STECKLOW & THOMPSON 217 CENTRE STREET, 6TH FLOOR NEW YORK, NEW YORK 10013 TEL: (212) 566-8000 FAX: (888) 566-7999 July 11, 2017 By NYSCEF Hon. Manuel J. Mendez Justice of the New York State Supreme Court, County of New York 71 Thomas Street, Rm. 210, IAS Part 13 New York, NY 10013 Re: Logue v. New York City Police Dep’t, et al. Index No. 153965/2016 Dear Justice Mendez: We represent Petitioner James Logue (“Petitioner”) in the above-cited Article 78 proceeding concerning the administrative denial of Petitioner’s Freedom of Information Law (“FOIL”) request. We write to strongly object to Respondents New York City Police Department’s (“NYPD”) and William Bratton’s (collectively, “Respondents”) request for an ex parte conference made by letter from counsel, dated July 10, 2017,1 in which they ask for an opportunity to be heard in secret to explain why they should be allowed to violate the dispositive Judgment and Order in this case. See letter and its exhibits, NYSCEF Doc. Nos. 92-98. This case has been, above all, about the power of the law to promote and guarantee government transparency. Respondents’ request for an ex parte conference aggressively violates both that principle and the law. Respondents cite no statute under FOIL, or anywhere, that allows Respondents to appear before Your Honor ex parte seeking to modify an adjudged and settled matter affecting Petitioner’s substantial rights. This is a request that undermines the judicial process itself, risking the very integrity of this Court.                                                                                                                 1 It is, of course, the burden of any movant to make their motion by lawful means. To make a motion, New York State practice requires a motion by notice or order to show cause. A party cannot simply post a letter on the case docket. Leaving aside the procedural reasons why this is so, the form of a notice of motion includes a clear and concise statement of the Court’s jurisdiction and the legal basis of the relief sought. While slightly different in form, an order to show cause also requires the movant to state the legal basis for the relief sought. Respondents’ letter is thus not only procedurally defective because it is a letter, but because it fails to provide the notice which is required of what legal basis they claim for the Court’s authority to grant the relief they seek. This omission is prejudicial to Petitioner because he must guess at the exact nature of the request he is being asked to respond to and to oppose. See generally Article 22 of New York Civil Practice Law and Rules. Indeed, absent an exception authorized by law (which Respondents do not even attempt to provide), the Rules Governing Judicial Conduct, specifically 22 NYCRR 100.3 (B)(6), expressly prohibit the Court from engaging in such ex parte communications. (“A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding . . . .”). The post-judgment issue that Respondents wish to discuss with the Court in secret concerns their non-compliance with this Court’s Judgment and Order, issued on February 6, 2017. See NYSCEF Doc. No. 62. In this final ruling, the Court directed Respondents to produce to Petitioner all the “multimedia records,” including video and/or still images from stationary surveillance cameras, and all content in the email communications, except “identifying information” such as “names and e-mail addresses.” Id., p. 5. Respondents, however, elected to unilaterally violate the Court’s Order by not producing images and videos in their possession (including those from stationary surveillance cameras), and by over-redacting the emails they did produce by blacking out the date and time each email was delivered as well as certain file names the emails contain. Since then, Petitioner has been attempting to induce Respondents to comply with their obligations without the Court’s involvement. See parties’ correspondence, NYSCEF Doc. Nos. 94-98. As Respondents’ recent letter to the Court confirms, Petitioner’s good faith efforts unfortunately failed. Instead of complying with the Judgment and Order, by their July 10th letter Respondents seek an ex parte proceeding to re-litigate arguments that were fully briefed and decided against them. They claim that the withheld imagery and information would “reveal or explain non-routine law enforcement techniques” and that implicate matters of “public safety and security.” See Respondents’ letter, NYSCEF Doc. No. 92. Respondents already advanced these arguments during the litigation, and the Court rejected those arguments as insufficient and conclusory. See generally Judgment and Order, NYSCEF Doc. No. 62. If Respondents disagreed with the Judgment and Order as to the records and information it refuses to produce, Respondents had the option to move this Court for reargument or renewal and/or to notice appeal. Respondents did neither. If Respondents had additional bases justifying non-disclosure, whether of a highly sensitive nature or not, they were required to introduce those arguments, or at a minimum to provide notice to the Petitioner and/or to the Court that those bases existed, at the time and in the manner required by law, such as: (i) when NYPD’s FOIL Officer denied Petitioner’s request on November 6, 2015; or (ii) when NYPD’s FOIL Appeals Officer denied Petitioner’s appeal on January 11, 2016; or (iii) when Respondents answered this action’s Petition on August 22, 2016; or (iv) when Respondents appeared before Your Honor for oral arguments on December 7, 2016; or (v) in a timely filed post-judgment motion. Instead, Respondents acted without notice to either Petitioner or the Court. They unilaterally and secretly withheld records and portions of records, which the Court has ruled that Respondents must produce to Petitioner. Notably, Respondents’ illicit conduct   2   was discovered only because Petitioner diligently reviewed the documents Respondents’ produced, recognized Respondents’ brazen violation of the Court’s Judgment and Order, and committed himself, and his counsel, to obtain the records the Court’s decision guaranteed him, whether through informal negotiations with Respondents’ counsel or through his forthcoming motion for civil contempt and sanctions. Having been exposed through Petitioner’s diligence surreptitiously violating the Court’s Judgment and Order, and facing a motion for civil contempt and sanctions, Respondents now want to take what is, in effect, a sixth bite at the apple. Worse, they demand to deny Petitioner or his counsel to be present at that proceeding. Seen in the very best light possible, Respondents’ request seeks to convene an unheard-of ex parte proceeding to provide the Court with previously withheld information that they now claim the Court actually needed to properly adjudicate this matter. Or, alternatively, Respondents are seeking to argue the old facts anew, this time without the hindrance of a counterparty to answer those arguments. In either scenario, this is an extraordinary request signaling a radical demand to upend both law of the case and basic American procedural guarantees. To exclude Petitioner from an unprecedented proceeding to modify the Judgment and Order would not only be unlawful, but would additionally reward Respondents for their continual falsehoods and their non-compliance with law that has been, throughout both the administrative FOIL process and the litigation that followed, uniquely remarkable and shameful. For all the foregoing reasons, Petitioner respectfully asks that the Court reject Respondents’ request for an ex parte proceeding. Respectfully, /s/ David A. Thompson, Member M.J. Williams, Of Counsel   cc:   By NYSCEF and Email Lesley Berson Mbaye Assistant Corporation Counsel New York City Law Department 100 Church Street New York, NY 10007 lmbaye@law.nyc.gov Attorneys for Respondents 3