Personnel and disciplinary record, subject: the late Officer Gerard Benderoth

T. McElwee filed this request with the Haverstraw Town Police Department of Haverstraw, NY .
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Withdrawn

Communications

From: T. McElwee


To Whom It May Concern:

Pursuant to the New York Freedom of Information Law, I hereby request the following records:

The complete personnel record of the retired and deceased Police Officer Gerard Benderoth, and all internal disciplinary records that identify Benderoth as a subject. For specificity and to rule out duplicates, the subject Benderoth birthdate was February 1, 1969. Benderoth was noted as a member of the town police force at the time of his death in 2017.

It is the requesting party's understanding that pursuant to legislation signed by the Governor of the State of New York, the law that prevented disclosure of this material (Civil Rights Law Section 50-a) has been repealed and all such records are now covered by the Freedom of Information Law.

In accordance with the Freedom of Information Law as it has been amended by aforementioned legislation, records that may be released include "the complaints, allegations, and charges against an employee; the name of the employee complained of or charged; the transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing; the disposition of any disciplinary proceeding; and the final written opinion or memorandum supporting the disposition and discipline imposed including the agency's complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee."

Under precedent, Freedom of Information Law uses a "balancing test" method of weighing privacy interests favoring redaction/denial against the public interest in favor of disclosure. This matter is of clear public interest for the following reasons: Benderoth was a public figure having been an amateur boxer in the Golden Gloves tournament and a competitor in World's Strongest Man competitions. The circumstances of his death was well-publicized, having occurred as he was sought by the Federal Bureau of Investigation in a quadruple homicide investigation.

As a deceased person, the privacy interests of Benderoth are diminished.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

T. McElwee

From: T. McElwee

To: Chief Peter Murphy as chief executive of the Haverstraw Town Police Department and de facto Freedom of Information Law Appeals Officer

Re: New York Freedom of Information Law Request: Personnel and disciplinary record, subject: the late Officer Gerard Benderoth

On 6/16/2020, I sent via fax a Freedom of Information Law request to the Haverstraw Town Police Department (captioned above, with full text attached as PDF). Whoever the agency's Records Access Officer is, that person has not responded to this request within the statutory limit of 5 business days for such a response.

As such, I am invoking my right to make an administrative appeal directly to the Sheriff (in capacity as de facto Appeals Officer) on grounds that the Records Access Officer's failure to acknowledge receipt of a lawful record request within the mandated period of 5) business is a constructive denial by the agency under the State Freedom of Information Law.

I will cite the New York State Department of State Committee on Open Government advice regarding constructive denial of Freedom of Information Law requests:

"When an agency receives a request, §89(3)(a) of the Freedom of Information Law requires that it has five business days to grant or deny access in whole or in part, or if more time is needed, to acknowledge the receipt of the request in writing and indicate an approximate date by which the agency will respond to the request […] A failure to comply with any of the time limitations imposed by law would constitute a denial of a request that may be appealed in accordance with §89(4)(a) of the Freedom of Information Law."

Please also note that under Freedom of Information Law, the agency "is required to respond to the appeal within ten business days of the receipt of the appeal by granting access to the records or fully explaining the reasons for further denial in writing. See FOIL §89(4)(b). If a determination on the appeal is not rendered within ten business days, the failure to do so constitutes a denial of the appeal."

I am also advised by Committee of Open Government that constructive denial of the appeal opens the agency to lawsuit under Article 78 of the Civil Practice Law and Rules, and that remedies include the possibility of court costs being recovered at the agency's expense.

This advice is from "FAQ - Freedom of Information Law (FOIL)" at the following URL: https://www.dos.ny.gov/coog/freedomfaq.html

I pray that the Chief give a response granting the records request within the ten (10) business day window as required by statute, and set a timetable for the release of said records.

- T. McElwee

  • New20York20Freedom20of20Information20Law20Request2C20Personnel20and20disciplinary20re.pdf

From: T. McElwee

Chief Murphy:

Looking at my last email to you, it appears the PDF of the Benderoth request did not attach. That FOIL request is attached here.

My previous emailed FOIL appeal ("New York Freedom of Information Law Request: Personnel and disciplinary record, subject: the late Officer Gerard Benderoth") is restated below my signature for purposes of keeping record.

-T. McElwee

To: Chief Peter Murphy as chief executive of the Haverstraw Town Police Department and de facto Freedom of Information Law Appeals Officer

Re: New York Freedom of Information Law Request: Personnel and disciplinary record, subject: the late Officer Gerard Benderoth

On 6/16/2020, I sent via fax a Freedom of Information Law request to the Haverstraw Town Police Department (captioned above, with full text attached as PDF). Whoever the agency's Records Access Officer is, that person has not responded to this request within the statutory limit of 5 business days for such a response.

As such, I am invoking my right to make an administrative appeal directly to the Sheriff (in capacity as de facto Appeals Officer) on grounds that the Records Access Officer's failure to acknowledge receipt of a lawful record request within the mandated period of 5) business is a constructive denial by the agency under the State Freedom of Information Law.

I will cite the New York State Department of State Committee on Open Government advice regarding constructive denial of Freedom of Information Law requests:

"When an agency receives a request, §89(3)(a) of the Freedom of Information Law requires that it has five business days to grant or deny access in whole or in part, or if more time is needed, to acknowledge the receipt of the request in writing and indicate an approximate date by which the agency will respond to the request […] A failure to comply with any of the time limitations imposed by law would constitute a denial of a request that may be appealed in accordance with §89(4)(a) of the Freedom of Information Law."

Please also note that under Freedom of Information Law, the agency "is required to respond to the appeal within ten business days of the receipt of the appeal by granting access to the records or fully explaining the reasons for further denial in writing. See FOIL §89(4)(b). If a determination on the appeal is not rendered within ten business days, the failure to do so constitutes a denial of the appeal."

I am also advised by Committee of Open Government that constructive denial of the appeal opens the agency to lawsuit under Article 78 of the Civil Practice Law and Rules, and that remedies include the possibility of court costs being recovered at the agency's expense.

This advice is from "FAQ - Freedom of Information Law (FOIL)" at the following URL: https://www.dos.ny.gov/coog/freedomfaq.html

I pray that the Chief give a response granting the records request within the ten (10) business day window as required by statute, and set a timetable for the release of said records.

- T. McElwee

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