File yt We STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE, In the Matter of LESLIE BRILL MESEROLE Index No. 2015-00104 Petitioner, A ECEIVE perrtionrR’s MEMORANDUM SEP 28 2015 OF LAW ERIECOUNTY | -againstDEPARTMENT OF LAW TIMOTHY HOWARD, IN HIS OFFICIAL CAPACITY Peg AS ERIE COUNTY SHERIFF, TARA J, MAHAR, M.D. IN HER OFFICIAL CAPACITY AS CHIEF Of), ERIE COUNTY MEDICAL EXAMINER'S OFFICE 4M Respondents INTRODUCTION ‘This brief addresses the two unresolved issues remaining in this proceeding, involving prison visitor logs and phone calls. I. RECORDS OF VISITORS TO INMATE ANTOINE GARNER ARE. NOT EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW. The petitioner has requested and the respondent has denied access to records concerning visitors to inmate Antoine Garner, Respondent argues that such disclosure would constitute an unwarranted invasion of privacy, would interfere with an ongoing investigation, might reveal a confidential informant or could endanger the safety of others. 1Respondent has failed to meet his burden of proving any of the alleged grounds for exemption, See Public Officers Law §89(4)(b). His claims are unsupported by any case law and lack any factual support. For example, there is no basis in the record for concluding that there is still a law enforcement investigation of Mr. Gamer. Quite the contrary. The District Attomey and Police have made it abundantly clear that they consider the matter closed. That is precisely why the family of Amanda Wienckowski is vigorously pursuing the matter. “The Freedom of Information Law proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic government.” See Matter of Fink v. Lefkowitz, 47 N.Y 2d 567, 571, 419 N.Y.S.24 467, 470. “FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.” See Buffalo News, Inc. v. Buffalo Enterprise Development Corporation, 84 NY 2d 488, 492, 619 N.Y.S.2d 695, 697 and Jn the Matter of Robert Hawley v. Village of Penn Yan, et al.,35 AD 3d 1270, 1271, 827 N.Y.S.2d 390, 391. ‘The New York Court of Appeals has made it clear that an agency may not withhold a record solely because some of the information in that record may be exempt from disclosure, nor can the agency refuse to produce the whole record simply because some of it may be exempt from disclosure, See Schenectady County SPCA v, Mills, 18 N.Y.3d 42, 45, 935 N.Y.S.2d 279, 280 “Blanket exemptions for particular types of documents are inimical to the clear articulated policy of the FOIL statute seeking to foster open government.” See Gould v. NYC Police Dept., 89 N.Y.2d 267, 275, 653 N.Y.S.2d 54, 57. Additionally, “FOIL imposes a broad duty of disclosure on government agencies.” See Hanig v. NYS Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715. “FOIL compels disclosure, not concealment.” See Westchester Rockland Newspapers v. Kimball, 50 N.Y.2d 575, 580, 430 N.Y.S.2d 574, 577. In the Mauer of Fink v. 2Lefkowitz, supra, it was made clear that .. . an agency does not have carte blanche to withhold any information it pleases. Rather it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the court for in camera inspection, to exempt its records from disclosure.” FOIL permits an agency to withhold information if release would amount to an unwarranted invasion of personal privacy. See N. Y. Pub. Off. Law §87 (2)(b). What constitutes an unwarranted invasion of personal privacy is measured by what would be offensive and objectionable to a reasonable person of ordinary sensibilities. See Pennington v. Clark, 16 A.D.3d 1049, 1051, 791 N.Y.S.2d 774, 777 reargument denied 19 A.D.3d 1185, 796 N.Y.8.24 567 leave to appeal denied 5 N.Y. 34 712, 806 N.Y.S.24 162. Respondent's primary argument seems to be that disclosure would constitute an unwarranted violation of the “personal privacy” of the visitors to the Holding Center.' However, respondent fails to cite to any of the statutory categories of such violations of privacy. See Public Officers Law §89(2)(b). While the list is not exclusive, the facts of this case do not provide any other rationale for finding a violation of privacy. The agency's burden of demonstrating that the material requested falls within a statutory exemption “requires the fagency] to ‘articulate a “particularized and specific justification for denying access” (Matter of Baez v Brown, 124 AD3d 881, 883, quoting Matter of Dilworth v Westchester County Dept. of Correction, 93 AD3d 722, 724, quoting Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566). ““Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed’” ‘The statute's use of the adjective “personal” seems design to narrow the concept of privacy protected by the statute as every term in a statute must be given meaning. 