Roth (Prude's Attorney vs. City of Rochester) (122276)

FILED: MONROE COUNTY CLERK 09/18/2020 11:10 AM INDEX NO.
E2020007203
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/18/2020
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2493773
Book Page CIVIL
Return To: No. Pages: 28

ELLIOT DOLBY-SHIELDS
192 Lexington Avenue, Suite 802 Instrument: EFILING INDEX NUMBER
New York, NY 10016
Control #: 202009181131
Index #: E2020007203
Date: 09/18/2020
Roth & Roth, LLP Time: 4:20:17 PM
City of Rochester
State Fee Index Number $165.00

County Fee Index Number $26.00
State Fee Cultural Education $14.25
State Fee Records $4.75 Employee: ARC
Management
Total Fees Paid: $210.00
State of New York
MONROE COUNTY CLERK’S OFFICE

WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF MONROE
ROTH & ROTH, LLP,
Petitioner,
-against-
INDEX NO.:
PETITION
CITY OF ROCHESTER,
Respondent,
For a Judgment Pursuant to Article 78 of

the Civil Practice Law and Rules.
ELLIOT D. SHIELDS, ESQ., an attorney duly admitted to practice law
before the Courts of the State of New York, affirms the following under penalties of
perjury:
1. I am associated with the law firm ROTH & ROTH, LLP, and I am fully
familiar with the facts and circumstances surrounding the within matter based on
the files maintained in my office and our investigation of the within incident.
INTRODUCTION
2. This proceeding is brought under Article 78 of the New York Civil
Practice Law and Rules (''CPLR") to vindicate the rights of the Petitioner and the
public, who were unlawfully denied access to records requested under the New York
Freedom of Information Law (“FOIL”), Public Officers Law §§ 84 et seq. regarding
the murder of Daniel T. Prude by Rochester Police Department (“RPD”) officers
Mark Vaughn, Troy Taladay and Francisco Santiago, and the subsequent cover-up
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by the RPD and the City of Rochester (“City”). When the RPD officers killed Mr.
Prude, he was naked, handcuffed, wearing a “spit hood”, and clearly not a danger to
the RPD officers or anyone else.
3. On April 3, 2020, Petitioner submitted a FOIL request for all records—
including communications and body worn camera recordings—related to the March
23, 2020 interaction between Daniel T. Prude and RPD officers, which caused his
death.
4. As explained below, the City failed to comply with the statutory
deadlines for responding to the Petitioner’s April 3, 2020 FOIL request; unlawfully
refused to produce the body worn camera recordings of the incident; and falsely
certified that numerous records did not exist. Specifically, the City’s FOIL Appeals
Officer falsely certified that there were no “communications by any RPD Officers
and/or City employees related to” the March 23, 2020 incident.
5. Recently, on September 14, 2020—after the RPD and City were
exposed for covering up Mr. Prude’s murder—the City released an internal
“Managerial Review of the Death of Daniel Prude” (hereinafter the “Smith Memo”,
which was accompanied by 323 pages of supporting documents and
communications. Notably, the 323 pages of supporting documents included
numerous records that were responsive to Petitioner’s April 3, 2020 FOIL request,
but that the City refused to produce to Petitioner. Additionally, the Smith Memo
makes clear that there are additional responsive records that were not produced to
Petitioner.
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6. Petitioner is entitled to attorney’s fees and costs incurred in being
forced to file the instant proceeding, because (1) the records do not fall within any
statutory exemptions, and therefore the City will have to produce the records; and
(2) the City has already publicly released hundreds of pages of responsive
communications and other records that were not produced to Petitioner, which
shows Respondent lacked a reasonable basis for withholding these records and
falsely certifying that they did not exist.
7. For these reasons and as explained below, Petitioner respectfully
submits the instant petition should be granted in its entirety.
EXHIBITS
8. The Petitioner will rely upon the following exhibits in support of the
within application:
a. Exhibit A…… April 3, 2020 FOIL request, submitted via
Respondent’s FOIL submission website;
b. Exhibit B…… Respondent’s acknowledgment of Petitioner’s
FOIL request.
c. Exhibit C…… May 28, 2020 appeal of Respondent’s constructive
denial of Petitioner’s FOIL request;
d. Exhibit D…… June 10, 2020 email to Respondent’s FOIL
Appeals Officer Stephanie Prince regarding our telephone
conversation on June 9, 2020 about the FOIL appeal.
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e. Exhibit E…… June 11, 2020 email response from Respondent’s
FOIL Appeals Officer Stephanie Prince, which, inter alia,
certified that there were no communications by any RPD
Officers and/or City Employees related to the March 23, 2020
incident between RPD officers and Daniel T. Prude.
f. Exhibit F…… September 6, 2020 FOIL request for
communications;
g. Exhibit G…… September 14, 2020 documents released by the
