SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
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In the Matter of,
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:
NEW YORK CIVIL LIBERTIES UNION,
:
:
:
Petitioner,
:
:
-against:
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RAMAPO POLICE DEPARTMENT,
:
:
Respondent,
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For a Judgment Pursuant to Article 78
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of the Civil Practice Law and Rules.
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Index No.

MEMORANDUM OF LAW IN SUPPORT OF THE VERIFIED PETITION

Robert Hodgson
Sam Thypin-Bermeo
Arthur Eisenberg
NEW YORK CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 19th Floor
New York, New York 10004
Tel: (212) 607-3300
Fax: (212) 607-3318
rhodgson@nyclu.org
Counsel for Petitioner

Dated: May 10, 2016
New York, New York

 TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................................... i
TABLE OF AUTHORITIES .............................................................................................. ii
PRELIMINARY STATEMENT .........................................................................................1
FACTS AND PROCEDURAL HISTORY .........................................................................1
ARGUMENT .......................................................................................................................5
I.

THE DEPARTMENT VIOLATED FOIL BY PROVIDING
MERE CONCLUSORY STATEMENTS TO JUSTIFY
REDACTING RECORDS .................................................................................5

II.

THE DEPARTMENT VIOLATED FOIL BY REDACTING
MATERIAL THAT, IF DISCLOSED, WOULD NOT
ENDANGER THE SAFETY OF ANY PERSON.............................................8

III.

THE PETITIONER IS ENTITLED TO ATTORNEY’S FEES
AND COSTS ...................................................................................................12

CONCLUSION ..................................................................................................................13

i

 TABLE OF AUTHORITIES
Cases
Buffalo Broad. Co. Inc. v New York State Dept. of Corr. Servs., 174 AD2d
212 [3d Dept 1992] ..............................................................................................8, 9, 11
Buffalo News, Inc. v Buffalo Enter. Dev. Corp., 84 NY2d 488 [1994] ...............................5
Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562 [1986] ..........................5
Data Tree, LLC v Romaine, 9 NY3d 454 [2007].................................................................5
Fink v Lefkowitz, 47 NY2d 467 [1979]................................................................................7
Grabell v New York City Police Dept, 47 Misc 3d 203 [Sup Ct, NY
County 2014] appeal docketed, No. 100580/2013 [1st Dept 2015] ..........................5, 6
Legal Aid Soc. v New York State Dept. of Corr. & Cmty. Supervision, 105
AD3d 1120 [3d Dept 2013] .........................................................................................12
Mack v Howard, 91 AD3d 1315 [4th Dept 2012] ................................................................6
New York Civil Liberties Union v City of Saratoga Springs, 87 AD3d 336
[3d Dept 2011] .............................................................................................................10
New York Civil Liberties Union v City of Saratoga Springs, Sup Ct,
Sarasota County, May 19, 2010, Nolan, J., index No. 2009-4158 ..............................10
Pennington v Calabrese, 2002 WL 31885409 [Sup Ct, Erie County 2002]
affd, 4 AD3d 778 [4th Dept 2004] .................................................................................6
Purcell v Jefferson County District Attorney, 77 AD3d 1328 [4th Dept
2010] ............................................................................................................................13
Statutes
Public Officers Law § 87 .............................................................................................5, 6, 7
Public Officers Law § 89 .............................................................................................12, 13
Other Authorities
2005 Legislative Bill History N.Y. S.B. 7011 ...................................................................12
Laura Ly, Four Black Parole Officers File Civil Suit Against White Police
Officers, CNN [May 6, 2015], available at
http://www.cnn.com/2015/05/06/us/new-york-parole-officers-policeofficers/ ................................................................................................................................1

