Upon the foregoing papers, in this special proceeding brought by petitioner Rory Houton (petitioner) against respondent Fire Department of the City of New York (the FDNY), petitioner moves for an order: (1) pursuant to CPLR 2304, quashing the subpoena duces tecum served by the FDNY on Cellco Partnership d/b/a Verizon Wireless (Verizon), (2) declaring that compliance with the subpoena violates his rights under the First and Fourteenth Amendments to the Constitution of the United States and Article I, Section 8 of the New York State Constitution, (3) declaring that the regulations and Speech Policy upon which it relies violate the First and Fourteenth Amendments to the Constitution of the United States and Article I, Section 8, of the New York State Constitution, and (4) awarding him his attorney's fees and costs pursuant to 42 USC § 1988.

Robert A. Wallace (Wallace) is the Assistant Commissioner for the Bureau of Investigations and Trials (BITs) of the FDNY, which is responsible for investigating allegations of misconduct and potential violations of the policies and rules of the FDNY by its employees, as well as initiating disciplinary charges against FDNY employees and settling or prosecuting those charges before the New York City Office of Administrative Trials and Hearings. The BITs is currently conducting an investigation regarding the unauthorized release of confidential personnel and medical information of minority and female members of the FDNY. Specifically, BITs is investigating the unauthorized disclosure of information to the New York Post concerning: (1) an African-American male firefighter, Firefighter Kevin Simpkins (Firefighter Simpkins), (2) a Hispanic female probationary firefighter, Probationary Firefighter Wendy Tapia (Probationary Firefighter Tapia), (3) an African-American male probationary firefighter, Probationary Firefighter Trilain Smith (Probationary Firefighter Smith), and (4) an African-American male Fire Lieutenant, Lieutenant Daniel Sterling (Fire Lieutenant Sterling).

As to Firefighter Simpkins, on October 11, 2012, an article appeared in the New York Post, entitled "Firefighter in court fight vs. FDNY suspended after positive pot test: sources," which disclosed that he had tested positive for marijuana, and identified him as a named plaintiff in the case of United States of America and the Vulcan Society et al. v the City of New York (07 CV 2067 [ED NY]) (the federal court action). In the federal court action, the federal district court, in July 2009, had found that two civil service tests used by the City of New York (the City) for the selection of entry-level firefighters [*2]violated Title VII of the Civil Rights Act because they had a disparate impact against African-Americans and Hispanics, and, on December 8, 2011, it entered a Remedial Order to remedy the violations found, and, on June 6, 2013, following an appeal, it entered a Modified Remedial Order. Paragraph 17 of the Modified Remedial Order (the Remedial Order) stated that the City was prohibited from "retaliat[ing] against or in any way adversely affect[ing] the terms or conditions of employment of any person because he or she has complained of discrimination against blacks or Hispanics on the basis of their race or national origin in the selection or hiring of entry-level firefighters, or has participated in the investigation or litigation of any claim or allegation of such discrimination, or has sought or obtained relief from the court in th[e federal action]."

Due to this New York Post article, on October 11, 2012, counsel for the Vulcan Society (who represents African-American firefighters) and the individual plaintiff-intervenors in the federal court action, including Firefighter Simpkins, contacted the court appointed monitor and counsel for the City, and informed them, in an e-mail, that the reporter for the New York Post had confirmed to them that someone from the FDNY had leaked information to the New York Post about Firefighter Simpkins' suspension and positive drug test, and asserted that this disclosure likely violated federal medical privacy laws and was done in retaliation for Firefighter Simpkins' involvement as a plaintiff in the federal court action.

