SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF SCHENECTADY

RASHAD SCOTT,Petitioner,

-against-

JOHN R. POLSTER, Corporation Counsel; Index # 2014-0683MARYANNE MCCUTCHEON, Information AccessOfficer

Respondents.

For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules_________________________________________________

Verified Answer and Memorandum of Law In Opposition to Petitioner’s Order to Show Cause

Respectfully Submitted,

______________________________Carl G. Falotico, Esq.Corporation CounselCity of SchenectadyBy: Krystina K. Smith, Esq.Assistant Corporation Counsel105 Jay Street, Room 201Schenectady, New York 12305(518) 382-5073

Counsel for the Respondents

Dated: March 9, 2015Schenectady, New York

TABLE OF CONTENTS

Verified Answer to Petitioner’s Order to Show Cause…………………………………………..1

Memorandum of Law…………………………………………………………………………….2

Background………………………………………………………………………………2

Argument

I. This Court should grant Respondent’s Motion to Dismiss because this Proceeding is barred by the Statute of Limitations………………………..4

a. Petitioner’s 2013 request is a duplicate of the previously denied and/or constructively denied 2009 request………..………………4

b. The Statute of Limitations for an Article 78 Proceeding is four months…………………………………………………………….5

c. The Petitioner is statutorily barred from seeking review of the 2009 denial by seeking review of the duplicate 2013 denial……………7

II. The denial of the 2013 request was neither arbitrary nor capricious because there is a rational and substantive basis on which to support that denial………………………………………………………………………8

III. If this Petition is not time-barred by the Statute of Limitations and the Court does not uphold the original denial, then the Respondent-Agency still has the right to request proof of an ability to pay before making the requested copies of documents available to the Petitioner………………10

Conclusion……………………………………………………………………………….11

Verified Answer in Opposition to Petitioner’s Order to Show Cause

Respondents, as and for the answer to the Order to Show Cause sworn by the Petitioner on April

1, 2014, respectfully allege as follows to the numbered paragraphs of the Affidavit in Support of

Order to Show Case:

Paragraph 1 Admit

Paragraph 2 Admit that the Petitioner is pursuing the Article 78 proceeding in response

to the denial of his FOIL Request on January 2, 2014, but wish to make clear that this denial was

in response to a FOIL request dated December 18, 2013, which was a duplicate of the March 22,

2009 request mentioned in the affidavit. The Respondent also denies that it must now provide all

of the requested documents, not redacted, to the Petitioner without the payment of fees.

Paragraph 3 Lack of knowledge or sufficient information to form a belief regarding the

allegations of this paragraph

Paragraph 4 Admit

Paragraph 5 Deny, as this proceeding constitutes nothing more than a belated attempt

to challenge the response to the petitioner’s initial 2009 request, which is barred by the

applicable statute of limitations

The Respondents seek to add the following:

Paragraph 6 Respondents deny each and every allegation of the Order to Show Cause

not herein specifically admitted

Paragraph 7 The Respondent makes a motion to dismiss this Article 78 Petition, in the

form of an Order to Show Cause, because the Petitioner has failed to comply with the applicable

statute of limitations.

Memorandum of Law

Background

In his Article 78 Petition, Rashad Scott, a convicted murderer, seeks to compel the City

of Schenectady to disclose records pertaining to his arrest on February 19, 1998. Petitioner seeks

these records for the purposes of “a demand for examination pursuant to Section 50-h of the

General Municipal Law.” (Petitioner’s Exhibit “A” March 22, 2009 FOIL Request at 2). To

date, the City of Schenectady is not in receipt of any Notice of Claim filed by the Petitioner

against the City of Schenectady or its departments.

Petitioner’s request is essentially a laundry list of items related to the investigation which

led to his indictment, arrest, trial, and conviction of the crimes of murder in the second degree

(two counts), robbery in the first degree (four counts), robbery in the second degree, burglary in

the first degree (four counts), assault in the first degree, assault in the third degree, and

conspiracy in the fourth degree. People v. Scott, 294 A.D.2d 661 (2002).