3(Matter of Baez v Brown, 124 AD3d at 883, quoting Matter of Dilworth v Westchester County Dept. of Correction, 93 AD3d at 724). Pursuant to Public Officers Law § 87(2)(b), an agency “may deny access to records” where disclosure “would constitute an unwarranted invasion of personal privacy under the provisions of [Public Officers Law § 89(2)(b)].” “[W]here none of the [exemptions under Public Officers Law § 89(2)(b) are] applicable, a court ‘must decide whether any invasion of privacy . . . is “unwarranted” by balancing the privacy interests at stake against the public interest in disclosure of the information” (Matter of Harbatkin v New York City Dept of Records & Info. Servs., 19 NY34 373, 380, quoting Matter of New York Times Co. v City of NY. Fire Dept., 4 NY3d 477, 485). Visitors to the Holding Center are seen by dozens if not hundreds of private citizens, inmates and law enforcement personnel. They are often seen chatting with other visitors while ‘waiting in line or while seated in the large waiting room. ‘They sign a log book that is visible by ‘numerous other members of the public visiting at that time. They are extensively searched, monitored by guards, videotaped and their conversations may be overheard by other inmates, visitors and guards. There is no reason to regard their highly public activity as private. Respondent’s assertion that disclosure of Mr. Garner’s visitor logs might disclose a confidential informant is purely speculative and wholly without factual support. There is no allegation in the record from any law enforcement agency that their officers are received into the facility with the general public. In fact, that suggestion is preposterous. Surely, if law enforcement seeks to interview an inmate, that is done with special arrangements to ensure the safety of the inmate and the confidentiality of the agents. Respondent's combined argument that production of records would require a fishing expedition and/or, if the records were tumed over wholesale to the Petitioner, would create 4numerous potential invasions of privacy or might expose confidential informant, is baseless. Co- counsel James Ostrowski was granted access to just such logs in connection with a 1994 civil suit that involved tracking down money stolen by an inmate of the Holding Center. He was able to scan in a reasonable amount of time several log books and find the relevant information for his client, a copy of which is attached hereto as Exhibit “A”. The Court may take judicial notice of this document as a filed record of the State Supreme Court, Erie County. Desiree Sperling v. County of Erie, Index No. 12701/93. To remove any concems over the privacy and safety of non-visitors to Garner, this scanning can be done by the respondent and this administrative time (over two hours) may be billed to the respondent. See Public Officers Law §87(1)(c}iv). In any event, respondent's concerns can also be ameliorated by submission of the records to the Court for in camera inspection of the records. We note that, with respect to “daily intake sheets,” respondent consented to this procedure in open court on July 13, 2015. [9:20-24]. I. _ NEITHER PRISONERS NOR THEIR CALLERS HAVE ANY REASONABLE EXPECTATION OF PRIVACY WHEN MAKING PHONE CALLS TO/FROM ANY JAIL OR PRISON. ‘With respect to recorded calls made by inmate Gamer, the respondent has also failed to show that disclosure of such calls would constitute an unwarranted invasion of privacy. Specifically, there is no evidence in the record that demonstrates that the inmate and the person(s) called were not notified that the calls would be monitored and recorded. Even in the absence of such a waming, common sense would indicate that communicating with a prisoner isnot a private matter since his entire existence is controlled and monitored by the facility that confines