Supreme Court of the State of New York County of Albany For an Order and Judgment Pursuant to Article 78 of the New York Civil Practice and Law Rules In the Matter of William R. Fox, Sr., Robert B. Begg, Ronald V. Brink, George O. Chipman, Timothy D. Embt, Kevin Kalled, Sherman N. Kearns, David B. Keebler, Don Howard Kieffer, Helena Kosorek, NOTICE OF PETITION Raymond Kosorek, Gerald D. Miller, (CPLR Art. 78) Daniel Phillips, Philip Polizotto, Vincent M. Rasulo, Mark F. Rondinaro, James Saccardi, Alvin F. Shaw, Patricia A. Shaw, David G. Thom, Marcia A. Thom, Leslie Hayes Wilson, Irene Williams-Wilson, Christopher S. Zaleski, Joel Zarpentine, Mattie D. Zarpentine, Shooters Committee on Political Education (“SCOPE”), and all other persons similarly situated, Petitioners vs, New York State Police; and, George P. Beach, in his official capacity as Superintendent of the New York State Police, Respondents. PLEASE TAKE NOTICE upon filing of the annexed Petition of William R. Fox, Sr. (duly sworn June 22, 2016), the Affidavit of Stephen J. Aldstadt, President of SCOPE (duly sworn June 22, 2016), the Affirmation of Paloma A. Capanna, Counsel to the Petitioners (duly sworn June 24, 2016), the Memorandum of Law (dated June 24, 2016), Notice of Petition Page | of 3the Exhibits, and upon all the pleadings and proceedings heretofore had between these Parties, the Petitioners will motion this Court before the Honorable at the Supreme Court, Empire State Plaza, Capitol Station, Albany, New York, on Friday, July 29, 2016 at 9:30 a.m., or as soon thereafter as Counsel for the Petitioners can be heard, for an order and judgment pursuant to CPLR Art. 78 for the relief demanded in the Petition, as follows: 1. to compel the Respondents to disclose all records as requested by the Petitioners through their Freedom of Information Requests; II. to compel the Respondents to disclose all records as requested by those who are similarly situated to the Petitioners through their Freedom of Information Requests; III. to award the Petitioners their reasonable attorney’s fees and costs incurred in this matter; and, IV. to award such other, further, and different relief as to the Court may be just and proper. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR §7804(c), answering affidavits, if any, are required to be served upon the Attorney to the Petitioners at least five (5) days before the return date of this motion. faloma A. Capanna, ee ‘ttorney for the Petitioners Dated: June 4 2016 Notice of Petition Page 2 of 3ADDITIONAL SERVICE UPON: Eric Schneiderman, Attorney General Office of the NYS Attorney General The Capitol Albany, New York 12224-0341 COURTESY COPY TO: Robert J. Freeman, Executive Director Committee on Open Government One Commerce Plaza 99 Washington Avenue, Suite 650 Albany, New York 12251 Notice of Petition Page 3 of 3Supreme Court of the State of New York County of Albany For an Order and Judgment Pursuant to Article 78 of the New York Civil Practice and Law Rules In the Matter of William R. Fox, Sr., Robert B, Begg, Ronald V. Brink, George O. Chipman, Timothy D, Embt, Kevin Kalled, Sherman N. Kearns, David B. Keebler, Don Howard Kieffer, Helena Kosorek, VERIFIED PETITION Raymond Kosorek, Gerald D. Miller, (CPLR Art. 78) Daniel Phillips, Philip Polizotto, Vincent M. Rasulo, Mark F. Rondinaro, James Saccardi, Alvin F. Shaw, Patricia A. Shaw, David G. Thom, Marcia A. Thom, Leslie Hayes Wilson, Irene Williams-Wilson, Christopher S. Zaleski, Joel Zarpentine, Index No. Mattie D. Zarpentine, Shooters Committee on Political Education (“SCOPE”), and all other persons similarly situated, Petitioners vs. New York State Police; and, George P. Beach, in his official capacity as Superintendent of the New York State Police, Respondents. William R. Fox, Sr., being duly sworn, hereby deposes and says the following allegations are made “upon information and belief” unless otherwise stated or established through the supporting documents to this application: Verified Petition Page 1 of 13Petitioners seek an order compelling disclosure of records in the possession of or under the control of the Respondents, pursuant to New York Public Officers Law Att. 6, “Freedom of Information Law” (“FOIL”), §§84-90. Parties Petitioner William R. Fox, Sr. resides in Leroy (Genesee County), New York, He is the chairman of the Genesee County Chapter of the Shooters Committee on Political Education (“SCOPE”), and is an activist who supports civil rights, including those reflected by the Second Amendment to the United States Constitution. Each of the individually-named Petitioners is civil rights activist, particularly supporting those liberties enshrined within the Second Amendment of the United States Constitution. They oppose such government policies and behavior as infringes upon those civil rights. All Petitioners are residents of New York, and reside throughout the State. The individually-named Petitioners also have in common their participation in the “Stop the Secrecy!” campaign, launched by SCOPE in April 2015. All individually-named Petitioners participated in the submission of the Freedom of Information Request, received the agency denial of the FOIL request, made an agency appeal, and received a denial of agency appeal. All individually-named Petitioners continue to request the NYS Police respond to the FOIL request. Verified Petition Page 2 of 13The individually-named Petitioners are representative of a class of more than 2,000 people who submitted individual FOILs to the NYS Police as part of the “Stop the Secrecy!” campaign in 2015 and 2016. The FOILs referenced were submitted to the NYS Police through the office of the Attorney representing the Petitioners. ‘The Shooters Committee on Political Education (“SCOPE”) is a 501(c)(4) non-profit organization with several thousand members statewide. Its President, Stephen J. Aldstadt, represents the group. The group is listed as a Petitioner on behalf of more than 2,000 of its members that participated in the “Stop the Secrecy!” campaign that it launched in April 2015. It represents individuals similarly situated to the individually-named Petitioners, but who have not yet received one or more the two denial letters from the NYS Police. Respondent, New York Division of State Police (herein “NYS Police”), is a state government agency, having a principal office at 1220 Washington Avenue, Building 22, Albany, New York 12226-2252. Respondent, Joseph A. D'Amico, is the Superintendent of the New York State Police, with an office at the State Capitol, Albany, New York 12224. This special proceeding is brought against Superintendent D’ Amico in his official capacity as the highest-ranking officer and the one with oversight of the New York Division of State Police. Verified Petition Page 3 of 1310. ae 12. 13) 14, Litigation Requirements This special proceeding pursuant to Civil Practice Law and Rules Art. 78 seeks judicial review of Respondents’ denials of Petitioners’ FOIL requests pursuant to CPLR §7803. Jurisdiction of this special proceeding is placed in the NYS Supreme Court pursuant to CPLR §7804(b). Venue of this special proceeding is placed in Albany County, New York pursuant to CPLR §506(b). ‘The actions taken by the New York State Police occurred at the office of the Superintendent, the office of the Records Appeals Officer, and the office of the Records Access Officer, which also serves as the principal office for this agency, located at 1220 Washington Avenue, Building 22, Albany (Albany County), New York 12226-2252. ‘The individually-named Petitioners have exhausted the Respondents’ submission and agency appeals process. SCOPE represents the bulk of more than 2,000 members who initiated the FOIL, process, but who evoke constructive denial to demand relief. It is unknown how the NYS Police selected to respond to the persons to whom denials were sent and at such varied times. The NYS Police have in most cases taken approximately one Verified Petition Page 4 of 1315. 16. 17. year to issue a first denial letter beyond the 5-day acknowledgement of receipt letter. The Petitioners are filing this special proceeding within four months of Respondents’ denial of the Petitioners’ FOIL requests pursuant to CPLR §217(1). Background The Initial FOIL Request. Upon information and belief, in or after April 2015, the Petitioners signed Freedom of Information Requests (“FOIL”) for their individual records in the control of, under the supervision of, or generated by the NYS Police, as follows: “all records pertaining to me in the possession or under the control of the New York State Police, since January 1, 2013, including, but not limited to, those relating to any reports under Mental Hygiene Law §9.46 made through or stored within the Integrated SAFE Act Reporting System, e-Justice, NYS Police “hotline,” or other means of reporting and database storage and management.” {Please refer to Exhibit A for blank copies of the FOIL forms published by SCOPE; please refer to Exhibits D - CC, for the FOIL requests and NYS Police correspondence from and to the individually-named litigants.} Upon information and belief, on or about May 9, 2015, the initial group of several hundred such FOIL requests was hand delivered to the NYS Police headquarters in Albany, NY, by the Attorney representing the Petitioners. Upon information and belief, all subsequent FOIL requests were mailed by the Attorney representing the Petitioners to the NYS Police headquarters in Albany, NY. Upon information and Verified Petition Page 5 of 1318. 19. 20. 21. 