Counsel for the City forwarded this e-mail to Wallace, who opened up an investigation into the disclosure of Firefighter Simpkins' confidential personnel information to determine if any FDNY policies had been violated and in order to assure compliance with the Remedial Order. Although Firefighter Simpkins' suspension from all duty without pay, effective October 4, 2012 through November 2, 2012, was published in an October 5, 2012 FDNY Department Order, Wallace determined that only a limited number of FDNY employees were privy to the information that Firefighter Simpkins tested positive for marijuana, and that petitioner, who is a Battalion Chief in the Bureau of Personnel, and who administers resignations and suspensions, was one of such employees. While BITs interviewed 38 FDNY employees, no one admitted disclosing the information, and it discontinued its investigation in February 2013.

Subsequently, on January 17, 2014, a second article on Firefighter Simpkins was published in the New York Post, entitled "Firefighter barred from driving FDNY van seeks disability pension after crash." This article stated that Firefighter Simpkins, who failed a drug test and was barred from driving official vehicles, was in a serious crash while in a van, and was seeking a tax-free disability pension. It disclosed that Firefighter Simpkins was claiming that he had "suffered debilitating neck and shoulder injuries."

As to Probationary Firefighter Tapia, on November 10, 2013, the New York Post published an article, entitled "Meet the seemingly unfireable female firefighter," which claimed that she received preferential treatment because she is a woman. This article stated that Probationary Firefighter Tapia had graduated from the FDNY's training [*3]academy despite not having satisfied the fitness test requiring new recruits to run one and a half miles in 12 minutes or less, and that she would be given an additional opportunity to pass the run when she returned from a medical leave. This article disclosed confidential information regarding Probationary Firefighter Tapia's medical reason for taking leave, i.e., a foot injury and an upper respiratory infection, as well as confidential personnel information in the form of her test results. Probationary Firefighter Tapia also informed a BITs investigator that her father's cell phone number, which she had provided to the FDNY training academy for use in an emergency, had been given to the reporter, who called her father prior to the publication of the article. After Probationary Firefighter Tapia attempted the run on November 21, 2013 and failed, she resigned as a probationary firefighter the next day.

On November 22, 2013, the New York Post published a second article about Probationary Firefighter Tapia, entitled "It's not about gender: this incapable firefighter should not have an FDNY job," which was followed by a third article on November 24, 2013, entitled "Unfireable' female FDNY firefighter quits," which both disclosed that she had been recovering from a foot injury before continuing training for the run and failing it five times. Shortly after the publication of these articles, an investigation was begun by BITs regarding the release of Probationary Firefighter Tapia's confidential information, including her medical information.

As to Probationary Firefighter Smith, on December 8, 2013, the New York Post published an article, entitled "FDNY probie punished for selfies and slurs," which disclosed disciplinary action taken against him for violating FDNY's social media policy and included detailed information regarding his violation. This article also disclosed that Probationary Firefighter Smith was "one of 76 priority hires,' minorities who took the FDNY entrance exam in 1999 and 2000 but were passed over," and then given a second chance due to the Remedial Order in the federal court action. This article further disclosed that Probationary Firefighter Smith's probation had been extended an additional six months due to a prior DWI conviction in 2007. According to Wallace, this information regarding Probationary Firefighter Smith's prior DWI conviction was exclusively maintained in his investigation file.

As to Fire Lieutenant Sterling, the New York Post published an article on December 26, 2013, entitled "FDNY diversity honcho yanked for marijuana." This article set forth that Fire Lieutenant Sterling, who headed the FDNY's recruiting and diversity program, was placed on modified duty after testing positive for marijuana.

During BITs' investigation, testimony from two members of the FDNY revealed that a firefighter assigned as a trainer with the Fire Academy spoke with a reporter about Probationary Firefighter Tapia. As a result of this information, the FDNY subpoenaed the phone records of the trainer, and, on February 25, 2014, the trainer appeared for a Departmental interview. During that interview, the trainer admitted speaking with a reporter at the behest of an FDNY officer (Officer X), and acknowledged that he [*4]belonged to an advocacy group founded by that officer, which opposed the efforts undertaken by the FDNY to improve the diversity of its firefighter ranks. Based upon the information gained during the interview of the trainer, BITs subpoenaed the phone records of Officer X. These phone records revealed that he had several conversations with reporters during the subject time periods, and that he also had conversations with other members of the FDNY, including petitioner, who had access to sensitive and confidential information involving the aforementioned minority FDNY members identified in the New York Post articles.