him. ‘Though not a New York FOIL case, the Second Circuit has held that recording an inmate's calls does not violate federal wiretapping statutes nor, in the presence of notice by the facility that calls would be monitored, does such practice violate a “reasonable expectation of privacy under the circumstances.” United States v. Friedman, 300 F3d 111 (2" Cir. 2002), Notably, the legal standard under the 4% Amendment is similar to the FOIL standard for exceptions based on privacy. Balanced against the virtually non-existent privacy interest of the visitors/callers in this case, is the public interest in allowing the family to pursue any and all reasonable leads to try to solve the murder of their daughter whose death was improbably ruled an accident by the Medical Examiner, The killer is still loose and may, if not identified and punished, victimize still other innocent victims in the future. Prisoners in contemporary lockups are not allowed to use personal cellular phones. For various reasons, jails contract with calling services which require both the inmate and outside callers to sign up for phone services which come with explicit instructions for their use. Erie County currently uses a phone system supplied by ICSolutions of 2200 Danbury Street, San Antonio, TX 78217. ? ICS Solutions provides the following warning to users of its system: 42. Are my phone calls recorded? Yes, at most correctional facilities, all calls are subject to monitoring and recording. Exceptions are made in the case of confidential calls, such as those between an attorney ‘and thelr cllent. Please contact your correctional facility for specific policies. 2 See: http://www. icsolutions.com/FriendsFamilyHome/SupporvFAQs.aspx#q] 643, | am an attomey. How can I ensure that my phone calls will not be recorded or ‘monitored? Please contact the facility to determine what Information they require to process your request. After submitting proof of your status as an attorney (such as your Bar information), the faclity will designate your telephone number as “confidential” and therefore will not bbe subject to monitoring and recording. Therefore, any inmate or other third party caller clearly waives any right to confidentiality or privacy whenever any such person makes or accepts a call using the ICS calling system. Therefore, there was no expectation or right of privacy on the part of Antoine Gamer or any person communicating with him while in any Erie County lockup, with the exception of his lawyer(s). III. RESPONDENTS HAVE NO STANDING TO ASSERT THE PRIVACY RIGHTS OF ANTOINE GARNER OR THIRD PARTY UNNAMED MEMBERS OF THE PUBLIC AND ARE ETHCALLY BARRED FROM CLAIMING TO REPRESENT SUCH PERSONS. Respondent's assertion of the right of privacy of Antoine Gamer and/or unnamed ‘members of the public is a sham and ruse designed to disguise a naked attempt to baldly argue for government secrecy. Should such inmate or members of the public make personally incriminating statements during phone calls, Respondent Sheriff would not hesitate to broadcast them to the world and use such utterances to prosecute the individuals implicated. Yet, the same Respondent dares to feign concem over the delicate personal privacy rights of persons making calls to/from Antoine Gamer! If these records can be used freely by law enforcement officials to prosecute Gamer and third parties, how can Respondents spin about when inquiries from the public are made as to their content? How can they claim standing to somehow be the noble protectors of the rights of inmates and third parties who they would cheerily prosecute? How is it ethically possible for Respondents to forward concem for the rights of Gamer or other third 7parties against public disclosure when arguing for government secrecy, while asserting a right to violate these same non-existent "privacy" rights of Antoine Gamer and their other third party "clients" when seeking to prosecute them with the content of the very same conversations? Is it possible for law enforcement to simultaneously prosecute and defend the same person based on the same bits of information? Can Petitioner assert the rights of the Respondents? If records are available to the police, they must also be available to the public, particularly where, as