City related to the March 23, 2020 incident between RPD
officers and Mr. Prude, including numerous communications.
h. Exhibit H…… September 16, 2020 interview with Mayor Lovely
Warren in which she admits that there were “hundreds of
emails” regarding the incident.
i. Exhibit I …….. Inter-Departmental Correspondence from James
P. Smith, Deputy Mayor, to Lovely A. Warren, Mayor dated
September 14, 2020 re: Managerial Review of the Death of
Daniel Prude.
RELIEF SOUGHT
9. Petitioner brings this proceeding pursuant to Article 78 of the CPLR
requesting an Order:
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a. Requiring Respondents to provide Petitioner with a copy of all
documents requested in its April 3, 2020 FOIL request that do not
fall within any of the exemption of Pub. Officer’s Law §87;
b. Awarding attorney’s fees and costs in favor of Petitioner against
Respondent in an amount to be determined at the conclusion of this
proceeding, pursuant to POL § 89(4)(c); and
c. Granting Petitioner such other and further relief as this Court may
deem just and proper.
PARTIES
10. Petitioner, Roth & Roth LLP, is law firm which resides in the City,
County and State of New York and regularly brings actions under FOIL to seek
transparency and compel municipalities to provide records to the public.
11. Respondent City of Rochester (“City”) is a municipal entity created and
authorized under the laws of the State of New York and is in Monroe County.
12. Respondent City is an “Agency” as defined under Public Officers Law §
86, subject to the requirements of the Freedom of Information Law, New York
Public Officers Law § 84 et seq.
JURISDICTION AND VENUE
13. Jurisdiction is conferred on this Court by Judiciary Law § 140-b and
Rule 7801 of the CPLR.
14. This Petition has been timely filed, pursuant to Rule 217(1) of the
CPLR, after Respondents’ June 11, 2020 denial of Petitioner’s FOIL appeal, and
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false certification that numerous records did not exist, including communications,
which Respondent later admitted do in fact exist.
15. Petitioner has exhausted all administrative remedies.
16. The City has control over its own records and is in possession of the
information Petitioner seeks to access.
17. Upon information and belief, the determination regarding the appeal
complained of occurred in Monroe County at Respondent City’s principal office, 30
Church Street, New York. Venue is proper in Monroe County pursuant to Rules
7804(a) and 506(b) of the CPLR.
FACTUAL AND PROCEDURAL HISTORY
18. On April 3, 2020, Petitioner submitted a FOIL request to the City for
all records related to the March 23, 2020 incident between RPD Officers and Mr.
Prude. (Exhibit “A”). There were 12 specific categories of records requested,
including “all communications by any RPD Officers and/or City employees related to
this incident.”
19. The City provided an automated response acknowledging the request
that same day. (Exhibit “B”). That response stated, “The City will supply either the
requested material or an updated response within approximately 20 business days.
We will notify you in writing should additional time be needed.”
20. The City failed to supply the requested materials within 20 business
days.
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21. The City failed to communicate with Petitioner regarding the FOIL
request within 20 business days.
22. The failure to communicate with Petitioner within 20 business days
constituted a constructive denial of the FOIL request.
23. Because of COVD-19, we did not immediately appeal the constructive
denial of the FOIL request but permitted the City to have additional time to
respond to the request.
24. When we still had not received any communications regarding the
FOIL request, on May 28, 2020, Petitioner submitted an appeal of the constructive
denial of the April 3, 2020 FOIL request. (Exhibit “C”).
25. Unbeknownst to Petitioner and revealed on September 14, 2020 in
documents released by Respondent to the public, on June 4, 2020, Corporation
Counsel Tim Curtin emailed FOIL Appeals Officer Stephanie Prince, “Can you
review this [FOIL request]? Can we deny/delay?” (Exhibit “G”).
26. Ms. Prince responded to Mr. Curtin,
“The request is now a FOIL appeal filed by Elliot Shields

for constructive denial of his request. Our response
deadline is next Thursday, 6/11. I spoke with Jenn
Sommers this morning – what her office typically does and
what she’s suggested for this matter is to invite Don
Thompson (the attorney representing Daniel Prude’s
family) to come to her office to review the case file
(including BWC) in person, provided he agrees to sign an
agreement that he cannot scan/copy/otherwise attempt to
reproduce the information. This way, the AG is making the
file available to the family’s attorney, but we are not
releasing anything to the public. If Don agrees to the AG’s
offer, I would contact Elliot and let him know that the
matter is being investigated by the AG, but that the AG is
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making the case file available for Don T. to review in

