WIVB files lawsuit against Village of Depew for police records of train striking judge

Investigates

BUFFALO, N.Y. (WIVB) — On April 12, News 4 filed an Article 78 lawsuit against the Village of Depew to compel officials to release the complete police report and any videos of a Feb. 28 incident in which a CSX tanker train ran over a state supreme court judge.

News 4 Investigates filed two separate Freedom of Information Law requests for any videos in the possession of the Village’s police department and the police report of the incident. The Village partially denied the FOIL requests, providing only a heavily redacted police report and refusing to release any videos of the incident.

Samuel A. Alba, the Village attorney, cited a privacy exemption in the law to withhold video and large sections of the police report.

News 4 appealed the decision, arguing that the privacy exemption did not fit because the Judge is a public figure in a public space, and the incident was witnessed by several individuals at the Amtrak Train Station. One of those witnesses provided News 4 Investigates with a portion of the video.

The video shows State Supreme Court Judge John L. Michalski jogging across a set of tracks at the Amtrak Train Station in Depew before laying stomach-down on a second track as a slow-moving train approached. The video shows the train running over the Judge, who disappears beneath the locomotive.

Michalski survived the incident, but seriously injured his leg, ECMC officials told News 4.

On March 26, Alba denied the appeal and stated that “our determination remains unchanged for three distinct reasons.”

First, Alba said the videos and unredacted police report cannot be disclosed because of the privacy exemption.

The second reason Alba cited was that any disclosures could impact two alleged ongoing investigations that came to light “at or just after our initial disclosure.”

“While the Village of Depew Police Department is not actively investigating a crime and, to the best of my knowledge, the other two agencies are not investigating any criminal activity – this is not something I have confirmed,” Alba wrote in his denial.

The third reason Alba cited was that any video and the complete police report are specifically exempted from disclosure by state or federal statute that protect health information from being publicized.

The Article 78 lawsuit, filed by FISHERBROYLES, LLP, of New York City on behalf of WIVB, argues that the Village’s denial was “arbitrary, capricious and contrary to law because the video and Police Incident Report sought by Petitioners are ‘records’ under the FOIL and must be disclosed” and that “none of the exemptions to disclosure asserted by the Village as the bases for the denial are applicable.”

“Here, it was arbitrary, capricious and unlawful for the Village to fail and refuse to articulate any meaningful explanation for why almost the entire Police Incident Report was redacted and no portion of the video was produced,” FISHERBROYLES, LLP, attorneys Richard B. Cohen and Cynthia Counts argued.

The lawsuit, filed Monday night, is assigned to State Supreme Court Judge Paul B. Wojtaszek.

The Article 78 lawsuit is embedded below — app users, click here.

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