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July 27, 1999

Mr. Richard W. Dunnigan
90-B-3027/9-2-58
Tappan Correctional Facility
354 Hunter Street
Ossining, NY 10562-5442

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. Dunnigan:

I have received your letter of June 21. You have questioned the propriety of a denial of
your request for records relating to the discipline of a police officer by the City of Canandaigua.

In this regard, 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." 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 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 NY2d 562, 568
(1986)]. 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)]. The Court in an opinion rendered earlier
this year reiterated its view of §50-a, citing that decision and stating that:

"...we recognized that the decisive factor in determining whether an officer's
personnel record was exempted from FOIL disclosure under Civil Rights Law §50-a was the
potential use of the information contained therein, not the specific purpose of the particular
individual requesting access, nor whether the request was actually made in contemplation of
litigation.

‘Documents pertaining to misconduct or rules violations by corrections
officers - which could well be used in various ways against the officers - are the very sort of
record which *** was intended to be kept confidential. *** The legislative purpose underlying
section 50-a *** was *** to protect the officers from the use of records *** as a means for
harassment and reprisals and for the purpose of cross-examination' (73 NY2d, at 31 [emphasis
supplied])" (Daily Gazette v. City of Schenectady, 93 NY2d 145, 156- 157 (1999)].

To acquire the records in manner described in your letter, there must be a court order
issued in accordance with other provisions in §50-a. Those provisions state 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 a 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
record found to be relevant and material available to the persons so requesting."

Lastly, it is unclear on the basis of the materials whether the police officer that is the
subject of your request continues to serve as a police officer. If that person is no longer a police
officer, in view of decisions rendered by the Court of Appeals and the intent of §50-a of the Civil
Rights Law, I do not believe that §50-a would apply. In that event, the Freedom of Information
Law would govern rights of access.

If the Freedom of Information Law is the governing statute, final determinations
reflective of findings of misconduct would in my view be available. Pertinent to an analysis of
rights of access would be two of the grounds for denial.

Section 87(2)(b) 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 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].

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.

In sum, if the person who is the subject of your inquiry continues to serve as a police
officer, I believe that §50-a of the Civil Rights Law would govern, and that a court order would
be needed to obtain the records. If, however, he no longer serves as a police officer, the Freedom
of Information Law would govern, and the records would be accessible to the extent described
above.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Laura Kay Wharmby, City Clerk Treasurer
Lt. Jon. C. Wittenberg
Larry K. Preston, Chief