22. belief, more than 2,000 individual FOILs were delivered or mailed to the NYS Police through the Attorney representing the Petitioners from May 2015 to the present. {Please refer to Exhibit B for the cover letters of the Attomey for the Petitioners that accompanied the transmittal of these FOILs.} In addition, an unquantified number of people, who are not Petitioners to this case, but who may have related case(s), directly submitted their FOILs to the NYS Police. While those persons are not part of this lawsuit, we request that the Court take them into consideration. It is possible that additional FOIL lawsuits seeking the same information have already been filed and may be pending. The Denial of the FOIL Request. Each one of the individually-named Petitioners received a denial to their FOIL Request from the NYS Police. Each denial letter was signed by Lieutenant Debra Benziger. The denial letters were sent from the NYS Police on various dates and after many months of delay. Some who submitted FOILs received the 5-day acknowledgment of receipt letter and nothing more. Some who submitted FOILs received a request for more information, such as a date of birth, and nothing more. It is unknown how or why the NYS Police strung out the FOILs across so many months, through several paths, and with so few clear denials. Verified Petition Page 6 of 1323. 24, 25. 26. 27. 28. Upon information and belief, no individual has received an actual response to their request for information. The Request for Agency Review. Each individually-named Petitioner submitted an appeal of the denial, requesting an internal agency appeal of the denial. {Please refer to Exhibit A for a blank sample of the agency appeal denial form letter published by SCOPE; please refer to Exhibit D - CC for the FOIL request and NYS Police correspondence from and to the individually-named litigants. } ‘The Denial of the Agency Appeal Request. Upon information and belief, each individually-named Petitioner received a denial of the agency appeal request. The agency appeal denial letter was signed by Lieutenant Colonel Richard Smith. The agency appeal denial letters were sent from the NYS Police on various dates. There is no transcript to file with this proceeding because no hearing took place. Additional Background Information ‘The Respondents have a pattern, practice, or intention not to respond to requests for information under FOIL, The Petitioners’ FOIL is not, upon information and belief, the only one to which the NYS Police have failed or refused to respond, whether related to the “SAFE Act,” or otherwise. One such CPLR Art. 78 case was Robinson v. Cuomo and the NYS Police, Index No. 5118-2014, through which the Petitioner prevailed in his request Verified Petition Page 7 of 13,29. 30, 31 32, for aggregate statistics pertinent to the “assault weapons registry” and was awarded his attorney's fees and costs. ii, Another such CPLR Art. 78 case is SCOPE v. NYS Police, Index No. 5119- 2014, through which the Petitioner is seeking various policies and procedures of the NYS Police in their execution of duties under the “SAFE Act.” This case, upon information and belief, is now awaiting a decision on more than 400 pages of documents being reviewed in camera at the request of the NYS Police, who do not want to release the documents to the Petitioners. ili, A third CPLR Art. 78 case is also titled SCOPE v. Cuomo, Index No. 6602- 2014, through which the Petitioner won a judgment in favor of the release of documents relating to government action against the Petitioners during a rally in Albany, which case the State is appealing in order to try to win a reversal of the direction for the documents to be released. ‘The records requested through the Petitioners’ FOILs should be released to the individual requesting his or her own, personal information. FOIL mandates disclosure of government records, unless exempted by statute. Accompanying this Petition is the legal discussion of the “defenses” raised by the NYS Police to the FOIL requests. {Please refer to the Affidavit of ‘Stephen J. Aldstadt, President of SCOPE; the Affirmation of Attorney Paloma A. Capanna; and the Memorandum of Law.} ‘Simply put, the Petitioners’ response to the “defenses” raised by the NYS Police is that an individual person should be able to obtain information about him or herself that is being kept a secret by the NYS Police. Verified Petition Page 8 of 13,33. 34. 35. 36. 