Police Brady List Records (January 1, 2010 - Present)

Subject: FOIL Request for Police Brady List Records (January 1, 2010 - Present)

To: Westchester County District Attorney’s Office
111 Dr. Martin Luther King Jr. Blvd.
White Plains, NY 10601

Dear Records Access Officer,

This is a formal request under the New York Freedom of Information Law (Public Officers Law §§ 84-90) to access records related to the Brady list maintained by the Westchester County District Attorney’s Office. As an investigative journalist, I seek these records to ensure public transparency and accountability regarding police officer conduct.

Requested Records:

1. Brady List Records (January 1, 2010 - Present):
• The complete Brady list of police officers maintained by your office from January 1, 2010, to the present, including names, ranks, and details of the misconduct that led to their inclusion on the list.
• Legal Support: Brady v. Maryland, 373 U.S. 83 (1963) requires the disclosure of exculpatory evidence, including information about officer misconduct, to ensure a fair trial.
2. Internal Affairs Records:
• All records, reports, and findings from the Internal Affairs Division related to officers included on the Brady list from January 1, 2010, to the present.
• Legal Support: Giglio v. United States, 405 U.S. 150 (1972) extends the Brady obligation to include evidence affecting the credibility of prosecution witnesses, including police officers.
3. Communications:
• All communications between the Westchester County District Attorney’s Office and the Westchester County Police Department, other local police departments, the Public Defender’s Office, or any other relevant bodies regarding the Brady list from January 1, 2010, to the present.
• Legal Support: United States v. Bagley, 473 U.S. 667 (1985) reinforces the need for the prosecution to disclose evidence favorable to the defense, including information affecting the credibility of law enforcement officers.
4. Notification and Appeal Process:
• Any documents, memos, or communications regarding the notification process for officers placed on the Brady list and the procedures available to them for appealing their inclusion on the list.
• Legal Support: Mathews v. Eldridge, 424 U.S. 319 (1976) emphasizes the need for due process, including notice and the opportunity to be heard, when individuals are subjected to government actions that affect their rights.

Public Interest Justification:

The requested information is of significant public interest, particularly concerning the transparency of law enforcement activities and the credibility of police officers who serve as witnesses in criminal cases. Disclosure of these records will promote public understanding and facilitate informed community oversight.

Fees and Document Delivery:

I request a waiver of all fees associated with the processing of this request, as the disclosure serves the public interest significantly and enhances the understanding of government operations without any commercial benefit. I prefer to receive the documents electronically, via email or on a CD-ROM if digital transmission is not feasible.

Response Time and Legal Compliance:

As per the New York Freedom of Information Law, I expect a response within the statutory timeframe. Failure to comply with this request may result in legal action to enforce the Act’s provisions. I remind you of your obligation to review this request carefully and to disclose all non-exempt portions of the requested records.

Notice of Publication:

Please be aware that all communications related to this request will be published on a public platform to ensure transparency.

Legal Action:

If necessary, I am prepared to initiate an Article 78 proceeding to compel compliance with the FOIL.

Conclusion:

Thank you for your attention to this matter. I look forward to your prompt response and the provision of the requested records in accordance with the New York Freedom of Information Law.

Sincerely,

Jordan Lassiter
Investigative Journalist

July 10, 2024

Miriam E. Rocah
District Attorney
Office of the District Attorney
Westchester County
111 Dr. Martin Luther King Jr. Blvd.
White Plains, New York 10601

Re: Appeal of FOIL Denial – Police Brady List Records (January 1, 2010-Present)

Dear Ms. Rocah,

I am writing to appeal the denial of my FOIL request dated June 18, 2024, for the following records:

1. Brady list records (January 1, 2010 – Present)
2. Internal affairs records pertaining to officers included on the Brady list from January 1, 2020, to the present
3. All communications between the Westchester County District Attorney’s Office and relevant bodies regarding the Brady list from January 1, 2010, to present
4. Notification and appeal process for officers placed on the Brady list

Item #1 and #3: Brady List Records and Communications

The denial stated that these records are exempt from disclosure under FOIL because they are compiled in furtherance of a prosecutor’s statutory and constitutional obligation. However, this exemption is overly broad and not applicable in this context. The applicable case law supports the release of these records:

• Brady v. Maryland, 373 U.S. 83 (1963): Established the obligation of the prosecution to disclose evidence favorable to the defendant, which is material either to guilt or to punishment.
• Giglio v. United States, 405 U.S. 150 (1972): Extended the Brady rule to include evidence affecting the credibility of a witness.
• People v. Garrett, 23 N.Y.3d 878 (2014): Affirmed that the prosecution’s duty to disclose includes not just information in its possession but also that which could be obtained through reasonable inquiry.

