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August 5, 1998

Mr. Karsem M. Williams
95-A-6745
P.O. Box 149
Attica, NY 14011

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. Williams:

I have received your letter of July 27. You referred to §50-a of the Civil Rights Law
concerning the confidentiality of certain personnel records pertaining to correction officers
and asked whether that statute continues to apply after the death of a correction officer.

From my perspective, when a person has ended his or her service as a correction
officer, the protection accorded by §50-a ends. In this regard, I offer the following
comments.

By way of background, 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 first ground for denial, §87(2)(a), pertains to records that "are
specifically exempted from disclosure by state or federal statute." As you are aware, 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 exempts
records from disclosure when a request is made in a context relating 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)].

If the subjects of the records are no longer correction officers or are deceased, I do
not believe that §50-a would be applicable. In short, the rationale for confidentiality accorded
by that provision would no longer be present.

The foregoing is not intended to suggest that all records identifying a correction
officer who is now deceased must be disclosed, for other grounds for denial may be
applicable. For instance, such records may consist of "intra-agency materials" that would be
accessible or deniable, depending upon their contents, under §87(2)(g) of the Freedom of
Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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