Officer X was interviewed three times, and, during his third interview, he admitted that had contacted petitioner to check on whether the information that he had heard about Probationary Firefighter Tapia was accurate. In addition, Officer X stated that he had also spoken to petitioner about Probationary Firefighter Smith and that it was likely that this occurred before the article about him was published, and that he also may have spoken to him about Lieutenant Sterling's positive drug test.

Petitioner was interviewed on June 16, 2014 regarding the release of information about the four FDNY members which were the subject of the New York Post articles. At this interview, at which petitioner's attorney was present, petitioner denied providing specific information to Officer X, but admitted that he had spoke to him about Probationary Firefighter Tapia, but did not recall if it was prior to the publication of the articles about her in the New York Post.

On April 23, 2014, a subpoena duces tecum was issued and authorized by Fire Commissioner Salvatore J. Cassano and signed by Assistant Commissioner Wallace. The subpoena requires Verizon, pursuant to Administrative Code of the City of New York § 15-218 and § 15-219, to produce the subscriber information and all incoming and outgoing calls and records of text messages for the wireless number of petitioner's cell phone from October 1, 2012 to October 21, 2012, November 3, 2013 to November 17, 2013, and December 1, 2013 to January 26, 2015. It seeks numerical information only for these three limited periods of time, and does not seek the content of these calls. By a letter dated May 1, 2014, Verizon notified petitioner that, in accordance with its policy to notify a subscriber when a subpoena has been received for a subscriber's records, it was advising him that on that date, it had received a subpoena from the FDNY and that it would comply with it on May 15, 2014 unless it received legal documents that terminated the process.

By a letter to Wallace dated June 13, 2014, following several telephone conversations, petitioner's counsel, Herbert Teitelbaum, Esq., stated petitioner's objections to the subpoena as being overbroad, vague, and in violation of the First and Fourteenth Amendment to the United States Constitution and the New York Constitution. He requested that the FDNY withdraw the subpoena, but it was not withdrawn.

On July 11, 2014, petitioner filed this notice of petition and petition, in which he seeks to quash the subpoena on constitutional grounds. Petitioner's petition sets forth four [*5]causes of action. His first cause of action alleges that the FDNY's subpoena is based on an illegal investigation which seeks to undermine his First Amendment right to free speech because it seeks to punish speech on a matter of public concern which is critical of the FDNY. He asserts, in this cause of action, that section 25.3.1 and section 25.3.2 of Chapter 25 of FDNY regulations, entitled "General Deportment," issued in 1997, and section 3.3 of A.U.C. 332, entitled "Public Speaking and Press Policy/Newsworthy Events," issued by the FDNY on July 9, 2003, which petitioner refers to as the FDNY's Speech Policy, are unconstitutionally overbroad and constitute a prior restraint on speech that is protected by the First and Fourteenth Amendments to the Constitution. Petitioner's second cause of action alleges that these sections are unconstitutionally vague in violation of the due process clause of the Fourteenth Amendment. Petitioner's third cause of action alleges that he has been deprived of free speech rights protected by Article I, Section 8, of the New York State Constitution. Petitioner's fourth cause of action alleges that the subpoena is overly broad and seeks records that are not relevant to the FDNY's investigation. The FDNY has submitted opposition papers, which include Wallace's affirmation.

On November 19, 2014, this matter was orally argued before Justice Bernadette Bayne, at which time she directed petitioner to provide the court with the subpoenaed information for an in camera review. On December 1, 2014, photocopies of the designated phone records associated with petitioner's cellular telephone number for the time periods designated in the subpoena were provided for the in camera review. These phone records list the dates, times, and phone numbers of calls made and received. On January 12, 2015, Justice Bayne recused herself from this proceeding, and this motion was assigned to this court for resolution.

