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June 10, 1997

 

 

 

Mr. George M. Walsh
The Daily Gazette
2345 Maxon Road
Schenectady, NY 12308

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence,
unless otherwise indicated.

Dear Mr. Walsh:

I have received your recent letter, as well as a variety of
related materials. You have sought an advisory opinion concerning
a denial of access by the City of Schenectady to records
identifying City police officers involved in what is characterized
by Mayor Albert P. Jurczynski as "an off-duty egg-throwing
incident."

By way of background, a news article by a member of your staff
indicates that a "late-night altercation between a busload of
bachelor-partying police and two people in a car has resulted in
seven officers being suspended without pay and 11 more receiving
less-severe punishments." The article specifies that there was no
violence and that no complaints were made against the officers
involved. In response to an appeal by both the Gazette and the
Albany Times-Union, the Mayor wrote that "[a]ll of the discipline
was agreed to by the officers, and was conditioned upon their
making restitution to the parties involved." He added that the
"men involved claim a statutory right to confidentiality under the
Civil Rights Law (section 50-a)", and that "[t]here is also a claim
by them that disclosure would be an unwarranted invasion of
privacy, and further that the requested material is intra-agency
and therefore not subject to mandatory disclosure." Additionally,
one of the articles states that the Chief of Police "agreed not to
reveal" the names of the officers "if everyone involved came
forward."

From my perspective, the names of the eighteen officers
involved in the incident, all of whom came forward and agreed to
accept a penalty, as well as the nature of the penalties imposed
upon them individually, must be disclosed. I am mindful of §50-a
of the Civil Rights Law. However, there is no judicial decision of
which I am aware in which records identifying public employees who
have been disciplined have been found to be confidential. On the
contrary, there are several decisions that have required public
disclosure. In this regard, I offer the following comments.

It is noted initially that the Freedom of Information Law is
based upon a presumption of access. Stated differently, all
records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for
denial appearing in §87(2)(a) through (i) of the Law. In my view,
three of the grounds for denial, each of which was referenced in
response to your appeal, is relevant in consideration of rights of
access to the records in question.

The first ground for denial, §87(2)(a), pertains to records
that "are specifically exempted from disclosure by state or federal
statute." One such statute is §50-a of the Civil Rights Law. In
brief, that statute provides that personnel records of police and
correction officers that are used to evaluate performance toward
continued employment or promotion are confidential. The Court of
Appeals, the state's highest court, in reviewing the legislative
history leading to its enactment, has held that §50-a is not a
statute that exempts records from disclosure when a request is made
under the Freedom of Information Law in a context unrelated to
litigation. More specifically, in a case brought by a newspaper,
it was found that:

"Given this history, the Appellate Division
correctly determined that the legislative
intent underlying the enactment of Civil
Rights Law section 50-a was narrowly specific,
'to prevent time-consuming and perhaps
vexatious investigation into irrelevant
collateral matters in the context of a civil
or criminal action' (Matter of Capital
Newspapers Div. of Hearst Corp. v. Burns, 109
AD 2d 92, 96). In view of the FOIL's
presumption of access, our practice of
construing FOIL exemptions narrowly, and this
legislative history, section 50-a should not
be construed to exempt intervenor's 'Lost Time
Record' from disclosure by the Police
Department in a non-litigation context under
Public Officers section 87(2)(a)" [Capital
Newspapers v. Burns, 67 NY 2d 562, 569
(1986)].

It was also found that the exemption from disclosure conferred by
§50-a of the Civil Rights Law "was designed to limit access to said
personnel records by criminal defense counsel, who used the
contents of the records, including unsubstantiated and irrelevant
complaints against officers, to embarrass officers during cross-examination" (id. at 568).

In another decision, which dealt with unsubstantiated
complaints against correction officers, the Court of Appeals held
that the purpose of §50-a "was to prevent the release of sensitive
personnel records that could be used in litigation for purposes of
harassing or embarrassing correction officers" [Prisoners' Legal
Services v. NYS Department of Correctional Services, 73 NY 2d 26,
538 NYS 2d 190, 191 (1988)].