He submitted his first request on March 22, 2009. (Petitioner’s Exhibit “A” March 22,

2009 FOIL Request). He then submitted a duplicate request on December 19, 2013.

(Petitioner’s Exhibit “C” December 19, 2013 FOIL Request). The Petitioner asserts in paragraph

2 of his Order to Show Cause that the Respondent did not deny the 2009 request until January

2nd, 2014, but his own exhibits demonstrate that the denial submitted on January 2nd, 2014 was

issued in response to the duplicate request submitted on December 19, 2013. (Petitioner’s

Exhibits A, C, and D).

The Petitioner maintains that the City failed to respond to his 2009 request and uses this

as the basis for the resubmission of his request in December 2013. While the City maintains that

it did timely deny the 2009 request, it cannot offer affirmative proof because it does not have in

its possession the records from the 2009 request. New York State guidelines require that the

City maintain such documents for a period of six months. (See Respondent’s Exhibit “1” MU-1

Records Retention and Disposition Schedule). However, in its stead, the Respondent submits the

affidavit of its Information Access Officer, Maryanne McCutcheon. Ms. McCutcheon was the

person responsible for processing the 2009 request and, in her sworn statement, concluded that

she likely denied the 2009 request on the grounds that the requested documents were previously

made available to the Petitioner during the discovery phase of his criminal trial or at the end of

said trial. (Respondent’s Exhibit “2” Affidavit of Maryanne McCutcheon Paragraph 14). This

position is supported by the sworn affidavit of the Petitioner’s former attorney at trial, Mr. Lee

Greenstein, Esq. (See Respondent’s Exhibit “3” Affidavit of Prior Counsel).

The Statute of Limitations, to review the denial of the 2009 request, has long since

expired. The Petitioner has provided no evidence that he timely appealed the 2009 determination

in an application to designated head of the governing body pursuant to Public Officer’s Law

Article 6 Section 86-4 or that he timely commenced this Article 78 proceeding. The Petitioner

cannot use the resubmission of his 2009 request, in the form of the December 2013 request, as

the means to get around the tolling of the Statute of Limitations. Even if the City failed to

respond timely to the 2009 request, as the Petitioner alleges in his order to show cause, then that

failure to respond is considered a constructive denial of the 2009 request which would begin the

tolling of the statute of limitations.

ARGUMENT

I. This Court should grant Respondent’s Motion to Dismiss because this Proceeding is barred by the Statute of Limitations

A. Petitioner’s 2013 request is a duplicate of the previously denied and/or constructively denied 2009 request.

The Freedom of Information request, currently before this court, is a duplicate request.

In his Order to Show Cause, the Petitioner attached several exhibits, specifically Exhibits “A”

and “C.” Exhibit “C” is the second request, dated December 19, 2013. This document outlines

seventeen specific categories of information that the Petitioner is requesting pursuant to Public

Officer’s Law Sections 84-89. However, the Petitioner previously requested these very same

seventeen items in his request dated March 22nd, 2009, which is Petitioner’s Exhibit “A.” A

review of these documents, by this Court, lends itself to only one credible conclusion: that the

2013 request is essentially identical to the prior 2009 request, the denial of which petitioner

failed to seek judicial review.

B. The Statute of Limitations for an Article 78 Proceeding is four months.

In order to challenge the denial of the 2009 request, the Petitioner ought to have filed suit

within four months of said denial by the Respondent. New York State Civil Practice Law Article

2 Section 217 provides that a proceeding against a body or officer must be commenced within

four months after the determination to be reviewed becomes final and binding upon the

petitioner. In this case, the Petitioner has argued that the City failed to respond to his March

22nd, 2009 FOIL Request.

