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June 29, 1998

 

 

Ms. Annu Mangat
Reporter
P.O. Box 410
Red Hook, NY 12571-0410

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 Ms. Mangat:

I have received your letter of June 11, as well as the materials related to it.

The correspondence indicates that you requested "the disciplinary records of six police
officers who were disciplined by the Town Board" of the Town of Hyde Park in March "for
filing erroneous attendance records." According to Town officials, one police officer was
suspended without pay for sixty days, and five others were reprimanded. In response to your
request, it was unanimously resolved by the Town Board that "the material requested is
material of a personnel nature contained within the personnel files of the individuals, and said
release would be in violation of the Freedom of Information Act as an unwarranted invasion
of personal privacy."

You have sought an advisory opinion concerning the propriety of the Town's
response. In this regard, based on judicial decisions referenced in the following analysis, I
believe that the records should have been disclosed.

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 are pertinent in
consideration of rights of access to the records in question.

The provision to which the Town Board alluded, §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].

A second 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 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, 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.

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.

Pertinent in view of the number of officers involved, six, 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).

In sum, it has clearly been established by the courts that disclosure of determinations
indicating that public employees have been found to have engaged in misconduct would not
constitute an unwarranted invasion of personal privacy. Nevertheless, another ground for
denial is critical to an analysis of the matter.

Section 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 Daily Freeman, the purpose of the request appears to involve an effort
to inform the public concerning an issue of public interest and which bears on the
accountability of government and its employees. Moreover, the records at issue do not deal
with unsubstantiated allegations or complaints, for the officers have been found to have
engaged in misconduct.

I note that recent decision rendered by the Appellate Division, Third Department,
reversed a lower court decision in which it was held that the names of police officers who had
been reprimanded and which were sought by newspapers were shielded by §50-a of the Civil
Rights Law (Daily Gazette et al. v. City of Schenectady, ___ADd___, NYLJ, June 10, 1998).
In rejecting the lower court's conclusion that police officers and others whose records are the
subject of §50-a "are afforded an almost impenetrable cloak of secrecy", the Appellate
Division reviewed the holdings of the Court of Appeals cited earlier and found that:

"Clearly, the purpose of the information request in Prisoners'
Legal Servs. was potentially adversarial or litigious in nature.
However, the Court of Appeals was careful to contrast the
scenario with one where, as here in Matter of Capital
Newspapers Div. of Hearst Corp. v. Burns, (supra), the media
is merely seeking the information to report as news and not
with even a remote view toward any litigation. In making a
key distinction between the request in Capital Newspapers and
the FOIL request before it in Prisoners' Legal Services, the
Court of Appeals, referring to its holding in Capital
Newspapers, states:

* * * we by no means suggested that the
application of (§50-a) was limited to an
ongoing litigation. Rather, we simply
recognized that the legislative intent in
enacting the [correction officer] amendment to
section 50-a was to prevent release of sensitive
personnel records that could be used in
litigation for the purpose of harassing or
embarrassing correction officers * * * records
having remote or no such potential use, like
those sought in Capital Newspapers, fall
outside the scope of the statute (Matter of
Prisoners' Legal Servs. of N.Y. v. New York
State Dept. Of Correctional Servs., supra, at
33 [citation omited]).

"The use or potential use in litigation remains a critical factor
in assessing Civil Rights Law § 50-a protection as evidenced
in other cases ordering disclosure. For example, in a pre-Prisoners' Legal Servs. decision, this court permitted access
to a disciplinary determination action against a police
investigator, citing Capital Newspapers and stating that the
protection afforded under Civil Rights Law § 50-a ‘is only
intended to prevent access to police personnel records * * *
for purposes of harassment of the police on cross-examination
or otherwise in the context of a civil or criminal action'
(Matter of Scaccia v. New York State Div. of State Police,
138 AD2d 50, 54). Similarly, a post-Prisoners' Legal Servs.
decision in Supreme Court, Oneida County, ordered
disclosure of the final determination of a firefighter's
suspension hearing to a local newspaper, citing Capital
Newspapers and specifically rejecting the notion that Civil
Rights Law § 50-a (1) prohibited its release concluding:

* * *the court finds that in this non-litigation
context, [petitioner newspaper] is entitled to
disclosure of the final determination in this
fireman's suspension hearing, without
disclosing all the supporting allegations,
complaints or witness names (Matter of Rome
Sentinel Co. v. City of Rome, 145 Misc 2d
183, 186)" (emphasis added by court).

At the end of the decision, the Court held that:

"...Prisoners' Legal Servs. did not broaden the scope of the
Civil Rights Law § 50-a exemption to include FOIL requests
made in a context unrelated to litigation. Accordingly,
respondents have failed to demonstrate that the information
requested by petitioners comes squarely within the Civil
Rights Law § 50-a FOIL exemption because they have not
established, in any convincing way, that the information
sought would be used in existing or potential litigation. The
names of the police officers involved and the respective
discipline imposed must be released to petitioners."

Based upon the recent holding quoted above, as well as the other judicial decisions
cited previously, I believe that the records sought are accessible under the Freedom of
Information Law.

As you requested, a copy of this opinion will be forwarded to Supervisor Spence.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Thomas Spence, Supervisor