Claims re: Louis Eppolito and Steven Caracappa

This letter is in reference to your Freedom of Information Law (FOIL) request, which we received on 11.8.19.

We anticipate completing our response to your request on or about JANUARY 10TH 2020.

If you have any questions regarding your request, please send an email to our FOIL Officer at foil@comptroller.nyc.gov<mailto:foil@comptroller.nyc.gov>.

Sincerely,
NYC Comptroller's Office FOIL Unit

On November 8, 2019, you submitted a Freedom of Information Law (FOIL) request for "[a]ny and all records concerning claims against the City that have been settled or ruled meritorious by the Office of Comptroller, where the claim mentions or concerns the conduct of NYPD Detective Louis Eppolito or NYPD Detective Steven Caracappa." As detailed below, your request is granted in part and denied in part.

This agency does not rule on the merit of claims. Accordingly, your request for "records concerning claims against the City that have been . . . ruled meritorious by the" Comptroller is denied because the agency does not have any responsive records. Your request for "records concerning claims against the City that have been settled . . . where the claim mentions or concerns the conduct of NYPD Detective Louis Eppolito or NYPD Detective Steven Caracappa" is granted. Due to the file size, the documents cannot be emailed to you, but are available for you to download using the following link: https://nyccomptroller.sharefile.com/d-sd972bf5e5474cb1a. Please download the documents and save them to your personal records as soon as possible because the link expires in 30 days. New York Public Officers Law ("POL") §§ 87(2)(b) and 89(2)(b) permits an agency to withhold certain information to prevent an unwarranted invasion of personal privacy. Accordingly, the following information was redacted from the records provided to you: claimants' home addresses and social security numbers.

Email communications by and between agency employees and employees at the New York City Law Department were removed from the records provided to you. Likewise, internal memoranda drafted by attorneys in preparation for the litigation or potential litigation of this matter were also removed from the records provided to you. The communications and memoranda are exempt from disclosure under N.Y.S. Public Officers Law ("POL") § 87(2)(a), which exempts from disclosure under FOIL any records exempted by state or federal statute. These records are exempt from disclosure under CPLR § 3101(d)(2), as materials "prepared in anticipation of litigation" and New York City Charter §§1058 and 1059, as materials "prepared by or for the comptroller for use in [a] proceeding to adjust or pay a claim against the city...." See also Committee on Open Government ("COOG"), Advisory Opinion No. 15338, (June 20, 2005) (opining that report prepared in anticipation of litigation was exempt from disclosure pursuant to CPLR § 3101(d)(2) and thus exempt under POL § 87(2)(a)), available at http://docs.dos.ny.gov/coog/ftext/f15338.htm; COOG Advisory Opinion No. 11591 (July 27, 1999) (opining that reports prepared by the Comptroller in response to notices of claims filed against the City of New York were exempt from disclosure as materials prepared in anticipation of litigation), available at http://docs.dos.ny.gov/coog/ftext/f11591.htm; Mitchell v. Borakove, 225 A.D.2d 435 (1st Dep't 1996) (holding that a disclosure exemption found in the New York City Charter constituted a state law exemption under POL § 87(2)(a)). Finally, these records are exempt from disclosure under POL § 87(2)(g). Under POL 87(2)(g)(i)-(iii), inter-agency and intra-agency communications that are not "statistical or factual tabulations or data; instructions to staff that affect the public; final agency policy or determinations; or external audits, including but not limited to audits performed by the comptroller and the federal government" are exempt from FOIL disclosure. Although inter-agency and intra-agency materials are "not defined under the FOIL statute, New York's courts have construed this term to mean deliberative material, i.e., communications exchanged for discussion purposes not constituting final policy decisions." Russo v. Nassau Cty. Cmty. Coll., 81 N.Y.2d 690, 699 (1993); see also Tuck-It-Away Assocs., L.P. v. Empire State Dev. Corp., 54 A.D.3d 154, 166 (App. Div. 1st Dep't 2008) ("the purpose of the intra-agency exemption [is] to permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure"). The communications and memos that are responsive to this portion of your request include emails by and between agency employees and emails from agency employees to other government agencies. The communications and memos involved the sharing of opinions and deliberations over pending litigation. These deliberative communications are precisely the type of communications that are exempt from disclosure under POL § 87(2)(g).

Please note, this agency does not maintain employee records for NYPD employees and/or evidentiary materials. Accordingly, this agency does not have any documents that raise "privacy concerns" for the deceased officers referenced in your request.
Pursuant to NYS Public Officers Law § 89(4), you have the right to appeal this determination. Appeals must be submitted by mail within 30 days of this writing to the following address:

FOIL Appeals Officer
New York City Comptroller's Office
Office of the General Counsel
One Centre Street, Suite 602
New York, NY 10007

Sincerely,

NYC Comptroller's Office FOIL Unit