person. We would ask Elliot to agree to adjourn the appeal
deadline until after the AG’s investigation is complete.
This way, the City is not releasing anything pertaining to
the case for at least a month (more like 2), and it will not
be publicly available. Ultimately, anything we do release
would be heavily, heavily redacted as the decedent is naked
in the BWC footage, we have to redact his medical
treatment, and the reports all discuss his mental health
and condition.
After receiving the below I reached out to Jenn and asked

her to hold off on contacting Don Thompson until I got back
to her.” (Exhibit “G”).
27. Following the public release of the body worn camera recordings of
RPD officers killing Daniel Prude by the Prude family, Corporation Counsel Tim
Curtin gave a press conference in which he claimed that Jennifer Sommers and the
state Attorney General’s office told Stephanie Prince that they did not want the City
to produce the video to Petitioner in response to our FOIL request.
28. Based on your undersigned’s investigation and conversations with
Jennifer Sommers, Ms. Sommers never told Stephanie Prince not to release the
body worn camera recordings of the incident to Petitioner.
Jennifer Sommers, Ms. Sommers never told Stephanie Prince that the Attorney
General’s office would “prefer” that the City not release the body worn camera
videos to Petitioner.
Jennifer Sommers, Ms. Sommers never provided Stephanie Prince with any
guidance regarding how to respond to Petitioner’s FOIL request.
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Jennifer Sommers, Ms. Sommers never indicated to Stephanie Prince that she
would make your undersigned or Donald Thompson sign any document or promise
not to make any records or information related to the incident public.
32. Upon information and belief, Corporation Counsel Tim Curtin
unlawfully ordered Stephanie Prince to delay and/or deny release of the body worn
camera recordings and other records requested by Petitioner in the April 3, 2020
FOIL request.
33. Pursuant to Penal Law § 240.65, “Unlawful prevention of public access
to records,” which states: “A person is guilty of unlawful prevention of public access
to records when, with intent to prevent the public inspection of a record pursuant to
article six of the public officers law, he willfully conceals or destroys any such
record.”
34. Here, Corporation Counsel Tim Curtin ordered Stephanie Prince to
unlawfully conceal the body worn camera recordings, in violation of Penal Law §
240.65.
35. On June 9, 2020, Respondent, through FOIL Appeals Officer Stephanie
Prince, communicated with Petitioner for the first time regarding the April 3, 2020
FOIL request. (Exhibit “D”). Ms. Prince sent your undersigned an email to set up a
telephone conversation regarding the FOIL request and appeal.
36. Your undersigned and Stephanie Prince had a telephone conversation
on June 9, 2020.
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37. During the June 9, 2020 telephone conversation, Ms. Prince stated
that she had spoken with Jennifer Sommers at the state Attorney General’s office
regarding the criminal investigation related to Mr. Prude’s death.
38. Ms. Prince stated that because of the “ongoing investigation” by the
Attorney General’s office, the City did not want to release the video.
39. I told Ms. Prince that the City must release the body worn camera
videos to us immediately.
40. I told Ms. Prince that the City could not assert the “ongoing
investigation” exemption on behalf of the Attorney General’s office.
41. I told Ms. Prince that the City could not prove that release of the video
to Petitioner would not “interfere with” the Attorney General’s ongoing
investigation, as required to assert that FOIL exemption.
42. During the conversation, Ms. Prince agreed to produce the remainder
of the records requested in the April 3, 2020 FOIL request but not the body worn
camera videos.
43. On June 10, 2020, I sent Ms. Prince an email memorializing our June
9, 2020 telephone conversation. (Exhibit “D”).
44. On June 11, 2020, Respondent, though Ms. Prince, sent me an email
response to my May 28, 2020 FOIL appeal. (Exhibit “E”). In response to Petitioner’s
request for “all communications by any RPD Officers and/or City employees related
to this incident,” Ms. Prince responded on behalf of Respondents that, “Please
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consider this a certification that, following a diligent search, no such records exist.”
(Id.).
45. Additionally, in response to the request for “All other records
containing factual data related to the incident,” Respondent, through Ms. Prince,
stated that, “this request is unreasonably described as it does not specify a specific
kind of document.” (Id.).
46. In response to the request for the body worn camera footage, Ms.
Prince claimed that certain information was covered by HIPAA and that the video
would be released only after a HIPAA release was provided.
47. None of the information in the body worn camera videos was covered
by HIPAA.
48. HIPAA only protects individual’s medical records.
49. Because Mr. Prude was dead, HIPAA did not apply.
50. On September 4, 2020, Corporation Counsel Tim Curtin held a press
conference in which he stated that there had been numerous communications
between various City employees regarding the March 23, 2020 incident that led to
the death of Daniel Prude.
51. On September 6, 2020, your undersigned submitted another FOIL
request for all communications regarding the death of Daniel Prude. (Exhibit “F”).
52. On September 14, 2020, Respondent publicly released 323 pages of
documents and communications related to March 23, 2020 incident where RPD
officers used force against Mr. Prude, causing his death. (Exhibit “G”).
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53. All of the documents and communications released on September 14,