ii

 PRELIMINARY STATEMENT
This Article 78 proceeding seeks to vindicate the public’s right to view un-redacted
copies of five Ramapo Police Department (“the Department” or “Respondent”) policies
concerning routine police work. In response to allegations that the Department improperly held
four Black parole officers at gunpoint during a routine traffic stop1 and in a general effort to
understand how the police department functions, the New York Civil Liberties Union (“the
NYCLU” or “Petitioner”) submitted a request for records to the Department pursuant to the
Freedom of Information Law in June 2015. More than eleven months later, the Department
continues to fight the NYCLU’s efforts to obtain policies regularly shared with the public by
other police departments around the state and country. It has redacted significant portions of
policies on possessing weapons, discharging firearms, using force, disciplining officers, and
stopping vehicles, and it has provided mere conclusory statements to justify these redactions.
Having exhausted its administrative remedies, the NYCLU now seeks to compel the Department
to comply with its legal obligation to produce responsive records.
FACTS AND PROCEDURAL HISTORY
On June 2, 2015, the NYCLU submitted a FOIL request to the Department (ThypinBermeo aff ¶ 2, exhibit A). In general terms, the request addressed the following topics: using
force; stopping or temporarily detaining people; enforcing three non-criminal offenses; receiving
and investigating complaints of alleged police misconduct; purchasing and utilizing surveillance
technologies; maintaining demographic information about officers; and implementing policies
and conducting trainings on bias-based policing, equal employment opportunity, strip searches,

1

See e.g. Laura Ly, Four Black Parole Officers File Civil Suit Against White Police Officers, CNN [May 6, 2015],
available at http://www.cnn.com/2015/05/06/us/new-york-parole-officers-police-officers/. A printout of this article
is included as exhibit O to the affirmation of Sam Thypin-Bermeo.

1

 asset forfeiture, de-escalation strategies and tactics, and interactions between officers and people
with disabilities and language minorities (id.).
On August 5, 2015, the NYCLU received the Department’s first response to the FOIL
request (Thypin-Bermeo aff ¶ 3, exhibit B), which included, among other documents, heavily
redacted versions of the five general orders involved in this litigation (id.). On August 18, 2015,
the NYCLU appealed this response citing, among other deficiencies, improper and overbroad
redactions of Department policies (Thypin-Bermeo aff ¶ 4, exhibit C).
On October 6, 2015, counsel for the Department emailed counsel for the NYCLU
indicating that the Department planned to supply additional materials responsive to the initial
request (Thypin-Bermeo aff, exhibit E). On October 26, 2015, the NYCLU received those
additional responsive records, although the Department denied the NYCLU’s request to provide
its official policies in un-redacted form (Thypin-Bermeo aff ¶ 7, exhibit F).
On December 14, 2015, the NYCLU filed a comprehensive administrative appeal
challenging the deficiencies in all the Department’s responses (Thypin-Bermeo aff ¶ 8, exhibit
G). On January 14, 2016, the Department responded to this comprehensive appeal by producing
some additional responsive records and by making certain certifications (Thypin-Bermeo aff ¶ 9,
exhibit H). The Department again, however, refused to remove redactions on official policies
covering a range of topics, including possessing weapons, using force, stopping vehicles, and
disciplining officers (id.).
On March 28 and 29, 2016, in an attempt to resolve the matter, the NYCLU emailed the
Department’s counsel to state that the NYCLU planned to file an Article 78 petition unless the
Department produced un-redacted copies of the five policies most relevant to the NYCLU’s
request: G.O. No. 111 (Weapons, Ammunition, and Tools); G.O. No. 210 (Use of Force); G.O.