The Respondent can only assert, based on information and belief that it responded timely

to the 2009 request. Additionally, the Respondent argues, that based on the Petitioner’s own

assertions, the statute of limitations began to run after the Respondent-City’s constructive denial

of the 2009 request. Public Officer’s Law Article 6 Section 89-4(a) states:

“that if neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific

date given is unreasonable, a request may be considered to have been constructively denied.”

Here, the Petitioner has submitted a copy of correspondence sent to him by the Respondents on

April 10, 2009. (See Petitioner’s Exhibit “A” Letter from Corporation Counsel’s Office). This

letter indicates that he will receive a response within twenty days from that date of that letter.

The Respondent maintains that it followed proper procedure and issued a denial of the

Petitioner’s 2009 request within twenty days. In support of that assertion, the Respondent has

submitted the affidavit of its Information Access Officer, Maryanne McCutcheon, as evidence of

normal and routine office procedures at the time Petitioner submitted his 2009 request.

Affidavits showing that normal office procedures existed and were followed to assure that the

determination was communicated and received by the petitioner within a certain time-frame are

sufficient to shift the burden of persuasion to the petitioner. See Matter of Fortunator v.

Workers’ Comp. Bd. of N.Y., 270 A.D.2d 641 (3d Dept.), lv. Denied, 95 N.Y.2d 761 (2000). In

this case, the Respondent submits this affidavit as sufficient evidence to show that it was in

compliance with the requirements of the Public Officer’s Law regarding the 2009 request.

Should this Court discount that evidence, the Respondent continues to assert that this

proceeding is untimely. The Appellate Division dismissed an Article 78 Petition as untimely in

Van Steenburg v. Thomas. 242 A.D.2d 802 (1997). In that case, the petitioner made a FOIL

request in August 1994, for records in connection with his arrest, indictment, and conviction. Id.

It followed that the State Agency denied access to portions of the requested investigative reports

on October 4, 1994. Id. In May 1996, the petitioner made a second FOIL request for, among

other things, the previously denied reports that was then denied a second time. Id. Only then did

the petitioner to commence an Article 78 proceeding to review the May 1996 denial. Id. The

Appellate Division went on to find that the 1996 proceeding “is a belated attempt to appeal the

October 4, 1994 denial of access to information and is therefore barred by the Statute of

Limitations.” Id. at 803. In making this determination, the Court looked to the factual

circumstances: the petitioner asserted that he submitted an administrative appeal of the 1994

request and the respondent denied receipt. Id. It reasoned that upon respondent’s failure to

address the appeal within 10 days, the petitioner was deemed to have exhausted his

administrative remedies, thereby enabling him to seek judicial review of the denial thereof and

commencing the four-month Statute of Limitations. Id.

In this case, if as the Petitioner contends, the City did not respond within twenty days,

then the Respondent argues that the request was constructively denied as of Friday, May 8 th

2009. As such, the Respondent argues that the statute of limitations begins to run from the date

the determination sought to be reviewed becomes final and binding, which here is May 8 th, 2009.

See Matter of DeMilio v. Borghard, 55 N.Y.2d 216, 220 (1982); Matter of Rakiecki v. State

Univ. of N.Y., 31 A.D.3d 1015 (3d Dep’t 2006). This is the date, at which point, the Petitioner

had exhausted his administrative remedies that would allow him to seek relief under Article 78.

Therefore, the Statute of Limitations expired as of September 8, 2009.

C. The Petitioner is statutorily barred from seeking review of the 2009 denial by seeking review of the duplicate 2013 denial.

In seeking to review the denial of the December 19, 2013 request, the Petitioner is

actually seeking review of the denial of the March 22, 2009 request. The Respondent believes it

has successfully established that the 2013 request is merely a duplicate of the 2009 request: as

the requested items are identical in both.

When two identical FOIL requests are submitted by a petitioner and denied by a

respondent agency, the Court must look to the first request on the issue of whether Article 78

review is timely brought. In Vann v. Callahan, the petitioner, a prison inmate, submitted several

requests between March 1994 and February 1995 to the State Police, under the Freedom of

Information Law, for documents related to his 1991 conviction of murder in the second degree.