2020 were responsive to Petitioner’s April 3, 2020 FOIL request, but only a portion
of the documents were produced to Petitioner.
54. None of the communications released by the City on September 14,
2020 were released to Petitioner.
55. None of the “Inter-Departmental Correspondence” released by the City
on September 14, 2020 were released to Petitioner.
56. None of the draft police reports with handwriting on them, including
the draft Non-Criminal Incident report which contained the note to “make him a
suspect”, that were released by the City on September 14, 2020 were released to
Petitioner.
57. The Death Confirmation and Summary Report released by the City on
September 14, 2020 was not released to Petitioner.
58. The Major Crime Unit Investigative Summary released by the City on
September 14, 2020 was not released to Petitioner.
59. The Major Crime Unit Genesee Section Bur/MHA Follow Up released
by the City on September 14, 2020 was not released to Petitioner.
60. There were numerous other documents released by the City on
September 14, 2020 that were responsive to Petitioner’s April 3, 2020 FOIL request,
but which the City failed to release to Petitioner.
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61. The documents and communications released by the City on
September 14, 2020 show that the City and RPD unlawfully withheld documents
from Petitioner.
September 14, 2020 show that the City and RPD prevented public access to records
requested by Petitioner under FOIL.
September 14, 2020 show that the City and RPD “willfully concealed” public access
to records requested by Petitioner under FOIL.
64. Section 240.65 of the Penal Law states that, “A person is guilty of
unlawful prevention of public access to records when, with intent to prevent the
public inspection of a record pursuant to article six of the public officers law, he
willfully conceals or destroys any such record.”
65. The September 14, 2020 release of documents was accompanied by a
memorandum from Deputy Mayor James P. Smith to Mayor Lovely A. Warren
entitled “Managerial Review of the Death of Daniel Prude.” (Exhibit “I”)
(hereinafter the “Smith Memo”).
66. The Smith Memo admitted that other documents and communications
related to Daniel Prude’s death likely exist, and that the 323-page report that was
released consisted of only documents he was able to compile digitally from the
Department of Information Technology using specified search terms. (Id.).
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67. Notably, the conclusion at page 8 of the Smith Memo that, “Assistant
AG Sommers seems to have supported the delay of a full release of the information
to the Prude family attorney – and by extension the public at large” is untrue.
68. Based upon my investigation and conversation with Jennifer Sommers,
at no time did Jennifer Sommers ever indicate to Stephanie Prince that she
supported the City delaying release of the body worn camera recording of RPD
officers killing Daniel Prude to either the family, their attorneys, or the public at
large.
69. On September 16, 2020, Mayor Lovely Warren sat for an interview
with Adam Chodak of News 8 WROC. (Transcript attached as Exhibit “H”).
70. During that interview, Mayor Warren stated that there were
“hundreds of emails that have gone back and forth” regarding the Daniel Prude
incident. (Id.).
71. Petitioner is entitled to every email and other communication
regarding the Daniel Prude incident, as requested in his original April 3, 2020 FOIL
request.
72. None of the emails or other communications are covered by attorney-
client privilege.
73. Even if any of the emails and other communications were covered by
attorney-client privilege, the Mayor and Corporation Counsel have waived that
privilege by publicly discussing the substance of those communications and
releasing select emails.
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74. Petitioner is entitled to every document containing factual information
regarding the March 23, 2020 incident where RPD officers murdered Daniel Prude,
as requested in the original April 3, 2020 FOIL request.
75. Petitioner is entitled to reasonable attorney’s fees and costs in being
forced to bring the within proceeding, as Respondent had no basis to withhold any
of the requested records.
ARGUMENT
POINT I
Respondent’s violated Petitioner’s rights by denying its FOIL request and agency
appeal for records related to Daniel Prude’s murder.
76. Petitioner has a right to access all the records requested in the April 3,
2020 Freedom of Information Law request.
77. Corporation Counsel Tim Curtin ordered Stephanie Prince to
unlawfully withhold the body camera videos from Petitioner.
unlawfully withhold the communications from Petitioner.
unlawfully withhold the Inter-Departmental Correspondence from Petitioner.
80. On June 11, 2020, Respondent, through Stephanie Prince, its FOIL
Appeals Officer, falsely certified that there were no communications related to the
March 23, 2020 incident in which RPD officers killed Mr. Prude.
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81. On September 14, 2020, the City released numerous communications
related to the March 23, 2020 incident in which RPD officers killed Mr. Prude.
(Exhibit “G”).
82. Respondent has additional responsive records in its possession,
custody and control that have not been disclosed to Petitioner.
83. On September 16, 2020, Mayor Lovely Warren stated that there were
hundreds of emails related to the to the March 23, 2020 incident in which RPD
officers killed Mr. Prude.
84. By failing to disclose the additional records in its possession, custody
and control, Respondent has denied Petitioner’s request and violated FOIL.
85. FOIL implements the legislative declaration that “government is the
public's business.” (POL § 84).
86. The Court of Appeals recently reiterated,
“[o]ne of FOIL’s salient features is its capacity to expose

