ASIM REHMAN: CHIEF COUNSEL TO OIG/NYPD

ASIM REHMAN: CHIEF COUNSEL TO OIG/NYPD

ROLE IN THE COVER UP OF THE MURDER:

- WANTONLY VIOLATED FOIL LAW TO PROTECT PERPETRATORS

SEE BLACKSTAR NEWS FOIL REQUEST TO OIG



BSN 2/12/15 FOIL appeal to Asim Rehman 

Milton Allimadi
Blackstar News
PO Box
New York NY, 10027

Asim Rehman
Office of Inspector General
80 Maiden Lane ,
14^th floor New York, NY 10038

February 12, 2015

Re: Freedom of Information
 Law Appeal

Dear Mr. Rehman,

    On behalf of the Blackstar News, I hereby appeal the denial of access regarding our request, which was made on January 19th and sent to Asim Rehman, Office of Inspector General, 80 Maiden Lane, 14th floor New York, NY 10038. Our requests are relevant to the circumstances surrounding the death of anti-corruption whistleblower Mr. Sunny Sheu.

    The records that were denied include 24 categories of requests for documents relating to the death of Sunny Sheu, and the apparent cover up by NYPD personnel of the circumstances surrounding it. These records were denied on the purported basis of exceptions §87(2)(e)(i), and §87(2)(b).

Specifically, you wrote: “Any material which may be in the possession of this Department that would be responsive to your request would be exempt from disclosure pursuant to Public Officers Law §87(e)(i) and §87(2)(b) on the grounds that the materials were compiled for law enforcement purposes and disclosure would interfere with law enforcement investigations. Any such record would also be exempt pursuant to Public Officers Law §87(2)(b) on the grounds that such disclosure would constitute an unwarranted invasion of privacy.”

According to Robert Freedman, Executive Director of the Committee on Open Government: “The Court of Appeals has held on several occasions that the exceptions to rights of access appearing in §87(2) "are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access".

Your letter states that every passage of every individual request in our letter is excepted by §87(e)(i) on the grounds that the materials were compiled for law enforcement purposes and disclosure would interfere with law enforcement investigations. We appeal this exemption on the basis that the OIG has not demonstrated, by articulating a particularized and specific justification, why disclosing any of the requested material would interfere with any law enforcement investigations or judicial proceedings.

As you know, simply claiming that “any material which may be in the possession of this Department that would be responsive to your request would be exempt from disclosure pursuant to Public Officers Law §87(e)(i)” is neither a particularized nor a specific justification for denying access. You have not even indicated to what “law enforcement investigation” (if any) you are referring or what parties (if any) are under investigation, let alone how any of the documents would impede such an alleged investigation.

Basing your denial on §87(e)(i)” is even more bizarre in light of the fact that your Senior Investigator, Joe Carinha stated that he found nothing suspicious about the death of Sunny Sheu, and further stated that he was speaking for your Chief Investigator, Thomas Mahoney.

Your letter also states that every passage of every individual request in our letter is excepted by §87(2)(b) on the grounds that disclosure would constitute an unwarranted invasion of privacy. We appeal on the basis that the OIG has not demonstrated, by articulating a particularized and specific justification, why disclosing any of the documents requested would constitute an unwarranted invasion of anyone's privacy.

As you know, Mr. Rehman, simply claiming that the material you “may have in your possession, would be exempt from disclosure pursuant to Public Officers Law §87(2);” in no way represents a particularized and specific justification for denying access. You have not even indicated whose privacy (if anyone) would be unwarrantedly invaded, let alone how each specific passage of each specific document would constitute such an alleged invasion.

Moreover, according to C.O.O.G. Executive Director Robert Freedman's Advisory Opinion:

“It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the grounds for denial that follow. The phrase quoted in the preceding sentence in my opinion indicates that single record or report might consist of both accessible and deniable information; it also indicates that an agency must review records sought, in their entirety, to determine which portions, if any, may justifiably be withheld.”

You have not confirmed that you even possess any of the documents that we have requested, let alone that you have reviewed every record sought in its entirety. Without confirmation that you have reviewed each and every one of the records sought, in their entirety, there can be no reasonable basis to your denial of any of them under §87(2). If you do not have possession of certain documents, you must deny their disclosure based on the fact that you do not possess them - not based on a blanket reference to some random, hypothetical exception.

Pursuant to FOIL protocol our request contains this unambiguous language: “If documents are denied in part, please specify the exemptions claimed for each page or passage. For documents withheld in their entirety please state, in addition, the date of and the number of pages in each document.”

In violation of FOIL law, you have failed to provide the date and the number of pages of each and every document you are withholding in full.

According to FOIL law, each and every document in each of the 24 categories of documents requested which are in your possession and which you are withholding must be specifically described, including the date of and the number of pages in each document, and you must articulate a particularized and specific justification for denying access to each and every one of them.

Finally, here is one more passage regarding “blanket denial”, from an Advisory Opinion by Mr. Freedman, which alone nullifies your denial of our requests: “The Court of Appeals, the state’s highest court, confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption ...Just as significant, the Court in Gould repeatedly specified that a blanket denial of access to records is inconsistent with the requirements of the Freedom of Information Law.”

On the basis of the above, Mr. Rehman, you have failed to meet the burden of demonstrating that the requested material falls squarely within any FOIL exemption, and therefore you are required to disclose all of the documents requested in our letter of January 19^th, 2015

The stunning inadequacy of your response appears to reflect either utter ignorance of NY FOIL law or a willful disregard of it. Your flippancy in this matter becomes especially troubling in the context of this case, which involves the unsolved death by “blunt force trauma to the head”, of an anti-corruption whistleblower who was scheduled to testify at a Senate hearing. The NYPD, over whom your agency has oversight, has never investigated Mr. Sheu's death because they illegally contest the Medical Examiner's official ruling that the manner of death was “undetermined”. As you know, the NYPD (and the Queens DA) have been covering up this matter by refusing to comply with FOIL law, despite numerous certified letter to Commissioners Kelly and Bratton. The OIG's perpetuation of the NYPD's policy of obfuscation through violations of FOIL law would reflect very poorly on its claim of “independence”.

As required by the Freedom of Information Law, the head or governing body of an agency, or whomever is designated to determine appeals, is required to respond within 10 business days of the receipt of an appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as required by law.

    In addition, please be advised that the Freedom of Information Law directs that all appeals and the determinations that follow be sent to the Committee on Open Government, Department of State, One Commerce Plaza, 99 Washington Ave., Albany, New York 12231.

          Sincerely,


Milton Allimadi,
Publisher, Black Star News

cc:
Robert J. Freedman
, C.O.O.G.
U.S. Attorney Preet Bharara
Philip Eure
Mark Peters
Al Sharpton
William Bratton

OIG/NYPD FOIL OFFICER ASIM REHMAN'S 3/16/15 RESPONSE TO BSN FOIL APPEAL: