Ask New York City Transit Authority FOIL Department

Freedom of Information Law - something good personal injury attorneys know how to use - sometimes has it limitations when government agencies run amok and violate the law. Here, it appears, we have a diligent personal injury attorney who files litigation hold notices (preservation notices) and asks for records in Personal Injury Discovery (civil discovery) that would substantiate the slip and fall injury suffered by the client. It is not clear if this attorney seeks records under the Freedom of Information Law, the FOIL.

This New York Personal Injury Lawyer is successful in compelling a response from the Freedom of Information Law Officer insofar as the Court Orders: "the NYCTA is directed to produce any video footage of the incident, and any video footage of the M8 staircase for the entire two hours prior to the incident (i.e., from 4:25 am to 6:25 a.m. on March 28, 2019), that was preserved by the NYCTA's FOIL Department" and further, which is important for the Litigation Hold Notice/Preservation Notice Purposes (typical in personal injury/accident lawsuits) that "if no such footage is within the NYCTA's possession, custody, or control, then the NYCTA must provide an affidavit from someone in the FOIL Department with personal knowledge detailing the search"

Look at the efforts of this New York Personal Injury Attorneyr:

(1) "By a letter dated April 5, 2018, plaintiff's counsel directed the NYCTA to maintain "all recordings for both the interior and exterior of this location for the entire day of March 26, 2018. Please find enclosed photos of the exterior of the subway entrance, the subject steps and the camera" and

(2) By a "Notice for Discovery & Inspection (1)" dated June 3, 2019, plaintiff sought, among other things, "All video/surveillance for the subject stairway for the 24 hour preceding plaintiff's accident" and "all video/surveillance that captures Plaintiff's accident"

So what is the agency response? It is not clear if there is a Freedom of Information Law Request, however, the agency asserts:

According to defendant's counsel, such pre-litigation preservation letters are routed to the NYCTA's FOIL Department. Because any evidence to be preserved would have been collected by the NYCTA's FOIL Department, defendant's counsel argues that plaintiff should therefore serve a FOIL request, and then bring an Article 78 petition to compel the NYCTA to comply or respond to the FOIL request. At the discovery conference, plaintiff's counsel claimed that the FOIL Department stated that the video footage, if any, would not be turned over without a judicial subpoena.

Thus the moral is FOIL - Freedom of Information Law Request the Records - the records before litigation. Make the FOIL request because, evidently, New York City Transit Authority will likely not give them over readily if you simply seek preservation of the records and, why not, if you have a personal injury lawsuit, a slip and fall or other injury, for which you are seeking preservation why not also seek production under the Freedom of Information Law?

Behold, the power of FOIL: These are the folks who have the video or knowledge of where it might be.

The New York City Transit Authority gets another chance because the Court does not strike its answer for discovery violations: "the court grant the NYCTA another opportunity to search and produce any video footage of the incident, and all video footage of the M8 staircase for the entire two hours prior to the incident, that is in custody, possession, or control of the NYCTA, as preserved by the NYCTA's FOIL Department

The Case is Scott v. New York City Tr. Auth., 2024 N.Y. Slip Op 32140 (Sup. Ct. 2024) and serves as a reminder not just to request for preservation but to also request production of records under the New York Freedom of Information Law.

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954)-745-4592 (FLA)

New York State Freedom of Information Law - New York State/Federal/Sunshine and Open Records - Freedom of Information Law and Freedom of Information Act | Call 631-450-2515 or E-Mail info@CoryHMorris.com to arrange for an evaluation of your matter (injury, accident, traffic matter, criminal matter or appellate matter).