here, there is no active prosecution under way or anticipated. Antoine Gamer and these unknown third parties have never appeared in this Court. In fact, other than Gamer, their very existence and identity is completely unknown to Petitioner. How can the Court determine the privacy rights of individuals who have never appeared themselves and asserted such rights? What if they do not wish to have their rights asserted by the Respondents? Perhaps they would gladly waive such rights if their identities were made known and Petitioner, or the Court, had an opportunity to request that they waive any such rights. Other than calls to or from Gamer's lawyer(s), there is no authority for Respondent Sheriff to assert anyone's right of privacy.IV. THE COURT HAS THE POWER AND ABILITY TO FASHION REMEDIES AND JUDICIAL CONSTRUCTS WHICH WILL PROVIDE PETITIONER AN ADEQUATE REMEDY WHILE STILL PRESERVING INDIVIDUAL PRIVACY RIGHTS OF THIRD PARTY UNNAMED MEMBERS OF THE PUBLIC. “The passage of the Freedom of Information Law almost immediately spawned a flock of Not-for-Profit corporations which were loaded with public money and official duties. A Close reading of Freedom of Information Law § 86(3) Definitions reveals an original sin inherent in the FOIL: 3. “Agency” means any state or municipal department, board, bureau, division, commission, ‘committee, public authority, public corporation, councl, office or other governmental entity ‘performing 2 governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature. "Private" corporations were never covered by the statute. The Court of Appeals quickly remedied this situation via Westchester-Rockland Newspapers v. Kimball, 50 NY2d 575 (1980), holding that not-for-profit corporations may be “agencies” subject to the Freedom of Information Law. In Westchester-Rockland, the court ruled that a volunteer fire ‘company incorporated as a not-for-profit corporation was an agency for the purposes of FOIL where it was clearly providing “an essential public service”, even when the records requested involved fund-raising activities which were not directly related to its fire-fighting functions. The court noted the broad legislative declaration, "[as] state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible" (emphasis added; Public Officers Law, § 84)”, and went on to state that “the successful 9implementation of the policies motivating the enactment of the Freedom of Information Law ‘centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase "public accountability wherever and whenever feasible" therefore merely punctuates with explicitness what in any event is implicit.” Furthermore, in Wesichester-Rockland the court recognized thirty-five years ago that the expanding role of government would make the distinction between governmental and nongovernmental acts increasingly difficult to determine, stating “For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons.” The court clearly felt that it was best to make records available for disclosure when such boundaries are approached. The passage of time and the expansion of government and its role in our society has made this line of reasoning even more convincing today than it was in 1980. A not-for profit corporation may be an agency for statutory purposes on the basis of its relationship to and control by another agency. Furthermore, a governmental entity cannot escape compliance with FOIL merely by conducting its operations under the aegis of such a corporate shell. In Buffalo News v. Buffalo Enterprise Development Corporation, 84 NY2d 488 (1994), the court stated “All records of a public agency are presumptively open to public inspection, without regard to need or purpose of the applicant. Consistent with these laudable goals, this Court has firmly held that " ‘FOIL is to be liberally construed and its exemptions 10narrowly interpreted so that the public is granted maximum access to the records of government’ " (Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 697, quoting Matter of Capital Newspapers v Whalen, 69 NY2d 246, 252; Matter of Federation of N. ¥. State Rifle & Pistol Clubs v New York City Police Dept, 73 NY2d 92, 96; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 564; Matter of Fink v Lefkowitz, 47 NY2d 567, 571). In