abuses on the part of government; in short, to hold the
governors accountable to the governed. In furtherance of
the legislature’s policy of disclosure, FOIL provides the
public with broad access to the records of government and
an agency must make available for public inspection and
copying all records unless it can claim a specific exemption
to disclosure.” (Friedman v. Rice, 2017 NY Slip Op 08167
at *9-10 [2017] [internal quotations and citations omitted).
87. The Court has also made clear that “the status or need of the person
seeking access is generally of no consequence in construing FOIL and its
exemptions.” (Matter of Capital Newspapers, 67 N.Y.2d at 567).
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88. In order to deny access to requested records, an agency must
“convincingly demonstrate” that a statutory exemption applies. (Matter of Fink v.
Lefkowitz , 47 N.Y.2d567,571 [1979]). This requires an agency to give “a
particularized and specific justification for denying access.” (Matter of Capital
Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566 [1986]; see also,
Matter of Konigsberg v. Coughlin, 68 N.Y.2d 245, 251 [1986]; M. Farbman & Sons v.
New York City Health and Hospitals Corp., 62 N.Y.2d 75, 80 [1984]).
89. A justification is not sufficiently particularized if it simply provides
“conclusory characterizations of the records sought to be withheld.” (Church of
Scientology of N.Y. v. State of New York, 46 N.Y.2d 906, 908 [1979]). Rather, an
agency must convincingly justify nondisclosure “in more than just a plausible
fashion.” (Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462 [2007] [internal
citations and quotations omitted]).
90. Moreover, it is well-settled that an agency may not deny records
requested under FOIL without first conducting a diligent search for the records,
reviewing them in their entirety, and stating with particularity the reasons for
denial. (Cornell University v. City of New York Police Dept., 153 A.D.2d 515 [1st
Dept. 1989]; Grune v. Alexanderson, 168 A.D.2d 496 [2d Dep't 1990] [agency failed
to identify with specificity those portions of records claimed to be exempt]; Burton v.
Slade, 166 A.D.2d 352 [1st Dep't 1990] [abuse of discretion for agency to deny access
without reviewing documents and stating with particularity reasons for denial]).
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91. Here, Respondent is in possession of additional responsive records that
they have failed to disclose to Petitioner.
92. Respondent failed to conduct a diligent search for the responsive
records.
93. Respondent’s FOIL Appeals Officer is the author of some of the
responsive emails that were not provided and therefore was aware at the time of the
certification that no records could be found that other responsive records existed
and were withheld.
94. Instead of disclosing the responsive records, Respondent “certified”
they are not in possession of any “communications by any RPD Officers and/or City
employees related to this incident.”
95. Respondents, by issuing the 323-page report, have proven that this
certification is false.
96. Respondents have admitted via the 323-page production that there are
additional communications and records related to the incident that have not been
publicly disclosed or disclosed to Petitioner.
97. To date, Respondents have failed to disclose any communications
related to this incident to Petitioner in response to its FOIL request, despite
disclosing numerous communications to members of the press.
98. Respondent must produce all responsive records in its possession,
custody or control.
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99. Respondents must produce to Petitioner all “communications by any
RPD Officers and/or City employees related to this incident.”
100. Respondents must produce to Petitioner all “records containing factual
data related to the incident,” such as draft reports, Inter-Departmental
Correspondence, all memoranda, and all other records contained within the 323-
pages of documents released to the media on September 14, 2020.
101. Respondents must produce to Petitioner all “records containing factual
data related to the incident,” such as draft reports, Inter-Departmental
Correspondence, all memoranda, and all other records that exist but are not
contained within the 323-pages of documents released to the media on September
14, 2020.
102. Thus, because Respondent has admitted that they falsely certified that
numerous records do not exist and that Respondent unlawfully withheld such
records from Petitioner and the public, Petitioner submits the Court should grant
the instant petition in its entirety.
POINT II
Petitioner is Entitled to Attorney’s Fees and Costs.
103. Under Public Officers Law § 84, Petitioner is entitled to costs and
reasonable attorney’s fees incurred in bringing this action because Respondent (1)
must produce, at a minimum, some records, and if they do, then Petitioner will have
substantially prevailed; (2) lacked a reasonable basis to ignore and deny Petitioner’s
FOIL request and violate the statutory and self-imposed deadlines; (3) lacked a
reasonable basis to falsely certify that no communications could be located related
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to the incident; and (4) lacked a reasonable basis to withhold numerous other
responsive records from Petitioner that were later released to the media on
September 14, 2020.
104. In 2017, Section 89(4) was amended to provide that the Court must
award attorney’s fees to a petitioner in an Article 78 proceeding related to a denial
of access to records requested under FOIL, where the Petitioner substantially
prevails in the proceeding, and the agency lacked a reasonable basis for denying
access to the requested records.
105. Section 89(4) also permits the Court to award attorney’s fees where the
Petitioner substantially prevails in the proceeding and the agency failed to respond
to the request or appeal within the statutory time.
106. The legislature explained the reason they removed judicial discretion
to award attorneys’ fees in the enacting legislation:
“A judicial proceeding to challenge an agency's denial of

