Personnel and disciplinary record, subject: late Detective Stephen E. Gardell

To Whom It May Concern:

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

The complete personnel record of the deceased Detective Stephen E. Gardell and all disciplinary records that identify Gardell as a subject. For specificity and to rule out duplicates, the subject's month and year of birth are 6/1947. His service dates span the 1970 to 2000, years both approximate and inclusive.

Divisions that may hold responsive records include Internal Affairs, Employment Management, and Department Advocate's Office; however, any record used to evaluate performance toward the subject's continued employment or promotion should be considered responsive.

Per legislation signed by the Governor on June 12, 2020 as Chapter 96 of the New York State Laws of 2020, these records may no longer be withheld citing New York State Civil Rights Law 50-a (which was repealed immediately). Under this same law, they are now subject to release upon request through the state's Freedom of Information Law.

Explicitly releasable are records including:
* 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;
* 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 "balancing test" of the Freedom of Information Law, weighing public interest in disclosure against privacy interest in redaction, circumstances clearly point to the public interest in disclosure.

In this particular case, the subject of the request is former Treasurer of the Detectives Endowment Association; in this capacity he was a public figure with diminished privacy interest. In addition, subject is deceased as of 2015; please see obituary attached. Privacy interests are almost totally diminished and public interest in release of such records is strong. Subject pled guilty in federal court to the crime of Fraud by Wire, Radio or Television in 2001, in which he gave access to police pension funds to the Five Families of Cosa Nostra, a subject of unique public interest.

To state the broader interest of the public in favor of the release of records generally, I will quote the Memorandum of Support from the aforementioned legislation:

"Recent events have highlighted the importance for the public to have access to information, specifically with regards to law enforcement disciplinary records. The Freedom of Information Law helps achieve the goal of an open and transparent government by providing individuals with greater access to their government. There is a strong presumption under FOIL that government records are accessible to the public. That ability to FOIL this type of record will lead to a greater trust between the public and law enforcement."

(see Memo, NYS Assembly Bill 10611/ NYS Senate Bill 08496, "An act to amend the civil rights law and the public officers law, in relation to the disclosure of law enforcement disciplinary records; and to repeal section 50-a of the civil rights law relating thereto.")

I pray that these records be released forthwith.

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

Police Officer Tanchajja, 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: the subject Stephen Gardell is deceased. By longstanding precedent his privacy interests are diminished, and there is little possibility of harm to ongoing matter.

Finally, this request was made almost seven (7) months ago. My last notification from the NYCPD pertaining to this request was made September 2, 2020, and stated that fulfillment was possible by December 7, 2020. There has been no communication from the Department since.

This being stated, I demand that records be released forthwith, and barring their immediate release then I request a reasonable timetable for release.

-T. McElwee