2

 No. 211 (Firearms Discharge); G.O. No. 221 (Disciplinary System); and G.O. No. 311 (Traffic
Stops) (Thypin-Bermeo aff ¶ 10, exhibit I). The NYCLU also included copies of six similar but
un-redacted policies released by other New York police departments (id.).2
On April 8, 2016, the Department provided new versions of the requested policies but
only removed a small fraction of the disputed redactions (Thypin-Bermeo aff, exhibit J). Only
the Department’s redactions of the following five “General Orders” remain unresolved and
subject to this proceeding:
1. General Order No. 111: Weapons, Ammunition and Tools
For General Order No. 111, the Department redacted information under the subsections
titled, “Standard Duty Firearms,” “Off-Duty Firearms,” “Special Firearms,” and “Surrender of
Firearms and Ammunition” (Thypin-Bermeo aff, exhibit J at 2-7). In response to the NYCLU’s
December 14 appeal, it wrote, “Portions of G.O. were redacted since they involve the types of
firearms and ammunition used by the Department as well as their location and disclosure could
impact officer safety” (Thypin-Bermeo aff, exhibit H at 3).
2. General Order No. 210: Use of Force
For General Order No. 210, the Department redacted information under the subsections
titled, “Deadly Force,” “Oleoresin Capsicum” (pepper spray), and “Asp, Monadnock, Baton”
(police batons) (Thypin-Bermeo aff, exhibit J at 8-15). In response to the NYCLU’s December
14 appeal, it wrote, “Portions of G.O. 210 were redacted since they relate to instances and
instructions as to when various types of force may be used and their disclosure could impact
officer safety by permitting individuals to tailor their behavior based upon the G.O. in question”
(Thypin-Bermeo aff, exhibit H at 3).

2

The NYCLU included policies from the police departments in Greece, Utica, Irondequoit, Saratoga, Southampton,
and Watertown.

3

 3. General Order No. 211: Firearms Discharge
For General Order No. 211, the Department redacted the second provision, “B,” under
the subsection “Guidelines” (Thypin-Bermeo aff, exhibit J at 16-19). In response to the
NYCLU’s December 14 appeal, it wrote, “Portions of G.O. 211 were redacted since they relate
to instances and instructions as to when a firearm may be discharged and their disclosure could
impact officer safety by permitting individuals to tailor their behavior based upon the G.O. in
question” (Thypin-Bermeo aff, exhibit H at 3).
4. General Order No. 221: Disciplinary System
For General Order No. 221, the Department redacted five subsections under the section
titled, “The Chief of Police or Police Captains may place any employee on Administrative Leave
or Suspension for reasons related to fitness for duty or due to an internal affairs or criminal
investigation” (Thypin-Bermeo aff, exhibit J at 20-27). In response to the NYCLU’s December
14 appeal, it wrote, “Portions of G.O. 221 were redacted since they involve information
concerning the location of police officers at certain times as well as their ability to carry a
firearm and take police action at certain times and their disclosure could impact officer safety”
(Thypin-Bermeo aff, exhibit H at 3).
5. General Order No. 311: Traffic Stops
For General Order No. 311, the Department redacted almost all material under the
subsections titled, “Approaching the Motor Vehicle/Violator” and “High Risk Motor Vehicle
Stops” (Thypin-Bermeo aff, exhibit J at 28-33). In response to the NYCLU’s December 14
appeal, it wrote, “Portions of G.O. 311 were redacted since they involve information concerning
traffic stops which is [sic] disclosed could potentially impact officer safety” (Thypin-Bermeo aff,
exhibit H at 3).

4

 The NYCLU brings this action to compel the Department to produce un-redacted
versions of the five policies listed above. The NYCLU seeks reasonable fees and costs.
ARGUMENT
I.

THE DEPARTMENT VIOLATED FOIL BY PROVIDING MERE
CONCLUSORY STATEMENTS TO JUSTIFY REDACTING RECORDS.
In violation of FOIL’s requirement that a respondent give particularized and specific

