S U P R E M E C O U RT O F T H E S TAT E O F N E W Y O R K C O U N TY O F N E W Y O R K COALITION FOR THE HOMELESS, INC., by DEBORAH B. DIAMANT, NOTICE OF PETITION Petitioner, THE CITY OF NEW YORK and the NEW YORK CITY POLICE DEPARTMENT, Index No.________________ Respondents. PLEASE TAKE NOTICE that upon the affirmation of David B. Rankin of Beldock Levine & Hoffman LLP, and Deborah B. Diamant, sworn to on August 10, 2020, and the attached exhibits, the undersigned petitioner will request that this Court, at 9:30 in the forenoon on the 8th day of September 2020, or as soon thereafter as counsel can be heard, at the Courthouse located at 60 Centre Street, New York, New York, or by Telephone or Video Conference, issue an Order: 1. Compelling the respondents to release the requested documents pursuant to Public Officers Law §§ 84-90, the New York State Freedom of Information Law; 2. Awarding reasonable attorney's fees and other litigation costs to the petitioner pursuant to Public Officers Law § 89(4)(c); and 3. Granting such other and further relief as this Court finds just and proper. PLEASE TAKE FURTHER NOTICE, pursuant to C.P.L.R. § 2214(b), answering papers, if any, are to be served upon the undersigned at least seven (7) days prior to the return date herein. Dated: August 10, 2020 New York, New York Respectfully submitted, BELDOCK LEVINE & HOFFMAN LLP By: David B. Rankin 99 Park Avenue, PH/26th Floor New York, New York 10016 t: (212) 277-5825 e: drankin@blhny.com Attorneys for Petitioner COALITION FOR THE HOMELESS, INC. By: Deborah B. Diamant, Esq. Director of Government Relations and Legal Affairs 129 Fulton Street New York, New York 10038 t: (212) 776-2123 e: ddiamant@cfthomeless.org Petitioner To: The City of New York 100 Church Street New York, New York 10007 The New York Police Department One Police Plaza New York, New York 10007 Supreme Court, State of New York County of New York Motion Submission Term, Room 130 60 Centre Street New York, New York 10007 2 S U P R E M E C O U RT O F T H E S TAT E O F N E W Y O R K C OU N T Y O F N EW Y O R K COALITION FOR THE HOMELESS, INC., by DEBORAH B. DIAMANT, VERIFIED PETITION Petitioner, THE CITY OF NEW YORK and the NEW YORK CITY POLICE DEPARTMENT, Index No.________________ Respondents. We, David B. Rankin, of Beldock Levine & Hoffman, LLP, and Deborah B. Diamant, attorneys duly licensed to practice law in the Courts of the State of New York, hereby verify and affirm, under the penalties of perjury, the following is true and correct: PRELIMINARY STATEMENT 1. We are counsel for the petitioner, COALITION FOR THE HOMELESS, INC., by DEBORAH B. DIAMANT (hereinafter “Coalition for the Homeless”), and as such, we are familiar with the facts and procedural history of this proceeding. 2. Pursuant to the Freedom of Information Law (“FOIL”) and Article 78 of the New York Civil Practice Law and Rules, Coalition for the Homeless seeks an order directing respondents, the City of New York (“Respondent City”) and the New York City Police Department (“Respondent NYPD”), to produce records from the NYPD related to the Subway Diversion Program announced on June 13, 2019, by City Hall, or any other City initiative focused on addressing homelessness in the subways that may have a name other than “Subway Diversion Project” or “Subway Diversion Program” that was announced on or after June 13, 2019. 3. As Coalition for the Homeless has exhausted all administrative remedies, it respectfully requests the Court to order the respondents to produce the records in accordance with the FOIL and the guidance of the State of New York Department of State Committee on Open Government. JURISDICTION AND VENUE 4. This proceeding, pursuant to Article 78 of the Civil Practice Law and Rules, is the proper mechanism for seeking judicial review of a state agency’s determination with respect to a FOIL request. N.Y. Pub. Off. § 89(4)(b). 5. Respondent NYPD is an agency of Respondent City subject to FOIL. 6. Petitioner Coalition for the Homeless has exhausted Respondent NYPD’s internal appeals process, and the instant petition has been filed within the four-month period thereafter specified in C.P.L.R. § 217(1). 7. Respondents NYPD and City both have their central offices in the County of New York. Venue therefore is proper in this Court. C.P.L.R. §§ 7804(a) and 506(b). STATEMENT OF FACTS 8. On November 13, 2019, Coalition for the Homeless sent a FOIL request using the NYC OpenData Portal. See Exhibit 1. 