NY Litigators Secure Victory for FOIL Requests

Following the 2019 repeal of Civil Rights Law Section 50-a, the New York Civil Liberties Union (NYCLU) began submitting Freedom of Information Law (FOIL) requests to various police departments across New York State in an effort to increase transparency around police misconduct and discipline. Several law firms, including a New York-based team of Latham litigators, have worked with NYCLU on these requests.

While some police departments readily comply with FOIL requests, other departments have been reluctant to do so. After the city of Troy refused to make available any open complaints filed by civilians against police officers related to alleged misconduct, including reports of excessive force, NYCLU instigated litigation. Throughout the dispute, Troy argued that it could categorically withhold police certain complaint records.

On behalf of NYCLU, the Latham team argued that the law surrounding FOIL did not permit such blanket withholdings. Instead, the law requires particularized and specific justifications for withholding government records, and Troy’s categorical approach to withholding certain complaint records failed to meet this standard. Furthermore, as the team argued, public interest in the complaint records warrants disclosure, as Troy’s investigative practices and findings provide information that would help the public understand vital information about Troy’s internal actions and decision-making processes.

In February 2023, the New York State Supreme Court, Rensselaer County issued a decision ordering the city of Troy to provide the requested law enforcement disciplinary records. In addition to securing a complete victory on the merits, Judge McNally awarded attorneys’ fees, finding that Latham established that the NYCLU had “been subjected to the very kinds of ‘unreasonable delays and denials of access’ which the attorney’s fee provision seeks to deter.” This order will be instructive to several other NYCLU efforts seeking similar records from other police departments, and will serve as important precedent for future FOIL requests.

The Latham team included associates Jaclyn Newman, Ben Herrington-Gilmore, and Molly Babad and partners Jamie Wine and Larry Buterman.