As I understand the matter, your request is not connected in
any way to litigation and you do not intend to you use the records
sought in any litigation context. Rather, in view of the functions
of the Gazette, the purpose of the request appears to involve an
effort to inform the public concerning an issue that has attracted
substantial public attention. Moreover, the records at issue do
not deal with unsubstantiated allegations or complaints, for each
of the eighteen officers has come forward, admitted his role in the
incident and accepted a punishment. The facts surrounding the
incident have been widely publicized and, in my opinion,
particularly in view of the nature of the incident and the
disclosures that have already been made, records identifying the
officers and the penalties imposed could not be characterized as
"sensitive" or in any way intimate. In short, §50-a of the Civil
Rights Law, according to its legislative history and judicial
interpretation, does not apper to apply to the kind of request that
you have made.

Also relevant to an analysis of the ability to withhold the
information sought is §87(2)(b), which permits an agency to
withhold records to the extent that disclosure would constitute "an
unwarranted invasion of personal privacy".

While the standard concerning privacy is flexible and may be
subject to conflicting interpretations, the courts have provided
substantial direction regarding the privacy of public officers
employees. It is clear that public officers and employees enjoy a
lesser degree of privacy than others, for it has been found in
various contexts that public officers and employees are required to
be more accountable than others. With regard to records pertaining
to public officers and employees, the courts have found that, as a
general rule, records that are relevant to the performance of a
their official duties are available, for disclosure in such
instances would result in a permissible rather than an unwarranted
invasion of personal privacy [see e.g., Farrell v. Village Board of
Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe,
59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County
of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C.
Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981;
Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v.
City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of
State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v.
Board of Education, East Moriches, supra; Capital Newspapers v.
Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records
are irrelevant to the performance of one's official duties, it has
been found that disclosure would indeed constitute an unwarranted
invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct.,
Nassau Cty., NYLJ, Nov. 22, 1977].

The other ground for denial of significance and to which the
Mayor alluded, §87(2)(g), states that an agency may withhold
records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those
portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld. Insofar as a request involves final agency
determinations, I believe that those determinations must be
disclosed, again, unless a different ground for denial could be
asserted.

In terms of the judicial interpretation of the Freedom of
Information Law, it is emphasized that in situations in which
allegations or charges have resulted in the issuance of a written
reprimand, disciplinary action, or findings that public employees
have engaged in misconduct, records reflective of those kinds of
determinations have been found to be available, including the names
of those who are the subjects of disciplinary action [see Powhida
v. City of Albany, 147 AD 2d 236 (1989); also Farrell, Geneva
Printing, Scaccia and Sinicropi, supra]. Three of the decisions
cited above, Powhida, Farrell and Scaccia involved police officers,
and in each case, the names of the officers were determined to be
public.

With respect to the agreement by the Chief of Police with the
eighteen officers to withhold their names, in Geneva Printing,
supra, a public employee charged with misconduct and in the process
of an arbitration hearing engaged in a settlement agreement with a
municipality. One aspect of the settlement was an agreement to the
effect that its terms would remain confidential. Notwithstanding
the agreement of confidentiality, which apparently was based on an
assertion that "the public interest is benefited by maintaining
harmonious relationships between government and its employees", the
court found that no ground for denial could justifiably be cited to
withhold the agreement. On the contrary, it was determined that:

"the citizen's right to know that public
servants are held accountable when they abuse
the public trust outweighs any advantage that
would accrue to municipalities were they able
to negotiate disciplinary matters with its
employee with the power to suppress the terms
of any settlement".

It was also found that the record indicating the terms of the
settlement constituted a final agency determination available under
the Law. The decision states that:

"It is the terms of the settlement, not just a
notation that a settlement resulted, which
comprise the final determination of the
matter. The public is entitled to know what
penalty, if any, the employee suffered...The
instant records are the decision or final
determination of the village, albeit arrived
at by settlement..."