Additionally, under the New York Freedom of Information Law (Public Officers Law § 87[2]), exemptions should be narrowly construed, and the burden of proof is on the agency to demonstrate that the records fall squarely within the exemption:

• Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267 (1996): Emphasized that FOIL exemptions must be narrowly construed to maximize public access to government records.

Item #2: Internal Affairs Records

The response indicated that the information is not catalogued in a manner which allows for a search by terms and that retrieval would be burdensome. However, FOIL does not permit the denial of records simply because they are not easily retrievable. The Public Officers Law § 89[3][a] requires agencies to make reasonable efforts to locate records:

• Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454 (2007): The Court of Appeals held that an agency must make reasonable efforts to locate and retrieve records requested under FOIL.

Furthermore, it is likely that the records in question are maintained in a manner that allows for retrieval, as internal affairs records and Brady lists are typically crucial components of law enforcement record-keeping and prosecutorial disclosure obligations.

Item #4: Notification and Appeal Process

The claim that no records exist for the notification and appeal process of officers placed on the Brady list is implausible. Given the legal and procedural requirements to maintain transparency and accountability in law enforcement:

• Mathews v. Eldridge, 424 U.S. 319 (1976): Established the procedural due process requirements, including notice and an opportunity to be heard.

Notice of Intent to Pursue Legal Action

Please be advised that if the denial of this FOIL request is not reversed, I intend to pursue legal action to compel the release of the requested records. FOIL is designed to ensure transparency and accountability, and the public’s right to access government records is a fundamental aspect of this principle.

I expect a response to this appeal within 10 business days as mandated by Public Officers Law § 89[4][a]. Thank you for your prompt attention to this matter.

Sincerely,

Jordan Lassiter
MuckRock News

Citations:

1. Brady v. Maryland, 373 U.S. 83 (1963)
2. Giglio v. United States, 405 U.S. 150 (1972)
3. People v. Garrett, 23 N.Y.3d 878 (2014)
4. Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267 (1996)
5. Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454 (2007)
6. Mathews v. Eldridge, 424 U.S. 319 (1976)

August 13, 2024

Miriam E. Rocah
District Attorney
Office of the District Attorney
Westchester County
111 Dr. Martin Luther King Jr. Blvd.
White Plains, New York 10601

Re: Follow-up on FOIL Appeal – Police Brady List Records (January 1, 2010-Present)

Dear Ms. Rocah,

I am writing to follow up on my FOIL appeal dated July 10, 2024, regarding the denial of my original FOIL request for the following records:

1. Brady list records (January 1, 2010 – Present)
2. Internal affairs records pertaining to officers included on the Brady list from January 1, 2020, to the present
3. All communications between the Westchester County District Attorney’s Office and relevant bodies regarding the Brady list from January 1, 2010, to present
4. Notification and appeal process for officers placed on the Brady list

As per Public Officers Law § 89[4][a], I expected a response to this appeal within 10 business days. However, I have yet to receive any acknowledgment or decision regarding the appeal. Please inform me of the status of my appeal or provide the requested records as soon as possible.

Given the importance of the requested documents to public transparency and accountability, I would appreciate a prompt resolution to this matter. If I do not receive a response within the next 5 business days, I will have no choice but to consider further legal action to enforce my rights under FOIL.

Thank you for your attention to this follow-up. I look forward to your prompt response.

Sincerely,
Jordan Lassiter

Dear Ms. Rocah and Ms. Lomma,

Thank you for your detailed and thorough response to my New York Freedom of Information Law request. I appreciate the time and effort your office has taken to address my appeal.

I will further review and research the information and legal precedents provided in your response. Additionally, I intend to reach out to the New York State Committee on Open Government to seek further guidance on the next steps I should take.

Thank you again for your attention to this matter.

Sincerely,
Jordan Lassiter