1 am requesting my own personal information from the NYS Police. I am not requesting information about any third party. | am not requesting access to individual information about any of the other Petitioners. Each Petitioner is simply asking for access to his or her own records being maintained by the NYS Police. For the NYS Police to claim that an individual’s records must be kept private from the individual amounts to government secrecy that directly contradicts the purpose of the Freedom of Information Law and the essential function of government being in service to the people. Special Relief for All Others Similarly Situated. Relief is also requested that the judgment in this case would apply to any person who submitted a FOIL as part of the “Stop the Secrecy!” campaign. It is not efficient to submit a lawsuit with every person named who submitted a FOIL. The initial filing would be more than 2,000 FOILs. Equally, the NYS Police has only put a very small number of individuals in a position to have the standing to sue. Upon information and belief, only approximately 30 individuals have a complete series of denial letters upon which to sue. ‘Temporary relief is necessary because the lawsuit will take several months to complete, during which time it is reasonably projected that the NYS Police will resume sending out agency appeal denial letters. Temporary relief is requested in the form of either a tolling of the statute of limitations during the pendency of this Verified Petition Page 9 of 13,37. 38. ae 40. action and/or the continual impleading of additional petitioners and/or the periodic joinder of additional, related special proceedings. Upon information and belief, the Attorney for the Petitioners made efforts to coordinate with the NYS Police Division Counsel to create efficiency in the approach to and conduct of this case, but she received no response to a letter and a telephone call. {Please refer to Exhibit C for a copy of the letter from the Attorney representing the Petitioners to the NYS Police Division Counsel.} Award of Attorney’s Fees and Costs It is further requested that an attorney fee award be made to the Attorney representing the Petitioners. Each Petitioner, upon information and belief, has signed on to the Letter of Engagement for this lawsuit. {Please refer to Exhibit DD.} Each Petitioner has been asked to contribute at least $20 to the expenses of this, lawsuit, such as the filing fees and process server fees. Ms. Capanna is otherwise seeking an award of attorney’s fees and costs upon the successfull completion of this lawsuit. Ms. Capanna represents various individuals and the SCOPE organization in the Robinson v. Cuomo and first-referenced SCOPE v. Cuomo lawsuits. She works on civil rights lawsuits in federal and state courts, including Montgomery v. Cuomo and Robinson v. Lynch. Verified Petition Page 10 of 1341, 42. 43. 44, 45, ‘Ms. Capanna lectures throughout the state and at national conferences, including at our local chapters of the Shooters Committee on Political Education (SCOPE). She is also the Executive Director of our newly-launched SCOPE Legal Defense _ Foundation, Inc., a 501(c)(3) dedicated to defending civil liberties, including those of the Second Amendment to the United States Constitution. ‘The Petitioners support Ms. Capanna’s request for an award of attomney’s fees and costs in the event of a successful outcome. It is our understanding that in such event, the contributions we have made to the costs being advanced would be reimbursed. Neither myself, nor, upon information and belief, the Petitioners as individuals, would be in a financial position to separately retain counsel to file individual lawsuits to protect our rights. Request for Relief This action is brought to compel the New York State Police to provide the information requested through the Petitioner's FOIL and there is a clear legal right to this requested relief. This application also requests an award of attorney’s fees and other litigation costs reasonably incurred because the New York State Police gave no reasonable basis for denying access to the requested records and/or failed to respond to the requests within the statutory timeframe. Verified Petition Page 11 of 13,Wherefore, it is hereby requested that the Court: I. compel the Respondents to disclose all record: requested by the Petitioners through their Freedom of Information Requests; IL. compel the Respondents to disclose all records as requested by those who are similarly situated to the Petitioners through their Freedom of Information Requests; Ill. award the Petitioners their reasonable attorney’s fees and costs incurred in this matter; and, IV. award such other, further, and different relief as to the Court may be just and proper. Dated: June lA - 2016 —_— William R. Fox, Sr. Verified Petition Page 12 of 13Ye cation William R. Fox, Sr., lead Petitioner in the above-captioned special proceeding, being duly sworn deposes and says the allegations of this Petition are true to the best of his personal knowledge and, where stated “upon information and belief,” such allegations are true to the best of his knowledge and information. Dated: June AD , 2016 William R. Fox, Sr. Sworn to before me June 22016 eh Notary Public ee Verified Petition Page 13 of 13