9. The request seeks records from Respondent NYPD related to the Subway Diversion Program announced on June 13, 2019, by City Hall, or any other City initiative focused on addressing homelessness in the subways that may have a name other than “Subway Diversion Project” or “Subway Diversion Program” that was announced on or after June 13, 2019. 2 10. The request was “opened” and acknowledged by Respondent NYPD’s Records Access Officer (“RAO”) on November 15, 2019. Respondent NYPD set a production date for documents responsive to the request of April 1, 2020. See Exhibit 2. However, Respondent NYPD produced no records in response to the request by the set production date. 11. On April 5, 2020, Coalition for the Homeless internally appealed the constructive denial of the FOIL request by Respondent NYPD. See FOIL Internal Appeal, which is attached as Exhibit 3. 12. On April 6, 2020, Respondent NYPD’s Records Access Appeals Officer, Sergeant Jordan S. Mazur (“Mazur”), replied to the Coalition for the Homeless’ appeal, stating it was “premature” because it “lacked the predicate denial of access,” and the RAO “had not yet issued a determination” on the request, and they “[would] issue a determination as quickly as possible.” See Respondent NYPD’s denial of FOIL Internal Appeal, which is attached as Exhibit 4. 13. On June 3, 2020, Coalition for the Homeless replied to Mazur’s April 6, 2020, correspondence and inquired as to “a date by which [their] office will produce the requested records.” See Coalition for the Homeless email dated April 6, 2020, which is attached as Exhibit 5. 14. As of the present date, the records have not yet been produced, nor has there been any subsequent correspondence from Respondent NYPD. ARGUMENT 15. FOIL provides that all records kept by a public agency are presumptively open to public inspection and copying unless specifically exempted. Matter of New York Civ. Liberties Union v. City of Schenectady, 2 N.Y.3d 657, 661 (2004). 3 16. These exemptions “are to be narrowly interpreted so that the public is granted maximum access to the records of government...” Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462 (2007) (internal citations omitted). 17. The agency resisting disclosure must prove entitlement to one of the exceptions, meaning the agency bears the burden to resist production. Matter of Laureano v. Grimes, 179 A.D.2d 602, 604 (1st Dept. 1992); see also Data Tree, LLC, 9 N.Y.3d at 463. 18. It is a useful reminder to look at the Court of Appeals’ general view of the intent of the FOIL in Matter of Gould v. New York City Police Depart., stating that: To ensure maximum access to government documents, the “exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption” (Matter of Hanig v State of New York Dept. of Motor Vehicles, 79 NY2d 106, 109; see, Public Officers Law § 89 [4] [b]). As this Court has stated, “[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld” (Matter of Fink v Lefkowitz, 47 NY2d 567, 571). Matter of Gould v New York City Police Dept., 89 N.Y.2d 267, 275 (1996). 19. Failure of an agency to respond to a request for records under the FOIL constitutes a constructive denial of access. An agency’s failure to respond to a request within five business days or by a date certain that the agency sets itself in a response to a request is a constructive denial under the FOIL. N.Y. Pub. Off. § 89(4)(a). 20. After a respondent failed to respond by the date it set for production and then failed to set another date, Judge Henry F. Zwak declared “[i]t is undisputed that the lack of a response constituted a constructive denial.” Matter of Siani v. Clark, 886 N.Y.S.2d 69 (Sup. Ct., Albany County 2009); see also Matter of Molloy v. New York City Police Dept., 50 A.D.3d 98, 851 N.Y.S.2d 480 (1st Dept. 2008); Comm. on Open Govt. FOIL-AO 3037. 4 21. Respondent NYPD constructively denied Coalition for the Homeless’ FOIL request because it failed to respond by April 1, 2020, the date they set for themselves on the OpenData Portal. 22. In constructively denying the instant records request, Respondent NYPD failed to provide any “particularized” and “specific justification for denying access” as required to establish an exemption. Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 567 (1986); Matter of DJL Restaurant Corp. v. Department of Bldgs. of City of N.Y., 273 A.D.2d 167, 710 N.Y.S.2d 564 (1st Dept. 2000). 23. An Article 78 proceeding challenging the denial of a FOIL request must be commenced within four months after a petitioner receives notice of a final and binding denial of its appeal. C.P.L.R. § 217(1); see also Church of Scientology of N.Y. v. State of New York, 46 N.Y.2d 906, 908 (1979). 24. A court may award reasonable attorney’s fees and other litigation costs when a petitioner (1) “substantially prevails” in a proceeding to review the denial of a FOIL request; (2) the agency had no reasonable basis for denial of access; or (3) the agency failed to respond to a request or appeal within the statutory time. N.Y. Pub. Off. § 89(4)(c). 25. Awarding attorney’s fees is meant to deter unreasonable delays and denials of access and encourages all units of government to make a “good faith effort” to comply with the FOIL requirements. Matter of New York Civ. Liberties Union v. City of Saratoga Springs, 87 A.D.3d 336, 338, 926 N.Y.S.2d 732, 734 (3d Dept. 2011) (quoting Senate Introducer’s Mem. in Support, Bill Jacket, L. 2006, ch. 492, at 5). 26. Respondent NYPD (1) had no reasonable basis for constructively denying the petitioner’s FOIL, and (2) failed to respond to petitioner’s request within the statutory time, 5 amounting to a constructive denial that justifies the award of attorney’s fees. REQUEST FOR RELIEF WHEREFORE, the petitioner, Coalition for the Homeless, respectfully requests this Court enter an Order directing Respondent NYPD to produce the requested records; awarding the undersigned legal fees and expenses incurred in making the instant petition for relief; and awarding such other and further relief as the Court may deem just and proper. Dated: August 10, 2020 New York, New York Respectfully submitted, BELDOCK LEVINE & HOFFMAN LLP By: David B. Rankin 99 Park Avenue, PH/26th Floor New York, New York 10016 t: (212) 277-5825 e: drankin@blhny.com Attorneys for Petitioner COALITION FOR THE HOMELESS, INC. By: Deborah B. Diamant, Esq. Director of Government Relations and Legal Affairs 129 Fulton Street New York, New York 10038 t: (212) 776-2123 e: ddiamant@cfthomeless.org Petitioner To: The City of New York 100 Church Street New York, New York 10007 6 The New York Police Department One Police Plaza New York, New York 10007 Supreme Court, State of New York County of New York Motion Submission Term, Room 130 60 Centre Street New York, New York 10007 7 ATTORNEY VERIFICATION I, David B. Rankin, an attorney duly admitted to practice before the Courts of the State of New York, affirm the following to be true under the penalties of perjury: I am the attorney of record for the Plaintiff, COALITION FOR THE HOMELESS, INC., by DEBORAH B. DIAMANT, who does not reside in the county where we maintain our office. I have read the annexed Petition and know the contents thereof, and the same are true to my knowledge, except those matters therein which are stated to be alleged upon information and belief, and as to those matters, I believe them to be true. My beliefs, as to those matters therein not stated upon knowledge, are based upon facts, records, and other pertinent information contained in my files. Dated: August 10, 2020 New York, New York Respectfully submitted, By: David B. Rankin BELDOCK LEVINE & HOFFMAN LLP 99 Park Avenue, PH/26th Floor New York, New York 10016 t: (212) 277-5825 e: drankin@blhny.com Attorneys for Petitioner Exhibit 1 Thursday, August 6, 2020 at 12:03:52 AM Eastern Daylight Time Subject: [OpenRecords] Request FOIL-2019-056-20311 Submi@ed to New York City Police Department (NYPD) Date: Wednesday, November 13, 2019 at 4:28:38 PM Eastern Standard Time From: donotreply@records.nyc.gov To: Deborah Diamant Your request FOIL-2019-056-20311 has been successfully submitted to the New York City Police Department (NYPD). The details of your request are shown below. Request Title: Subway Diversion Project Request Description: Other Request Other Request Type of Request: Freedom of Information Law Request for Subway Diversion Project records and data Report #: Date: Time: Precinct: Location: Description: I request records pertaining to the Subway Diversion Project. This request is made pursuant to New York State’s Freedom of Information Law (N.Y. Pub. Off. Law § 84-90). Accordingly, I anticipate a response from your office within five business days. Please produce the following records requested in electronic format: 1. Any and all written policies, directives, guides, memos, pamphlets, daily briefing