Russo, we held that the term “agency” under FOIL must be given " ‘its natural and most obvious' meaning" and must be " ‘liberally construed’ " to further the general purpose of FOIL (81 NY2d, at 697, 698, supra 1g McKinney's Cons Laws of NY, Book 1, Statutes § 94]; see also, Matter of Capital Newspapers v Whalen, 69 NY2d 246, 251, 252, supra)." The court went on to base its opinion that the subject not-for-profit corporation was an “agency” subject to FOIL on the determination that it was performing a governmental function and the presence of substantial governmental control of the entity. The Westchester-Rockland and Buffalo News cases are clear examples of the Court's power and ability to fashion remedies and forward judicial remedies and constructs which allow for full implementation of the New York FOIL and provide Petitioner with an adequate remedy in this matter. On the federal level involving the Freedom of Information Act (FOIA), Vaughn v Rosen, 484 F.2d 820 (1973) provides a widely used federal practice tool based on a judicial construct. In Vaughn, the court, faced with wading through 200 pages of material, required the federal agency involved to provide and index to the documents, describing each in detail and specifying the reasons for denial of access to the petitioner. We currently have no such case as Vaughn in New York, but we seriously need one. Overworked judicial staffs can literally be required to ‘wade through mountains of material in camera to determine what can be released, what should 1be withheld and what should be redacted. With a Vaughn Index as an interim procedural step, petitioners can tell the court which documents need to be examined and which can be ignored. This improves judicial economy and avoids situations in which the court is tempted to deny access to requested records merely because to the magnitude of the document review task which it faces. In the present matter, the Court clearly has the power to release redacted records and/or fashion a remedy such as notifying third parties on its own to see whether they will waive privacy rights or consent to having their rights asserted by Sheriff. This case cries out for Justice for a grieving mother. If ever there was a time for the Court to fashion such an appropriate and creative remedy, this case is that time. 12CONCLUSION Where any agency withholds or redacts records requested under FOIL, the agency bears the burden of sustaining its action... The Respondents have not met their burden in this case. Consequently, the Respondents’ motion for summary judgment should be denied and the ‘material sought by Petitioner must be Ordered released or, in the alternative, this Court should conduct an in camera review of the requested records to determine whether or not they ought to be released. Dated: Buffalo, New York September 28, 2015 Attorney for Petitioner 49 Starin Ave. Buffalo, New York 14214 (716) 870-5450 PReese?70@) 13Exhibit “A”STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE DESIREE SPERLING, Plaintifé, ~against- : NOTICE OF MOTION FOR SUMMARY JUDGMENT ‘THE COUNTY OF ERIE, THE DISTRICT ATTORNEY Index No. 12701/93 OF ERIE COUNTY, Justice Assigned: Defendants. Hon. Norman B. Joslin Oral argument requested PLEASE TAKE NOTICE: MOTION BY: DESIREE SPERLING, Plaintiff DATE, TIME AND PLACE OF HEARING: May 4, 1994, 9:30 a.m., Part 21, 50 Delaware Ave., Buffalo, New York SUPPORTING PAPERS: See, Index of Documents in Support of Summary Judgment. RELIEF DEMANDED: Summary judgment on all issues. PLEASE TAKE NOTICE that, answering affidavits, if any, must be served upon the undersigned at least seven days before the return date of this motion, pursuant to CPLR 2214(b). Dated: Buffalo, New York April 8, 1994 JAMBS OSTROWSKI Attorney for Plaintiff 384 Ellicott si Buffalo, New York 14203 (716) 854-1440David F. Rusin, Esq,- Assistant Erie County Attorney 69 Delaware Ave. Buffalo, New York 14202 Edward D. Peace, Bsq- Corporation Counsel City of Buffalo 1100 City Hall Buffalo, New York 14202STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE oo DESIREE SPERLING, Plaintiff, -against~ MEMORANDUM OF _LAW THE COUNTY OF BRIE, THE DISTRICT ATTORNEY OF ERIE COUNTY, Index No. 12701/93 Defendants. Oo POINT I the plaintiff is the lawful owner