Disciplinary record, subject: fmr. P.O. Rexgene Maralit
It is a clone of this request.
| Tracking # |
2020-056-14059 |
| Submitted | Sept. 22, 2020 |
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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 disciplinary record of Rexgene Maralit (alias "Rex Maralit," "Rex G. Maralit," and "Rex Gene Maralit") and all disciplinary records that identify Maralit as a subject.
For specificity and to rule out duplicates, the subject Maralit's year of birth was 1969. His service dates were from 2004 to 2014 (years approximate and inclusive). Maralit's records may be identified using the Tax ID/Social Security Number that begins with the first 5 digits 156-02.
In accordance with the Freedom of Information Law as amended by Chapter 96 of the Laws of New York of 2020, 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: Maralit has been convicted of illegal export of firearms by a federal court, and is listed as a "Denied Person" by United States Department of Commerce, Bureau of Industry and Security (see attached PDF for "In the Matter of Rex Gene Maralit," 80 FR 61358, p. 61358-61359, for proof).
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: New York City Police Department
Your request FOIL-2020-056-14059 has been successfully submitted to the New York City Police Department (NYPD).
The details of your request are shown below.
Request Title: Disciplinary record, subject: fmr. P.O. Rexgene Maralit
Request Description: Other Request
Request Type: Other Request
Other Request
Type of Request:
Report #:
Date:
Time:
Precinct:
Location:
Description:
To Whom It May Concern:
Pursuant to the New York Freedom of Information Law, I hereby request the following records:
The complete disciplinary record of Rexgene Maralit (alias "Rex Maralit," "Rex G. Maralit," and "Rex Gene Maralit") and all disciplinary records that identify Maralit as a subject.
For specificity and to rule out duplicates, the subject Maralit's year of birth was 1969. His service dates were from 2004 to 2014 (years approximate and inclusive). Maralit's records may be identified using the Tax ID/Social Security Number that begins with the first 5 digits 156-02.
In accordance with the Freedom of Information Law as amended by Chapter 96 of the Laws of New York of 2020, 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: Maralit has been convicted of illegal export of firearms by a federal court, and is listed as a "Denied Person" by United States Department of Commerce, Bureau of Industry and Security (see attached PDF for "In the Matter of Rex Gene Maralit," 80 FR 61358, p. 61358-61359, for proof).
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
Attachments:
https://cdn.muckrock.com/outbound_composer_attachments/LXHXZZTVENTLKU/88823/2015-25936.pdf
Upload documents directly: https://https://www.muckrock.comhttps://www.muckrock.com/
Attached File: 2015-25936.pdf: 2015-25936.pdf (https://a860-openrecords.nyc.gov/response/1223124)
Requester's Contact Information
Name:
T. Mcelwee
Title:
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Organization:
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Email:
requests@muckrock.com (mailto:requests@muckrock.com)
Phone Number:
Not provided
Fax Number:
Not provided
Street Address (line 1):
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Street Address (line 2):
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City:
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State:
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Zip Code:
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You can view the request and take any necessary action at the following webpage: https://a860-openrecords.nyc.gov/request/view/FOIL-2020-056-14059. (https://a860-openrecords.nyc.gov/request/view/FOIL-2020-056-14059)
From: New York City Police Department
The New York City Police Department (NYPD) has denied your FOIL request FOIL-2020-056-14059 for the following reasons: (https://a860-openrecords.nyc.gov/request/view/FOIL-2020-056-14059)
The Freedom of Information Law allows access to existing documents and does not necessitate the creation of a document. I am unable to provide access to these documents on the basis that your request does not reasonably describe a record in a manner that would enable a search to be conducted by the New York City Police Department.
Please visit FOIL-2020-056-14059 to view additional information and take any necessary action. You may appeal the decision to deny access to material that was redacted in part or withheld in entirety by contacting the agency's FOIL Appeals Officer: (https://a860-openrecords.nyc.gov/request/view/FOIL-2020-056-14059) foilappeals@nypd.org within 30 days. (mailto:foilappeals@nypd.org?subject=FOIL-2020-056-14059%20-%20Appeal)
From: T. McElwee
To whom it may concern:
I appeal the agency's denial in the matter of my FOIL request (assigned number"FOIL-2020-056-14059", captioned as "Disciplinary record, subject: fmr. P.O. Rexgene Maralit"). The grounds stated for the denial are disingenuous and an attempt to circumvent the NYS Freedom of Information Law by simply not performing a search.