In addressing petitioner's motion to quash the subpoena, the court notes that in order for a government agency to assert its subpoena power in conjunction with an investigation, there must be "authority, relevancy, and some basis for inquisitorial action" (Matter of A'Hearn v Committee on Unlawful Practice of Law of NY County Lawyers' Assn., 23 NY2d 916, 918, cert denied 395 US 959 [1969]). That is, the government agency must show: (1) that it has the authority to engage in such investigation and to issue the subpoena, (2) that there is an authentic factual basis to warrant the investigation, and (3) that the information sought is relevant to the subject of the inquiry (see id.).

When a non-judicial, "office," or administrative subpoena, such as that issued by the FDNY here, is challenged on the ground that the materials sought are irrelevant, "it is incumbent upon the issuer to come forward with a factual basis' which establishes the relevancy of the items sought to the subject matter of the investigation before a witness will be compelled to comply with the subpoena's mandate" (Virag v Hynes, 54 NY2d 437, 441-442 [1981]). "However, this requirement of subject matter identification is not very exacting," and "[a]ll that the issuer of an office subpoena need demonstrate in order to [*6]avoid a motion to quash is that the materials sought have a reasonable relation to the subject matter under investigation and to the public purpose to be achieved'"(Id. at 442, quoting Carlisle v Bennett, 268 NY 212, 217 [1935]). "An application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious . . . or where the information sought is utterly irrelevant to any proper inquiry" (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014] [internal quotation marks and citations omitted]; see also Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-332 [1988]; Matter of La Belle Creole Intl., S.A. v Attorney-General of State of NY, 10 NY2d 192, 196 [1961], rearg denied 10 NY2d 1011 [1961]; Matter of Edge Ho Holding Corp., 256 NY 374, 382 [1931]; Matter of Dairymen's League Coop. Assn., Inc. v Murtagh, 274 App Div 591, 595 [1st Dept 1948], affd 299 NY 634 [1949]).

As to the FDNY's authority to engage in the subject investigation into employee misconduct and to issue a subpoena in furtherance of this investigation, it is noted that pursuant to New York City Charter § 487 (a), the Commissioner has "sole and exclusive over and perform all duties for the . . . discipline . . . of the fire department." Administrative Code § 15-218, entitled "Purposes of investigations," provides, in subparagraph (2), that "[t]he commissioner . . . and such other employees of the department designated by the commissioner, shall investigate, examine and inquire into . . . [t]he violation of any of the several regulations, orders, or special directions issued by the commissioner, for the purpose of discovering any delinquency in the performance of duty, or violations of discipline, on the part of any officer, agent, or employee of the department." Administrative Code § 15-219, entitled "Compelling attendance of witnesses," sets forth, in subparagraph (a) (1), entitled "Power of subpoena of commissioner," that "[t]he commissioner, in and about any investigation authorized by [Administrative Code §]15-218 . . ., and touching any matter connected therewith, may subpoena and compel the attendance of any person or persons, and the production of any books, papers, archives or documents in his, her or their possession or control, which, in the judgment of the commissioner . . . is connected with and necessary to such investigation."

An FDNY's employee's release of confidential employee-related medical information or protected confidential personnel information to an unauthorized third party violates various statutes and FDNY regulations. Specifically, the improper disclosure of employee-related medical and personnel information constitutes a violation of the City's "Conflicts of Interest" law, entitled "Prohibited interests and conduct," which is contained in the Chapter 68 of the City Charter. City Charter § 2604 (b) (4) provides that "[n]o public servant shall disclose any confidential information concerning the . . . affairs or government of the city which is obtained as a result of the official duties of such public servant and which is not otherwise available to the public." This statutory obligation of FDNY officers and employees in the Conflicts of Interest Law in City Charter § 2604 is additionally set forth in the FDNY publication, "Personnel Administration/Information [*7]Directive" 6-84 (PA/ID 6-84), which reproduces the entire text of Chapter 68 of the City Charter. PA/ID 6-84 sets forth that this law places a restriction upon FDNY employees' outside activities.

