June 17, 2005
I have received letters from both of you acting in your capacities as attorneys for municipalities concerning the disclosure of a personnel file pertaining to a police officer who resigned from the Cohoes Police Department. Mr. Derosia wrote that the file includes "citizen complaints (both founded and unfounded), letters of reprimand, notices of discipline arbitrator decisions (being found guilty of some charges and not guilty of others), and notices of suspension." The officer was later hired by the City of Rensselaer, Mr. Stewart’s client. Disciplinary charges have been initiated by that municipality against the officer, which has led the City of Rensselaer to seek the personnel file from the City of Cohoes pertaining to the officer.
From my perspective, the primary issue involves the interpretation of §50-a(4) of the Civil Rights Law. Insofar as that is so, the matter appears to be beyond the advisory jurisdiction of this office. As you are likely aware, §89(1) of the Freedom of Information Law provides the Committee on Open Government with the responsibility to prepare advisory opinions involving that statute. Situations frequently arise in which the Freedom of Information Law must be considered in relation to other statutes in order to offer correct and appropriate advice. However, in this instance, to the extent that §50-a(4) applies, I do not believe that the Freedom of Information Law is implicated in any way.
As a general matter, the Freedom of Information Law pertains to the obligation of government agencies to disclose records to the public, or conversely, their ability to deny public access. The first basis for denying access, §87(2)(a), involves situations in which records "are specifically exempted from disclosure by state or federal statute." One such statute, as you are aware, is §50-a of the Civil Rights Law. Subdivision (1) states in relevant part that:
"All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department....shall be considered confidential and not subject to review without the express written consent of such police officer....except as may be mandated by lawful court order."
Based on the foregoing, when a request for personnel records pertaining to a police officer is made under the Freedom of Information Law, consideration must be given to §50-a of the Civil Rights Law, for some personnel records pertaining to police officers are "used to evaluate performance toward continued employment or promotion", while others are not. Insofar as such records are used to evaluate performance toward continued employment or promotion, they are, in my view, exempted from disclosure by statute. Insofar as §50-a does not apply, I believe that the Freedom of Information Law governs in determining the ability or perhaps the obligation to disclose.
Allegations or charges against police officers, whether substantiated or otherwise, as well as reprimands or other determinations in which there have been findings or admissions of misconduct, have been found to be exempted from disclosure pursuant to §50-a [see e.g., Prisoners’ Legal Services of New York v. NYS Department of Correctional Services, 73 NY2d 26 (1988); Daily Gazette v. City of Schenectady, 93 NY2d 145 (1999)]. On the other hand, attendance and leave records and a settlement agreement pertaining to a retired police officer were found to be accessible under the Freedom of Information Law, for those records were not used to evaluate performance toward continued employment or promotion, and, therefore, §50-a did not apply [see respectively, Capital Newspapers v. Burns, 67 NY2d 562 (1986) and Village of Brockport v. Calandra, 305 AD2d 1030 (2003)].
In short, to the extent that the contents of the records at issue are or would not be used to evaluate performance toward continued employment or promotion, in my opinion, there is no bar to disclosure. However, to the extent that the records are used for that purpose, I believe that §50-a of the Civil Rights Law, not the Freedom of Information Law, is the governing statute and subdivision (4) is most relevant in that context. That provision states that:
"The provisions of this section shall not apply to any district attorney or his assistants, the attorney general or his deputies or assistants, a county attorney or his deputies or assistants, a corporation counsel or his deputies or assistants, a town attorney or his deputies or assistants, a village attorney or his deputies or assistants, a grand jury, or any agency of government which requires the records described in subdivision one, in the furtherance of their official functions" (emphasis added).
As I view the language quoted above, it is based on a recognition that records that are ordinarily exempt from disclosure may be disclosed to certain government officials or agencies acting in the performance of their official duties. While it appears that subdivision (4) authorizes the City of Cohoes to disclose the records at issue that are exempt from disclosure to the public to the City of Rensselaer, for the latter is seeking the records "in the furtherance of [its] official functions", I cannot properly offer a formal opinion on the matter, for it does not involve the interpretation of the Freedom of Information Law. It is suggested that you might seek guidance from either the Attorney General or the Conference of Mayors.
I regret that I cannot be of greater assistance.
Robert J. Freeman