reasons for withholding records, the Department relied on conclusory and vague justifications to
defend its redactions. “FOIL was enacted to provide the People with the means to access
governmental records, to assure accountability and to thwart secrecy. All records of a public
agency are presumptively open to public inspection, without regard to need or purpose of the
applicant” (Buffalo News, Inc. v Buffalo Enter. Dev. Corp., 84 NY2d 488, 492 [1994] [citation
and quotation marks removed]). FOIL provides a complete list of exemptions (Public Officers
Law § 87 [2]); “[h]owever, the exemptions are to be narrowly interpreted so that the public is
granted maximum access to the records of government” (Data Tree, LLC v Romaine, 9 NY3d
454, 462 [2007]). Courts owe no deference to law enforcement agencies’ interpretation of FOIL
(Grabell v New York City Police Dept, 47 Misc 3d 203, 208-09 [Sup Ct, NY County 2014]
appeal docketed, No. 100580/2013 [1st Dept 2015] [“Contrary to respondent’s argument that this
court should defer to the NYPD’s expert knowledge, it is settled law that a court reviewing an
agency’s failure to disclose requested records owes no deference to the agency’s decision.”]). In
addition, an agency must prove that the “requested material falls squarely within a FOIL
exemption by articulating a particularized and specific justification for denying access” (Capital
Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]).
This “particularized and specific” standard applies to all exemptions, but here the
Department only claimed the public safety exemption (Public Officers Law § 87 [2] [f]
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 [exempting materials which “if disclosed could endanger the life or safety of any person”]). In
order to meet the “particularized and specific” standard for the safety exemption, an agency must
provide more than mere speculative predictions of harm (see e.g. Mack v Howard, 91 AD3d
1315, 1316 [4th Dept 2012] [denying an agency’s request to withhold requested records because
the agency provided a justification “improperly based solely upon speculation”]; Pennington v
Calabrese, 2002 WL 31885409, at *2 [Sup Ct, Erie County 2002] affd, 4 AD3d 778 [4th Dept
2004] [“[T]he public-safety exemption must be based on more than mere speculation.”]; Grabell,
47 Misc 3d at 210 [“The exemption may not be invoked on the basis of mere speculation that
harm will result from disclosure of the documents sought.”]).
The Department has failed to carry this burden because it has offered only vague, general,
and speculative statements to explain significant redactions (see Mack, 91 AD3d at 1316
[rejecting invocation of safety exemption based “solely upon speculation”]). For all orders but
one, the Department redacted multiple portions of the order, yet it provided just one brief
justification for each. In addition, regardless of their quantity, the Department’s justifications
represent mere speculations of harm insufficient to justify withholding otherwise responsive
information (id.). The Department’s justifications lack any analysis and consist of only general
descriptions of the redacted material and conclusions that revealing this information would
“impact” officer safety.
For General Orders Nos. 111, 221, and 311, the Department does not even attempt to
explain how the redacted material would endanger officers. It merely describes the redacted
material and provides an unsupported conclusion. For General Order No. 111, the Department
observes that the redacted records “involve the types of firearms and ammunition used by the
department as well as their location” and concludes, without more, that “disclosure could impact

6

 officer safety” (Thypin-Bermeo aff, exhibit H at 3). For General Order No. 221, the Department
notes that the redacted portions “involve information concerning the location of police officers at
certain times as well as their ability to carry a firearm and take police action at certain times,”
and concludes, without elaboration, that “their disclosure could impact officer safety” (ThypinBermeo aff, exhibit H at 3). For General Order No. 311, the Department describes the redacted
policies as “concerning traffic stops” and speculates that disclosing them “could potentially
impact officer safety” (Thypin-Bermeo aff, exhibit H at 3). These justifications cannot meet
FOIL’s standard because they do not explain how these policies endanger anyone.
For the remaining General Orders—Nos. 210 and 211—the Department provides a
logically insufficient connection between its general descriptions and conclusions. Both
justifications describe the redacted material as a use-of-force policy and conclude that disclosing
this policy would endanger officer safety because, with this information, people could tailor their
behavior to avoid police violence (Thypin-Bermeo aff, exhibit H at 3). This explanation does not
bridge the logical gap between the Department’s description and conclusion because providing
the public with information on how to behave in ways to avoid police violence would only
increase—not decrease—safety for all involved (cf Fink v Lefkowitz, 47 NY2d 467, 472 [1979]
[in the context of records that “clarify procedural or substantive law,” noting that “such
knowledge actually encourages voluntary compliance with the law by detailing the standards
with which a person is expected to comply”]).
The combination of general descriptions and unexplained conclusions of insecurity
prevents the Department’s justifications from meeting FOIL’s requirements for specific, nonspeculative explanations for why the withheld information would “endanger the life or safety of
any person” (Public Officers Law § 87 [2] [f]). Because it provides mere conclusory statements

7

 to justify redacting significant portions of responsive records, the Department has violated FOIL
and should provide un-redacted versions of the General Orders at issue.
II.