Furthermore, Civil Rights Law § 50-a protects the confidentiality of the personnel records of firefighters by providing that "[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of . . . a paid fire department or force of individuals employed as firefighters . . . shall be considered confidential and not subject to inspection or review without the express written consent of such . . . firefighter . . . except as may be mandated by lawful court order." Pursuant to this section, the confidentiality of disciplinary records of such personnel has been afforded protection (see Matter of Crowe v Kelly, 38 AD3d 435, 437 [1st Dept 2007], lv denied 9 NY3d 801 [2007]).

Section 1.4 of the FDNY publication, A.U.C. 334, "Confidentiality, Use and Disclosure of Patient Health Information," prohibits the disclosure of medically related information of FDNY employees. It provides that "[t]he confidentiality of such employee heath records shall be maintained," and that "[s]uch records and information shall be only used and disclosed for official Fire Department purposes in accordance with the procedures established by the bureaus that maintain such records, and shall only be disclosed to those Fire Department personnel, health care providers and other persons specifically authorized to receive such information." Moreover, A.U.C. 332, entitled "Public Speaking and Press Policy/Reporting of Newsworthy Events," specifically sets forth mandatory requirements regarding communications with the press. Section 3.3.1 of A.U.C. 332, entitled "Prohibited Conduct," provides that "[a]ll members are prohibited from making statements that are disruptive to the operations of the Department, or that would disclose confidential information, including, but not limited to, statements about . . . [the m]edical information of others including, but not limited to, the identity of patients, the medical status of a patient . . . and . . . [o]ther information protected from disclosure by law." Section 3.3.2 of A.U.C. 332 further prohibits members from "read[ing], copy[ing], . . . or disclos[ing] to unauthorized persons confidential Fire Department records or other confidential records to which a member may have access."

Petitioner argues that section 3.3.1 of A.U.C. 332 does not provide a justifiable basis for investigating him pursuant to the subpoena because the New York Post articles involving Probationary Firefighter Tapia and Firefighter Simpson did not involve medical information of any "patients." This argument, however, is devoid of merit since this section expressly refers to the "[m]edical information of others" (emphasis added), and it includes, but is not limited to, statements regarding patients. The statements at issue involved medical information and information protected from disclosure by law, and, therefore, they fall within the scope of this regulation.

With respect to the factual basis warranting the investigation and the relevancy of the information sought, the FDNY's investigation and the challenged subpoena at issue [*8]are based upon the FDNY's finding that the articles in the New York Post constituted the unauthorized disclosure of confidential employee medical information and protected confidential personnel information that was not publicly available at the time such information was published, and which was disclosed in violation of the aforementioned statutes and FDNY regulations. The investigation underlying the issuance of the subpoena seeks to determine who disclosed this protected confidential information. In addition, the FDNY, in an affirmation by Tyrone J. Hughes, an attorney in the BITs of the FDNY, points out that the nature of the confidential information disclosed may violate the FDNY's Equal Employment Opportunity (EEO) policy since the disclosed information involved African-American males and a Hispanic female. Thus, the FDNY has provided a legitimate basis for its investigation.

As to the relevancy of the phone records sought by the subpoena as pertains to the subject matter of the FDNY's investigation, Wallace, in his affirmation, asserts that although the FDNY has not yet determined if petitioner will be charged with a violation of the FDNY's policies and regulations, the subpoenaed records are needed as part of the ongoing administrative investigation into the disclosures to the New York Post regarding confidential personnel and medical information of minority members of the FDNY. He explains that the records will aid in the assessment of whether petitioner and the other FDNY members who have been interviewed in this investigation provided truthful testimony, including whether petitioner personally and directly disclosed the information to reporters or to a third party, who then revealed the information to reporters. He further sets forth that access to petitioner's phone records may reveal other people with whom petitioner spoke regarding the minority FDNY members who were the subject of the New York Post articles in response to inquiries made by Officer X, and whether the disclosure of information was intended to retaliate against individuals because of their involvement in the federal action or their status as priority hires, or was otherwise in violation of the FDNY's EEO policy. He notes that the subpoena is limited in scope to the specific time periods, which were selected based upon when information was shared or distributed internally within the FDNY, and when the news articles were published.

