has not met its burden to invoke an exemption to the

disclosure of its retirees' names and its suggestion that by supplying most of the

information requested by Petitioner somehow complies with its Freedom of Information

request is without merit.

Point II

Petitioner is a Corporation with the Capacity to Bring This Proceeding

Petitioner is, as set forth in the title of the proceeding and in the first paragraph of

its Petition, a not-for-profit corporation organized and existing under the laws of the State

of New York and, therefore, it has the capacity to sue. In its Memorandum of Law

Respondent states "Petitioner does allege that it has jural existence giving it the legal

capacity to bring this proceeding" and cites cases which state that a party to an action may

be a corporation. (Respondent's Memorandum of Law pp. 3-4)

Point III

The Petition is Not Duplicative and is Not Time Barred

On April 1, 2010 Respondent, in a letter to Petitioner, denied its appeal "from the

denial of access to the name, retirement system registration number and last command ... "

of its retirees.

This proceeding was commenced by the service of the Notice of Petition and

Petition on Respondent on May 18, 2010, well within the four month statute of -limitations.

Petitioner's January 22,2010 Freedom of Information Law request included a

request for information for 2009 which of course was for new information which could .

not have been previously requested. (Petition Exhibit A). Respondent acknowledges that

the instant request for information was different from a previous request for information

4

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RICE Be JUSTICE J WASHINGTON AVENUE

SUITE 604

BANY, NEW YORK 12210

D , i I I I! by Petitioner in that it " ... included the calendar year." (Respondent's Memorandum of

Law p. 4). Thus this is a new request for infonnation and is not duplicative.

Conclusion

For the reasons set forth above and in compliance with the Freedom ofInfonnation

Law, Respondent should not be permitted to conceal public records and deny access

thereto. The relief sought in the Petition should be granted.

Dated: Albany, New York August 20, 2010

5

Rice & Justice

B

AFFIDAVIT OF TIMOTHY HOEFER, FOR PETITIONER, IN SUPPORT OF REPLY,SWORN TO AUGUST 20, 2010

44

RICE & JUSTICE , WASHINGTON AVE.NUE

SUITE: 604

!ANY, NEW YORK 12210

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STATE OF NEW YORK SUPREME COURT, COUNTY OF NEW YORK -------------------------------------------------------------------------------x The Empire Center for New York State Policy

A Project of the Manhattan Institute for Policy Research, Inc.,

Petitioner, AFFIDAVIT

.-against- Index No.: 10105839


Respondent. -------------------------------------------------------------------------------x

Timothy Hoefer being duly sworn deposes and says:

1. I am the Director of Operations of the Empire Center for New York State

Policy, A Project of the Manhattan Institute, the Petitioner herein.

2. Among my duties as Petitioner's Director of Operations I file numerous

Freedom of Information Law requests with a number of local and state governmental

agencies in order to conduct research for various projects undertaken by Petitioner.

3. These requests have resulted in among other things Petitioner being provided

with the names of virtually every active and retired member of local and state police

agencies in the State of New York.

LAWRENC . JUSTICE Netary Public. State of New York

Qualified in Albany Co. No. 02JU71328751",1J,

Commission Expires lIf.ay 31, t:Ja..t....

SUPPLEMENTAL AFFIDAVIT OF LAWRENCE P. JUSTICE, FOR PETITIONER, INSUPPORT OF REPLY, SWORN TO AUGUST 23, 2010, WITH ATTACHMENT [45-47]

45

RICE 6< JUSTICE

1 t WASHINGTON AVENUE ! SUlTE 604

i.SANY, NEW YORK 122tO i I

D


The Empire Center for New York State Policy A Project of the Manhattan Institute for Policy Research, Inc.,

Petitioner,

-against-


Respondent.

Lawrence P. Justice being duly sworn deposes and says:

SUPPLEMENTAL AFFIDAVIT Index No.: 10105839

1. I am an attorney duly admitted to the practice oflaw in the State of New

York and I am a member of the firm Rice & Justice, attorneys for the Petitioner

and make this affidavit in support of the Petitioner's Reply and Memorandum of

Law submitted herein.

2. In this proceeding, Petitioner has alleged that it is a not-for-profit

corporation organized and existing under the laws of the State of New York.

3. Respondent in its Answer denies that is has information sufficientto form a

belief as to the truth of that allegation.

4. Respondent in an objection in point of law avers that Petitioner lacks the

capacity to sue.

5. Petitioner in its Reply maintains that as alleged in its Petition, it is an

existing domestic not-fo~-profit corporation with the capacity to sue and that issue

is addressed in its Memorandum of Law.

46

RICE 8: JUSTICE

I 1 1 WASHINGTON AVENUE

SUITE 604

'LBAHY, NEW YORK 12210 , :

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6. The fact that Petitioner is a not-for-profit corporation organized and

existing under the laws of the State of New York is a matter of public record as

evidenced by the records of the New York State Department of State, a copy of

which is attached hereto.

Dated: Albany, New York August 23,2010

47D .bntlty Intonnation Page 2 of2

No Infonnation Available

*Stock infonnation is applicable to domestic business corporations.

Filing Date Name Type

JAN 26, Actual 1982

FEB 25, Actual 1977

Name History

Entity Name

MANHATTAN INSTITUTE FOR POLICY RESEARCH, INC.

INTERNATIONAL CENTER FOR ECONOMIC POLICY STUDIES, . INC.

A Fictitious name must be used when the Actual name of a foreign entity is unavailable for use in New York State. The entity must use the fictitious name when conducting its activities or business in New

York State.

NOTE: New York State does not issue organizational identification numbers.

I I

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