Vann v. Callahan, 16 A.D.3d 849 (2005). The petitioner’s requests were all denied and in

June 2003, he submitted the FOIL request at issue the court. Id. The court noted that the

requested information in the June 2003 request were essentially the same documents that the

petitioner had sought eight years earlier. Id. The court noted that the petitioner had failed to

seek judicial review of the earlier denials, which resulted in the proceedings then before the

Court being dismissed as they were barred by the Statute of Limitations. Id.

The same occurred in Hilden-Menendez v. New York City Police Dept. 260 A.D.2d 262

(1999). However, in Hilden-Menendez, the Court relied on the respondent agency’s constructive

denial of the initial FOIL request based on facts similar to those before this Court. See Id. In

that case, the Respondent maintained that it did not respond to petitioner’s request because it

never received it and argued that even if it had received it, it would not have responded or would

have denied it, because it sought the same information as a prior request that had been fully

processed. Id. The Court then held that, upon review of the two requests, that they were

duplicative and, accordingly, the proceeding was properly dismissed as a belated attempt to seek

judicial review of the denial of the first request. Id. at 603.

In this case, the Court must look to the March 2009 request when determining whether

the Petitioner’s attempt at judicial review is timely brought. Since his 2009 request is identical

in sum and substance to his 2013 request, the action is time-barred and it would be proper for the

Court to grant Respondent’s motion to dismiss.

II. The denial of the 2013 request was neither arbitrary nor capricious because there is a rational and substantive basis on which to support that denial.

If the Court denies Respondent’s motion to dismiss, then the Respondents maintains that

the denial of the December 2013 request was proper. In his Order to Show Cause, the Petitioner

attached a copy of the Response Letter, dated January 2, 2014, from the Information Access

Officer stating why she denied his request: “information was previously released to District

Attorney’s Office as part of an ongoing prosecution.” (See Petitioner’s Exhibit “D”).

Essentially, the Respondent argues that the information requested was made available to the

Petitioner during the discovery phase of his trial.

In Riley-James v. Soares, the petitioner requested from respondent’s office copies of any

documents pertaining to promises made or funds given to witnesses at his trial and any

documents pertaining to proposed plea agreements. Riley-James v. Soares, 33 A.D.3d 1171,

1172 (2006). Respondent later argued, during the timely-brought Article 78 proceeding, that it

previously provided the requested materials to petitioner’s then defense counsel. Id. The Court

did not find this assertion, that petitioner had failed to come forward with an adequate showing

that the records requested are no longer available through [his] criminal defense counsel, to be

sufficient credible evidence on which to deny the request. Id. It noted that such a statement was

far from a sworn assertion that the requested materials indeed were turned over to defense

counsel and certainly failed to demonstrate, through documentary proof that copies of such

documents were previously furnished to defense counsel. Id.

In fact, the court cited and relied upon by Petitioner’s counsel in chambers, Rose v.

Albany County District Attorney’s Office, relied upon the holding in Riley-James for its position

that the respondent-agency must provide competent proof that the documents responsive to these

requests were previously provided to petitioner during discovery in his criminal action. Rose v.

Albany County District Attorney’s Office, 111 A.D.3d 1123, 1126 (2013).

In Moore v. Santucci, the Court noted that the mere fact that disclosure was available to

the applicant through some other discovery device, such as under CPLR Article 31 in a plenary

action or under CPL Article 240 in a criminal proceeding, does not ipso facto preclude FOIL

relief, if warranted. Moore v. Santucci, 1515 A.D.2d 677, 678 (1989). However, it went on to

note that a Court could uphold a denial when the petitioner or his attorney previously received a

copy of the [requested] agency record pursuant to an alternative discovery device and currently

possesses a copy. Id.

