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 FOIL-AO-15198

March 7, 2005

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter and appreciate your kind words.

You wrote that in September of last year, the Putnam County Sheriff initiated disciplinary charges against a Department investigator who is "a statutory public officer." Charges were served upon the officer pursuant to §75 of the Civil Service Law and departmental rules and regulations. Two months later, a complaint was filed charging the officer with a crime "connected to acts alleged in the disciplinary charges." In December, the officer admitted to some of the departmental charges, and the remainder were withdrawn. Based on the officer’s admission, the hearing officer recommended that the officer be discharged for cause, and you indicated that "that result is anticipated."

"With the final disposition of the disciplinary matter in sight", you wrote that the Sheriff seeks to be "as forthcoming with the public...as well as the law will allow, while also respecting the privacy rights that the law affords the former officer." Consequently, you offered an analysis of rights of access to records pertinent to the matter, and you have sought my views concerning that analysis.

In this regard, as you are aware, a key issue involves the application of §50-a of the Civil Rights Law. That statute provides, in brief, that personnel records pertaining to police and correction officers that are "used to evaluate performance toward continued employment or promotion" are confidential; those records cannot be disclosed absent the consent of the officer who is the subject of the records or a court order.

In consideration of its legislative history and intent, it has been advised that §50-a does not apply when the subject of a record is no longer employed as a police officer. I am mindful of the decision rendered in Guzman v. City of New York in which the court held to the contrary, that the application of §50-a continues after an individual no longer is employed as a police officer [91 Misc. 2d 270, 271 (1977)]. Nevertheless, Guzman was decided only one year after the enactment of §50-a. Since that time, other courts, including the Court of Appeals, have provided direction concerning its application. Specifically, in considering the legislative history leading to its enactment, the Court of Appeals found that §50-a "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)].

In short, if a police officer was involved in an arrest or investigation and is called to testify regarding the arrest or investigation, personnel records relating to an officer’s performance cannot be used to harass or embarrass the officer in the context of that litigation. Again, the bar to disclosure imposed by §50-a deals with personnel records that "are used to evaluate performance toward continued employment or promotion." When a person has retired or is no longer employed as a police officer, there is no issue involving continued employment or promotion. That being so, in my opinion, the rationale for the confidentiality accorded by §50-a is no longer present, and that statute no longer is applicable or pertinent.

In short, the holding in Guzman, which preceded the issuance of decisions concerning §50-a rendered by the Court of Appeals, has, in my view, been supplanted based on the direction offered by the state’s highest court.

Further, in an advisory opinion rendered by the Committee on Open Government, FOIL-AO- 12423, it was opined, for reasons expressed above, that §50-a does not apply when a person no longer is employed as a police officer. In that opinion, it was advised at its start that "I do not believe that §50-a is applicable if an individual is no longer employed as a police officer." The Supreme Court in Village of Brockport v. Calandra made specific reference to that opinion, characterizing the opinion as "instructive" [748 NYS2d 662, 668 (2002)]. While the court did not find a need to focus on that aspect of the opinion specifically, certainly it could have expressed disagreement if it saw fit to do so. The Appellate Division could also have done so, but it chose to unanimously affirm (305 AD2d 1030 (2003)]. I would conjecture that the tacit approval of the advisory opinion suggests agreement with its content.

Next, assuming that the officer in question has been terminated or has resigned, you have contended that the records at issue "relate not to the officer’s continued employment but, rather, to his discharge from duty." Based on the holding in Village of Brockport, if the records did not "evaluate [the officer’s] performance or contemplate his continued employment" (id., 669), I would agree that §50-a of the Civil Rights Law would not apply. If that is so, some elements of the records would , in my opinion, be accessible while others could be withheld.

Although §87(2)(b) of the Freedom of Information Law authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy", the courts have provided substantial direction regarding the privacy of public employees. First, it is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public employees are required to be more accountable than others. Second, with regard to records pertaining to public employees, the courts have found that, as a general rule, records that are relevant to the performance of a public employee' s 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); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); 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].

Also pertinent is §87(2)(g), which authorizes an agency to 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.

In consideration of the foregoing, I believe that portions of records involving charges that were sustained must be disclosed, for they are clearly relevant to the officer’s duties. Additionally, they would constitute an agency’s final determination that would be available under §87(2)(iii).

On the other hand, 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.

Lastly, the records might identify witnesses or persons other than the officer charged. In that circumstance, those portions might properly be denied pursuant to §§87(2)(b) or 89(2)(b) on the ground that disclosure would constitute an unwarranted invasion of personal privacy of those persons, or perhaps pursuant to §87(2)(f). That provision authorizes an agency to withhold records insofar as disclosure could reasonably be expected to "endanger the life or safety of any person."

If I have inaccurately construed any of your remarks, please do not hesitate to call me.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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