THE DEPARTMENT VIOLATED FOIL BY REDACTING MATERIAL THAT,
IF DISCLOSED, WOULD NOT ENDANGER THE SAFETY OF ANY PERSON.
Even if the Department had attempted to provide specific, particularized, and non-

conclusory justifications for its redactions, its argument would likely fail because the safety
exemption does not seem to cover the redacted material. The exact wording of the redacted
content remains unknown to the NYCLU. The context of these redactions, however, indicates
that the safety exemption does not apply because releasing this redacted content would not
“endanger the life or safety” of any person.
In General Order No. 111, “Weapons, Ammunition and Tools,” the Department redacted
information under the following subsections: “Standard Duty Firearms,” “Off-Duty Firearms,”
“Special Firearms,” and “Surrender of Firearms and Ammunition” (Thypin-Bermeo aff, exhibit J
at 2-7). Releasing publicly observable information on the types of weapons that the Department
uses does not “endanger the life or safety” of the Department’s officers. The Appellate Division
has found that the safety exemption does not cover records that similarly capture information on
officers’ weapons. In Buffalo Broadcasting Company v New York State Department of
Correctional Services, the Appellate Division affirmed a trial court decision that the safety
exemption does not cover a video of a prison riot even if it depicts the “weapons and equipment
employed by correctional personnel in suppressing prison disturbances” (Buffalo Broad. Co. Inc.
v New York State Dept. of Corr. Servs., 174 AD2d 212, 214-15 [3d Dept 1992]). The court came
to this conclusion in part because the video captured information that the general prison
population could already observe, and the revelation of such information, even in a highly

8

 volatile prison setting, “did not create the possibility of any serious safety considerations” (id. at
215).
The same logic applies even more strongly here because anyone in Ramapo may come
across an officer in public and observe that officer’s weapon. More than ten police departments
around the state have provided the NYCLU with similar policies bearing no redactions (ThypinBermeo aff ¶ 12, exhibit K)3 and other police departments outside of New York routinely publish
similar policies on their websites (Thypin-Bermeo aff ¶ 13).4 These routine public disclosures
demonstrate this type of information’s conventional and nonthreatening nature.
In General Order No. 210, “Use of Force,” the Department redacted information under
the subsections titled, “Deadly Force,” “Oleoresin Capsicum” (a type of pepper spray), and
“Asp, Monadnock, Batons” (types of police batons) (Thypin-Bermeo aff, exhibit J at 8-15). In
General Order No. 211, “Firearms Discharge,” the Department redacted the second provision,
“B,” under the subsection “Guidelines” (Thypin-Bermeo aff, exhibit J at 16-19). Here again,
disclosing the Department’s official policies on use of force does not in itself endanger anyone’s
life or safety. In Buffalo Broadcasting, the respondent also argued that the safety exemption
covered the requested video because it “would reveal techniques, weapons and equipment
employed by correctional personnel in suppressing prison disturbances” (id. at 214). The court
rejected this argument, though, both because the video captured information accessible to the
general prison population and because the techniques and equipment used were “conventional in
3

The Albany Police Department, Buffalo Police Department, Cheektowaga Police Department, Greece Police
Department, Hempstead Police Department, Irondequoit Police Department, Ithaca Police Department, Nassau
Police Department, Newburgh Police Department, Rochester Police Department, Saratoga Springs Police
Department, Southampton Police Department, Syracuse Police Department, Troy Police Department, Utica Police
Department, Watertown Police Department, and White Plains Police Department provided similar policies.
4
The Albuquerque Police Department (SOP 2-22), the Chicago Police Department (U04-2), Metropolitan Police
Department of the District of Columbia (G.O. 902.01), the Honolulu Police Department (Policy Number 2.38), the
Los Angeles Police Department (Management and Procedures § 610), the Minneapolis Police Department (3-200),
the Oakland Police Department (DGO C-1; DGO C-8), the San Francisco Police Department (DGO 10.02), and the
Seattle Police Department (8.200) share these policies with the public on their websites.