disclosure is a costly endeavor in both time and money. The
full proceeding can take several months from the time of
filing to the exhaustion of all appeals.
“In addition, the cost of hiring an attorney can be

significant depending on the length and scope of the
proceedings. Often, people simply cannot afford to take a
government agency to trial to exercise their right to access
public information.
“This bill provides for an award of attorneys’ fees to

prevailing parties in order to encourage compliance with
FOIL and to minimize the burdens of cost and time from
bringing a judicial proceeding.”
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107. Petitioner herein is making an application for attorney’s fees and costs
associated with the Article 78 Petition and will submit an affirmation regarding the
hourly rates and number of hours spent if the Court finds that Petitioner is entitled
to the award of attorney’s fees and costs.
108. Here, Respondent lacked a reasonable basis for refusing to provide
records, delaying the production of records and falsely certifying no records existed
which did in fact exist.
109. Respondent lacked a reasonable basis to certify that there were no
“communications by any RPD Officers and/or City employees related to this
incident.”
110. Respondent lacked a reasonable basis to deny the request for “other
records containing factual data related to the incident,” as they produced numerous
records to the media on September 14, 2020 that were not produced to Petitioner.
111. Respondent’s failure to respond to Petitioner’s FOIL request within the
statutory and self-imposed deadlines constituted a constructive denial of the
request.
112. Petitioner will substantially prevail if Respondent produces any of the
requested records in response to the instant proceeding.
113. As of the date this petition was filed, Respondent has not produced any
of the communications demanded in the FOIL request to Petitioner.
114. As of the date this petition was filed, Respondent has not produced to
Petitioner:
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a. Any of the communications released by the City on
September 14, 2020.
b. Any of the “Inter-Departmental Correspondence” released by
the City on September 14, 2020.
c. Any of the draft police reports with handwriting on them,
including the draft Non-Criminal Incident report which
contained the note to “make him a suspect”, that were
released by the City on September 14, 2020.
d. The Death Confirmation and Summary Report released by
e. The Major Crime Unit Investigative Summary released by
f. The Major Crime Unit Genesee Section Bur/MHA Follow Up
released by the City on September 14, 2020.
g. Other records contained in the September 14, 2020 release,
and other records not contained in the released but
referenced in the Smith Memo.
115. Unless Petitioner filed the instant Article 78 proceeding, Respondent
would never produce these records.
116. Respondent’s failure to act on Petitioner’s FOIL request, and the
coordinated conspiracy among top-level RPD officials and attorneys in the law
department, including Corporation Counsel Tim Curtin, to delay and deny release
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of the requested records, without legal justification to do so, typifies the kind of
agency behavior that the enactment of the original fee-shifting provision in 2006
and subsequent 2017 amendments sought to remedy.
117. In considering the purpose of the 2006 amendment, Courts have held
that an, “award of attorney’s fees is intended to ‘create a clear deterrent to
unreasonable delays and denials of access [and thereby] encourage every unit of
government to make a good faith effort to comply with the requirements of FOIL.’”
(Matter of South Shore Press, Inc. v. Havemeyer, 136 AD3d 929, 931 [2d Dept
2016], quoting New York Civil Liberties Union v. City of Saratoga Springs, 926
N.Y.S.2d 732 [3d Dept 2011]). Said differently, the legislature amended the statute
in 2006 to provide for an award of attorney’s fees and costs under FOIL to deter
government agencies from ignoring requests and denying requests in bad faith.
118. Because the 2006 amendment did not provide a strong enough
deterrent, in 2017 the legislature further amended Section 89(4), the attorney’s fees
provision, to provide that the Court must award attorney’s fees to a Petitioner in an
Article 78 proceeding where the Petitioner substantially prevails, and the agency
lacked a reasonable basis for denying access to the records and forcing the
petitioner to initiate litigation. Section 89(4) additionally permits the Court to
award attorney’s fees where the Petitioner substantially prevails, and the agency
failed to respond to the request or appeal within the statutory time.
119. Thus, the purpose of the 2006 and 2017 legislative enactments
regarding attorney’s fees was to prevent requestors from being forced to file Article
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78 petitions to obtain responses to their FOIL requests—which requires retaining
an attorney, paying to file and litigate the proceeding. That is exactly what