My request provided a reasonable description of the category of records sought ("disciplinary records") and the used the language of the disciplinary records the agency must provide upon request as stated in the law.
I also provided more than adequate means of identifying the officer, including his name as listed ("Rexgene P. Maralit") as well as service dates (2004 to 2014), as well as a partial unique identifier ("Tax ID/Social Security Number with the first 5 digits 156-02").
As such I must doubt whether the Records Access Officer even bothered to perform a search.
I therefore appeal the Records Access Officer's determination, and make prayer for relief to the Appeals Officer for a proper search to be performed and records released as originally requested.
Please 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.
Sincerely,
T. McElwee
From: New York City Police Department
Appeal determination attached.
Respectfully,
Jordan S. Mazur, Esq.
Sergeant
Records Access Appeals Officer
NYPD Legal Bureau
1 Police Plaza, Room 1406
New York, NY 10038
FOILAppeals@NYPD.org<mailto:FOILAppeals@NYPD.org>
CONFIDENTIALITY NOTICE: This email and any attachments may contain confidential and privileged information for the use of the designated recipient(s) named above. If you are not the intended recipient, you are hereby notified that you have received this communication in error and that any review, use or disclosure of it or its contents is prohibited and may violate laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of this communication. Please treat this and all other communications from the New York City Police Department as LAW ENFORCEMENT SENSITIVE / FOR OFFICIAL USE ONLY.
-
~WRD000
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following New York Freedom of Information Law request, copied below, and originally submitted on Sept. 22, 2020. Please let me know when I can expect to receive a response. You had assigned it reference number #2020-056-14059.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following New York Freedom of Information Law request, copied below, and originally submitted on Sept. 22, 2020. Please let me know when I can expect to receive a response. You had assigned it reference number #2020-056-14059.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following New York Freedom of Information Law request, copied below, and originally submitted on Sept. 22, 2020. Please let me know when I can expect to receive a response. You had assigned it reference number #2020-056-14059.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following New York Freedom of Information Law request, copied below, and originally submitted on Sept. 22, 2020. Please let me know when I can expect to receive a response. You had assigned it reference number #2020-056-14059.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following New York Freedom of Information Law request, copied below, and originally submitted on Sept. 22, 2020. Please let me know when I can expect to receive a response. You had assigned it reference number #2020-056-14059.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following New York Freedom of Information Law request, copied below, and originally submitted on Sept. 22, 2020. Please let me know when I can expect to receive a response. You had assigned it reference number #2020-056-14059.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following New York Freedom of Information Law request, copied below, and originally submitted on Sept. 22, 2020. Please let me know when I can expect to receive a response. You had assigned it reference number #2020-056-14059.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following New York Freedom of Information Law request, copied below, and originally submitted on Sept. 22, 2020. Please let me know when I can expect to receive a response. You had assigned it reference number #2020-056-14059.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following New York Freedom of Information Law request, copied below, and originally submitted on Sept. 22, 2020. Please let me know when I can expect to receive a response. You had assigned it reference number #2020-056-14059.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following New York Freedom of Information Law request, copied below, and originally submitted on Sept. 22, 2020. Please let me know when I can expect to receive a response. You had assigned it reference number #2020-056-14059.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following New York Freedom of Information Law request, copied below, and originally submitted on Sept. 22, 2020. Please let me know when I can expect to receive a response. You had assigned it reference number #2020-056-14059.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following New York Freedom of Information Law request, copied below, and originally submitted on Sept. 22, 2020. Please let me know when I can expect to receive a response. You had assigned it reference number #2020-056-14059.
Thanks for your help, and let me know if further clarification is needed.
From: T. McElwee
To whom it may concern:
I appeal the Records Access Officer's constructive denial of my FOIL, assigned #2020-056-14059, captioned "Disciplinary record, subject: fmr. P.O. Rexgene Maralit."
Previously, in September 2020, this request was denied on improper grounds, and I therefore appealed.
The FOIL Appeals Officer, Sgt. Jordan S. Mazur, recognized the denial as improper and granted the appeal. Sgt. Mazur remanded to the Records Access Officer, but noted the stay order of the the U.S. Court of Appeals, 2nd Circuit.
Upon information and belief, the stay has been lifted by the U.S. Court of Appeals, meaning there is no longer any basis for the Records Access Officer to refuse to make a preliminary grant and indicate a due date. In fact, the NYPD is now openly providing disciplinary records of the type requested, but is not providing them in this requested case in a manner that is arbitrary and capricious.
I reiterate that the agency's action in this matter (or lack thereof) is deemed under the applicable law as constructive denial, i.e., denial through inactivity.
I am therefore seeking an administrative appeal of the Records Access Officer on basis of constructive denial, and note that if the administrative appeals is fruitless, the only remaining option is lawsuit under Article 78 of the Civil Practice Law and Rules, where remedies may include a court order to comply and the possibility of court costs being recovered at the agency's expense.
My prayer for relief is that the Appeals Officer provide explicit instruction to comply with the request, including a response setting a date when records will be produced.
Sincerely,
T. McElwee
From: New York City Police Department
There is a significant backlog of several thousand requests for disciplinary records. Your appeal remains premature; the request has not been constructively denied and is being processed.
Respectfully,
[Signature New]
CONFIDENTIALITY NOTICE: This email and any attachments may contain confidential and privileged information for the use of the designated recipient(s) named above. If you are not the intended recipient, you are hereby notified that you have received this communication in error and that any review, use or disclosure of it or its contents is prohibited and may violate laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of this communication. Please treat this and all other communications from the New York City Police Department as LAW ENFORCEMENT SENSITIVE / FOR OFFICIAL USE ONLY.
From: New York City Police Department
The New York City Police Department (NYPD) has re-opened your FOIL request FOIL-2020-056-14059 for the following reason: (https://a860-openrecords.nyc.gov/request/view/FOIL-2020-056-14059) This request has been re-opened in response to an appeal. You can expect a response on or about Thursday, June 3, 2021. Please visit FOIL-2020-056-14059 to view additional information and take any necessary action. (https://a860-openrecords.nyc.gov/request/view/FOIL-2020-056-14059)
From: New York City Police Department
The New York City Police Department (NYPD) has closed your FOIL request FOIL-2020-056-14059 for the following reasons: (https://a860-openrecords.nyc.gov/request/view/FOIL-2020-056-14059)
In regard to the document(s) which you requested, I must deny access to these records on the basis of Public Officers Law Section 87(2)(b) as such information, if disclosed, would constitute an unwarranted invasion of personal privacy.
You may appeal the decision to deny access to material that was redacted in part or withheld in entirety by contacting the agency's FOIL Appeals Officer: foilappeals@nypd.org within 30 days. (mailto:foilappeals@nypd.org?subject=FOIL-2020-056-14059%20-%20Appeal)
From: T. McElwee
To whom it may concern:
I hereby APPEAL the Records Access Officer's decision to reject the request in the matter of FOIL # 2020-056-14059 in full.
Stated grounds for the rejection of this FOIL are that it "would constitute an unwarranted invasion of personal privacy." These grounds are invalid for a host of reasons.
First and foremost, the legislature repealed CRL 50-A, and laws replacing it explicitly state that police disciplinary records are generally subject to FOIL. There are a few exceptions; however, these exceptions are generally to be enforced through redaction of disciplinary records –not rejection of the FOIL request.
Second, citing privacy interest here is inappropriate. Other than police disciplinary records having no such privacy protections under the Freedom of Information Law, in citing any privacy interest to deny a FOIL request, the interest must be weighed in a balancing test against the public interest in disclosure.
In this matter, the public has an overwhelming interest in the disciplinary record, as the subject Maralit is convicted for the straw purchase and export of firearms to the Philippines from at least 2009 until his arrest in 2015. His disciplinary record during this time is a matter not only of interest to the American public but potentially to the interests of the international fight against illegal arms traffic.
My prayer for relief to the Appeals Officer is the remand of this request to the Records Access Officer with instruction to make the necessary arrangements to locate and provide the records requested, and to use redaction of the documents (not rejection) within the scope of the Freedom of Information Law.
Sincerely,
T. McElwee
From: New York City Police Department
Appeal determination attached.
Respectfully,
[Signature New]
CONFIDENTIALITY NOTICE: This email and any attachments may contain confidential and privileged information for the use of the designated recipient(s) named above. If you are not the intended recipient, you are hereby notified that you have received this communication in error and that any review, use or disclosure of it or its contents is prohibited and may violate laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of this communication. Please treat this and all other communications from the New York City Police Department as LAW ENFORCEMENT SENSITIVE / FOR OFFICIAL USE ONLY.
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