9

 nature” (id. at 215; see also New York Civil Liberties Union v City of Saratoga Springs, Sup Ct,
Sarasota County, May 19, 2010, Nolan, J., index No. 2009-4158 [compelling a police department
to produce its un-redacted stun-gun policy in response to a FOIL request because the safety
exemption did not apply];5 New York Civil Liberties Union v City of Saratoga Springs, 87 AD3d
336 [3d Dept 2011] [agreeing with the trial court decision on redactions and finding that
attorney’s fees were appropriate in the same case]).
The same reasoning holds true here. Anyone in Ramapo may watch or even film how a
police officer uses force. Moreover, the techniques and equipment at issue are presumably
conventional in nature. In addition, as noted in Part I of this memorandum, providing the public
with information on how to behave in a manner that obviates the need for the police to use force
would only increase—not decrease—safety for all involved. As with weapons policies, more
than ten police departments have produced un-redacted use-of-force policies in response to the
same FOIL request (Thypin-Bermeo aff ¶ 12, exhibit K),6 and many major police departments
around the country share these policies on their websites (Thypin-Bermeo aff ¶ 13).7
In General Order No. 221, “Disciplinary System,” the Department redacted five
subsections under the section titled, “The Chief of Police or Police Captains may place any
employee on Administrative Leave or Suspension for reasons related to fitness for duty or due to
an internal affairs or criminal investigation” (Thypin-Bermeo aff, exhibit J at 20-27). Releasing
this information on officer discipline would not endanger anyone directly, and the Department
has offered no explanation as to how knowledge of employee discipline practices would ever
5

The full decision is included as Thypin-Bermeo aff, exhibit L.
See supra note 3.
7
For example, the Albuquerque Police Department (SOP 2-52), the Chicago Police Department (GO3-02-01),
Metropolitan Police Department of the District of Columbia (G.O. 901.07), the Honolulu Police Department (Policy
Number 1.04), the Los Angeles Police Department (Policy § 556), the Minneapolis Police Department (5-300), the
Oakland Police Department (DGO K-3), the San Francisco Police Department (DGO 5.01), and the Seattle Police
Department (8.200) share these policies with the public on their websites.
6

10

 create safety concerns for its officers. Again, more than ten departments have recently produced
un-redacted copies of their discipline policies (Thypin-Bermeo aff ¶ 15, exhibit M)8 and a
number of metropolitan police departments around the country post them on their websites
(Thypin-Bermeo aff ¶ 13).9
Finally, in General Order No. 311, the Department redacted almost all material under the
subsections titled, “Approaching the Motor Vehicle/Violator” and “High Risk Motor Vehicle
Stops” (Thypin-Bermeo aff, exhibit J at 28-33). As with the use-of-force policies discussed
above, releasing this information would not endanger police officers because the policy describes
conventional techniques that are readily observable by the public (see Buffalo Broadcasting, 174
AD2d at 215). Indeed, anyone with an internet connection may already observe the policy in
action; national news networks like CNN featured a video in 2015 that captured one of the
Department’s officers making a traffic stop and the Department has not updated its policy since
before that time (Thypin-Bermeo, exhibit O). In addition, as was the case with all of the other
redacted policies, more than ten police departments throughout the state have produced similar
but un-redacted policies in response to the same FOIL request (Thypin-Bermeo aff ¶ 16, exhibit
N)10 and many police departments outside of New York make similar policies available on their
websites (Thypin-Bermeo aff ¶ 13).11

8

The Albany Police Department, Buffalo Police Department, Cheektowaga Police Department, Greece Police
Department, Irondequoit Police Department, Newburgh Police Department, Rochester Police Department, Saratoga
Police Department, Troy Police Department and White Plains Police Department provided similar policies.
9
The Albuquerque Police Department (SOP 2-52), Chicago Police Department (GO8-01), Metropolitan Police
Department of the District of Columbia (G.O. 120.22), Honolulu Police Department (Police Number 5.01), Los
Angeles Police Department (Policy § 640), Minneapolis Police Department (2-100), Oakland Police Department
(DGO M-3), San Francisco Police Department (DGO 2.07), and Seattle Police Department (5.002) share these
policies with the public on their websites.
10
The Buffalo Police Department, Cheektowaga Police Department, Irondequoit Police Department, Ithaca Police
Department, Newburgh Police Department, Saratoga Springs Police Department, Syracuse Police Department, Troy
Police Department, Utica Police Department, Watertown Police Department, and White Plains Police Department
provided similar policies.
11
The Albuquerque Police Department (SOP 2-47), the Chicago Police Department (GO4-03; GO3-03-01),
Metropolitan Police Department of the District of Columbia (G.O. 303.01), the Honolulu Police Department (Policy