happened here—Respondents ignored Petitioner’s FOIL request, then falsely
certified that certain records did not exist—before later publicly admitting that the
requested records did in fact exist, thereby forcing Petitioner to file the instant
proceeding to obtain all the requested records.
120. Moreover, it is well-settled that a Respondent cannot “moot” a
proceeding and avoid imposition of attorney’s fees under Section 89(4) by
voluntarily complying with their disclosure obligations after the commencement of
an Article 78 proceeding. (Kohler-Hausmann v. New York City Police Dep't, 18
N.Y.S.3d 848 [1st Dept. 2015] [“Although petitioner effectively concedes that the
merits of her petition are moot as a result of NYPD's voluntary disclosure,
petitioner's claim for attorney's fees and other litigation costs is not moot.”]; Acme
Bus Corp. v. Cty. of Suffolk, 26 N.Y.S.3d 159, 161 [2d Dept 2016] [Where
respondent produced requested records after the filing of the petition but before
respondent’s submitted their answer, the Court held, “inasmuch as the petitioner
eventually received the documents it sought, it ‘substantially prevailed’ in the
case”]; Jaronczyk v. Mangano, 996 N.Y.S.2d 291 [2d Dept 2014] [just because an
agency finally provided access to documents requested under FOIL “during the
pendency of the proceeding does not preclude a determination that the petitioners
substantially prevailed”]; Matter of New York State Defenders Assn. v New York
State Police, 927 N.Y.S.2d 423, 425-26 [3d Dept. 2011][“Initially, we reject
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respondents’ contention that petitioner did not substantially prevail in this
proceeding because respondents ultimately provided the records sought on a
voluntary basis in the absence of a consent decree or judgment of Supreme Court …
inasmuch as petitioner received all the information that it requested and to which it
was entitled in response to the underlying FOIL litigation, it may be said to have
substantially prevailed within the meaning of Public Officers Law §89 (4) (c).”];
Matter of Global Tel*Link v. State of N.Y. Dep’t of Correctional Services, 892
N.Y.S.2d 604, 604 [3rd Dep’t 2009][“Although this proceeding is moot. Petitioner
could nevertheless be found to have ‘substantially prevailed.” thus entitling it to
counsel fees.”]). This same principle of “mootness” applies here, where the City
falsely certified that no communications existed, and then they publicly released
numerous communications to the media.
121. The Court in New York Civil Liberties Union v. Saratoga Springs, 926
N.Y.S.2d 732 [3rd Dept 2011], explained why:
“To conclude [that response after commencement of suit

bars recovery of fees] would not only subvert the purposes
of the statute, but would lead to a result where only a
petitioner who fully litigated a matter to a successful
conclusion could ever expect an award of counsel fees and
a respondent whose position was meritless need never be
concerned about the possible imposition of such an award
so long as they ultimately settled a matter - however
dilatorily - before the court heard the petition on the
merits.” (Id. at 735).
122. Respondents may not falsely certify that records do not exist, only to
later release them to the media when it seemingly benefits them politically. That is
exactly what happened here. If this Court declines to award attorney’s fees and
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costs, Respondent will be emboldened to continue their policy of simply ignoring
FOIL requests and falsely certifying that records do not exist in response to agency
appeals.
123. Respondent’s policy undermines the legislature’s intent by denying the
public access to government records—in effect, Respondent’s policy of falsely
certifying that records do not exist limits access to requestors with the resources
and sophistication to file an Article 78 proceeding. Respondent’s policy is patently
unlawful and unfair and undermines the core principle of FOIL: to maximize public
access to government records.
124. For these reasons and the other reasons set forth herein, this court
should award Petitioner costs and reasonable attorney’s fees in this action.
125. Petitioner requests permission to submit a further affidavit for
attorney’s fees and costs associated with bringing this Article 78 Petition or for a
hearing if the Court deems necessary, as the total amount of attorney’s fees and
costs associated with this litigation cannot be ascertained until the conclusion and
resolution of this matter.
126. Thus, this Court should order Respondent to pay Petitioner’s
reasonable attorney’s fees and costs incurred in bringing the within application.
127. For all the forgoing reasons, Petitioner respectfully requests this Court
grant the petition in its entirety.
128. No prior application for the relief requested herein has been made at
any time prior hereto.
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WHEREFORE, Petitioners respectfully request that this Court grant
the within application in its entirety along with such other and further relief as this
Court deems just and proper.
Dated: New York, New York