In another more recent decision involving a settlement
agreement between a school district and a teacher, it was held in
Anonymous v. Board of Education [616 NYS 2d 867 (1994)] that:

"...it is disingenuous for petitioner to argue
that public disclosure is permissible...only
where an employee is found guilty of a
specific charge. The settlement agreement at
issue in the instant case contains the
petitioner's express admission of guilt to a
number of charges and specifications. This
court does not perceive the distinction
between a finding of guilt after a hearing and
an admission of guilt insofar as protection
from disclosure is concerned" (id., 870).

In the context of the situation at issue, I believe that the
outcome, the admission by the officers of their role in the
incident and their acceptance of discipline, is essentially
reflective of a settlement between the City and certain employees.
It is my understanding that disciplinary action can be imposed only
after charges have been made, a hearing held and a determination
indicating a finding of misconduct has been rendered, i.e., as in
a proceeding conducted pursuant to §75 of the Civil Service, or, as
in this case, when in lieu of the initiation of charges and a
formal disciplinary proceeding, a public employee agrees to some
sort of sanction, penalty or punishment. As suggested by the Court
in Anonymous, there is no distinction in substance between a
finding of guilt after a hearing and an admission of guilt as a
means of avoiding such a proceeding.

The same decision also referred to contentions involving
privacy as follows:

"Petitioner contends that disclosure of the
terms of the settlement at issue in this case
would constitute an unwarranted invasion of
his privacy prohibited by Public Officers Law
§ 87(2)(b). Public Officers Law § 89(2)(b)
defines an unwarranted invasion of personal
privacy as, in pertinent part, '(i) disclosure
of employment, medical or credit histories or
personal references of applicants for
employment.' Petitioner argues that the
agreement itself provides that it shall become
part of his personnel file and that material
in his personnel file is exempt from
disclosure..." (id.).

In response to those contentions, the decision stated that:

"This court rejects that conclusion as
establishing an exemption from disclosure not
created by statute (Public Officers Law §
87[2][a]), and not within the contemplation of
the 'employment, medical or credit history'
language found under the definition of
'unwarranted invasion of personal privacy' at
Public Officers Law § 89(2)(b)(i). In fact,
the information sought in the instant case,
i.e., the terms of settlement of charges of
misconduct lodged against a teacher by the
Board of Education, is not information in
which petitioner has any reasonable
expectation of privacy where the agreement
contains the teacher's admission to much of
the misconduct charged. The agreement does
not contain details of the petitioner's
personal history-but it does contain the
details of admitted misconduct toward
students, as well as the agreed penalty. The
information is clearly of significant interest
to the public, insofar as it is a final
determination and disposition of matters
within the work of the Board of Education and
reveals the process of and basis for
government decision-making. This is not a
case where petitioner is to be protected from
possible harm to his professional reputation
from unfounded accusations (Johnson Newspaper
Corp. v. Melino, 77 N.Y.2d 1, 563 N.Y.S.2d
380, 564 N.E.ed 1046), for this court regards
the petitioner's admission to the conduct
described in the agreement as the equivalent
of founded accusations. As such, the
agreement is tantamount to a final agency
determination not falling within the privacy
exemption of FOIL 'since it was not a
disclosure of employment history.'" (id.,
871).

