Policies and training materials

To Whom It May Concern:

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

(1) Any and all documents describing policies or guidances on collecting, processing, and maintaining bodyworn camera footage;

(2) Any and all lists of officers for whom adverse credibility findings and other impeaching information must be disclosed before they testify;

(3) Any and all 2020 and 2021 "regular day off" schedules for police;

(4) Any and all documents describing policies or guidances on when to request bail, what kind of bail to request, and the amount of bail that prosecutors should request, including without limitation any charts, tools, or assessments used;

(5) Any and all documents describing policies or guidances about when and how to take into account the immigration status of a defendant;

(6) Any and all documents describing policies or guidances about when and how to make offers on cases;

(7) Any and all documents or materials used to train assistant district attorneys on C.P.L. § 30.30, including, but not limited to, powerpoint slides and training manuals;

(8) Any and all documents or materials used to train assistant district attorneys on Brady or Giglio requirements, including, but not limited to, powerpoint slides and training manuals;

(9) Any and all documents or materials describing the policy of reviewing, adjudicating, or disciplining prosecutorial misconduct by Manhattan assistant district attorneys, as limited to only those documents constituting final policy determinations; and

(10) Any and all documents or materials describing charging policies, including, but not limited to, descriptions of the types of circumstances under which it is appropriate to charge more or less severe violations of the Penal Law or Vehicle and Traffic Law, as limited to only those documents constituting final policy determinations.

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,

Avinash Samarth

Hello,

I'm following up on these.

Thanks!
Avi Samarth

Thank you for your response. Where should I send the certified check?

Sincerely,
Avinash Samarth

November 28, 2020

BY E-MAIL

Patricia J. Bailey, Bureau Chief
Special Litigation Bureau
New York County District Attorney’s Office
One Hogan Place
New York, NY 10013

RE: Administrative Appeal – FOIL Request

Dear Ms. Bailey:

I write to appeal a partial denial of my Freedom of Information Law (“FOIL”) request to the District Attorney of New York County ("DANY"). On July 20, 2020, I submitted by FOIL request [hereinafter "Request"] to DANY, attached to this email. On October 29, 2020, DANY responded to my request [hereinafter "Response"], granting access to some documents and denying access to others. DANY wrote that the pages to which access is granted “will be provided in electronic format, as requested, upon payment of $32.50 (.25¢ per page).” DANY's response is also attached to this email.

I seek administrative review of DANY's demand of a fee for electronic documents, as well as all of DANY's partial denials.

(I) DANY INAPPROPRIATELY DEMANDED A FEE FOR DOCUMENTS IN AN ELECTRONIC FORMAT

DANY cannot demand a fee for producing documents in an electronic format. As an August 13, 2020 advisory opinion from the Committee on Open Government explains, "an agency may charge fees only for the reproduction of records." Advisory Opinion, COOG (Aug. 13, 2020) at 1. Where "the records requested . . . appear to exist in a format other than paper records or paper records in excess of nine by fourteen inches," then § 87(1)(c) of FOIL states that "no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the records requested." Id. at 2. Where records "already exist in an electronic format," there is no need to scan or otherwise prepare a copy of the records---let alone take more than two hours doing so. Id. Here, the records are already in an electronic format and need only be emailed to me; therefore, DANY cannot assess a fee for their disclosure.

The Committee on Open Government's August 13, 2020 advisory opinion is also attached to this email.

(II) DANY INAPPROPRIATELY WITHHELD DOCUMENTS

I seek review of all of DANY's partial denials. DANY made a number of errors, including, without limitation:

(A) DANY failed to articulate a "particularized and specific justification" for why body-worn camera records that "relate to the methods by which DANY accesses evidence" could conceivably "enable future violators of the law to tailor their conduct to avoid detection." Response at 3-4; see Fink v. Lefkowitz, 47 N.Y.2d 567, 571 (1979) (holding that an agency must articulate a "particularized and specific justification" for why documents are exempt).

(B) DANY cannot deny access to NYPD "regular-day-off" schedules that are in its possession simply because NYPD also maintains and keeps those schedules. Response at 4. DANY is in possession of these schedules and regularly disseminates them throughout its office.

In addition, I request that all withheld documents be reasonably described and listed in a privilege log. I also request that you send your responses to this administrative appeal by email. I look forward to your response within ten business days.

Thank you for your assistance.

Sincerely,
Avi Samarth

Thanks for your response. Is a regular check okay, or does it need to be certified?