September 18, 2020
~//s//~
ELLIOT D. SHIELDS
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Roth (Prude's Attorney vs. City of Rochester) (122276)

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Roth (Prude's Attorney vs. City of Rochester) (122276)

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FILED: MONROE COUNTY CLERK 09/18/2020 11:10 AM INDEX NO.

Book Page CIVIL

Return To: No. Pages: 28

Roth & Roth, LLP Time: 4:20:17 PM

State Fee Index Number $165.00

Total Fees Paid: $210.00

State of New York

MONROE COUNTY CLERK’S OFFICE

MONROE COUNTY CLERK

SUPREME COURT OF THE STATE OF NEW YORK

For a Judgment Pursuant to Article 78 of

ELLIOT D. SHIELDS, ESQ., an attorney duly admitted to practice law

2. This proceeding is brought under Article 78 of the New York Civil

Freedom of Information Law (“FOIL”), Public Officers Law §§ 84 et seq. regarding

the murder of Daniel T. Prude by Rochester Police Department (“RPD”) officers

the RPD officers or anyone else.

3. On April 3, 2020, Petitioner submitted a FOIL request for all records—

including communications and body worn camera recordings—related to the March

4. As explained below, the City failed to comply with the statutory

5. Recently, on September 14, 2020—after the RPD and City were

exposed for covering up Mr. Prude’s murder—the City released an internal

which was accompanied by 323 pages of supporting documents and

communications. Notably, the 323 pages of supporting documents included

6. Petitioner is entitled to attorney’s fees and costs incurred in being

falsely certifying that they did not exist.

7. For these reasons and as explained below, Petitioner respectfully

submits the instant petition should be granted in its entirety.

a. Exhibit A…… April 3, 2020 FOIL request, submitted via

Respondent’s FOIL submission website;

b. Exhibit B…… Respondent’s acknowledgment of Petitioner’s

c. Exhibit C…… May 28, 2020 appeal of Respondent’s constructive

denial of Petitioner’s FOIL request;

d. Exhibit D…… June 10, 2020 email to Respondent’s FOIL

Appeals Officer Stephanie Prince regarding our telephone

conversation on June 9, 2020 about the FOIL appeal.

e. Exhibit E…… June 11, 2020 email response from Respondent’s

FOIL Appeals Officer Stephanie Prince, which, inter alia,

certified that there were no communications by any RPD

Officers and/or City Employees related to the March 23, 2020

incident between RPD officers and Daniel T. Prude.

f. Exhibit F…… September 6, 2020 FOIL request for

g. Exhibit G…… September 14, 2020 documents released by the

City related to the March 23, 2020 incident between RPD

officers and Mr. Prude, including numerous communications.

h. Exhibit H…… September 16, 2020 interview with Mayor Lovely

Warren in which she admits that there were “hundreds of

emails” regarding the incident.

i. Exhibit I …….. Inter-Departmental Correspondence from James

P. Smith, Deputy Mayor, to Lovely A. Warren, Mayor dated

September 14, 2020 re: Managerial Review of the Death of

9. Petitioner brings this proceeding pursuant to Article 78 of the CPLR

a. Requiring Respondents to provide Petitioner with a copy of all

documents requested in its April 3, 2020 FOIL request that do not

fall within any of the exemption of Pub. Officer’s Law §87;

b. Awarding attorney’s fees and costs in favor of Petitioner against

Respondent in an amount to be determined at the conclusion of this

proceeding, pursuant to POL § 89(4)(c); and

deem just and proper.

transparency and compel municipalities to provide records to the public.

11. Respondent City of Rochester (“City”) is a municipal entity created and

12. Respondent City is an “Agency” as defined under Public Officers Law §

Public Officers Law § 84 et seq.