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January 5, 1998



Mr. Kevin M. Kearney
Hodgson Russ Andrews
Woods & Goodyear, LLP
1800 One M&T Plaza
Buffalo, NY 14203-2391

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.

Dear Mr. Kearney:

I have received your letter of December 1. In your capacity as
attorney for the Town of Niagara, you have sought an advisory opinion
pertaining to requests for records relating to a disciplinary proceeding
conducted pursuant to §75 of the Civil Service Law concerning a police
officer.

According to your letter, in brief, charges were brought against a
police officer, and the Town Board appointed a hearing officer who presided
over a two-day hearing, which was transcribed. The hearing officer submitted
a 19 page report and recommendation to the Town Board. Following its
review of the report and the transcript of the proceeding, "the Town Board
made written findings, which incorporated by reference the hearing officer's
report and recommendation, and the officer was discharged." Other than the
Town Board's written findings, none of the other documentation to which you
referred has been disclosed to the public.

You indicated that the Town has received two requests, one for all
documents pertaining to the disciplinary action, which was made by an
attorney representing two juveniles who were involved in the officer's
misconduct. The attorney has filed a notice of claim against the Town
concerning a matter related to but not the subject of the disciplinary
proceeding. The second request was made by a member of the news media,
who is seeking a copy of the hearing officer's report.

In this regard, I offer the following comments.

First, the possibility that the records sought might be pertinent to or
used in litigation is, in my view, largely irrelevant. As stated by the Court of
Appeals, the State's highest court, in a case involving a request made under
the Freedom of Information Law by a person involved in litigation against an
agency: "Access to records of a government agency under the Freedom of
Information Law (FOIL) (Public Officers Law, Article 6) is not affected by
the fact that there is pending or potential litigation between the person making
the request and the agency" [Farbman v. NYC Health and Hospitals
Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the
Court of Appeals determined that "the standing of one who seeks access to
records under the Freedom of Information Law is as a member of the public,
and is neither enhanced...nor restricted...because he is also a litigant or
potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)].
The Court in Farbman, supra, discussed the distinction between the use of the
Freedom of Information Law as opposed to the use of discovery in Article 31
of the Civil Practice Law and Rules. Specifically, it was found that:

"FOIL does not require that the party
requesting records make any showing of need,
good faith or legitimate purpose; while its
purpose may be to shed light on governmental
decision-making, its ambit is not confined to
records actually used in the decision-making
process (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.)
Full disclosure by public agencies is, under
FOIL, a public right and in the public interest,
irrespective of the status or need of the person
making the request.

"CPLR article 31 proceeds under a different
premise, and serves quite different concerns.
While speaking also of 'full disclosure' article
31 is plainly more restrictive than FOIL.
Access to records under CPLR depends on
status and need. With goals of promoting both
the ascertainment of truth at trial and the
prompt disposition of actions (Allen v.
Crowell-Collier Pub. Co., 21 NY 2d 403,
407), discovery is at the outset limited to that
which is 'material and necessary in the
prosecution or defense of an action'" [see
Farbman, supra, at 80].

Based upon the foregoing, the pendency of litigation would not, in my
opinion, affect either the rights of the public or a litigant under the Freedom
of Information Law.

Second, as a general matter, 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.

The initial 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, in reviewing the legislative history leading to its
enactment, has held that §50-a "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" [Capital Newspapers v. Burns,
67 NY2d 562 568 (1986)]. In another decision, which dealt with
unsubstantiated complaints against correction officers, it was 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)].

From my perspective, since the subject of the records is no longer a
police officer, I do not believe that §50-a would be applicable. In short, the
rationale for the confidentiality accorded by that provision would no longer
be present.

Nevertheless, aside from §50-a, other grounds for denial appearing in
the Freedom of Information Law are pertinent.