Petitioner, in arguing that the FDNY has not shown a factual basis to support the subpoena, asserts that the FDNY has not proffered a single fact upon which to base its claim that he leaked confidential information. He states that the fact that he had access to the information leaked is not evidence that he was the one who leaked it, and that he also did not have access to some of this confidential information. He claims that he did not have access to Training Academy test results and, therefore, did not have access to Probationary Firefighter Tapia's running times. He further states that information as to Probationary Firefighter Tapia's test failures were already known by unauthorized third parties in the FDNY and, therefore, could no longer be considered confidential at the time the article was published. He also states that he has access to only limited medical information, and that this information did not indicate that Probationary Firefighter Tapia [*9]had a foot injury. He further denies knowing that Fire Lieutenant Sterling tested positive for marijuana, as opposed to another drug, and he asserts that this information cannot be considered confidential because the December 26, 2013 New York Post article reported that "word of the weed bust spread through the department."

Wallace, in his affirmation, however, attests that petitioner, as an executive officer to the Chief of Uniformed Personnel, had access to confidential and sensitive information involving members of service, including whether they tested positive for an unauthorized substance, any disciplinary action taken against members, and their medical leaves. He further asserts that personnel from the FDNY's Bureau of Technology and Development Services has informed him that petitioner also has access to several databases, including those which provide information regarding an FDNY member's medical leave status and the reasons for this leave, members' emergency contact information, and information on candidate investigations. He notes that the release of this information to unauthorized persons, including to other unauthorized members of the FDNY, is a violation of FDNY rules. While petitioner denies making statements to the New York Post and access to certain information, the very purpose of the subpoena is to uncover evidence to further the FDNY's investigation into whether petitioner, in fact, made such statements to the New York Post or to another FDNY employee who disclosed this information.

Petitioner, in seeking to quash the subpoena, further contends that it is overly broad. This contention, however, is without merit since the subpoena is limited to specific time periods. It also seeks telephone numbers for those time periods based, in part, upon petitioner's admission, during his June 16, 2014 interview, that he discussed Probationary Firefighter Tapia with the member of the FDNY who is quoted in the New York Post articles, but that he could not remember if the discussion took place before or after the publication in the article of her protected employee information. The information sought under the subpoena will assist the FDNY in determining whether petitioner, as well as other employees interviewed during the course of the investigation, disclosed protected employee data to reporters involved in the publication of the New York Post articles or to other unauthorized employees of the FDNY who then disclosed this information. It will enable it to develop a time line of calls made to and by other employees under the Commissioner's jurisdiction, which will assist it in determining the extent of the improper disclosures.

As a basis for his petition, however, petitioner attempts to raise constitutional arguments. In this regard, petitioner asserts, in his petition, that over several phone conversations, Wallace informed his attorney that the information disclosed in the New York Post articles were confidential and, in doing so, cited to sections 25.3.1 and 25.3.2 of chapter 25 of the General Deportment Regulations. Petitioner argues that section 25.3.1 of the General Deportment Regulations is unconstitutionally vague and overbroad because it states that "[m]embers shall consider official business of the Department as confidential." He contends that "official business" is not defined with clarity. He further [*10]argues that section 25.3.2 of the General Deportment Regulations, which states that "[m]embers shall not discuss for publication matters concerning the Department without approval of the Fire Commissioner, except as otherwise provided for in Regulations," is also unconstitutional because it requires prior clearance for protected speech.