Here, the Respondent has obtained an affidavit from Petitioner’s prior attorney: Lee

Greenstein, Esq. (Respondent’s Exhibit “3” Affidavit of Prior Counsel). Mr. Greenstein

represented the Petitioner in regards to his February 19, 1998 arrest in regards to an incident that

occurred on March 12, 1997. In Paragraph 7, he states that he has maintained Mr. Scott’s file as

it is his practice and that he responded to a similar request made by Mr. Scott some years ago.

Therefore, the Respondent asserts that it has submitted affirmative evidence in support of the

determination made by the Information Access Officer, thereby demonstrating that such

determination was neither arbitrary, nor capricious and should be upheld.

III. If this Petition is not time-barred by the Statute of Limitations and the Court does not uphold the original denial, then the Respondent-Agency still has the right to request proof of an ability to pay before making the requested copies of documents available to the Petitioner.

The Respondent agency has the right to require that the Petitioner provide proof of ability

to pay for the requested documents prior to preparing them. The Respondents return to the

Appellate Division decision of Moore v. Santucci for the position that it is not responsible to

provide these documents to the Petitioner free of charge, despite the fact that he claims

indigence. In Santucci, the Court reasoned that “in the event the petitioner’s request for a copy

of a specific record is not moot, the agency must furnish another copy upon payment of the

appropriate fee. Moore v. Santucci, 1515 A.D.2d 677, 678 (1989), see also Public Officers Law

§87, Sheehan v. Syracuse, 521 N.Y.S.2d 207.

The purpose of the Freedom of Information Law is to make information available for

inspection by the general public, and if a member of the public requests that copies be made,

then a fee can be charged. Public Officer’s Law §87(c)(iv) states “that preparing a copy shall not

include search time or administrative costs and that no fee shall be charged unless at least two

hours of agency employee time is needed to prepare a copy of the record requested. The person

making the request will be informed of the cost or if an outside professional service would need

to be retained to obtain a copy of the record.”

Additionally, Schenectady City Code §57-7 allows for the charging of $0.25 per page of

requested documents. In this case, the Petitioner has requested a seventeen-year-old case file

which will take time to find. One can assume, based on the nature of the documents requested,

that the record is voluminous and will take time to properly redact and photocopy. The

Respondent finds no place in the law where fees charged under the Freedom of Information Law

are waived based on claims of indigence. The Law requires only that the documents be made

available, not that they be provided free of charge because the person requesting the documents

is currently incarcerated and therefore, unable to view them in person.

CONCLUSION

This petition is barred by the statute of limitations. Petitioner’s 2013 request is identical

to his 2009 request; the denial or constructive denial of which he did not timely request review.

As such, the Respondent makes a motion to dismiss on those grounds.

However, should the Court find that this Petition is timely; the Respondent continues to

assert that its denial of the 2013 request was neither arbitrary nor capricious. The Respondent

maintains that the Petitioner had and may continue to have access to this information through his

prior attorney, Lee Greenstein Esq. Mr. Greenstein has submitted an affidavit in support of this

position. Lastly, the Petitioner is not entitled to this information free of charge, but must show

an ability to pay for the requested documents before the Respondent takes the time and effort to

not only make them available for inspection, as required to by law, but to make true and accurate

copies for the Petitioner’s later use.

WHEREFORE, the Respondents respectfully request that the Petition, which requests

relief under CPLR Article 78 be dismissed.

Dated: March 9, 2015

______________________________Krystina K. Smith, Esq.Assistant Corporation CounselAttorney for Respondents105 Jay StreetSchenectady City HallSchenectady, New York 12305

VERIFICATION

State of New York: SS:County of Schenectady:

Maryanne McCutcheon being duly sworn, deposes, and says that she is the Information Access Officer and a Respondent-Defendant in the within matter; that deponent has read the foregoing Verified Answer and knows the contents thereof; that the same is true to deponent’s own knowledge, except as to matters therein stated to be alleged on information and belief, and that as to those matters deponent believes it be true.

_________________________________Maryanne McCutcheonCity of SchenectadyInformation Access Officer

Sworn before me, this 9th day of March, 2015