FOIL Request: Investigation into death of Lewis A. Fidler

To Whom It May Concern:

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

All records of the Queens County District Attorney mentioning or generally concerning the investigation into the circumstances of death of former Council Member Lewis A. Fidler, more commonly known as Lew Fidler. Per published press reports, Fidler was discovered unconscious in an unnamed movie theater, at 11PM on May 4, 2019; he died a short time later on the following day, and per published reports he did not return to consciousness.

My request includes all material gathered as part of the DA's investigation into the event including: accounts of the discovery of Fidler's unconscious body at the movie theater; accounts of Fidler's whereabouts and activities leading to this event; records of 911 calls and dispatch records for police and/or paramedics/EMS (such as "Aided Reports"); and any records of autopsy and naming the proximate cause of death.

I cite the following circumstances as favoring disclosure of the records: Lewis Fidler is a deceased public figure; under Freedom of Information Law, the privacy interests of a deceased person are diminished, as are the privacy interests of a public figure. There is also an implicit public interest in knowing the complete circumstances of a public figure's death, as noted by numerous published accounts as well as obituaries for Mr. Fidler.

I accept that where materials name living, non-public figures that redaction may be required for the sake of privacy; however, I assert portions referencing Fidler should be released with minimal redaction. I further assert that the EMS and postmortem medical records provided to or prepared by the District Attorney are not covered by HIPAA, as public safety agencies that do not charge for services are not covered by HIPAA.

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 20 business days, as the statute requires.

Sincerely,

T. McElwee

To: District Attorney Rebecca Katz, as chief executive of the Queend District Attorney's Office and de facto Freedom of Information Law Appeals Officer

Re: FOIL Request: Investigation into death of Lewis A. Fidler

This message is to follow up on a July 6, 2020 Freedom of Information Law request (sent via email to the address qdacommunications@queensda.org and subject line captioned above). This address has not responded to this request within the statutory limit of 5 business days for such a response. As of this writing, 20 business days have gone by without acknowledgment of the request.

As such, I am invoking my right to send an administrative appeal directly to the DA on grounds that the Records Access Officer's failure to acknowledge receipt of a lawful records request within the mandated period of five (5) business is a constructive denial by the agency under the Freedom of Information Law.

I will cite the New York State Department of State Committee on Open Government advice regarding constructive denial of Freedom of Information Law requests:

"When an agency receives a request, §89(3)(a) of the Freedom of Information Law requires that it has five business days to grant or deny access in whole or in part, or if more time is needed, to acknowledge the receipt of the request in writing and indicate an approximate date by which the agency will respond to the request […] A failure to comply with any of the time limitations imposed by law would constitute a denial of a request that may be appealed in accordance with §89(4)(a) of the Freedom of Information Law."

Please also 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.

I pray the District Attorney gives a response granting the records request within the ten (10) business day window as required by statute, and set a timetable for the release of said records.

- T. McElwee