Progeny of Lesher

Several lower courts recently addressed the 2012 Court of Appeals decision in Lesher v. Hynes (19 NY3d 57, 945 NYS2d 214).  The issues in these cases pertain to records of law enforcement investigations and when they become accessible under Freedom of Information Law.

Lesher addressed Public Officers Law §87(2)(e)(i), which allows agencies to deny access to records or portions thereof that:

“are compiled for law enforcement purposes and which, if disclosed, would:
i. interfere with law enforcement investigations or judicial proceedings”

The Court found that law enforcement investigations can be considered in three distinct situations: 1) where a criminal prosecution is pending and documents or portions thereof can be withheld, 2) when law enforcement investigations and any ensuing judicial proceedings have run their course and documents are no longer exempt from disclosure, or 3) in “’cold cases’ where an investigation remains open” but “once probative leads have been exhausted” documents may become available.

Lesher addressed a 1984 Kings County grand jury indictment pertaining to multiple counts of sexual abuse involving young boys.  The indictment led an accused man to flee to Israel where conflicting treaties prevented his extradition.  The Court held that in order to fulfill its burden under §89(4)(b) to articulate a factual basis for the assertion of an exception, an agency must “provide any information on the generic types of documents, or categories of documents” which once had been clearly deniable.

Similarly, in Loevy & Loevy v. New York City Police Dep’t (October 10, 2013), New York County Supreme Court held that the files pertaining to a “cold case” are not exempt from disclosure under POL §87(2)(e)(i).  In Loevy, the petitioner requested files pertaining to a 1987 rape and murder in Long Island City.  A routine review of the case file every six months was insufficient to establish a valid basis for denying access.

The same court also addressed the second situation in Lesher when criminal proceedings have ended and the petitioner requested the “calibration and maintenance records for all Intoxilyzer 5000EN machines” over a period of four years. Perlmutter v. New York City Police Dep’t, (October, 17, 2013).  The court required the NYPD to disclose the requested documents because there were no specific proceedings involving the calibrations, and additionally, criminal discovery allows access to the most recent calibration and maintenance records.