11

 For each of these General Orders, the Department has significantly redacted policies that,
if disclosed, would not endanger anyone. They seem to contain publicly accessible information,
describe conventional equipment and techniques, and resemble policies disclosed in full by many
departments around the state and country. For all of the reasons stated above, the Department’s
redactions were improper and unlawful.
III.

THE PETITIONER IS ENTITLED TO ATTORNEY’S FEES AND COSTS.
The Petitioner respectfully requests an award of attorney’s fees and litigation costs

pursuant to FOIL. FOIL permits a court, in its discretion, to award reasonable attorney’s fees and
other litigation costs when the moving party has “substantially prevailed” in its Article 78
petition and the government entity either had “no reasonable basis for denying access” to the
records in dispute or “the agency failed to respond to a request or an appeal within the statutory
time” (Public Officers Law § 89 [4] [c]).
The Assembly amended § 89 [4] [c] in 2006 to make it easier for petitioners to obtain
fees (see e.g. Legal Aid Soc. v New York State Dept. of Corr. & Cmty. Supervision, 105 AD3d
1120, 1122 [3d Dept 2013] [noting that legislators passed the amendment “to create a clear
deterrent to unreasonable delays and denials of access”] [internal quotation marks omitted]). The
legislative history to the 2006 amendment states that “[t]his bill strengthens the enforcement of
[a person’s right to access certain government records via FOIL requests] by discouraging
agencies from denying public access to records by guaranteeing the award of attorneys’ fees
when agencies fail to respond in a timely fashion or deny access without any real justification”
(2005 Legislative Bill History N.Y. S.B. 7011). Under this standard, the Petitioner need only
establish that it has substantially prevailed in this Article 78 proceeding and that the Respondent
Number 4.62), the Los Angeles Police Department (Line Procedures §§ 305-387), the Minneapolis Police
Department (7-600), the Oakland Police Department (DGO J-4), the San Francisco Police Department (DGO 9.019.06), and the Seattle Police Department (6.220) share these policies with the public on their websites.

12

 either had no “reasonable basis for denying access” to the records sought by the NYCLU or
“failed to respond to a request or an appeal within the statutory time” (Public Officers Law § 89
[4] [c]; see Purcell v Jefferson County District Attorney, 77 AD3d 1328, 1329 [4th Dept 2010]
[holding that failure to respond to request is appropriate basis for award of fees irrespective of
whether the agency had a reasonable basis for withholding records]).
For all of the reasons discussed above, the NYCLU is entitled to attorney’s fees and
costs here both because the Police Department failed to respond to the NYCLU’s administrative
appeal within the statutory timeline of ten days—the Department provided its first substantive
responsive two months after receiving the NYCLU’s August 18 appeal (Thypin-Bermeo aff,
exhibit D), and it responded to the December 14 appeal on January 14—and because it lacks any
reasonable basis for denying the Request. The Petitioner proposes to address any specific fees
arguments raised by the Respondent’s forthcoming opposition in the Petitioner’s reply briefing.
CONCLUSION
For the foregoing reasons, the Petitioner respectfully requests that the Court order the
Ramapo Police Department to provide un-redacted versions of General Orders Nos. 111, 210,
211, 221, and 311, and to award the Petitioner reasonable attorney’s fees and litigation costs.

13

 Respectfully Submitted,
______________________________
Robert Hodgson
Sam Thypin-Bermeo
Arthur Eisenberg
NEW YORK CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 19th Floor
New York, New York 10004
Tel: (212) 607-3300
Fax: (212) 607-3318
rhodgson@nyclu.org
Counsel for Petitioner

14