Victory in Our Battle for Breathalyzer Records: The NYPD Ordered to Produce All Requested Records and Attorneys FeesOctober 22, 2013 in DWI, Freedom of Information, Police Conduct, Victories
Today we received a decision in our Article 78 FOIL action against the NYPD for all records of inspection, maintenance and repair of their breathalyzer machines. The Honorable Doris Ling-Cohan ordered the NYPD to produce all of the requested records within 30 days and pay attorneys fees. Although we expect the NYPD to appeal, this is nevertheless an important step in the fight for government transparency and fairness in DWI prosecutions.
As we have previously written, we believe this is a straight-forward case of the public’s right to information, and can only speculate as to why the NYPD has fought so hard to keep these records hidden from public view, including attaching affirmations of all 5 District Attorneys’ Offices throughout New York City opposing our motion. We are left asking: What are they hiding, and why? Judge Ling-Cohan eloquently summarized this key issue:
Assuming the petition is granted and a wealth of information regarding the Intoxilyzers is made public, there are two outcomes: all equipment proves to be accurate and well-maintained; or, not all equipment proves to be accurate and well-maintained. The first outcome will not interfere with law enforcement investigations or judicial proceedings; it may even have the effect of bolstering confidence in the handling of DUI cases. The second outcome, the discovery of faulty or defective equipment, can only be in the public interest in preventing improper prosecutions. Such an outcome should not be the sort that a public agency cites to, in order to protect its records from disclosure. That would be an arbitrary and capricious determination, and fail under CPLR 7803(3).
We have no doubt that our battle for these records will continue at the appellate level, but today marks an important victory in our ongoing fight for government transparency and preventing improper prosecutions.