The court notes that, contrary to petitioner's contention, section 25.3.1 of the General Deportment Regulations specifies that members "shall not impart any information which has not been published in department orders," thereby defining the nature of the information deemed confidential. The General Deportment Regulations, however, are not relied upon by the FDNY in issuing the subpoena, and, thus, an inquiry as to their constitutionality would, in any event, be irrelevant to this matter. Instead, the FDNY relies upon the statutory provisions and FDNY regulations discussed above, which are not impermissibly vague or overbroad as applied to petitioner because they provided him with adequate notice that he was not allowed to release confidential employee information to the press.

Furthermore, the subpoena does not impinge upon any First Amendment rights to free speech or Fourteenth Amendment rights to due process since the subpoena merely seeks records of the telephone numbers called and the dates and times of those calls. Significantly, petitioner lacks any legitimate expectation of privacy in this information provided to Verizon, a third party (see American Civil Liberties Union v Clapper, 959 F Supp 2d 724, 749 [SD NY 2013]). "Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes" (Smith v Maryland, 442 US 735, 742 [1979]). Thus, petitioner's privacy rights and his First and Fourteenth Amendment rights are not implicated by the subpoena since he voluntarily conveyed this numerical information to Verizon and had no reasonable expectation of privacy in the existence and identity of such calls.

Petitioner argues, however, while denying that he made any statement regarding Probationary Firefighter Tapia or Firefighter Simpkin's preferential treatment, that even if he had made any such statements, they were about a matter of public concern and were not made as part of his official duties. He contends that the subpoena, therefore, violates his First Amendment right to freedom of expression.

This contention is lacking in merit. The information claimed to be disclosed was of a confidential nature, and the release of confidential employee information, which is protected by statutes and FDNY regulations, is not protected speech under the First Amendment to the United States Constitution or under the New York Constitution. "Neither [government employees] nor the public has any protected interest in releasing statutorily confidential information" (Harman v City of New York, 140 F3d 111, 119 [2d Cir 1998]).

Moreover, a person "pursuing a claim for First Amendment retaliation must [*11]demonstrate that (1) his [or her] speech addressed a matter of public concern, (2) he [or she] suffered an adverse employment action, and (3) a causal connection existed between the speech and the adverse employment action, so that it can be said that his [or her] speech was a motivating factor in the determination'" (Cobb v Pozzi, 363 F3d 89, 102 [2d Cir 2004], quoting Mandell v County of Suffolk, 316 F3d 368, 382 [2d Cir 2003]). Petitioner does not satisfy these requirements. While petitioner argues that he spoke as a private citizen on a matter of public concern to Officer X, the petition does not allege that he uttered a public statement since he denies speaking to the press. Furthermore, although petitioner asserts that the unwarranted investigation into his private interactions with those inside and outside the FDNY through the subpoena of all of his phone records over a total of 92 days was an adverse employment action, the subpoena is merely investigative in nature and does not constitute an adverse employment action.

The FDNY is explicitly authorized to use administrative subpoenas for the purpose of aiding the investigation of matters within its jurisdiction, such as inquiries relating to possible unauthorized disclosure of confidential information (see Administrative Code § 15-218, § 15-219). The obtaining of information from Verizon by means of the subpoena is not a violation of any constitutional right of petitioner (see Adams ex rel. 100 Black Men in Law Enforcement Who Care v City of New York, 2003 WL 1741858 [SD NY Mar. 31, 2003, No. 01 CIV. 9094 (TPG)], affd 81 Fed Appx 750 [2d Cir 2003]). Consequently, inasmuch as the FDNY has demonstrated its authority to issue the subpoena and its relevancy to its investigation and petitioner has failed to raise any viable basis to quash the subpoena, petitioner's motion to quash the subpoena must be denied (see Matter of A'Hearn, 23 NY2d at 918).

Accordingly, petitioner's motion is denied in its entirety and the petition is dismissed. Verizon is hereby directed to comply with the subpoena within 20 days of service upon it of a copy of this decision and order, with notice of entry thereon.

This constitutes the decision, order, and judgment of the court.

E N T E R,