Most recently, in LaRocca v. Board of Education of Jericho
Union Free School District [632 NYS 2d 576 (1995)], the Appellate
Division held that a settlement agreement was available insofar as
it included admissions of misconduct. In that case, charges were
initiated under §3020-a of the Education Law, but were later
"disposed of by negotiation and settled by an Agreement" (id., 577)
and withdrawn. The court rejected claims that the record could be
characterized as an employment history that could be withheld as an
unwarranted invasion of privacy, and found that a confidentiality
agreement was invalid. Specifically, it was stated that:

"Having examined the settlement agreement, we
find that the entire document does not
constitute an 'employment history' as defined
by FOIL (see, Matter of Hanig v. State of New
York Dept. of Motor Vehicles, supra) and it is
therefore presumptively available for public
inspection (see, Public Officers Law § 87[2];
Matter of Farbman & Sons v. New York City
Health and Hosps. Corp., supra, 62 N.Y.2d 75,
476 N.Y.S.2d 69, 464 N.E.2d 437). Moreover,
as a matter of public policy, the Board of
Education cannot bargain away the public's
right of access to public records (see, Board
of Educ., Great Neck Union Free School Dist.
v. Areman, 41 N.Y.2d 527, 394 N.Y.S.2d 143,
362 N.E.2d 943)" (id., 578, 579).

In contrast, when allegations or charges of misconduct have
not yet been determined or did not result in disciplinary action or
a finding of misconduct, the records relating to such allegations
may, in my view, be withheld, for disclosure would result in an
unwarranted invasion of personal privacy [see e.g., Herald Company
v. School District of City of Syracuse, 430 NYS 2d 460 (1980)].
Similarly, to the extent that charges are dismissed or allegations
are found to be without merit, I believe that they may be withheld.
As stated earlier, the records in this instance do not involve mere
allegations. The facts of the matter are undisputed, admissions
have been made, and disciplinary action has been or will be taken.

Pertinent in view of the number of officers involved,
eighteen, is one of the first decisions rendered under the Freedom
of Information Law, a case cited earlier, which dealt specifically
with reprimands of three police officers. In that holding, the
Court concluded that:

"To disclose these will not result in an
unwarranted invasion of personal privacy; they
are 'relevant to the ordinary work of the
municipality'. In effect, they are 'final
opinions' and 'final determinations' which the
Legislature directed be made available for
public inspection. Disclosure, of course,
will reveal the names of the police officers
who were reprimanded but also let it be known,
by implication, which others were not
censured" (Farrell, supra, 908-909).

Lastly, the courts have consistently interpreted the Freedom
of Information Law in a manner that fosters maximum access. As
stated by the Court of Appeals more than a decade ago:

"To be sure, the balance is presumptively
struck in favor of disclosure, but in eight
specific, narrowly constructed instances where
the governmental agency convincingly
demonstrates its need, disclosure will not be
ordered (Public Officers Law, section 87, subd
2). Thus, the agency does not have carte
blanche to withhold any information it
pleases. Rather, it is required to articulate
particularized and specific justification and,
if necessary, submit the requested materials
to the court for in camera inspection, to
exempt its records from disclosure (see Church
of Scientology of N.Y. v. State of New York,
46 NY 2d 906, 908). Only where the material
requested falls squarely within the ambit of
one of these statutory exemptions may
disclosure be withheld" [Fink v. Lefkowitz, 47
NY 2d 567, 571 (1979)].

In a decision that was cited earlier, the Court of Appeals found
that:

"The Freedom of Information Law expresses this
State's strong commitment to open government
and public accountability and imposes a broad
standard of disclosure upon the State and its
agencies (see, Matter of Farbman & Sons v New
York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance
of the public's vested and inherent 'right to
know', affords all citizens the means to
obtain information concerning the day-to-day
functioning of State and local government thus
providing the electorate with sufficient
information 'to make intelligent, informed
choices with respect to both the direction and
scope of governmental activities' and with an
effective tool for exposing waste, negligence
and abuse on the part of government officers"
(Capital Newspapers v. Burns, supra, 565-566).

For the reasons described above, it is my opinion that those
portions of records indicating the names of the officers involved
in the incident and the nature of disciplinary action or sanction
imposed against them must be disclosed.

In an effort to encourage disclosure in a manner consistent
with judicial decisions and an attempt to obviate the need for
litigation, a copy of this opinion will be forwarded to Mayor
Jurczynski.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Albert P. Jurczynski