Personnel and disciplinary record, subject: the late Det. Mario Biaggi (ret.)

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 Detective Mario Biaggi, and all disciplinary records that identify Biaggi as a subject. For specificity and to rule out duplicates, the subject Biaggi's birthdate was October 26, 1917. His service dates were from 1942 to 1965 (years approximate).

Divisions that may hold responsive records include Internal Affairs and Employment Management; however, any record used to evaluate performance toward the subject's continued employment or promotion should be considered responsive.

It is the requesting party's understanding that pursuant to legislation signed by the Governor of the State of New York, the law (Civil Rights Law Section 50-a) that prevented disclosure of these records has been repealed and all such records are now covered by the Freedom of Information Law.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 vs. the public interest in favor of disclosure. This matter is of clear public interest for the following reasons: Biaggi was a public figure, having served as a Member of Congress in the U.S. House of Representatives from 1968 through 1988; he was a candidate for Mayor of New York City in 1973. He was also subject of two federal trials for corruption.

Mario Biaggi is widely known to have been deceased since 2015. Privacy interests are thereby 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

To Detective Halk, et al:

Please note, that on February 16, 2021, the U.S. Court of Appeals for the Second Circuit issued a Summary Order, affirming the previous decision of Southern District Justice Katherine Polk Failla in Uniformed Fire Officers Association v. DeBlasio (1:20-cv-05441) District Court, S.D. New York. Please find a copy of the Summary Order attached. Upon information and belief, the City Law Department is well aware of this Summary Order.

The Second Circuit appeal was the *only* pending legal matter preventing the processing and/or fulfillment of this request in accordance with the NYS Freedom of Information Law as amended following the repeal of CRL 50-A. All other legal challenges to the revised Freedom of Information Law in New York State have failed and other police departments throughout the state are fully complying.

Speaking to this particular request: the subject Mario Biaggi is deceased. By longstanding precedent his privacy interests are diminished, and there is little possibility of harm to ongoing matter.

Finally, this request was made almost eight (8) months ago. My last notification from the NYCPD pertaining to this request was made August 28, 2020, and stated that fulfillment was possible by November 2, 2020. There has been no communication from the Department since.

This being stated, I demand that records should be released forthwith, and barring their immediate release then I demand a reasonable timetable for when this request will be fulfilled.

-T. McElwee