“A View from the Bench”: Observations on an Oral Argument

December 2, 2014 in DWI, Freedom of Information

To view an event “from the bench” in sport means watching from the sidelines. On November 18th, 2014 , I had the privilege of watching from the sidelines as Daniel McGuinness capably argued an important Freedom of Information Law case before the New York Appellate Division – First Department: Law Offices of Adam D. Perlmutter, P.C. v. NYPD.

As many of you know from following our blog, Dan McGuinness’s argument was the next major step in our important open government litigation to have the NYPD disgorge all records regarding the maintenance, calibration and repair of the Intoxilyzer 5000EN machines used throughout New York City. His argument was masterful and important to memorialize, so I feel compelled to write this post.

My physical vantage for the argument was from the audience of the First Department’s gorgeous stain-glass ceilinged, Beaux-Arts courtroom. Five justices stared down at Dan McGuinness and a New York City Corporation Counsel lawyer from the ornate wood carved bench. Colored lights blinked to the lawyers that their 5-minutes to argue were rapidly expiring.

The City’s lawyer labored to defend a concerted effort by the NYPD and all five New York City county district attorney’s to prevent the records from coming into public view. One judge asked where in the extensive appellate record the NYPD described any interference with law enforcement or judicial proceedings – the relevant legal standard that could justify non-disclosure. The City lawyer simply replied that its brief on appeal contained the NYPD’s position on the issue. Then, in response to a direct challenge from the bench to describe any law enforcement or judicial process interference, the City lawyer offered nothing beyond the ambiguous moaning of New York City’s five-county district attorneys that there are many DWI cases.

Dan McGuinness noted that there is no interference with law enforcement because the Intoxilyzer records being sought do not involve testing of any defendants whatsoever. Cases where law enforcement interference is a reason to deny disclosure involve information created while investigating a specific case, for example, a detective investigation report of a witness interview while the investigation is still ongoing. That is simply not the situation were we seek the forensic calibration, maintenance and repair records for New York City’s Intoxliyzers rather than any records related to the tests of any individual drivers.

Dan McGuinness drew laughter from the Bench, when the judges took up the issue whether bringing the records into public view would interfere with judicial proceedings. Why wouldn’t Mr. McGuinness simply “trust” that the NYPD turned over all of the relevant documents about whether an Intoxilyzer was operating properly? Daniel responded that he had not been around as long as the judges and, therefore, had not grown to be so trusting. One judge mused that disclosure would work the result of defendants having more information to defend their cases. That left open the obvious question of whether disclosure would do more to further the cause of justice than never allowing the information to see the light of day.

Dan McGuinness noted that whether disclosure of the records helps or hurts individual defendants is an issue for another day and another forum. The important principal was that the public has a legitimate right to know whether these machines are working and being maintained properly — separate and apart from any role they may play in a criminal prosecution.

Finally, Mr. McGuinness concluded his argument by observing that the City had abandoned its objection to the lower Court awarding legal fees for bringing this action. Awarding of attorneys fees to a prevailing party in a Freedom of Information Law case is an important check on government abuse. It is also not an insubstantial amount in our case given the level of experience and work that we bring to all of our matters. After noting the City had not briefed the issue, one of the judges asked the City whether it had abandoned the objection to our receiving legal fees. “The City has abandoned the issue,” responded the lawyer.

From my vantage point on the bench, I knew that an important day in our fight for this information had just transpired. The Court could rule within a matter of weeks or months. Whatever the case, we will keep you posted.