Personnel and disciplinary records, subjects: the late Det. Louis Eppolito (ret.) & the late Det. Stephen Caracappa (ret.)

To Whom It May Concern:

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

All personnel records and disciplinary records where the identified subject is either (or both) Louis Eppolito or Stephen Caracappa, two former NYPD detectives who were members of the Organized Crime Homicide Unit (OCHU) within the Major Case Squad. Both Eppolito and Caracappa are widely reported as deceased; a report of Eppolito's death in 2019 (that also notes Caracappa predeceasing him in 2017) is attached as proof.

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of the State of New York, the law that prevented disclosure of this material (Civil Rights Law Section 50-a) has been repealed and all such records are now covered by the Freedom of Information Law.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 the law and multiple precedents, Freedom of Information Law requests are subjected to a "balancing test" method of weighing privacy interests favoring redaction/denial vs. the public interest in disclosure. As we are in uncharted territory I wish to contend the following in favor of full disclosure of records with minimal redactions.

* In this matter, the privacy interests for Caracappa and Eppolito are greatly diminished by their deceased status. There are simply no consequences, professional or otherwise, that will be felt by Caracappa or Eppolito.
* Stating the public interest in disclosure, the requested records should be considered releasable on the grounds that Eppolito and Caracappa were arrested in 2005, were the defendants in a federal trial from 2006 through 2009 on charges of conspiring to commit acts of murder and kidnapping with organized crime figures while they were Detectives. They were found guilty and served what were effectively life sentences.
* While I concede to the rights asserted in FOIL exemption with regard to living relatives and complainants, I assert that the names of hearing officers and other staff of the NYPD are disclosable (i.e., names of investigators, hearing officers, and administrative staff). In fact, as the conduct of the police hierarchy was a subject of litigation in several wrongful death lawsuits settled in 2015, release of this information serves an overriding public interest to evaluate the NYPD's response to charges of police corruption and misconduct.
* The two named persons are public figures, as shown by their own actions: Eppolito co-wrote a memoir of his time in the NYPD in 1992 ("Mafia cop: The story of an honest cop whose family was the mob." New York: Simon & Schuster) and appeared on the talk show of Sally Jesse Raphael in 1998, to discuss his time with the NYPD and on his family's ties to organized crime. Stephen Caracappa appeared on the news program 60 Minutes on January 8, 2006 to speak to his honorable service and his innocence. These publicly stated claims by public figures open the door to full disclosure of records for examination by the public, to test the veracity of these claims.

The balancing test is thus in favor of disclosure and I request the full personnel and internal investigative records of Louis Eppolito or Stephen Caracappa.

For purposes of finding records in Police Department databases and indexes, I will furnish the following identifiers:

Louis Eppolito:
First 5 Digits of SSN: 129-36
Date of Birth: 7/22/1948
Date of Death: 11/03/2019
NYPD Dates of service: 8/1/1969 through 2/18/1990

Stephen Caracappa:
First 5 Digits of SSN: 115-32
Date of Birth: 11/12/1941
Date of Death: 04/08/2017
NYPD Dates of Service: 6/30/1969 through 11/4/1992

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, both subjects of this request, Stephen Caracappa and Louis Eppolito, are deceased. By longstanding precedent their privacy interests are considerably diminished, and the 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.

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

-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 # 2020-056-08793 ​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 produced 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.

Citing ample precedent, the privacy interests of the two named subjects Det. Louis Eppolito and Det. Stephen Caracappa are diminished due to the well-publicized deaths of both men while serving life sentences. There is simply no privacy interest served through denial.

Further, the public has an overwhelming interest in the disciplinary record, as the subjects Det. Louis Eppolito and the late Det. Stephen Caracappa were convicted for crimes committed during (and after) their service in the New York Police Department. Disciplinary records are a matter not only of interest to the American public but to continuing efforts to understand and deter corruption.

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 comply with the request by locating and providing the records as requested, and to use redaction of the documents (not rejection) within the narrow scope of the Freedom of Information Law.

Sincerely,
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 # 2020-056-08793 ​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 produced 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.

Citing ample precedent, the privacy interests of the two named subjects Det. Louis Eppolito and Det. Stephen Caracappa are diminished due to the well-publicized deaths of both men while serving life sentences. There is simply no privacy interest served through denial.

Further, the public has an overwhelming interest in the disciplinary record, as the subjects Det. Louis Eppolito and the late Det. Stephen Caracappa were convicted for crimes committed during (and after) their service in the New York Police Department. Disciplinary records are a matter not only of interest to the American public but to continuing efforts to understand and deter corruption.

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 comply with the request by locating and providing the records as requested, and to use redaction of the documents (not rejection) within the narrow scope of the Freedom of Information Law.

Sincerely,
T. McElwee