notes, training materials, eligibility assessment tools, etc., about the Subway Diversion Project announced on June 13, 2019, by City Hall (see attached press release); 2. Any and all written policies, directives, guides, memos, pamphlets, daily briefing notes, training materials, eligibility assessment tools, etc., about the Subway Diversion Program or any other City initiative focused on addressing homelessness in the subways that may have a name other than “Subway Diversion Project” or “Subway Diversion Program” that was announced on or after June 13, 2019 (collectively known hereinafter as “Subway Diversion Project” for purposes of this FOIL request); 3. Any and all documents that describe the types of services an individual deemed eligible for the Subway Diversion Project may receive as a participant in the Project; 4. Any and all documents about the Subway Diversion Project that are provided to people deemed eligible for the Subway Diversion Project; 5. The number of officers trained on the Subway Diversion Project; 6. For the period from July 1, 2019, through November 13, 2019: a. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were deemed eligible for the Subway Diversion Project; b. The number of people deemed eligible for the Subway Diversion Project who were issued a summons; c. The number of people deemed eligible for the Subway Diversion Project who were not issued a summons; d. The number of people deemed eligible for the Subway Diversion Project who accepted services from the Project and were issued a summons; e. The number of people deemed eligible for the Subway Diversion Project who accepted services from the Project and were not issued a summons; f. The number of people deemed eligible for the Subway Diversion Project who were handcuffed before, during, or after the eligibility assessment for the Project; g. The number of people deemed eligible for the Subway Diversion Project who were “put over the radio” or “radioed in” as an arrest; h. The number of summonses issued to people deemed eligible for the Subway Diversion Project; i. The number of summonses issued to people deemed eligible for the Subway Diversion Project disaggregated by the rule violation charged; j. The number of summonses issued to people deemed eligible for the Subway Diversion Project disaggregated by the station/location of the alleged rule violation; k. The number of summonses issued to people eligible for the Subway Page 1 of 2 Diversion Project that were later cleared through the Project; l. The number of people deemed eligible for the Subway Diversion Project who were ejected from the transit system; m. The number of people deemed eligible for the Subway Diversion Project who were ejected from the transit system after they were issued a summons; and n. The number of people deemed eligible for the Subway Diversion Project who were ejected from the transit system without being issued a summons; 7. For the period of July 1, 2018, through November 13, 2018: a. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were issued a summons; b. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were not issued a summons; c. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were arrested; d. The number of summonses issued to people alleged to have violated NYC Transit Code of Conduct rules; and e. The number of summonses issued to people alleged to have violated NYC Transit Code of Conduct rules disaggregated by the rule violation charged. 8. For the period of July 1, 2017, through November 13, 2017: a. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were issued a summons; b. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were not issued a summons; c. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were arrested; d. The number of summonses issued to people alleged to have violated NYC Transit Code of Conduct rules; and e. The number of summonses issued to people alleged to have violated NYC Transit Code of Conduct rules disaggregated by the rule violation charged. Attached File: Press_Release_-_June_13_2019__Supports_Not_Summonses__de_Blasio_Administration_Announces_Pilot_Initiative_to_Divert_H omeless_Individuals.pdf: Press_Release_-_June_13_2019__Supports_Not_Summonses__de_Blasio_Administration_Announces_Pilot_Initiative_to_Divert_H omeless_Individuals.pdf Requester's Contact Information Name: Deborah Diamant Title: Director of Government Relations and Legal Affairs Organization: Coalition for the Homeless Email: ddiamant@cfthomeless.org Phone Number: (212) 776-2123 Fax Number: Not provided Street Address (line 1): Coalition for the Homeless Street Address (line 2): 129 Fulton Street City: New York State: NY Zip Code: 10038 You can view the request and take any necessary action at the following webpage: https://a860openrecords.nyc.gov/request/view/FOIL-2019-056-20311. Page 2 of 2 Exhibit 2 Thursday, August 6, 2020 at 12:04:52 AM Eastern Daylight Time Subject: [OpenRecords] Request FOIL-2019-056-20311 Acknowledged Date: Friday, November 15, 2019 at 2:18:15 PM Eastern Standard Time From: donotreply@records.nyc.gov To: Deborah Diamant The New York City Police Department (NYPD) has acknowledged your FOIL request FOIL-2019-056-20311. You can expect a response on or about Wednesday, April 1, 2020. AddiZonal InformaZon: Your request has been assigned to DetecZve Halk (646-610-6430) Please visit FOIL-2019-056-20311 to view addiZonal informaZon and take any necessary acZon. Request InformaJon: Request Title: Subway Diversion Project Request DescripZon: Other Request Other Request Type of Request: Freedom of InformaZon Law Request for Subway Diversion Project records and data Report #: Date: Time: Precinct: LocaZon: DescripZon: I request records pertaining to the Subway Diversion Project. This request is made pursuant to New York State’s Freedom of InformaZon Law (N.Y. Pub. Off. Law § 84-90). Accordingly, I anZcipate a response from your office within five business days. Please produce the following records requested in electronic format: 1. Any and all wrieen policies, direcZves, guides, memos, pamphlets, daily briefing notes, training materials, eligibility assessment tools, etc., about the Subway Diversion Project announced on June 13, 2019, by City Hall (see aeached press release); 2. Any and all wrieen policies, direcZves, guides, memos, pamphlets, daily briefing notes, training materials, eligibility assessment tools, etc., about the Subway Diversion Program or any other City iniZaZve focused on addressing homelessness in the subways that may have a name other than “Subway Diversion Project” or “Subway Diversion Program” that was announced on or ajer June 13, 2019 (collecZvely known hereinajer as “Subway Diversion Project” for purposes of this FOIL request); 3. Any and all documents that describe the types of services an individual deemed eligible for the Subway Diversion Project may receive as a parZcipant in the Project; 4. Any and all documents about the Subway Diversion Project that are provided to people deemed eligible for the Subway Diversion Project; 5. The number of officers trained on the Subway Diversion Project; 6. For the period from July 1, 2019, through November 13, 2019: a. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were deemed eligible for the Subway Diversion Project; b. The number of people deemed eligible for the Subway Diversion Project who were issued a summons; c. The number of people deemed eligible for the Subway Diversion Project who were not issued a summons; d. The number of people deemed eligible for the Subway Diversion Project who accepted services from the Project and were issued a summons; e. The number of people deemed eligible for the Subway Diversion Project who accepted services from the Project and were not issued a summons; f. The number of people deemed eligible for the Subway Diversion Project who were handcuffed before, during, or ajer the eligibility assessment for the Project; g. The number of people deemed eligible for the Subway Diversion Project who were “put over the radio” or “radioed in” as an arrest; h. The number of summonses issued to people deemed eligible for the Subway Diversion Project; i. The number of summonses issued to people deemed eligible for the Subway Diversion Project disaggregated by the rule violaZon charged; j. The number of summonses issued to people deemed eligible for the Subway Diversion Project disaggregated by the staZon/locaZon of the alleged rule violaZon; k. The number of summonses issued to people eligible for the Subway Diversion Project that were later cleared through the Project; l. The number of people deemed eligible for the Subway Diversion Project Page 1 of 2 who were ejected from the transit system; m. The number of people deemed eligible for the Subway Diversion Project who were ejected from the transit system ajer they were issued a summons; and n. The number of people deemed eligible for the Subway Diversion Project who were ejected from the transit system without being issued a summons; 7. For the period of July 1, 2018, through November 13, 2018: a. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were issued a summons; b. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were not issued a summons; c. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were arrested; d. The number of summonses issued to people alleged to have violated NYC Transit Code of Conduct rules; and e. The number of summonses issued to people alleged to have violated NYC Transit Code of Conduct rules disaggregated by the rule violaZon charged. 8. For the period of July 1, 2017, through November 13, 2017: a. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were issued a summons; b. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were not issued a summons; c. The number of people alleged to have violated NYC Transit Code of Conduct rules and who were arrested; d. The number of summonses issued to people alleged to have violated NYC Transit Code of Conduct rules; and e. The number of summonses issued to people alleged to have violated NYC Transit Code of Conduct rules disaggregated by the rule violaZon charged. Page 2 of 2 Exhibit 3 Thursday, August 6, 2020 at 12:06:14 AM Eastern Daylight Time Subject: Appeal – FOIL-2019-056-20311 (Subway Diversion Project) Date: Sunday, April 5, 2020 at 8:19:24 PM Eastern Daylight Time From: Deborah Diamant To: FOILAPPEALS@nypd.org VIA EMAIL ONLY FOILAPPEALS@nypd.org April 5, 2020 Sgt. Jordan Mazur Records Access Appeals Officer Legal Bureau-Civil Section One Police Plaza, Room 1406 New York, New York 10038 Re: Appeal – FOIL-2019-056-20311 (Subway Diversion Project) Dear Sgt. Mazur: I write to appeal the NYPD’s effective denial of the Coalition for the Homeless’ November 13, 2019, Freedom of Information Law request no. FOIL-2019-056-20311, submitted to obtain records concerning the NYPD’s Subway Diversion Project. The NYPD acknowledged the Coalition’s FOIL request on November 15, 2019, and set a production date of April 1, 2020. As of April 5, 2020, the NYPD has not produced any records in response to the Coalition’s FOIL request, which was submitted nearly five months ago. The NYPD’s failure to respond by April 1, 2020, constitutes an unreasonable denial of this request. As you know, FOIL states “[f]ailure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.” N.Y. Pub. Off. § 89(4)(a). FOIL directs that “any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.” N.Y. Pub. Off. § 89(4)(a). Please immediately release all responsive records to the Coalition’s November 13, 2019, FOIL request and contact me at 212-776-2123 or ddiamant@cfthomeless.org with any questions. Best regards, Deborah Diamant ____________________ Deborah B. Diamant, Esq. Director of Government RelaYons and Legal Affairs CoaliYon for the Homeless 129 Fulton Street New York, New York 10038 Page 1 of 2 T: 212-776-2123 ddiamant@cahomeless.org www.coaliYonforthehomeless.org Pronouns: she/her Page 2 of 2 Exhibit 4 POLICE DEPARTMENT Office of Deputy Commissioner, Legal Matters One Police Plaza, Room 1406A New York, New York 10038 FOILAppeals@NYPD.org April 6, 2020 Deborah Diamant Coalition for the Homeless ddiamant@cfthomeless.org RE: FREEDOM OF INFORMATION LAW REQUEST: FOIL-2020-056-20311 Re: Subway Diversion Project Dear Ms. Diamant: This is in response to your email dated April 5, 2020, regarding records that were requested pursuant to the Freedom of Information Law (FOIL). Your appeal is premature because, as of the date of your appeal, the Records Access Officer (RAO) had not yet issued a determination on your request, and, therefore, your appeal lacked the predicate denial of access. The authority of the undersigned is limited to the review of determinations made by the Records Access Officer concerning the disclosure of records requested pursuant to the Freedom of Information Law. In your appeal letter, you acknowledge receipt of the Records Access Officer’s response to your original request in which he issued an estimate of 90 business days for completion of your request. Because the RAO has yet to make a final determination, the undersigned is unable to issue a substantive appeal determination. The RAO complied with the provisions of New York Public Officers Law Section 89(3), which requires that, “[e]ach entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall . . . furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied”. On November 15, 2020, the RAO acknowledged receipt of your request in a timely manner, provided you with an approximate date when a determination would be made (90 business days or April 1, 2020), and commenced a search for the records you requested. This estimate was made by taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Additionally, NYPD resources have been, and remain, fully focused on COVID-19 response and ensuring the safety of our members and constituents. As such, we are experiencing COURTESY • PROFESSIONALISM • RESPECT longer than normal delays in processing outstanding FOIL requests. We are working diligently to manage administration with limited resources, and appreciate your patience during these unprecedented times. Nonetheless, the search for the records responsive to your request remains ongoing and it is estimated that the RAO will issue a determination as quickly as possible. Respectfully, Jordan S. Mazur Sergeant Records Access Appeals Officer c: Committee on Open Government COURTESY • PROFESSIONALISM • RESPECT Exhibit 5 Thursday, August 6, 2020 at 12:06:56 AM Eastern Daylight Time Subject: Re: Appeal – FOIL-2019-056-20311 (Subway Diversion Project) Date: Wednesday, June 3, 2020 at 5:47:10 PM Eastern Daylight Time From: Deborah Diamant To: FOIL APPEALS Sgt. Mazur: As nearly two months have passed since my last communicaVon, please provide a date by which your office will produce the requested records. Very best regards, Deborah B. Diamant, Esq. Director of Government RelaVons and Legal Affairs CoaliVon for the Homeless 129 Fulton Street New York, New York 10038 T: 212-776-2123 ddiamant@cehomeless.org www.coaliVonforthehomeless.org Pronouns: she/her From: FOIL APPEALS Date: Monday, April 6, 2020 at 5:12 PM To: Deborah Diamant Subject: RE: Appeal – FOIL-2019-056-20311 (Subway Diversion Project) Ms. Diamant, Please see attached appeal determination. Thank you. Respectfully, Jordan S. Mazur, Esq. Sergeant Records Access Appeals Officer NYPD Legal Bureau 1 Police Plaza, Room 1406 New York, NY 10038 FOILAppeals@NYPD.org CONFIDENTIALITY NOTICE: This email and any aOachments may contain confidenQal and privileged informaQon for the use of the designated recipient(s) named above. If you are not the intended recipient, you are hereby noQfied that you have received this communicaQon in error and that any review, use or disclosure of it or its contents is prohibited and may violate laws including the Electronic CommunicaQons Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of this communicaQon. Please treat this and all other communicaQons from the New York City Police Department as LAW ENFORCEMENT SENSITIVE / FOR OFFICIAL USE ONLY. From: Deborah Diamant [mailto:DDiamant@cehomeless.org] Page 1 of 3 Sent: Sunday, April 05, 2020 8:19 PM To: FOIL APPEALS Subject: Appeal – FOIL-2019-056-20311 (Subway Diversion Project) VIA EMAIL ONLY FOILAPPEALS@nypd.org April 5, 2020 Sgt. Jordan Mazur Records Access Appeals Officer Legal Bureau-Civil Section One Police Plaza, Room 1406 New York, New York 10038 Re: Appeal – FOIL-2019-056-20311 (Subway Diversion Project) Dear Sgt. Mazur: I write to appeal the NYPD’s effective denial of the Coalition for the Homeless’ November 13, 2019, Freedom of Information Law request no. FOIL-2019-056-20311, submitted to obtain records concerning the NYPD’s Subway Diversion Project. The NYPD acknowledged the Coalition’s FOIL request on November 15, 2019, and set a production date of April 1, 2020. As of April 5, 2020, the NYPD has not produced any records in response to the Coalition’s FOIL request, which was submitted nearly five months ago. The NYPD’s failure to respond by April 1, 2020, constitutes an unreasonable denial of this request. As you know, FOIL states “[f]ailure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.” N.Y. Pub. Off. § 89(4)(a). FOIL directs that “any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.” N.Y. Pub. Off. § 89(4)(a). Please immediately release all responsive records to the Coalition’s November 13, 2019, FOIL request and contact me at 212-776-2123 or ddiamant@cfthomeless.org with any questions. Best regards, Deborah Diamant ____________________ Deborah B. Diamant, Esq. Director of Government RelaVons and Legal Affairs CoaliVon for the Homeless 129 Fulton Street New York, New York 10038 T: 212-776-2123 ddiamant@cehomeless.org Page 2 of 3