Particularly relevant to an analysis of rights of access, or conversely,
the ability to withhold the records 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, §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 a final agency determination, I believe that the
determination 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 hearing officer's report and recommendation, as
I interpret your commentary, they were essentially adopted by the Town
Board, for they were "incorporated by reference" into the Board's findings.
If that is so, I believe that those documents, with certain possible exceptions
to be considered later, must be disclosed. In a decision in which an
investigator's findings were adopted by the decision maker, the Borough
President of Staten Island, the Appellate Division, Second Department, found
that the record was public. The Court stated that:

"FOIL protects inter-agency or intra-agency
materials which are not '**** final agency
policy or determinations'...The exemption for
intra-agency materials does not apply to final
agency policy or decisions. Here, Molinari not
only had relied on and incorporated the
findings of the investigator, he expressly
adopted them in explaining his actions. Having
done so, he is precluded from claiming that the
memoranda are exempt from disclosure" [New
York 1 News v. Office of the President of the
Borough of Staten Island, 647 NYS2d 270,
271 (1996)].

Similarly, in Miller v. Hewlett-Woodmere Union Free School District
(Supreme Court, Nassau County, NYLJ, May 16, 1990), the Court
determined that a recommendation that became a decision had to be disclosed,
finding that:

"It is apparent that the Superintendent
unreservedly endorsed the
recommendation...adopting the reasoning as
his own, and made his decision based on it.
Assuredly, the Court must be alert to
protecting 'the deliberative process of the
government by ensuring that persons in an
advisory role would be able to express their
opinions freely to agency decision
makers'...but the Court bears an equal
responsibility to ensure that final decision
makers are accountable to the public. When,
as here, a concord exists as to intra-agency
views, when deliberation has ceased and the
consensus arrived at represents the final
decision, disclosure is not only desirable but
imperative for preserving the integrity of
governmental decision making."

Based on the foregoing, while I believe that the hearing officer's report
and recommendation are presumptively public because they represent the
Town Board's final determination, it is emphasized that I am unaware of the
specific contents of the documentation. If, for example, the officer was the
subject of five charges, three of which were sustained and two dismissed,
those portions relating to unproven charges or unsubstantiated allegations
could in my opinion be withheld on the ground that disclosure would
constitute an unwarranted invasion of privacy [see e.g., Herald Company v.
School District of the City of Syracuse, 430 NYS2d 460 (1980)]. Based on
the decisions cited earlier, reference to findings of misconduct would be
accessible; reference to charges that could not be proven could be withheld.

Further, the documentation might identify persons other than the
officer, such as Town employees, the two juveniles, or perhaps others. To the
extent that disclosure of those identifying details would result in an
unwarranted invasion of their personal privacy, portions of the documentation
could justifiably be deleted prior to disclosure of the remainder.

With respect to the transcript of the proceeding, the same kind of
analysis would be apt. Depending on the nature of testimony or evidence,
there may be privacy considerations relative to the officer, as well as others
named or otherwise identified in the transcript.

Lastly, since the first request involves "all documents pertaining to the
disciplinary action", investigative records and other documentation created in
preparation for or in conjunction with the proceeding would in my view
constitute intra-agency materials. Insofar as they consist of opinions, advice,
conjecture, recommendations and the like offered by public officers or
employees, I believe that they could be withheld. Records of interviews with
others, such as the juveniles or witnesses, might be withheld based on
considerations of personal privacy. Also among the documents sought might
be memoranda or similar documents in which counsel for the Town offered
legal advice or strategy. Those kinds of records could in my opinion be
withheld not only as intra-agency material, but also pursuant to the attorney-client privilege. When records fall within the scope of the privilege, I believe
that they are confidential under §4503 of the Civil Practice Law and Rules
and, therefore, exempt from disclosure under §87(2)(a) of the Freedom of
Information Law.

I hope that I have been of assistance. Should any further questions
arise, please feel free to contact me.

Sincerely,



Robert J. Freeman
Executive Director

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