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October 13, 1999

 

Mr. James Wright
97-R-3002
Gowanda Correctional Facility
P.O. Box 311
Gowanda, NY 14070-0311

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. Wright:

I have received your letter of August 17. As I understand the matter, it is your view
that a corrections counselor at your facility has acted inappropriately, and you asked that this
office investigate. It also appears that you are interested in obtaining records pertaining to
the counselor concerning "disciplinary sanctions for bizarre or abus[ive] behavior…"

In this regard, the Committee on Open Government is authorized to provide advice
relating to public access to government records, primarily under the Freedom of Information
Law. The Committee does not have the authority to conduct investigations concerning the
conduct of public employees. It is suggested that you contact the proper officials at the
Department of Correctional Services in relation to your allegations.

With respect to access to records involving "disciplinary sanctions", 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)].

If the person in question is a correction officer, I believe that the records of your
interest would be exempt from disclosure pursuant to §50-a of the Civil Rights Law.

If the employee is not a correction officer, I believe that the Freedom of Information
Law would be the governing statute, and that 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 is a correction 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, that person is not a correction 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

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