of $95,000 in cash currently in the possession of the Erie County District Attorney in connection with the prosecution of Adolpho Candelario. ARGUMENT 4 Telstar stole over a million dollars from his then wife See, affs., Sperling, Telstar, 4 these funds into cash which he deposited into Davi Desiree Sperling, the plaintiff. Gromis. He converte: a safe deposit box in Switzerland. See affs. Telstar, Gromis. gailea at the Brie County Holding Center, he enlisted the aid of ing the funds for their mutual power of attorney, allowing £ the box. Aff. Telstar. Adolpho Candelario in retriev: benefit. He gave Candelario a blank its possessor to withdraw the contents © candelario gave the power of attorney to his brother-in-law Bernardo Fernandez, who was allowed access to the Holding Center at off hours with the assistance of attorney Thomas J. Boannony who a:had no knowledge of the business his client and Fernandez transacted. See, Aff. Gromis, par. 17, aff. Eoannou.? oannow states that the visit was arranged on a Sunday in March of 1992. March 1, 1992, the effective date of the power of attorney (See, aff. Telstar, Exhibit "B"), was indeed a Sunday. Holding Center records confirm the March lst date since the “Destination Sheet", a record of internal inmate movements, indicates that Candelario had two attorney visits on March 1st. Aff. Koch. Fernandez went to Switzerland and, using the power of attorney form, retrieved the money, and returned to Buffalo. Aff. Gromis, par. 18. Bank records obtained by treaty from the Swiss government, indicate that Fernandez had access to the safe deposit box on March 5, 1993. Aff. Gromis, par. 27; aff. Telstar, Exhibit “cr. Fernandez then returned to Buffalo and gave $125,000 in one hundred dollar U.S. bills to Candelario's mother. Aff. Gromis. (thie was pursuant to Candalario'e schene to bribe the Buffalo Police Department in exchange for expected favorable treatment in a pending drug prosecution. See generally, Testimony of Riga-) On March 7, 1992, at the Amtrak station in Depew, New York, candelario's mother gave $70,000 in one hundred dollar bills to puffalo Police Captain Joseph Riga. Testimony of Riga, p- 114-116. These bills were marked and received into evidence as People's ——— 1 qhe affidavit of Thomas Boannou is of necessity sketchy as to details due to his ethical duty of client confidentiality. ge to sovent--"T am unaware as to what business transpired betwoeh ee EE he an@gaz and Candelario spoke Spanish as a primary language: 2DOCUMENT NO. 7 AFFIDAVIT OF CAPTAIN ROBERT KOCH WITH ATTACHED RECORDS FROMTHE ERIE COUNTY HOLDING CENTER, MARCH 11, 1994‘THOMAS F. HIGGINS ADMINISTRATIVE OFFICES WILLIAM G. PAYNE LUNDERSNERIF SHERIFF OF ERIE COUNTY ran een as? POLICE EMERGENCY Sit March 11, 1994 civ. PROCESS. James Ostrowski 384 Ellicott Square Building Buffalo, N¥ 14203 Re: Justo Garcia AKA: Candelario, Adolfo DoB: 05/14/60 Dear Sir: 1, Robert Koch, am a Deputy Sheriff Captain in the Office of Erie County Sheriff, Thomas F. Biggins. My current duties include that of the Records Access Officer of the Erie County Holding Center, the Jail of the County of Brie, in the State of New York. 1 am making this affidavit to certify the attached two pages: ECHC Destination Sheet dated 03/01/92 for the housing area Foxtrot South, ped Visitor Register, pg. 7 dated 03/08/92, are true and exact copies Sf the original Erie County Holding Center records. I further certify that these records were made in the regular course of business to keep such a record. ‘Sworn to me this llth Day of March, 1994 JOHN J. DRAY. cova oF Des cy thant toh Guo ‘Commission Expires Dec. 31, 1924) ec: file attachment “Brie County's First Professionally Accredited Law Enforcement Agency”Destination Tine Out | Tine InVISITOR REGISTER BADGE jomzen DEPARTMENT PURPOSE: TIME: NUHBER| ee COMPANY AND ADDRESS {2,1 OR PERSON VISITED OF Visit NY] OUT O12 S#cameme £22! | RT, At aera ...\C? » lpn Celladnes. 24_ Alton, Pls. | [151 Fang — Ree. BF Retshias A Araster- Oh 42|C 44a Sweet. St .. Lala Amer. _ % Alenowte Arnis, | rhi7, Cpardeitos 1 geaden ss AEE A ba Berte enals| © O19. gee Hi Crnen Lire Feet Bux bas Norma) £89 brmchese Feeder Preble BSY Bushy Ave Lb | rcdese Crhu/_|01 lea Stenena SH IPY ICA Le | pees tT Aedes M20 Fulton Gils Ali |.