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April 27, 1998




Mr. Christopher Nenni
97-B-1906 A3-19
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902-0500

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. Nenni:

I have received your letter of April 1. You have sought assistance
concerning a request for records made to the Orleans County Sheriff's
Department.

As I understand the matter, you alleged that certain county records
were "altered and/or falsified, which led to an internal investigation" by the
Department that apparently focused on a particular employee. Neither your
request for records relating to the investigation nor your appeal had been
answered as of the date of your letter to this office.

In this regard, I offer the following comments.

First, the Freedom of Information Law provides direction concerning
the time and manner in which agencies must respond to requests and appeals.
Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this
article, within five business days of the receipt
of a written request for a record reasonably
described, shall make such record available to
the person requesting it, deny such request in
writing or furnish a written acknowledgement
of the receipt of such request and a statement
of the approximate date when such request
will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of
a request is given within five business days, or if an agency delays responding
for an unreasonable time after it acknowledges that a request has been
received, a request may, in my opinion, be considered to have been
constructively denied. In such a circumstance, I believe that the denial may
be appealed in accordance with §89(4)(a) of the Freedom of Information Law.
That provision states in relevant part that:

"...any person denied access to a record may
within thirty days appeal in writing such denial
to the head, chief executive, or governing
body, who shall within ten business days of the
receipt of such appeal fully explain in writing
to the person requesting the record the reasons
for further denial, or provide access to the
record sought."

In addition, it has been held that when an appeal is made but a
determination is not rendered within ten business days of the receipt of the
appeal as required under §89(4)(a) of the Freedom of Information Law, the
appellant has exhausted his or her administrative remedies and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d
774 (1982)].

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.

Most relevant in this instance is the initial ground for denial, §87(2)(a),
which 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. It has been 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" [Capital
Newspapers v. Burns, 67 NY 2d 652, 568 (1986)].

In another decision, which dealt with unsubstantiated complaints
against correction officers, the Court of Appeals upheld a denial of access and
found 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)].

In terms of the judicial interpretation of the Freedom of Information
Law, I point out that in situations in which allegations or charges have
resulted in the issuance of a written reprimand, disciplinary action, or
determinations 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 v. Village
Board of Trustees, 372 NYS 2d 905 (1975); Geneva Printing Co. and Donald
C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty. March 25, 1981; Scaccia
v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988) and
Sinicropi v. County of Nassau, 76 AD 2d 838 (1980)].

It is also noted, however, that in Scaccia, it was found that although
a final determination reflective of a finding of misconduct is public, the
records leading to the determination could be withheld. Further, when
allegations or charges of misconduct have not yet been determined or did not
result in disciplinary action, 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., Prisoners' Legal Services, supra; also Herald
Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)].
Therefore, to the extent that charges are dismissed or allegations are found to
be without merit, I believe that the records related to and including such
charges or allegations may be withheld.

Insofar as records exempt from disclosure under §50-a of the Civil
Rights Law are available only by means of a court order, that statute provides
in part that:

"2. Prior to issuing such court order the judge
must review all such requests and give
interested parties the opportunity to be heard.
No such order shall issue without a clear
showing of facts sufficient to warrant the
judge to request records for review.

3. If, after such hearing, the judge concludes
there is sufficient basis he shall sign an order
requiring that the personnel records in
question be sealed and sent directly to him.
He shall then review the file and make a
determination as to whether the records are
relevant and material in the action before him.
Upon such a finding the court shall make those
parts of the records found to be relevant and
material available to the persons so
requesting."

I hope that the foregoing serves to clarify the matter and that I have
been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

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